Application of Bar-Mordecai - [2014] NSWSC 1202

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Application of Bar-Mordecai [2014] NSWSC 1202
Hearing dates: 20 May 2014
Decision date: 01 September 2014
Jurisdiction: Common Law
Before: Adams J
Decision:
(1) Leave is granted to the plaintiff to institute proceedings by lodging with the Executive Officer of the Medical Council an application for review by the New South Wales Civil and Administrative Tribunal pursuant to s 163A of the Health Practitioner Regulation National Law (NSW) of the Tribunal's order of 6 September 2000 that the plaintiff's name be removed from the Register of Practitioners.
(2) The leave granted in order (1) is subject to the following condition -
The proceedings are to be instituted by lodging an application for review limited to the following grounds -
(a) The applicant is a fit and proper person to practice medicine at the date of filing this application.
(b) The applicant has -
(i) Maintained his knowledge and skills in medicine by having studied daily over 20,000 medical illnesses;
(ii) Relearned the Mims;
(iii) Attended his brother's surgery for reskilling training in procedural medicine;
(iv) Authored a 700 page textbook of medicine in 2011, yet to be published;
(v) Developed a computerized medical information system to assist a medical practitioner in the diagnosis of diseases;
(vi) Addressed the issues of emotional insight into each former ethical transgression so as not to reoffend;
(vii) Regularly physically exercised daily to keep his mind and body alert;
(viii) Attended discussions with his brother about various medical issues;
(ix) Having participated in self-educational activities over the last 9 years on a daily basis, relevant to the discipline of General Practice, by which he has further developed and maintained his competence and performance;
(x) Observed and kept up to date with the laws and codes which affect the discipline of general practice; and
(xi) Created, maintained and updated a medical database of more than 2.06 gigabytes with 24,000 Files, 3,244 directories and subdirectories as at 6.9.2013 such that the medical information system can assist a GP in the practice of Medicine by providing a differential diagnosis, treatment protocols, and information on specific disease entities.
(3) The parties are to file and serve within 10 days of the date hereof written submissions on the question of costs.

Legislation Cited: Supreme Court Act 1970 (NSW), s 84(1)
Health Practitioner Regulation National Law (NSW), ss 16(4), 163, 163A
Medical Practice Act 1992 (NSW)
Uniform Civil Procedure Rules, r 12.10
Vexatious Proceedings Act 2008 (NSW), ss 4, 16(4)
Cases Cited: Bar-Mordecai v Attorney General of New South Wales [2012] NSWSC 453
Phillip Morris Limited v Attorney General (Vic) (2006) 14 VR 538
Re Mr Bar-Mordecai [2009] NSWMT 1
In Re Dr Michael Jacob Bar-Mordecai and the Medical Practice Act, Medical Tribunal of New South Wales, 6 September 2000
Category: Principal judgment
Parties: Michael Bar-Mordecai (plaintiff)
Attorney-General (first interested party)
NSW Medical Council (second interested party)
Representation: Counsel:
K G Oliver (first interested party)
P Ginters (second interested party)
Solicitors:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NSWSC 1202
Decision Date: 01 September 2014

CaseChat Overview and Summary

In this matter, the plaintiff, Michael Bar-Mordecai, applied to the Supreme Court of New South Wales for leave to institute proceedings for review by the New South Wales Civil and Administrative Tribunal of a decision to remove his name from the Register of Practitioners. The defendant, the Attorney-General, and the second interested party, the New South Wales Medical Council, did not oppose the grant of leave, provided it was subject to certain conditions. The plaintiff had previously been granted leave to institute proceedings by Beech-Jones J, but subsequently abused the grant by persistently seeking to rely on materials which breached the Court's conditional grant of leave.

The legal issues before the court were whether leave should be granted, and if so, whether it should be subject to certain conditions. The court considered the Vexatious Proceedings Act 2008 (NSW) and the Health Practitioner Regulation National Law (NSW), and found that leave should be granted subject to conditions. The court determined that the plaintiff's conduct in the proceedings in the Tribunal was contumelious and that the plaintiff had difficulty refraining from introducing matters which had no proper basis into his application. The court held that the plaintiff's application for review should be limited to the grounds and claims for relief set out in the proposed application, and that the plaintiff should not file evidence or make submissions that are scandalous, render the review application an abuse of the process of the Tribunal, result in the application being pursued without reasonable grounds, or would result in the application being conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

The court granted leave to the plaintiff to institute proceedings by lodging an application for review by the New South Wales Civil and Administrative Tribunal pursuant to s 163A of the Health Practitioner Regulation National Law (NSW) of the Tribunal's order of 6 September 2000 that the plaintiff's name be removed from the Register of Practitioners. The leave granted was subject to certain conditions, including that the application for review should not include scandalous allegations against judicial officers or seek to call into question previous findings made by the Tribunal, and that the application should be limited to the grounds and claims for relief set out in the proposed application. The parties were to file and serve within 10 days of the date hereof written submissions on the question of costs.

Orders