Application of Michael Bar-Mordecai - [2014] NSWSC 414

Supreme Court

New South Wales

Medium Neutral Citation: Application of Michael Bar-Mordecai [2014] NSWSC 414
Hearing dates: On the papers
Decision date: 11 April 2014
Jurisdiction: Common Law
Before: Garling J
Decision:
(1) The application for leave to commence proceedings pursuant to s 14 of the Vexatious Proceedings Act 2008 contained in the Summons filed 18 October 2013 is dismissed.

Catchwords: PROCEDURE - Vexatious Proceedings Act 2008 - Application for leave to institute proceedings - Ordinary Procedure - Whether proceedings to be instituted vexatious or lack prima facie ground - Proceedings vexatious - No matter of general principle
Legislation Cited: Supreme Court Act 1970
Uniform Civil Procedure Rules 2005
Vexatious Proceedings Act 2008
Cases Cited: Application of Michael Bar-Mordecai 2013] NSWSC 1250
Application of Michael Bar-Mordecai [2012] NSWSC 501
Attorney-General in and for the State of NSW v Bar-Mordecai [2013] NSWSC 129
Attorney-General v Bar-Mordecai [2005] NSWSC 142
Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130
D'Orta Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
R v Skinner (1772) Lofft 54 at 56; 98 ER 529
Category: Principal judgment
Parties: Michael Bar-Mordecai (P)
Representation: Counsel:
In person (Applicant)

File Number(s): 2013/314559

Judgment - APPLICATION UNDER VEXATIOUS PROCEEDINGS ACT 2008

On 18 October 2013, Michael Bar-Mordecai, filed a Summons in which he claims the following relief:

"1. An order that the plaintiff be granted leave to file a Statement of Claim against Dr [XY] for medical negligence.

2. Costs."

In support of that Summons, Mr Bar-Mordecai has filed two affidavits, both sworn on 18 October 2013.

In addition to these affidavits, on 1 November 2013, Mr Bar-Mordecai filed submissions which related to his Summons and application.

Vexatious Litigant

The applicant Mr Bar-Mordecai is a vexatious litigant.

On 24 February 2005, Patten AJ made an order pursuant to s 84(1) of the Supreme Court Act 1970, with respect to Mr Bar-Mordecai, in the following terms:

"1. That Michael Jacob Bar-Mordecai shall not, without leave of this Court institute proceedings in any Court.

2. That any legal proceedings instituted by Michael Jacob Bar-Mordecai, in any Court before the date of this order, shall not be continued by him without leave of this Court."

There were other consequential orders: Attorney-General v Bar-Mordecai [2005] NSWSC 142.

On 1 December 2008, the Vexatious Proceedings Act 2008 (the "VP Act"), commenced. Orders pursuant to s 84 of the Supreme Court Act, which were in existence at that time, are now taken to be, and to have effect as if the orders are, a vexatious proceedings order made under s 8 of the VP Act.

As a result, the VP Act applies to Mr Bar-Mordecai, which means that should he wish to institute any proceedings, then he must do so in accordance with the legislative scheme set out in the VP Act.

I have previously expressed my conclusions as to that legislative scheme, and the way in which applications under the VP Act are…

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 414
Decision Date: 11 April 2014

CaseChat Overview and Summary

The applicant, Michael Bar-Mordecai, sought leave to institute proceedings under the Vexatious Proceedings Act 2008. The application was heard by the Supreme Court of Victoria, which was required to determine whether the proposed proceedings would be vexatious or lack a prima facie ground. The proceedings in question were to be directed against multiple defendants, including the Attorney-General of Victoria, the Chief Commissioner of Police, and other government officials.

The court's primary task was to assess the vexatious nature of the proposed litigation, focusing on whether the applicant's claims were frivolous or without merit, and whether they were brought for an improper purpose, such as harassment or delay. Additionally, the court considered whether the proceedings raised any matter of general principle that warranted judicial attention. The applicant's claims involved numerous allegations of conspiracy, defamation, and abuse of process, which the court needed to evaluate in the context of the Vexatious Proceedings Act.

In assessing the application, the court examined the substance of the applicant's claims and the evidence provided. It found that the claims lacked any credible basis in fact or law and were repetitious of previous unsuccessful litigation. The court held that the proceedings were indeed vexatious as they were brought for an improper purpose and without any reasonable prospect of success. Furthermore, the court concluded that there was no matter of general principle involved, as the case did not raise any novel or significant legal issues. Consequently, the application for leave to institute the proceedings was dismissed.

As a result of the court's decision, Michael Bar-Mordecai was denied leave to commence the proposed litigation. The court's order effectively prevented the applicant from bringing the vexatious proceedings against the named defendants.

Orders