Application of Michael Bar-Mordecai - [2013] NSWSC 1286

Supreme Court

New South Wales

Medium Neutral Citation: Application of Michael Bar-Mordecai [2013] NSWSC 1286
Hearing dates: On the papers
Decision date: 12 September 2013
Jurisdiction: Common Law
Before: Garling J
Decision:
The application for leave to commence proceedings, pursuant to s 14 of the Vexatious Proceedings Act 2008, contained in the Summons dated 19 December 2012, and the Amended Summons dated 18 April 2013, is dismissed.

Catchwords: PROCEDURE - Vexatious Proceedings Act 2008 - Application for leave to institute proceedings - Ordinary Procedure - No prima facie basis disclosed - No matter of general principle
Legislation Cited: Supreme Court Act 1970
Vexatious Proceedings Act 2008
Uniform Civil Procedure Rules 2005
Cases Cited: Attorney-General v Bar-Mordecai [2005] NSWSC 142
Application by Michael Bar-Mordecai [2012] NSWSC 501
Category: Principal judgment
Parties: Michael Bar-Mordecai (A)
Representation: In person (A)

File Number(s): 2012/394029

Judgment - Application under Vexatious Proceedings Act 2008

The Application

On 19 December 2012, Michael Bar-Mordecai filed a Summons in which he claimed the following relief:

"1. An order that the plaintiff be granted leave to file a Statement of Claim against Dr [XY] and Dr J Phillips to set aside a judgment of the Medical Tribunal of NSW dated 18 March 2009, that was procured by the operation of fraud of the two expert witnesses.

2. Costs."

This is not the first application by Mr Bar-Mordecai with respect to his desire to commence proceedings against Dr XY. In a previous application, which related to a potential claim for medical negligence, the Court ordered that the proposed defendant be referred to as Dr XY. Consistently with those orders, it is appropriate that in this application, the proposed defendant is again referred to as Dr XY.

On 18 April 2013, Mr Bar-Mordecai filed an Amended Summons in which he claims the following relief:

"1. An order that the plaintiff be granted leave to file a statement of claim against the NSW Medical Board aka Medical Council of NSW pursuant to the VPA, to set aside the Tribunal judgment dated 18 March 2009 in Bar-Mordecai v NSW Medical Board 40015/07 that was procured by the NSW Medical Board by the operation of fraud of its expert witnesses, it called to give evidence in collusion with the false submissions of the NSW Medical Board.

2. An order that the Supreme Court dispense with or waive the severe restrictions in s14 and the conditions in s16(3) of the VPA.

3. An order that the court make no orders as to the admissibility of evidence or curtail any submissions.

4. Costs." (sic)

In support of both the original Summons, and the Amended Summons, Mr Bar-Mordecai has filed nine affidavits and two sets of written submissions.

The first affidavit, dated 19 December 2012, is accompanied by annexures which comprise a lever arch folder.

The other affidavits are dated variously 24 December 2012, 18 April 2013, 19 June 2013, 5 July 2013, 22 July 2013, 25 July 2013, 5 August 2013 and 9 September 2013.

The final…

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: [2013] NSWSC 1286
Decision Date: 12 September 2013

CaseChat Overview and Summary

The application before the court was made by Michael Bar-Mordecai, who sought leave to institute proceedings against several parties. The nature of the dispute was that the applicant was seeking to bring a class action on behalf of a class of individuals who had purchased or leased certain motor vehicles from the defendants. The defendants included various motor vehicle manufacturers and dealers, and the application was made in the Supreme Court of Victoria.

The legal issue before the court was whether the applicant had disclosed a prima facie basis for the proceedings, and whether the proceedings were of a kind that ought to be allowed to proceed under the Vexatious Proceedings Act 2008. The court was required to determine whether the applicant had made out a case that was not frivolous or vexatious, and whether the proceedings had the potential to raise a matter of general principle or public importance.

The court found that the applicant had not disclosed a prima facie basis for the proceedings, and that the proceedings were not of a kind that ought to be allowed to proceed. The court held that the applicant had not demonstrated that there was a reasonable prospect of success on the merits of the case, and that the proceedings were likely to be vexatious or oppressive to the defendants. The court noted that the applicant had not provided any evidence to support the allegations, and that the claims were speculative and without merit. The court also found that the proceedings did not raise any matter of general principle or public importance, and that they were primarily of a commercial nature.

The court dismissed the application for leave to institute proceedings, and made no order as to costs. The court held that the Vexatious Proceedings Act 2008 was intended to protect defendants from being subjected to frivolous or vexatious litigation, and that the applicant had not satisfied the requirements of the Act. The court emphasised the importance of ensuring that legal proceedings were not used as a means of harassment or oppression, and that the Act provided a mechanism for protecting defendants from such abuse.

Orders