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 2005Cases Cited: Attorney-General v Bar-Mordecai [2005] NSWSC 142
Application by Michael Bar-Mordecai [2012] NSWSC 501Category: 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…
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- Case
- [2013] NSWSC 1286
- Decision Date
CaseChat Overview and Summary
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.
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