Application of Michael Bar-Mordecai
[2013] NSWSC 1250
•05 September 2013
Supreme Court
New South Wales
Medium Neutral Citation: Application of Michael Bar-Mordecai [2013] NSWSC 1250 Hearing dates: On the papers Decision date: 05 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 filed 8 March 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 1970Uniform Civil Procedure Rules 2005
Vexatious Proceedings Act 2008Cases Cited: Application by Michael Bar-Mordecai [2012] NSWSC 501; Attorney-General v Bar-Mordecai [2005] NSWSC 142; Attorney-General in and for the State of New South Wales v Bar-Mordecai [2013] NSWSC 129; Attorney-General in and for the State of New South Wales v Bar-Mordecai [2013] NSWSC 153 Category: Principal judgment Parties: Michael Bar-Mordecai (A) Representation: In person (A)
File Number(s): 2013/77667
Judgment - Application under Vexatious Proceedings Act 2008
The Application
On 8 March 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."
This is not the first application by Mr Bar-Mordecai with respect to his desire to commence proceedings against Dr XY for medical negligence. In a previous application, the Court has 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.
In support of the Summons, Mr Bar-Mordecai has filed a lengthy affidavit sworn 8 March 2013 of 91 pages, accompanied by two large folders of annexures. Mr Bar-Mordecai has also filed three additional affidavits, the first sworn on 27 March 2013, the second sworn on 20 June 2013, and the last sworn on 5 July 2013.
In addition, Mr Bar-Mordecai has filed submissions on 27 March 2013.
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 only do so consequent upon a grant of leave by this Court 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 to be dealt with. There is no need for me to repeat those conclusions here. They can be found in the Application by Michael Bar-Mordecai [2012] NSWSC 501 at [9]-[20].
As those conclusions show, the first step to be considered by the Court is whether to grant leave pursuant to s 16(1) of the VP Act to serve the summons and affidavits on the "relevant persons".
In considering the application by Mr Bar-Mordecai for leave to commence proceedings under the VP Act, it is open to, and appropriate for, the Court, at this stage, when considering whether to make orders under s 16(1) of the VP Act, to consider whether having regard to the provisions of s 15 of the VP Act, the Summons for leave to commence proceedings must be dismissed.
Previous Proceedings
On 27 February 2013, Schmidt J, in a published judgment, refused leave to Mr Bar-Mordecai to commence proceedings for medical negligence against Dr XY. In those proceedings, the parties were Mr Bar-Mordecai, the Attorney-General of NSW, and Dr XY. Her Honour refused leave to commence proceedings against Dr XY, and dismissed Mr Bar-Mordecai's application under s 15(1)(b) of the VP Act. Her Honour ordered that Mr Bar-Mordecai pay the other parties' costs, as agreed or assessed: Attorney-General in and for the State of New South Wales v Bar-Mordecai [2013] NSWSC 129.
Immediately prior to the delivery of her Honour's reserved judgment on 27 February 2013, Mr Bar-Mordecai applied for leave to re-open the application. For the short reasons which her Honour delivered on that day, that application was refused: Attorney-General in and for the State of New South Wales v Bar-Mordecai [2013] NSWSC 153.
Having dismissed the application of Mr Bar-Mordecai to re-open the proceedings, Schmidt J then delivered her reserved judgment on the substantive application.
Her Honour held that Mr Bar-Mordecai had not complied with the obligations in r31.36 of the Uniform Civil Procedure Rules 2005, which requires that a plaintiff must disclose the expert opinion upon which a claim for professional negligence is based, when a statement of claim is filed. In those circumstances, her Honour held that a prima facie case, as required by s 15(1) of the VP Act was not established. Included in this conclusion was that the expert material, including reports, tendered did not address, let alone satisfy, the requirements of the Civil Liability Act 2002, as to causation. Schmidt J said:
"Mr Bar-Mordecai could not thereby prove on the balance of probabilities that without the alleged negligence the Tribunal would not have made the decision it did
As well, her Honour concluded that she was satisfied that the proceedings, if instituted, would be vexatious, taken for a number of wrongful purposes and that they would constitute an abuse of process.
Proposed Claim
Mr Bar-Mordecai has included in this application, a proposed draft Statement of Claim which sets out the nature of the claim for which he seeks leave to proceed.
Although the final proposed draft Statement of Claim which was put before Schmidt J, is not available to me on this application, it is readily apparent from the reasons of Schmidt J, and the proposed draft Statement of Claim, that the claim which it is now proposed to make by Mr Bar-Mordecai, is in substance and effect, identical to that considered by Schmidt J.
As well, so far as can be ascertained from a comparison of the judgment of Schmidt J, and the materials placed before the Court on this application, there is no new expert evidence provided by Mr Bar-Mordecai which would found a basis for the claims of medical negligence which he makes. At best, what is provided, but only as an annexure to an affidavit filed in these proceedings, is what Mr Bar-Mordecai himself has described as "a specimen report on the basis of Dr XY's medical negligence" of which he is the author.
Dr XY, whom it is proposed to sue, is a specialist psychiatrist. Mr Bar-Mordecai has never professed such a specialty.
The opening paragraphs of the specimen medico-legal report authored by the applicant, disclose that the applicant - although originally qualified to practice as a medical practitioner - and a person who practised as a medical practitioner for 25 years, is not currently in practice, and is not a specialist psychiatrist.
The applicant purports to complete this specimen medico-legal report as "a member of the public [who says] with confidence what I would expect from an assessing and treating psychiatrist".
The contents of this "specimen report" do not address the deficiencies identified by Schmidt J in her reasons.
Discernment
I am satisfied that the application for leave to institute proceedings for medical negligence against Dr XY must be dismissed pursuant to s 15 of the VP Act.
My reasons for this conclusion include, but are not limited to, those which follow, which are more than sufficient as a basis for the order:
First, the material provided to the Court on the application, does not disclose that there is a prima facie basis sufficient to justify the commencement of proceedings for professional negligence.
Secondly, I am well satisfied, having regard to the reasons for judgment of Schmidt J, and in light of the fact that there is no additional evidence of any weight or substance, let alone evidence which is capable of being admissible, provided with this application, which would be able to support the proposed claim, that the proposed proceedings are vexatious.
Thirdly, the form and content of the proposed statement of claim, is such that, if filed, it would be likely to be struck out pursuant to r 14.28 of the UCPR. Accordingly, it would be futile to grant the leave sought.
Orders
The application for leave to commence proceedings pursuant to s 14 of the Vexatious Proceedings Act 2008, contained in the Summons filed 8 March 2013, is dismissed.
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Decision last updated: 05 September 2013
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