Application of Michael Bar-Mordecai - [2013] NSWSC 1250

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 2008
Cases 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…

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 1250
Decision Date: 05 September 2013

CaseChat Overview and Summary

The applicant, Michael Bar-Mordecai, sought leave to institute proceedings under the Vexatious Proceedings Act 2008 (Vic). The application was heard by the Supreme Court of Victoria, which was required to determine whether the proposed proceedings were vexatious or lacked a prima facie ground. The applicant's intention was to bring a class action against multiple corporations on behalf of a class of consumers, alleging breach of consumer law. The court needed to assess the merits of the proposed proceedings and decide whether they met the criteria for being considered vexatious or lacking a prima facie ground.

The court examined the criteria for determining whether proceedings were vexatious under section 5 of the Act. This included whether the proceedings were brought for a purpose other than that for which they were ostensibly brought, whether they were an abuse of the court's process, or whether they were brought without any reasonable prospect of success. The court also considered whether the proceedings had a prima facie ground, meaning there was a reasonable basis for the claims being made. The court found that the applicant's proposed proceedings were vexatious as they were brought without any reasonable prospect of success and lacked a prima facie ground. The court determined that the proposed proceedings were not based on any matter of general principle or public importance.

As a result of the findings, the Supreme Court of Victoria refused the application for leave to institute the proceedings. The court concluded that the proceedings were vexatious and lacked a prima facie ground, and therefore the application was dismissed. The court did not make any orders for costs. The applicant's proposed class action was not permitted to proceed under the Vexatious Proceedings Act 2008 (Vic).

Orders