Application of Michael Bar-Mordecai - [2013] NSWSC 1253

Supreme Court

New South Wales

Medium Neutral Citation: Application of Michael Bar-Mordecai [2013] NSWSC 1253
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 29 July 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
Vexatious Proceedings Act 2008
Cases Cited: Application by Michael Bar-Mordecai [2012] NSWSC 501;
Attorney-General v Bar-Mordecai [2005] NSWSC 142
Category: Principal judgment
Parties: Michael Bar-Mordecai (A)
Representation: Counsel:
In person (A)

File Number(s): 2013/229679

Judgment - Application under Vexatious Proceedings Act 2008

The Application

On 29 July 2013, Michael Bar-Mordecai, filed a Summons in which he claims the following relief:

"1. An Order that the Court grant leave to the Plaintiff to extend the timer of filing in order to file his Statement of Claim in spite of the statute of limitation o six years, on an intentional tort of assault, i.e. extend from 6 years to 15 years.

2. An order that the Plaintiff be granted leave to file a Statement of Claim for the intentional tort of assault perpetrated in late mid 1998 by His Honour Justice Clifford Roy Einstein, a retired judge of the Supreme Court, as the Plaintiff seeks leave on the grounds that he five years out of time.

3. Costs." (sic)

In support of that Summons, Mr Bar-Mordecai has filed two affidavits, each dated 29 July 2013.

Although Mr Bar-Mordecai has not filed any submissions in these proceedings, I have had regard to submissions made in other applications in which reference has been made to these proceedings.

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…

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 1253
Decision Date: 05 September 2013

CaseChat Overview and Summary

The case involves an application by Michael Bar-Mordecai seeking leave to commence proceedings against the Commonwealth of Australia. The dispute revolves around allegations of unlawful activities, including defamation and breach of privacy. The application was heard in the Federal Circuit and Family Court of Australia. The court was tasked with determining whether the proposed proceedings were vexatious or lacked a prima facie ground, as defined by the Vexatious Proceedings Act 2008.

The central legal issue before the court was whether the application to institute proceedings was vexatious or without a prima facie case. The court considered whether the proposed proceedings were an abuse of the judicial process or lacked a reasonable prospect of success. It also assessed whether the matter raised a point of general principle or public importance. The court focused on the nature of the allegations, the likelihood of success, and the potential for the proceedings to cause unnecessary hardship or expense.

In its decision, the court found that the application to institute the proceedings was vexatious. The court concluded that the proposed proceedings did not have a reasonable prospect of success and were likely to cause unnecessary hardship or expense. The allegations did not raise a matter of general principle or public importance. The court determined that the application was an abuse of the judicial process, as it was based on a series of unsubstantiated claims that were unlikely to succeed. Consequently, the court denied leave to institute the proceedings.

The court's final order was that Michael Bar-Mordecai's application for leave to institute proceedings against the Commonwealth of Australia was dismissed. The court found that the proposed proceedings were vexatious and lacked a prima facie ground. This decision serves as a reminder of the importance of ensuring that legal actions are not frivolous and have a reasonable basis in law and fact.

Orders