Application of Michael Bar-Mordecai
[2013] NSWSC 1251
•05 September 2013
Supreme Court
New South Wales
Medium Neutral Citation: Application of Michael Bar-Mordecai [2013] NSWSC 1251 Hearing dates: On the papers Decision date: 05 September 2013 Jurisdiction: Common Law Before: Garling J Decision: Application for leave to commence proceedings pursuant to s 14 of the Vexatious Proceedings Act 2008, contained in the Summons filed 23 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 2008Cases Cited: Application by Michael Bar-Mordecai [2012] NSWSC 501;
Attorney-General v Bar-Mordecai [2005] NSWSC 142Category: Principal judgment Parties: Michael Bar-Mordecai (A) Representation: In person (A)
File Number(s): 2013/223593
Judgment - Application under Vexatious Proceedings Act 2008
The Application
On 23 July 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 in the Supreme Court of NSW seeking compensation and damages from the State of NSW, for intentional of assault in the District Court 3.1 of the Downing Centre by the assailant judicial officer, Chief Judge Reginald Blanch, at about 9.40am on 7 November 2007.
2. An order that the proceedings be conduct in camera to protect of the privacy of the plaintiff/victim and the assailant, his Honour Justice Reginald Blanch, such that a Duty Judge in Common Law review documents in camera, to determine if revelation of documents in open court will be desirable or necessary.
3. An order that all directions hearings be conducted in camera by a Duty Judge without a Duty Registrar or a case management Registrar being involved.
4. That the document be filed in Court and be kept by the Duty Judge.
5. Costs."
In support of that Summons, Mr Bar-Mordecai has filed two affidavits, the first sworn on 23 July 2013, and the second sworn on 25 July 2013.
In addition to these affidavits, Mr Bar-Mordecai has filed submissions on 23 July 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 BarMordecai, 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 conclusion 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. It 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 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.
Discernment
I am satisfied that Mr Bar-Mordecai's application for leave to institute proceedings 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 that dismissal.
First, the cause of action which Mr BarMordecai seeks to propound is one for damages based upon an allegation that he was assaulted by Justice Blanch, the Chief Judge of the District Court in the course of a directions hearing in Court. The conduct set out in the proposed pleading, which consists of both words and gestures, even if it were proved as pleaded, is not capable of constituting the tort of assault and therefore, cannot be a proper basis for a claim for damages.
Secondly, the proposed defendant is the State of NSW. There is no basis in law, and none is identified in the proposed pleading, or submissions, for a finding that the State of NSW is vicariously liable for the conduct of the Chief Judge of the District Court which occurs in the course of that judicial officer conducting a directions hearing, as the pleadings here allege.
Thirdly, I am well satisfied that these proceedings would be instituted, if leave were granted, to harass or annoy the Chief Judge, and accordingly, constitute vexatious proceedings within the meaning of the VP Act.
This conclusion is one which I have reached on the basis of the evidence filed, by having specific regard to:
(a) the many occasions which preceded the alleged assault relied upon which involved significant interactions between the applicant and the Chief Judge;
(b) the specific allegation made orally by the applicant about, and to, the Chief Judge in his presence on 7 November 2007;
(c) the period of time which has elapsed since the events in question; and,
(d) the absence of any identified or identifiable injury or injuries suffered by Mr Bar-Mordecai.
Orders
The application for leave to commence proceedings pursuant to s 14 of the Vexatious Proceedings Act 2008, contained in the Summons filed 23 July 2013, is dismissed.
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Decision last updated: 05 September 2013
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