Attorney General for NSW v Bar-Mordecai

[2019] NSWSC 13

Supreme Court

New South Wales

Medium Neutral Citation:	Attorney General for NSW v Bar-Mordecai [2019] NSWSC 13
Hearing dates:	2 November 2018
Date of orders:	02 November 2018
Decision date:	04 February 2019
Jurisdiction:	Common Law
Before:	Fagan J
Decision:	Orders made 2 November 2018: 1 Pursuant to s 9(1) of the Vexatious Proceedings Act 2008 (NSW) I vary order 1 made by Patten AJ on 25 February 2005 by removing the words “in any court” and adding the words “in New South Wales” so that the order as amended reads “That Michael Jacob Bar-Mordecai shall not, without leave of this Court, institute proceedings in New South Wales”. 2 Pursuant to s 8(7) of the Vexatious Proceedings Act 2008 (NSW) proceedings 2018/268413 in the NSW Civil and Administrative Tribunal Occupational Division are stayed until further order of this Court. 3   On the application of Mr Bar-Mordecai the Notice of Discontinuance and Withdrawal which he filed on 22 August 2018 is to be disregarded and his application by the Summons filed herein on 24 April 2018 for leave to commence proceedings for medical re-registration is to proceed to determination by a Judge in Chambers. Order made 4 February 2019: The summons filed by Michael Bar-Mordecai on 24 April 2018 for leave pursuant to the Vexatious Proceedings Act to commence proceedings in the Civil and Administrative Tribunal is dismissed.
Catchwords:	PROCEDURE – Vexatious litigant – leave to appeal under Vexatious Proceedings Act 2008 – deregistration by Medical Tribunal – NSW Civil and Administrative Tribunal – professional competence – professional misconduct – unfitness to practice – leave to commence proceedings in NCAT dismissed
Legislation Cited:	Vexatious Proceedings Act 2008 (NSW) Supreme Court Act 1970 (NSW) Medical Practice Act 1992 (NSW) Health Practitioner Regulation National Law (NSW) No 86a
Cases Cited:	Application by Bar-Mordecai [2013] NSWSC 1908 Application of Bar-Mordecai [2014] NSWSC 1202 Attorney General v Bar-Mordecai [2005] NSWSC 142 Bar-Mordecai v Attorney General of New South Wales [2012] NSWSC 453 Bar-Mordecai v Health Care Complaints Commission [2002] NSWCA 192 Bar-Mordecai v Hillston [2004] NSWCA 65 Bar-Mordecai v Medical Council of NSW (No2) [2015] NSWCATOD 58 Bar-Mordecai v Rotman (unreported, Supreme Court of New South Wales, Einstein J, 18 June 1998) Bar-Mordecai v Rotman [2000] NSWCA 123 Hillston v Bar-Mordecai [2003] NSWSC 89 Michael Bar-Mordecai v The Medical Council of New South Wales [2013] NSWMT 5 Re Michael Bar-Mordecai [2006] NSWMT 10 Re Mr Bar-Mordecai [2009] NSWMT 1
Category:	Principal judgment
Parties:	Attorney General of New South Wales
Representation:	Counsel: D Birch (plaintiff) M Bar-Mordecai (self represented defendant)   Solicitors: Crown Solicitor for NSW (plaintiff) M Bar-Mordecai (self represented defendant)
File Number(s):	2018/129362
Publication restriction:	Nil

Judgment

1. By summons filed 20 September 2018 the plaintiff claimed pursuant to s 9(1) of the Vexatious Proceedings Act 2008 (NSW) a variation to an existing vexatious proceedings order concerning the defendant, Mr Bar-Mordecai, and an order staying proceedings commenced by him in the Civil and Administrative Tribunal (“the C & A Tribunal”). The defendant’s Tribunal proceedings were instituted on 31 August 2018 seeking re-registration as a medical practitioner.

2. The plaintiff’s summons was heard on 2 November 2018. Up until then the defendant had been subject to a vexatious litigant order made by Patten AJ on 25 February 2005 in these terms (emphasis added):

That Michael Jacob Bar-Mordecai shall not, without leave of this Court, institute proceedings in any court.

See Attorney General v Bar-Mordecai [2005] NSWSC 142. The above order was made pursuant to s 84(1) of the Supreme Court Act 1970 (NSW), since repealed. Under transitional provisions the order is taken to be (and to have effect as if it were) an order made under the Vexatious Proceedings Act.

1. The variation sought by the plaintiff was to remove the words “in any court” and to re-word the order so that it would prohibit the defendant from instituting proceedings “in New South Wales”. On 2 November 2018 I made following orders:

1 Pursuant to s 9(1) of the Vexatious Proceedings Act 2008 (NSW) I vary order 1 made by Patten AJ on 25 February 2005 by removing the words “in any court” and adding the words “in New South Wales” so that the order as amended reads “That Michael Jacob Bar-Mordecai shall not, without leave of this Court, institute proceedings in New South Wales”.

2 Pursuant to s 8(7) of the Vexatious Proceedings Act 2008 (NSW) proceedings 2018/268413 in the NSW Civil and Administrative Tribunal Occupational Division are stayed until further order of this Court.

3   On the application of Mr Bar-Mordecai the Notice of Discontinuance and Withdrawal which he filed on 22 August 2018 is to be disregarded and his application by the Summons filed herein on 24 April 2018 for leave to commence proceedings for medical re-registration is to proceed to determination by a Judge in Chambers.

1. Upon making those orders I reserved my reasons. I also informed the parties I would proceed to determine on the papers Mr Bar-Mordecai’s application for leave, pursuant to s 14 of the Vexatious Proceedings Act, to prosecute his medical re-registration application in the C & A Tribunal. These are the Court’s reasons for having made the orders set out in the preceding paragraph and also for now refusing Mr Bar-Mordecai leave to prosecute his re-registration application.

2. The history of Mr Bar-Mordecai’s very extensive litigious activity over approximately 25 years is relevant both to the justification for varying the vexatious litigant order and to the refusal of leave to take any further steps in his most recent application to the C & A Tribunal. The following is an outline of the main events in the history, so far as relevant for present purposes.

Mr Bar-Mordecai’s 1994 claim to Ms Hillston’s estate

1. In 1994 Mr Bar-Mordecai commenced proceedings in the Equity Division concerning the estate of Ms Hillston, a patient of his who had died earlier that year aged 83. He alleged that in February 1992 she had revoked her will of August 1989 by tearing it up in his presence. He also alleged he had been her de facto husband for some years up to her death. Upon those contentions Mr Bar-Mordecai claimed the whole of Ms Hillston’s estate on intestacy.

2. Einstein J tried this case over 25 days in 1998. Mr Bar-Mordecai represented himself. In June 1998 his Honour dismissed Mr Bar-Mordecai’s claims, finding that he had destroyed or suppressed Ms Hillston’s will himself and rejecting his evidence of a de facto marital relationship: Bar-Mordecai v Rotman (unreported, Supreme Court of New South Wales, Einstein J, 18 June 1998). His Honour’s findings included the following:

[34]   The Plaintiff was an unreliable witness. On numerous occasions he gave evidence which was tailored to further his case and was either false or although true in part, was not the whole truth. Further on his own evidence he was prone to gross exaggeration.

[35]   The Plaintiff was well aware that on many critical aspects of his case the only direct evidence was his own. ... In the result, I formed the view that wherever the Plaintiff felt that his version of facts could not be tested by reference to other witnesses' versions, he was generally content to favour his case at the expense of the truth.

[61]   I do not accept Dr Bar-Mordecai as generally a witness of truth. Most particularly is this the case in relation to his evidence which I find to have been false to the effect that the Deceased tore up her August 1989 Will in mid-August 1992, and in relation to his evidence of having had intercourse with the Deceased four times per week during their relationship.

[133]   My finding is that the Plaintiff in an underhand and deceitful fashion, took [a video of the deceased answering questions put by him] in an attempt to obtain evidence for likely later use in court proceedings.

[485]   ... He has not discharged this onus in relation to his claim to have had regular sex with the Deceased during the period of their relationship. His evidence was so greatly exaggerated that I infer that the truth on the issue would be harmful to the Plaintiff's case.

[497]   This was a case in which Doctor Bar-Mordecai occupied, and assumed towards the Deceased, a position naturally involving an ascendancy of influence over her and a dependence or trust on her part. He was her medical practitioner. He was a strong character. He was some forty years younger than she.

[498]   At the time when Doctor Bar-Mordecai commenced his relationship with the Deceased, she was suffering under possibly the worst of adverse circumstances ever suffered in her life, namely a period in which her husband of some forty-odd years was in a totally unconscious state for over a year. During this period, the Deceased was vulnerable.

[501]   My finding is that Doctor Bar-Mordecai's concern was with the Deceased's assets and with entering into a relationship with the Deceased which would place him into the best possible position to become a beneficiary of those assets under a testamentary disposition or alternatively, to simply obtain benefits by gifts from the Deceased. He was able to take unfair advantage of the Deceased because of the relationship of trust and confidence which existed between them. He was able, without special effort, bearing in mind the age and physical infirmity of the Deceased, to achieve a position of dominion, ascendancy and reliance. …

[504]   The Deceased was vulnerable in the extreme to persuasion. The Plaintiff unconscientiously abused his position of influence.

[505]   I am satisfied that the Plaintiff manoeuvred the Deceased into a situation where he was heavily indebted to her over a period of time. She was no match for his several methods of procuring gifts and loans from her. I find that, over a period of years, the Deceased became more and more agitated when the Plaintiff, having borrowed moneys from her promising to repay, simply failed to do so.

[528]   My finding is that the Plaintiff lied on oath in relation to his allegation that he saw the Deceased tear up her 1989 Will. The finding is based upon my assessment of Doctor Bar-Mordecai as a witness and upon his demeanour and is made also by reference to his lack of credit as a witness.

[576]   My finding is that the Plaintiff lied on this issue and that the will was not destroyed by the Deceased in the Plaintiff's presence or ever by her whilst she lived but stood as her last testamentary instrument at the date of her death. …

In addition to the above extracts, there are throughout the judgment numerous references to parts of Mr Bar-Mordecai’s evidence which Einstein J described as “clear untruths” and which he rejected.

1. Mr Bar-Mordecai brought an appeal against this decision, which he again conducted in person. The principal grounds directly challenged Einstein J’s findings on the issues of whether the deceased had revoked her will by tearing it up in August 1992 and whether he and the deceased were de facto husband and wife at the time of her death. There was also a challenge to his Honour’s associated finding that Mr Bar-Mordecai had come to occupy a special position of influence over the deceased and that he unconscientiously abused that position. The appeal was dismissed: Bar-Mordecai v Rotman [2000] NSWCA 123, handed down on 16 May 2000.

Deregistration in September 2000

1. As at September 2000 Mr Bar-Mordecai was approximately 50 years of age and had been in medical practice since about 1976. On 6 September 2000 the Medical Tribunal, presided over by Judge Cooper, found him guilty of professional misconduct and ordered that he be deregistered. The Tribunal directed that no application for review of its orders be made for seven years. Mr Bar-Mordecai appealed to the Court of Appeal. By statute this appeal was limited to questions of law only. It was dismissed: Bar-Mordecai v Health Care Complaints Commission [2002] NSWCA 192.

2. As summarised in a subsequent review (Re Mr Bar-Mordecai [2009] NSWMT 1), the respects in which the Medical Tribunal in September 2000 found professional misconduct were as follows:

(1) It was improper and unethical to treat [Ms Hillston] between 1983 and 1994 as Mr Bar-Mordecai was in a "personal and sexual relationship" with her.

(2) It was improper and unethical to destroy or suppress [Ms Hillston’s] 1989 will, lie to the Supreme Court by saying that [Ms Hillston] had torn it up, and lie in a Supreme Court affidavit.

(3) It was professional misconduct to obtain financial benefits from [Ms Hillston] between August 1983 and June 1994 because the financial benefits "arose out of the relationship of patient/doctor."

(4) When he administered 30mg of morphine to [Ms Hillston], Mr Bar-Mordecai demonstrated a lack of adequate knowledge, skill, judgment and care amounting to professional misconduct.

(5) In signing a medical certificate as to the cause of [Ms Hillston’s] death, Mr Bar-Mordecai demonstrated a lack of judgment amounting to unsatisfactory professional conduct.

(6) The failure to keep a proper drug register for drugs of addiction was improper conduct. Mr Bar-Mordecai’s computerized system was not equivalent to a book designed so that entries were permanent, as required by the relevant Regulation.

(7) Mr Bar-Mordecai was guilty of professional misconduct in that he disclosed confidential information that he had obtained through treating B to B's husband C, who was also a patient. Further, Mr Bar-Mordecai gave C inappropriate advice concerning divorce and child custody.

1. Further, the Medical Tribunal found in September 2000 that Mr Bar-Mordecai had the following defects of character.

(1) Inability to distinguish the boundaries of the professional doctor/patient relationship.

(2) Preparedness to transgress doctor/patient boundaries by engaging in sexual relationships with patients. Mr Bar-Mordecai admitted to a sexual encounter with patient YV in December 1993 and a sexual relationship with patient FL for about six weeks from October 1994. At the time of the 2000 hearing, Mr Bar-Mordecai was in a relationship with T, who was a patient.

(3) Avarice, as demonstrated by his suppression or destruction of [Ms Hillston’s] will for the purpose of benefiting from her estate.

(4) Lack of integrity. Mr Bar-Mordecai had lied on oath to the Supreme Court.

Further litigation in 2002 concerning Ms Hillston’s estate

1. In 2002 the administrator of Ms Hillston’s estate, her nephew, sought orders setting aside certain gifts of money and real property the deceased had made during her lifetime in favour of Mr Bar-Mordecai, on the ground they had been procured by undue influence. Mr Bar-Mordecai sought increased provision for himself out of the estate and applied to have the nephew’s grant of letters of administration set aside. The proceedings occupied 47 hearing days before Bryson J during 2002. The administrator’s claims were upheld and Mr Bar-Mordecai was ordered to repay to the estate over $825,000. Transfers of real property which had been made by the deceased for the defendant’s benefit were set aside. His Honour dismissed Mr Bar-Mordecai’s application to have the letters of administration revoked. See Hillston v Bar-Mordecai [2003] NSWSC 89, handed down on 28 February 2003.

2. In the proceedings before Bryson J Mr Bar-Mordecai’s eligibility to pursue his claim against Ms Hillston’s estate under the Family Provision Act 1982 (NSW) depended upon whether he was (as required by s 6(1)):

a man who, at the time of her death, was living with the deceased person as her husband on a bona fide domestic basis.

This issue was not res judicata under the 1998 judgment of Einstein J. Einstein J’s finding that Mr Bar-Mordecai had not proved that he was in a de facto marital relationship with the deceased had not been essential to resolution of the earlier proceeding.

1. Mr Bar-Mordecai represented himself before Bryson J and gave evidence. His Honour made strongly adverse findings about him as a witness, including that he “simulates memory loss when it is suitable to him to do so”, that he was “not frank or sincere in what he claims to recollect, or not to recollect” and that he “exhibited extremely unsatisfactory demeanour as a witness”. His Honour found that written records produced by Mr Bar-Mordecai were also unreliable. His Honour concluded:

I do not see any relevant limits to what he would be prepared to say, or what he would be prepared to accuse somebody else of doing. He would say anything.

1. Continuing to act as a litigant in person Mr Bar-Mordecai appealed Bryson J’s decision. The Court of Appeal accepted Bryson J’s evaluation of the evidence and findings of primary fact but differed from his Honour with respect to the characterisation of Mr Bar-Mordecai’s relationship with the deceased: Bar-Mordecai v Hillston [2004] NSWCA 65 at [114]-[125]. Thus it was determined on appeal that Mr Bar-Mordecai was an eligible claimant under the Family Provision Act. But his application had been brought out of time and the Court of Appeal upheld Bryson J’s refusal of an extension of time (at [126]-[146]).

2. The Court of Appeal upheld a ground that Mr Bar-Mordecai had rebutted the presumption against him of undue influence in relation to a gift of a one third interest in real property at Eastbourne Avenue, Clovelly. Bryson J’s order for restitution of this interest to the estate was set aside. However this followed from conclusions which the Court of Appeal drew from his Honour’s primary findings of fact and there was no disturbance of Bryson J’s assessment of Mr Bar-Mordecai’s credit. Insight into the way the proceedings were conducted both at first instance and on appeal can be gathered from the following passages in the Court of Appeal’s judgment:

[185] The appellant’s detailed grounds of appeal and supporting written submission span 459 pages. There are a further 148 pages of submissions on the credibility of the respondent’s witnesses. There is much overlap and hyperbole. We have concentrated upon the grounds that were developed in the oral submission that themselves spanned four days.

[186] The remaining grounds have not been overlooked, but they lack any merit. Many return again and again to attacks upon the credibility of the respondents and their witnesses and allegations of conspiracy and abuse of process. There are also complaints about the trial judge’s well-justified refusal to accept the appellant as a witness of credit. There were several strongly-expressed findings as to the appellant’s credit (see especially at [53]-[61], [69]-[71]). The appellant’s submissions fell very far short of persuading us that the primary judge erred in these assessments.

[187] Interspersed with grounds alleging judicial misconduct, denial of natural justice, bias or apprehension of bias are challenges to procedural directions made during what must have been a particularly difficult trial. These included directions to limit repetitious cross-examination or oral submissions. No error has been demonstrated in these grounds of appeal.

[188] The submissions that the primary judge misconducted himself because he did not accept the appellant’s case are contemptuous in both the lay and technical senses of the word. The same can be said about the submission that Bryson J was bound to recuse once the appellant commenced separate proceedings against his Honour claiming damages. ...

[191] The crippling costs of the two sets of litigation were sufficient reasons in themselves to justify the administrator’s sale of Eastbourne Avenue (in 2001) and of the Mount Street unit (in 2002). ... [Mr Bar-Mordecai’s] complaint that too much money was spent in resisting his claims does not rise anywhere near to being the basis for a finding of misconduct against the administrator. As indicated, much time, effort and cost were wasted due to the unnecessary duplication of issues as between the probate proceedings litigated before Einstein J and the current sets of proceedings litigated before Bryson J. The current proceedings were hard-fought, with no stone being left unturned. The appellant bears much of the responsibility for this.

1. The prolixity of submissions, both written and oral, the pursuit of unmeritorious arguments, the making of insupportable allegations of judicial misconduct and the multiplication of issues in proceedings, as referred to by the Court of Appeal in this judgment, are consistently recurrent features of Mr Bar-Mordecai’s approach to litigation. Those features have manifested themselves again and again in the defendant’s numerous proceedings subsequent to the 2004 appeal from Bryson J, some of which are referred to below. The defendant’s ingrained vexatious habits of litigating provide strong justification for expanding of the reach of the vexatious litigant order, as sought by the plaintiff. They also contribute to justifying the stay of the proceeding in the C & A Tribunal commenced on 31 August 2018 and the refusal of leave to continue that proceeding.

2. When Patten AJ made the vexatious litigant order on 28 February 2005 his Honour took into account 40 different proceedings which had been instituted by Mr Bar-Mordecai up to that date. His Honour had particular regard to the findings of Bryson J concerning Mr Bar-Mordecai’s manner of conducting those proceedings, involving pleading of “obviously extraneous” allegations, contradictory and unreliable evidence, unsubstantiated claims that he was “under difficulties in presenting his evidence because he suffered memory loss as a result of an injury in a motor accident in January 1992”, simulation of memory loss and general lack of frankness. Patten AJ found that numerous of the proceedings Mr Bar-Mordecai had instituted were without substance, untenable, manifestly hopeless and vexatious. He had commenced series of proceedings in the Supreme Court against two Supreme Court judges, three judges of appeal and members of the Medical Tribunal who had ordered his deregistration in September 2000. These defendants were obviously immune from suit and the claims had been struck out.

Multiple prior applications for review of deregistration

1. In 2006 Mr Bar-Mordecai applied to the Medical Tribunal to vary or set aside its order of 6 September 2000 that no review of his deregistration could be sought within seven years. He contended that he had “fresh evidence” of corrupt conduct by members of the Medical Tribunal which had made the decision in 2000, by the Health Care Complaints Commission (which had sought his deregistration at that time) and by the Court of Appeal and four justices of the High Court. His application was dismissed on the basis that s 94A of the Medical Practice Act did not permit a re-examination of the original order on the basis the applicant was seeking it: Re Michael Bar-Mordecai [2006] NSWMT 10. Section 94A was to the same effect as s 163C of the Health Practitioner Regulation National Law (quoted at [52] below). The section only permitted a review to determine the appropriateness of the order as at the time of the review.

2. Mr Bar-Mordecai made a second application to the Medical Tribunal for reinstatement, which was heard in November 2008 and January 2009. By force of Patten AJ’s order of 25 February 2005 leave was required for this application. I am not able to identify the decision of this Court by which leave was granted. This second application was in the nature of a review under s 92 of the Medical Practice Act. The material placed before the Tribunal included the decision of Bryson J in the proceedings concerning Ms Hillston’s estate. In its decision given on 18 March 2009 (Re Mr Bar-Mordecai [2009] NSWMT 1) the Tribunal defined the issues before it as follows (at [21]):

(1) Having regard to his past boundary transgressions, has Mr Bar-Mordecai established that he is now a person of good character whom it is appropriate to reinstate as a medical practitioner?

(2) Having regard to past lack of integrity, has Mr Bar-Mordecai established that he is now a person of good character whom it is appropriate to reinstate as a medical practitioner?

(3) Having regard to the lack of skill and judgment associated with the administration of morphine to [Ms Hillston] and the fact that he has not practised since 2000, is Mr Bar-Mordecai now competent to practise medicine?

1. On issue (1) the Medical Tribunal made these findings concerning his level of appreciation of the impropriety of providing ongoing treatment to close family, friends or a partner:

[31] Regardless of his or her view about whether Mr Bar-Mordecai has acquired an intellectual understanding and acceptance of “the letter of the law” in relation to doctor/patient boundaries, each member of the Tribunal is puzzled and troubled by Mr Bar-Mordecai’s apparent lack of emotional insight or intuitive appreciation of doctor/ patient boundaries. It has been necessary to "tell" him that a practitioner must not provide ongoing treatment to close family or friends, including a de facto partner. A practitioner should intuitively "know" that any close personal relationship with a patient is likely to impair the practitioner's professional objectivity and may cause serious psychological injury to the patient. 

[36] All Tribunal members accept that Mr Bar-Mordecai "fears the big stick". Consequently, if he was reinstated, it is most unlikely that he would knowingly transgress boundaries. However, in the absence of true insight, the Tribunal is not satisfied that the public would be adequately protected against the possibility of transgression. 

1. Also on issue (1) the Medical Tribunal described Mr Bar-Mordecai’s understanding of patient confidentiality:

[40] Mr Bar-Mordecai’s understanding of the importance of patient confidentiality is superficial. It is an intellectual understanding that is not reinforced by an intuitive appreciation of the reasons for the rule.

1. With respect to issue (2) the Medical Tribunal held:

[41] A medical practitioner occupies a position of trust in relation to his or her patients and must therefore be a person of high integrity.

[42] Mr Bar-Mordecai has not satisfied the heavy onus of establishing that he is now a person of high integrity.

[43] First, some Tribunal members consider that Mr Bar-Mordecai’s belated "acceptance" of the rule that a practitioner should not treat his or her de facto partner was an opportunistic lie. For those members, the lie reflects adversely on his integrity.

[44] Second, while Mr Bar-Mordecai conceded to the Tribunal that he had lied in Supreme Court proceedings, he was evasive about the nature of the lie/s and the circumstances in which he had lied. He said that he had signed an affidavit "without understanding what he was signing". As Mr Bar-Mordecai is an intelligent person whose personality inclines to the obsessive, the Tribunal does not accept that assertion. The Tribunal is concerned about Mr Bar-Mordecai’s level of acceptance and remorse in relation to past dishonesty.

1. At [45]-[50] the Medical Tribunal considered evidence that Mr Bar-Mordecai had admitted he contemplated an assault on Bryson J, that he had said a person suffering what he terms “battered litigant syndrome” may contemplate maiming or killing a judicial officer, that he made serious allegations against Judge Cooper whom he referred to as “a thief” and that he “is convinced that the New South Wales judicial system is riddled with corruption and enmeshed in conspiracy”. The Tribunal said:

[50] Frustration with the legal process is common. Suspicion, dislike or even hatred of the judiciary is not, prima facie, evidence of lack of good character rendering a person unfit to practise as a medical practitioner. However, respect for the rule of law does bear on the question of good character. 

1. As regards issue (3), the question of professional competence, Mr Bar-Mordecai failed to adduce before the Tribunal any independent evidence to substantiate his claim that he had undertaken ongoing self-instruction in medicine during his period of deregistration. Consideration was given to whether he ought initially to work on a hospital where he would be under supervision. The Tribunal found as follows:

[59] It is nine years since Mr Bar-Mordecai engaged in general practice. General practice involves clinical skills as well as intellectual knowledge. Any appropriate "return-to-practice plan" would include supervision. Mr Bar-Mordecai considers himself to be highly skilled and more knowledgeable than an average general practitioner. He considers hospital medicine to be irrelevant to general practice. The Tribunal doubts that he would accept – let alone embrace – close supervision, either in a hospital environment or in a general practice environment. 

1. On the basis of these findings the Tribunal recorded its decision as follows:

[60] The Tribunal's decision does not turn on Mr Bar-Mordecai's competence, the absence of an appropriate "return-to-practice plan" or the Tribunal's reservations about whether any such plan could be implemented.

[61] Rather, the Tribunal is not satisfied that Mr Bar-Mordecai is a person of good character within the meaning of the Act. Inter alia, a person lacks the good character to practice medicine if he or she lacks the capacity to intuitively recognize doctor/patient boundaries and appreciate the reasons for those boundaries. Only true insight can provide adequate public protection. At most, Mr Bar -Mordecai has an intellectual understanding of the boundaries and a desire to avoid transgression.

[62] The application is dismissed. Pursuant to s 64(3) of the Medical Practice Act 1992, the Tribunal orders that there be no review for three years.

1. On 24 April 2012 in Bar-Mordecai v Attorney General of New South Wales [2012] NSWSC 453 Beech-Jones J granted Mr Bar-Mordecai leave under s 15 of the Vexatious Proceedings Act to apply to the Medical Tribunal for review of the September 2000 deregistration decision, under s 163A of the Health Practitioner Regulation National Law. This leave was granted in circumstances where the Attorney General and the Medical Council were heard and both accepted that leave should be granted. In his supporting affidavit Mr Bar-Mordecai set out a number of grounds which he wished to agitate and orders which he would seek from the Tribunal. The leave granted was restricted to some of the grounds and some of the heads of relief.

2. The proceedings which Mr Bar-Mordecai commenced in the Tribunal pursuant to this leave were struck out on 5 April 2013 by order of the Deputy Chairman, Judge Colfax SC: Michael Bar-Mordecai v The Medical Council of New South Wales [2013] NSWMT 5. The strike-out order was made because Mr Bar-Mordecai had persistently filed affidavit and documentary evidence which went beyond the limited leave granted by Beech-Jones J. He had sought to agitate matters which his Honour had explicitly excluded from the leave. This had occurred first in relation to a summary judgment application brought by Mr Bar-Mordecai in the Tribunal and then in support of his case at final hearing.

3. On 24 October 2013 Mr Bar-Mordecai brought an application in the Supreme Court for leave to commence proceedings for judicial review of the Medical Tribunal’s rejection on 18 March 2009 of his earlier reinstatement application (referred to at [20]-[26]). Leave was refused by Leeming JA in a decision handed down on 17 December 2013: Application by Bar-Mordecai [2013] NSWSC 1908.

4. On 1 September 2014 in Application of Bar-Mordecai [2014] NSWSC 1202 Michael Adams J granted fresh leave for Mr Bar-Mordecai to apply for review of his deregistration. His Honour’s order listed detailed and very specific grounds of review to which the proceedings would be limited.

5. Pursuant to this leave an application was heard in the C & A Tribunal over five days in March 2015. On 1 April 2015 the Tribunal refused the application and ordered that this not be reviewed for a further three years: Bar-Mordecai v Medical Council of NSW (No2) [2015] NSWCATOD 58. This decision of the C & A Tribunal contains a comprehensive and very useful summary of the numerous proceedings commenced by Mr Bar-Mordecai up to early 2015, including some additional to those referred to above.

6. With respect to the conduct of the proceedings before it over five days in March 2015 the Tribunal made these observations:

[120] Although the application which Mr Bar-Mordecai signed on 12 September 2014 recited clearly the conditions of his leave to commence these proceedings, throughout the proceedings his focus was not the application to review his fitness to practice. In his written statement of January 2015, most of the material that was withdrawn as irrelevant was material that was focussed on his obsessional preoccupation with injustices that he perceives have been done to him by the Medical Tribunal and the courts, and his perceptions of misconduct and conspiracy by many judicial officers, including a Chief Judge of the District Court, Judges of the Supreme Court, Judges of the District Court, a magistrate, a Judge of the Family Court, the Full Court of the Family Court, and various Tribunal members.

[121] He did not offer evidence to substantiate his complaints about those people. His justification appears to be that each made a decision that was different or contrary to what he had sought.

[124] Throughout the hearing he appeared to have no ability to resist lapsing into the same preoccupation rather than focussing on the issues in the proceedings.

[127] It appears that Mr Bar-Mordecai is obsessed by the issues relating to perceived injustices and conspiracies by the courts and Tribunals, and that he rarely has insight into this, but even when he does have insight, he is again overwhelmed by the obsession.

1. At [128]-[184] the Tribunal identified persistent defects of character and personal attributes which, in the Tribunal’s view, rendered him not a fit and proper person to practice as a general practitioner. These matters fell into the following categories:

1. Rigidity of mind, for example in the persistent belief (after 15 years) that the decision of the Medical Tribunal which originally disqualified him had been unlawful because, in his unfounded assertion, the chairman had written the reasons and the other members had not read them although they signed as having done so. Other examples were ongoing denial that his prescription of 30 mg of morphine for Ms Hillston was contrary to good practice, dogged assertion that Supreme Court judges had conspired against him and denial that he gained financial advantage from Ms Hillston.

2. Lack of insight into his situation, reflected particularly in his failure to submit a plan for his re-entry into practice notwithstanding his absence from the field for 14 ½ years. He continued to rely upon his research and writing activities during absence from clinical practice but, although he had been informed at the time of the 2009 application for re-registration that this work would require peer review, he obstinately failed to submit it to such review.

3. Lack of respect for law, rules or judicial directions, exhibited in his failure to confine his application to the limits set by Michael Adams J, failure to comply with directions and non-compliance with professional rules for confidentiality of patient information (concerning patients of his brother, to which he had had access post deregistration).

4. Absence of logic or reason, reflected in his conclusions of “conspiracy and other misdeeds of judges and others … not supported by factual evidence or logical arguments”.

5. With respect to mental health the Tribunal said this:

[167] The Tribunal is concerned that Mr Bar- Mordecai’s persisting conviction that there has been a series of judicial and other conspiracies against him as well as his obsessional preoccupation and repeated behaviours including court actions intended to address the perceived conspiracies, might also indicate or constitute an aspect of psychiatric illness or impairment. In the absence of independent psychiatric evidence it is not possible to make a finding on such issues.

1. With respect to honesty, the Tribunal found Mr Bar-Mordecai to be an unreliable witness, frequently evasive and at times guilty of “transparent invention”. He admitted to the Tribunal plagiarism of a published document which he had included in a written statement as his own evidence.

2. On the subject of ethics and confidentiality he admitted to the Tribunal that for the purposes of writing a textbook or software he had had access to thousands of records of past and present patients of his brother without consulting those patients for permission. The following conclusion was reached:

[175] The Tribunal was not satisfied that Mr Bar-Mordecai, if he resumes medical practice, would give proper recognition to the requirement for maintaining patient confidentiality and compliance with ethical standards.

1. With regard to empathy, which the Tribunal considered important in a medical practitioner for the purpose of obtaining trust and confidence of patients, consideration was given to evidence of Mr Bar-Mordecai’s litigious conflict with his daughter and her husband regarding contact by him with their children, which they strongly opposed. This evidence indicated to the Tribunal (at [181]) that:

he had no real empathy or concern for the position or experience of that granddaughter and the other grandchildren.

1. As regards clinical competence the Tribunal noted Mr Bar-Mordecai had not provided any evidence of an independent assessment of his current clinical skills. In view of the fact he had not undertaken any training to update himself the Tribunal was not satisfied he had the level of skill required by a general practitioner. He had not advanced any proposal by which he would address this deficiency.

Sequence in which initiating process was filed herein

1. In these proceedings Mr Bar-Mordecai initially filed on 24 April 2018 a summons seeking leave under s 14 of the Vexatious Proceedings Act to commence an application to the C & A Tribunal for re-registration. Leave was sought on the assumption that Patten AJ’s order of 28 February 2005 otherwise precluded the commencement of such an application. Mr Bar-Mordecai’s summons was referred by the Registrar to me. I would have determined it in chambers on the papers without reference to affected parties (the Attorney General, the Medical Council and the Health Care Complaints Commission) but for the fact that on two previous occasions the Attorney General and the Medical Council had acquiesced in the Court granting such leave, subject to conditions: Bar-Mordecai v Attorney General of New South Wales [2012] NSWSC 453 (determined by Beech-Jones J as referred to at [27] above); Application of Bar-Mordecai [2014] NSWSC 1202 (determined by Michael Adams J as referred to at [30] above).

2. The proceedings were listed before me in court on 30 July 2018 for the purpose of ascertaining the attitude of the affected parties towards the defendant’s application for leave filed on 24 April 2018 and to seek an explanation for the acquiescence of the Attorney General and the Medical Council in the previous grants of conditional leave in April 2012 and September 2014. Subsequent to that hearing by letter to my associate dated 9 August 2018 the Medical Council stated its opposition to Mr Bar-Mordecai’s application and provided submissions in support of its position. By letter of 13 August 2018 the Health Care Complaints Commission stated that it did not wish to be heard with respect to the leave application.

3. The Attorney General’s position was set out in a memorandum delivered to my chambers dated 13 August 2018. There it was stated that the existing order made by Patten AJ did not require Mr Bar-Mordecai to obtain the leave of this Court before commencing proceedings in a tribunal. There followed the filing of a notice of motion by the Attorney General seeking variation of the existing order and, thereafter, the Attorney General’s summons for variation and for a stay. That is the summons which came before the Court on 21 November 2018 and to which this judgment is directed.

1. Mr Bar-Mordecai’s reaction to the Attorney General’s memorandum of 13 August 2018 was (a) to file in this Court on 22 August 2018 a “Notice of Discontinuance and Withdrawal”, to the effect that his summons seeking leave under s 14 of the Vexatious Proceedings Act was withdrawn and (b) to file in the C & A Tribunal on 31 August 2018 his application for re-registration. Step (a) was taken on the basis that in view of the plaintiff’s concession about the limited scope of Patten AJ’s order he no longer needed leave under the Vexatious Proceedings Act. However when I varied Patten AJ’s order on 2 November 2018 Mr Bar-Mordecai asked that I disregard his Notice of Discontinuance and Withdrawal and proceed to determine his summons seeking leave under s 14 of the Vexatious Proceedings Act. That is why I made order (3) reproduced at [3] above.

Submissions and decision on variation of Patten AJ’s order

1. The plaintiff supported his summons to vary the vexatious proceedings order with a succinct submission dated 19 October 2018 concerning the statutory provisions and referring to the numerous proceedings which the defendant has instituted in tribunals. The plaintiff submitted that tribunal proceedings instituted by Mr Bar-Mordecai to date have been vexatious within the meaning of the Act and that there is as much warrant for Patten AJ’s order to extend to that type of proceeding as there is for it to apply to proceedings in the courts.

2. I accept this submission. “Vexatious proceedings” are defined in the Act in these terms:

6 Meaning of “vexatious proceedings”

In this Act, vexatious proceedings includes:

(a)   proceedings that are an abuse of the process of a court or tribunal, and

(b)   proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and

(c)   proceedings instituted or pursued without reasonable ground, and

(d)   proceedings that are conducted to achieve a wrongful purpose, or in a way that harasses, or causes unreasonable annoyance, delay or detriment, regardless of the subjective intention or motive of the person who instituted the proceedings.

1. Patten AJ’s reasons of 28 February 2005 identified numerous proceedings which had, up to that date, been commenced and conducted by Mr Bar-Mordecai vexatiously within one or more of the paragraphs of this definition. Since then his applications to the Medical Tribunal and to the C & A Tribunal have been, at least, conducted “in a way that causes unreasonable annoyance, delay or detriment” (par (d)). I refer in particular to his application to the Medical Tribunal which was struck out on 5 April 2013 because he disregarded the limitations upon the leave granted by Beech-Jones J and the further application heard by the C & A Tribunal in March 2015 in which he exceeded the conditions of leave granted by Michael Adams J by attempting to litigate allegations of judicial conspiracy.

2. The 2015 application to the C & A Tribunal was vexatious also in the sense of being pursued without reasonable ground (par (c)). Having regard to the basis upon which his earlier application was dismissed on its merits in 2009 (see [20]-[26]) it was an abuse of process for Mr Bar-Mordecai to bring a further application in which he did nothing to address the deficiencies upon which re-registration had been refused six years earlier. These included lack of independent verification of his claimed self-instruction in clinical competencies during his period out of practice, lack of any plan for re-entry into clinical practice, lack of understanding and failure to observe patient confidentiality, failure to demonstrate respect for law and authorities and failure to demonstrate reform in personal integrity. The 2015 application was in substance nothing more than a reiteration of the 2009 proceeding.

3. In my view these considerations justify the variation to Patten AJ’s order as sought by the plaintiff. Mr Bar-Mordecai has offered no rational argument against this. He filed on 2 October 2018 a written submission opposing the relief claimed by the plaintiff. This comprised 138 pages of discursive diatribe against all members of the New South Wales courts and tribunals who have at any time made decisions concerning him. It commences as follows:

The Defendant submits that it is in the public interest to disseminate these submissions and the evidence relied on in support of these submissions, to both the national media and international media, in order to expose the inherent judicial corruption in the State jurisdiction, and in all levels of the Courts in the State of NSW jurisdiction, i.e. the Local Court, the District Court, the Supreme Court, and the Court of Appeal of the Supreme Court of NSW, as well as the former Medical Tribunal of NSW and the newly created, as of 2014, the NSW Civil and Administrative Tribunal.

1. The balance of the document is expressed in similarly extravagant language. There is in fact no “evidence relied on in support of these submissions”. The numerous decisions adverse to Mr Bar-Mordecai are referred to in his submissions, together with his bald assertions that all these decisions are vitiated by corruption. All decision-makers are referred to as “judicial assailants conspirators perverts”, “demented judicial assailant[s]”, “judicial dement[s]” and the like. Legal representatives of parties who have opposed Mr Bar-Mordecai are the subject of similar name-calling and unsubstantiated allegations.

2. The document provides no argument pertinent to either the amendment of Patten AJ’s vexatious proceedings order or the stay of Mr Bar-Mordecai’s proceedings commenced in the C & A Tribunal on 31 August 2018. It would not be useful to provide a summary or to attempt an analysis of the 138 pages of submissions. They are a tedious enumeration of presently irrelevant impassioned assertions of wrongdoing by courts, tribunals and lawyers. The only insight gained from them is that Mr Bar-Mordecai clearly has an obsessive preoccupation with disputing his de-registration. He is incapable of being relevant to matters in issue. He lacks capacity to bring reason to bear upon issues and he has a disinhibited reflex to deploy vile abuse instead of argument. The uncertainty regarding Mr Bar-Mordecai’s mental health expressed in the Tribunal’s decision of 1 April 2015 (see [33(5)] above) remains.

3. Prior to receiving Mr Bar-Mordecai’s 138 pages of submissions I had conducted only one brief mention of his original summons for leave to proceed under s 14 of the Vexatious Proceedings Act. That was on 30 July 2018, at which time I was not required to decide anything. I merely invited the affected parties to indicate their attitude to the application. I had not at any earlier time conducted a hearing in which Mr Bar-Mordecai was a party or had any connection or dealings with him. Nevertheless on the basis of this brief encounter on 30 July 2018 he was moved to refer to me in his submissions as a “judicial conspirator”, a “judicial criminal” and a “Crown Solicitor’s Office pawn”. By letter addressed to me dated 2 October 2018 he purported to direct that I recuse myself from the proceedings and “disclose the name of your co-conspirator in order to facilitate both your prosecutions”. When the proceedings were again mentioned before me on 4 October 2018 I informed Mr Bar-Mordecai I would not recuse myself.

4. On 31 October 2018 Mr Bar-Mordecai then lodged at Paddington police station a “Complaint to NSW Police against the Criminality of Fagan J … and his judicial and registrar co-conspirators”. This was forwarded by police to the registry. Over the course of ten pages the document rehearsed Mr Bar-Mordecai’s assertions of judicial misconduct in all of the decisions against him in the Supreme Court, the Medical Tribunal and the C & A Tribunal since 1997. It also alleged corruption in relation to his attempt in April 2018 to secure a fee waiver for his most recent application for leave to seek re-registration. At par 14 the document alleged that “Fagan J is a negligent, incompetent, insightless and a judicial criminal who lacked impartiality”. The grounds in support of this assert that I failed to read materials he submitted to me before 30 July 2018 and on 2 October 2018. Further, that I had adversely predetermined his application for leave to proceed under s 14 of the Vexatious Proceedings Act. I reject the assertions in this document.

5. By another five page document filed on 1 November 2018 Mr Bar-Mordecai repeated his application that I recuse myself. I have again declined. This document referred to observations I made on 30 July 2018 concerning the difficulties in the way of his application filed 24 April 2018 for leave to apply to the C & A Tribunal for review of his deregistration. He complains that these observations were made “without hearing from the parties, without a timetable for the filing of evidence”. This complaint overlooks the circumstance that under ss 14, 15 and 16 of the Vexatious Proceedings Act it was open to me to decide the leave application on the papers and without hearing further from Mr Bar-Mordecai at all. The only reason the matter had been listed on this date was to enquire why the Attorney General and the Medical Council had on two previous occasions acquiesced and to ascertain whether they intended again to acquiesce in his most recent application.

6. On 2 November 2018 I proceeded to hear the plaintiff’s application for variation Patten AJ’s order and for a stay in the C & A Tribunal. Mr Bar-Mordecai read his own affidavit sworn 1 November 2018, with attachments. This document for the most part contained argument rather than evidence. He also provided me with another 44 pages of written submissions, dated 1 November 2018, purporting to answer the plaintiff’s submissions of 19 October. The further submissions contained yet another lengthy revisitation of the litigation history in a vein similar to the 138 page document of 2 October 2018. That is, a litany of allegations of misconduct by judges, tribunal members and opposing lawyers, all expressed in vitriolic terms and without reference to any evidence to sustain the extremely serious attacks on the integrity of everyone who has ever made a decision adverse to his interests.

7. During the hearing on 2 November 2018 Mr Bar-Mordecai stated that this additional document of 44 pages was incomplete and he sought an adjournment to supplement it. I refused the adjournment. The second document brings Mr Bar-Mordecai’s submissions to a total of 182 pages. Having gained from this volume of writing nothing of relevance to the issues before me I formed the view that he would not likely improve on this performance if I should await a further composition. I considered that the plaintiff’s summons should be decided without further delay because in the meantime the proceedings filed by the defendant in the C & A Tribunal were continuing and if the plaintiff should succeed before me those proceedings should be stayed until consideration has been given to whether Mr Bar-Mordecai ought to have leave under s 14 of the Act. For these reasons on 2 November 2018 I made the order sought by the plaintiff to vary Patten AJ’s order of 25 February 2005, in the terms of order (1) as quoted in [3] above.

Mr Bar-Mordecai’s present application to the C & A Tribunal

1. On 2 November 2018 I stayed the application which Mr Bar-Mordecai had filed in the Tribunal on 31 August 2018 (see orders (2) quoted at [3] above) because order (1) made that day had the effect that that application to the Tribunal required leave under the Vexatious Proceedings Act 2008 and the merits of granting leave had not been examined. I have now considered the merits on the basis of the material filed by Mr Bar-Mordecai with his original leave application of 24 April 2018 together with all further submissions and other material which he has filed or tendered since.

2. The Medical Tribunal’s orders of September 2000 were made pursuant to s 64 of the Medical Practice Act 1992 (NSW) (since repealed). The Health Practitioner Regulation National Law (NSW) No 86a has in relevant respects replaced the Medical Practice Act. Section 163A of the Health Practitioner Regulation National Law, in combination with other sections, enables a person who has been deregistered as a medical practitioner to apply to the C & A Tribunal “for review of” the order. The application filed by the defendant in the C & A Tribunal on 31 August 2018 is for such a review.

3. If leave were granted to the applicant pursuant to s 14 of the Vexatious Proceedings Act, upon conducting its review of the deregistration order made 6 September 2000 the C & A Tribunal would have power to make a reinstatement order. The nature of the C & A Tribunal’s enquiry is prescribed in 163C of the Health Practitioner Regulation National Law as follows:

163C Inquiry into review application [NSW]

(1) A review under this Division is a review to determine the appropriateness, at the time of the review, of the order concerned.

(2) The review is not to review the decision to make the order, or any findings made in connection with the making of that decision.

1. Subsection (4) of s 163C provides that the Medical Council of NSW (established under s 41B) and the Health Care Complaints Commission (established under the Health Care Complaints Act 1993 (NSW)) are entitled to appear at any enquiry by the C & A Tribunal into an application for review such as that which the applicant desires to prosecute.

2. Apart from the statutory affidavit listing previous applications for leave under the Vexatious Proceedings Act and passed on current proceedings, the material relied upon by Mr Bar-Mordecai to justify a grant of leave on this occasion is limited to a one-page Application to be filed in the Tribunal and a four page submission. The Application lists the steps he claims to have taken to maintain his competence in medicine during the period of disqualification. The submission contains allegations of bias and falsehood on the part of witnesses who gave evidence against him in previous Tribunal proceedings, an allegation of misconduct by counsel who on a previous occasion represented the Medical Council of NSW and an assertion that his former wife had bribed a judge of the Family Court in matrimonial proceedings between them. The submission is otherwise directed to opposing the Medical Council and the Health Care Complaints Commission being a party to the proceedings.

3. None of this material shows any justification for a grant of leave. It does not show that in his further application to the Tribunal Mr Bar-Mordecai proposes to make any attempt to address, or has any material with which to address, the grounds upon which his previous applications for review, particularly those of 2009 and 2015, were refused.

4. Mr Bar-Mordecai’s appalling dishonesty in the litigation concerning Ms Hillston’s estate has rightly been regarded by the Tribunal in 2000, 2009 and 2015 as a significant demonstration of unfitness to practice medicine. In the application to this Court for leave he has not shown that he has any case to present to the Tribunal as to why his previously demonstrated dishonesty should no longer count against re-registration. For example he has not indicated that he acknowledges and regrets the dishonesty exhibited in the proceedings before Einstein J in 1998 and before Bryson J 2002. He has not suggested that he will put a case to the Tribunal that his dishonesty in those proceedings sprang from some peculiar combination of circumstances and/or is not likely to be repeated. Rehabilitation from such dishonesty would require, as a first step, acknowledgement and apology. Mr Bar-Mordecai has not taken that first step. On the contrary he has shown himself to be still in denial and preoccupied with accusations of corruption on the part of those who found him dishonest.

5. With respect to his lack of appreciation of patient confidentiality, which again the Tribunal has on previous occasions considered an important factor in his unfitness to practice, Mr Bar-Mordecai has not tendered to this Court anything to show that in the further Tribunal proceedings for which he seeks leave he would address this deficiency. He would at least need to acknowledge fault in his past serious breaches of confidentiality (concerning access to patient records of his brother’s practice). He would need to give the Tribunal sincere and concrete assurance of his improved understanding of this issue. There is no indication in the material submitted on the leave application that Mr Bar-Mordecai understands this is a serious issue for him, let alone that he is in a position to provide the Tribunal with persuasive evidence and argument to address it.

6. On past applications for review of his deregistration the absence of independent verification that Mr Bar-Mordecai has updated his clinical knowledge and skills and the absence of any plan for a structured re-entry to practice have been significant grounds for dismissal of the applications. Mr Bar-Mordecai has not shown to this Court that he is in a position to support his further application with evidence to satisfy the Tribunal on these matters.

7. Rather than submit to this Court on the leave application any indication of how he would overcome in the Tribunal the obstacles upon which his previous applications have failed, Mr Bar-Mordecai has instead attempted to justify the grant of leave by reasserting, at length, his unsupported allegations against the judiciary and against past members of the Tribunals. It is apparent that if leave should be granted his current application to the C & A Tribunal would be prosecuted as a re-run of the applications heard in 2009 and 2015 and would suffer the same fate.

8. No justification has been shown for a grant of leave under the Vexatious Proceedings Act. Accordingly I will make no order to remove or terminate the stay which was effected by order 2 made on 2 November 2018. The following additional order will be made:

1. The summons filed by Michael Bar-Mordecai on 24 April 2018 for leave pursuant to the Vexatious Proceedings Act to commence proceedings in the Civil and Administrative Tribunal is dismissed.

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Decision last updated: 04 February 2019