Attorney General for the State of New South Wales v Bar-Mordecai - [2009] NSWSC 558

No judgment structure available for this case.

CITATION: Attorney General for the State of New South Wales v Bar-Mordecai [2009] NSWSC 558

HEARING DATE(S): 23 April 2009, 7 May 2009

JUDGMENT DATE :
19 June 2009

JUDGMENT OF: Schmidt AJ

DECISION: 1. Application for leave refused.
2. Costs in favour of the plaintiff.

CATCHWORDS: PROCEDURE - judgments and orders - amending, varying and setting aside - leave sought to file a notice of appeal to set aside Medical Tribunal judgment - vexatious litigant - whether these proceedings are vexatious - allegations of bias - no prima facie grounds in relation to allegations of bias - application for leave refused - costs

LEGISLATION CITED: Medical Practice Act 1992
Supreme Court Act 1970
Vexatious Proceedings Act 2008
Vexatious Proceedings Restriction Act 2002 (WA)

CATEGORY: Principal judgment

CASES CITED: Attorney-General in and for the State of New South Wales v Bar-Mordecai [2005] NSWSC 142
Attorney General for State of New South Wales v Bar-Mordecai [2009] NSWSC 218
Attorney General of New South Wales v Klewer [2003] NSWCA 295
Bar-Mordecai v Health Care Complaints Commission [2002] NSWCA 192
Bar-Mordecai v Hillston [2004] NSWCA 65
Bar-Mordecai v Rotman [2005] NSWCA 71
Barton v Walker [1979] 2 NSWLR 740
Blair v Curran, Curran and Perpetual Trustee Co Ltd v Blair (1939) 62 CLR 464
Bromely v Bromely [1965] P 111
Dovade Pty Ltd v Westpac Banking Group (1999) 46 NSWLR 168
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Ex parte Armstrong (1976) 136 CLR 248,
Fox v Percy (2003) 214 CLR 118
Gorman v Health Care Complaints Commission [2002] NSWCA 396
Household Financial Services Ltd v Commercial Tribunal of New South Wales (1992) 26 ALD 756
Hunter v Commissioner of Police [2003] WASC 10
In Re Dr Michael Jacob Bar-Mordecai and the Medical Practice Act (Medical Tribunal of New South Wales, 6 September 2000, unreported)
Kumeragamage v Rallis (No 2) [2001] NSWSC 710
Lindsay v Health Care Complaints Commission (No 1) [2009] NSWCA 9
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24
Raybos Australia Pty Ltd v Tetracan Corporation Pty Ltd [No 9] (unreported, 27 November 1990 per Kirby P, Mahoney and Priestley JJA)
Re Mr Bar-Mordecai [2009] NSWMT 1
Re JRL ex parte CJL (1986) 161 CLR 342
Saville v Health Care Complaints Commission & Anor [2006] NSWCA 298
Sirius Shipping Corporation v The Ship Sunrise [2007] NSWSC 766
S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358

PARTIES: Plaintiff - Attorney General for the State of New South Wales
Defendant - Michael Bar-Mordecai

FILE NUMBER(S): SC 10622/04

COUNSEL: Plaintiff - Mr M Dalla-Pozza
Defendant - Mr Bar-Mordecai (in person)

SOLICITORS: Plaintiff - Crown Solicitor's Office
Defendant - unrepresented

- 61 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SCHMIDT AJ

Friday, 19 June 2009

10622/04 ATTORNEY GENERAL FOR THE STATE OF NEW SOUTH WALES v MICHAEL BAR-MORDECAI

JUDGMENT

1 HER HONOUR: Mr Bar-Mordecai moves on a further amended notice of motion of 23 April 2009. The original motion was supported by an affidavit sworn by Mr Bar-Mordecai on 24 February 2009, in which he explained that he was declared a vexatious litigant by the Supreme Court on 25 February 2005 (see Attorney-General in and for the State of New South Wales v Bar-Mordecai [2005] NSWSC 142).

2 Mr Bar-Mordecai seeks leave to file a notice of appeal pursuant to s 14 of the Vexatious Proceedings Act 2008 against judgments of the Medical Tribunal given on 21 January 2009 and 18 March 2009. These judgments flowed from an inquiry conducted by the Tribunal under the Medical Practice Act 1992 into Mr Bar-Mordecai’s application to seek re-registration as a medical practitioner. Mr Bar-Mordecai had been de-registered in 2000 by order of the Tribunal (see In Re Dr Michael Jacob Bar-Mordecai and the Medical Practice Act (Medical Tribunal of New South Wales, 6 September 2000, unreported)). The Tribunal’s judgment was the subject of an unsuccessful appeal (see Bar-Mordecai v Health Care Complaints Commission [2002] NSWCA 192).

3 The orders which Mr Bar-Mordecai wishes to pursue are:

1 That the judgments of the Tribunal dated 21.01.2009 and 18.03.2009 in Bar-Mordecai v NSW Medical Board matter no. 40015/07 be set aside.

2 That the Court of Appeal make an order under s. 69 of the Supreme Court Act 1970 to have the Tribunal to re-determine the issue in accordance with the law; or

3 That the Court of Appeal in the alternative make a Reinstatement Order without any conditions.

4 The January 2009 decision was that of the Chairman of the Tribunal, Murrell J, when her Honour refused to disqualify herself from hearing Mr Bar-Mordecai’s application, on grounds of apprehended bias. The March judgement was the Tribunal’s judgment dismissing Mr Bar-Mordecai’s application for registration. (See Re Mr Bar-Mordecai [2009] NSWMT 1).

5 The motion which Mr Bar-Mordecai originally filed in February 2009 was only concerned with Murrell J’s January disqualification judgment. The motion was later amended when the Medical Tribunal gave its substantive decision in March. The question of costs in those proceedings remained outstanding; that application was listed for hearing in May.

6 The draft notice of appeal in respect of which Mr Bar-Mordecai now seeks leave, indicates that the grounds of appeal which Mr Bar-Mordecai wishes to pursue are twofold. Firstly, apprehended bias exhibited by Judge Murrell and the second, bias. Mr Bar-Mordecai explained that the apprehended bias complaint related to both judgments and that the actual bias complaint was directed to the Tribunal’s March decision.

The requirements of the

Vexatious Proceedings Act

2008

7 The application is governed by the Vexatious Proceedings Act, which provides in s 14:

14 Application for leave to institute proceedings

(1) This section applies to a person (the applicant) who is:

(b) acting in concert with another person who is subject to an order referred to in paragraph (a).

(3) The applicant must file an affidavit with the application that:

(ii) before the commencement of this section—as required by an order under section 70 of the Land and Environment Court Act 1979 or section 84 of the Supreme Court Act 1970, and

(c) discloses all facts material to the application, whether supporting or adverse to the application, that are known to the applicant.

(b) the copy is served in accordance with the order.

(b) granting the application under section 16.

8 Mr Bar-Mordecai’s application must be dealt with in accordance with the provisions of s 15 and s 16 of the Vexatious Proceedings Act, which provide:

15 Dismissing application for leave

(1) An appropriate authorised court must dismiss an application made under section 14 for leave to institute proceedings if it considers:

(b) the proceedings are vexatious proceedings, or

(c) there is no prima facie ground for the proceedings.

16 Granting application for leave

(1) Before an appropriate authorised court grants an application made under section 14 for leave to institute proceedings, it must:

(b) give the applicant and each relevant person an opportunity to be heard at the hearing of the application.

(3) The court may grant leave to institute proceedings subject to the conditions that the court considers appropriate.

(4) However, the court may grant leave only if it is satisfied that:

(b) there are one or more prima facie grounds for the proceedings.

relevant person

(a) the person against or in relation to whom the applicant proposes to institute the proceedings,

(b) the Attorney General,

(c) the Solicitor General,

(d) the appropriate registrar for the authorised court that made the vexatious proceedings order concerned if the registrar applied for the order in relation to the applicant,

(e) any person referred to in section 8 (4) (d) or (e):

(ii) who the appropriate authorised court dealing with the application considers should be served,

Environment Court Act 1979

Supreme Court Act 1970

(ii) who the appropriate authorised court dealing with the application considers should be served.

9 This application is at the first stage which these provisions contemplate. In Attorney General for State of New South Wales v Bar-Mordecai [2009] NSWSC 218, Johnson J observed that:

10 When the matter came before Hall J in March 2009, however, there was an appearance for the Attorney General, who had been served with Mr Bar-Mordecai’s motion. His Honour gave various directions about the service of certain documents and steps to be taken by the parties. At that time there was no transcript available of the proceedings before the Medical Tribunal, when the disqualification application was refused. His Honour took the view that the hearing of Mr Bar-Mordecai’s motion should not proceed until the transcript was available, given the requirements of s 15 of the Vexatious Proceedings Act.

11 In his Honour’s view it was necessary for the Court to understand the basis of the approach taken by Murrell J, in refusing the disqualification application. His Honour accepted that if Mr Bar-Mordecai wished to press his application in the absence of the transcript, he could do so. He suggested, however, that such an approach would not assist Mr Bar-Mordecai, given the requirements of s 15 and also suggested that steps be taken to expedite the production of the transcript of the proceedings before the Tribunal.

12 The parties agreed that the hearing of the application should await the production of the transcript and the hearing was adjourned to 20 March. It was then further adjourned until April, because on 18 March 2009 the Medical Tribunal gave its decision on Mr Bar-Mordecai’s application for a review of the de-registration order made by the Medical Tribunal in 2000. The Tribunal refused Mr Bar-Mordecai’s application and pursuant to

s 64(3) of the Medical Practice Act, ordered that there be no review for three years. There were further delays while various transcripts were obtained. The final transcript relied on was filed on 11 June.

13 Against that background, I turn to consider the matters which the parties argued.

Mr Bar-Mordecai’s affidavits – s 14(3) and 15(1)(a) of the Vexatious Proceedings Act 2008

14 The original affidavit in support of Mr Bar-Mordecai’s application was that of 24 February 2009. It was supplemented by two further affidavits of 28 April and 7 May 2009. Mr Bar-Mordecai outlined the proceedings in which he has been involved, as well as those in which he is currently involved, as s 14(3) required. As to what s 14(3)(c) required of him, he deposed to matters of background to his application, referred to his personal circumstances, what had transpired in the proceedings before the Medical Tribunal and why he sought to pursue his re-registration as a medical practitioner.

15 It is Mr Bar-Mordecai’s evidence that he has become destitute as the result of his deregistration and the litigation in which he has been involved in the ensuing years. Beforehand, he was a registered general practitioner in private practice earning a significant income, owning considerable assets. He now resides with his aged parents and his income is a Centrelink Carer’s benefit. He owes the plaintiff and others substantial amounts, as the result of costs orders made against him in various proceedings. In the proceedings before the Tribunal, he had sought to be re-registered as a medical practitioner. His application failed and he now faces a further period of three years deregistration, as the result of a judgment which he regards as being wrong and oppressive.

16 Mr Bar-Mordecai explained that he wished to pursue his application to the Court of Appeal, given his view that the Tribunal’s conclusions evidenced bias, because they were erroneous; rested on material which was not before the Tribunal; and ignored relevant evidence, as well as the provisions of the Medical Board’s policies, in relation to which the review proceedings were being conducted.

17 There was no case advanced by the plaintiff that what Mr Bar-Mordecai advanced was not a sufficient basis to satisfy what s 14(3) required of him. I, too, am satisfied that there is no basis for dismissing his application, for failure to comply with s 14(3) of the Medical Practice Act, having considered what has been advanced in the affidavits.

Section 15(1)(b) - are these proceedings vexatious proceedings?

18 The term ‘vexatious proceedings’ is defined in s 6 of the Vexatious Proceedings Act as:

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 conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

19 The onus falls on Mr Bar-Mordecai to establish that the proceedings are not vexatious, as s 15(1)(b) contemplates (see the discussion of Johnson J in Attorney General for State of New South Wales v Bar-Mordecai).

20 It was argued for the Attorney General that the proposed application in this case would amount to an abuse of process. This followed, it was submitted, from the frequency with which Mr Bar-Mordecai has made allegations of bias against judicial officers. Attention was drawn to the observations of Mason P in Bar-Mordecai v Rotman [2005] NSWCA 71; Bar-Mordecai v Hillston [2004] NSWCA 65 at [7] - [12]. Reference was also made to complaints of bias brought against Patten J, Bryson J, Einstein J; Sheller, Giles and Stein JJA, and Murrell J and Rein J. In his own court documents, Mr Bar-Mordecai referred to having referred twenty one Australian judicial officers to the International Criminal Court.

21 This was argued for the Attorney General to provide a basis for the view that Mr Bar-Mordecai makes allegations of judicial bias on every occasion that he is unsuccessful in proceedings to which he is a party. Mr Bar-Mordecai denied that this was factually correct, referring to other proceedings in which he had been involved before Cohen J, Barr J, McCallum J, Watts J, Windeyer J, Patten J and a host of other judicial officers over the years, where he had not succeeded in the applications he had made, but where he had not made complaints of bias.

22 Reference was also made for the Attorney General to the Medical Tribunal’s March judgment, where it dealt with evidence before it of an assault on a judicial officer which Mr Bar-Mordecai had contemplated in the past, as well as a view that litigants should not to be held responsible for such an assault, if it occurs. This view has been developed by Mr Bar-Mordecai into a proposed ‘battered litigant syndrome’. Expert evidence had been received about these matters, but the Tribunal’s judgment finally did not turn on this issue.

23 In the submissions which Mr Bar-Mordecai advanced, there were, it must be accepted, a dismaying number of arguments addressed to a view of what Mr Bar-Mordecai perceives to be past judicial misconduct, by various judicial officers, not directly relevant to his application in this case.

24 No doubt Mr Bar-Mordecai holds the views which he is presently pursuing in relation to the past conduct of various judicial officers in forums which include the International Criminal Court, for reasons which appear to him to be good ones. Nevertheless, it has to be said that the intemperate language in which Mr Bar-Mordecai advanced certain submissions about matters of no direct relevance to this application, was of no assistance at all to his case.

25 Nevertheless, given what this application is ultimately concerned with, namely Mr Bar-Mordecai’s pursuit of an application for re-registration as a medical practitioner, it is not appropriate, in my view, to refrain from giving proper consideration to those arguments which Mr Bar-Mordecai advances in support of his application for leave, which may have some foundation, because he also advances submissions which do not assist him. Proper account must be taken of the fact that while he is not only a frequent litigant and one who has been declared a vexatious litigant, Mr Bar-Mordecai is also an unrepresented litigant. Properly, no different approach was urged for the Attorney General.

26 That is consistent with the approach adopted in Bar-Mordecai v Rotman; Bar-Mordecai v Hillston. There, Mason P referred at [7] to ‘a plethora of baseless, often scandalous, allegations of judicial bias’, but nevertheless then went on to consider and deal with what Mr Bar-Mordecai had there argued were incompatible conclusions reached by the Court of Appeal in two judgments, one finding that a de facto relationship had existed with A and the other that it had not.

27 It was also here argued, however, that Mr Bar-Mordecai’s submissions showed that he was now attempting to re-litigate matters already determined in other proceedings, particularly the correctness and legality of the original decision of the Medical Tribunal in 2000, when he had been deregistered. The Court of Appeal dealt with the appeal of that decision in Bar-Mordecai v Health Care Complaints Commission. It was argued for the Attorney General to be an abuse of process for Mr Bar-Mordecai to now seek to raise issues dealt with in those proceedings, afresh in these proceedings. (See Blair v Curran, Curran and Perpetual Trustee Co Ltd v Blair (1939) 62 CLR 464.)

28 The difficulty with that argument, it seemed to me, was that the Medical Tribunal’s 2000 decision and the basis upon which it was reached, were squarely before the Tribunal in the 2008 proceedings in which Mr Bar-Mordecai sought re-registration. The legislative scheme expressly provided for this in s 94A of the Medical Practice Act, which provided:

94A Inquiry into review application

(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, unless significant fresh evidence is produced that was not previously available for consideration, and the appropriate review body is of the opinion that, in the circumstances of the case, the decision to make the order, or any finding on which the decision was based, should be reconsidered.

(3) In addition to any other matter that the review may take into account, the review must take into account any complaint made or notified to the Board about the person, whether the complaint was made or notified before or after the making of the order that is the subject of the review and whether or not the complaint was referred under Division 3 of Part 4 or any other action was taken on the complaint.

29 Mr Bar-Mordecai sought such a review of the 2000 decision during the course of the hearing before the Tribunal, seeking to rely on a decision of the Court of Appeal in Bar-Mordecai v Hillston where, contrary to the view reached by the Medical Tribunal in 2000, the Court of Appeal had concluded that Mr Bar-Mordecai had been in a de facto relationship with the patient (A), whose sister had made the complaint against him in 1999, which had led to the 2000 Medical Tribunal proceedings and his deregistration.

30 The s 94A application was considered and refused by Murrell J, who, it would appear, took the view that it raised a question of law which fell to her Honour to decide, consistently with s 154(1) of the Medical Practice Act. The application was refused by her Honour, it was later explained in the Tribunal’s March judgment at [16], because:

31 The Tribunal went on to explain that:

17. The 2000 Tribunal’s decision did not depend upon whether the relationship between Mr Bar-Mordecai and A was a de facto relationship: p2.9 of the reasons for judgment.

32 The Tribunal then turned to consider, under the heading ‘Understanding of Doctor/Patient Boundaries’, the question of whether Mr Bar-Mordecai had demonstrated that he now had an understanding and acceptance of the rule that it is improper for a doctor to treat his or her de factor partner, at [22] to [36]. That was the consideration upon which the Tribunal’s refusal of Mr Bar-Mordecai’s application turned.

33 The proceedings taken by Mr Bar-Mordecai before the Medical Tribunal in 2007 involved an application for re-registration which he was entitled to make, given the terms on which he was deregistered by the Medical Tribunal in 2000, which precluded him from seeking re-registration until 2007. What arose for consideration in the review proceedings under

s 94A(1), was the appropriateness of the order made in the 2000 judgment, at the time of the 2008/09 review.

34 It followed from s 94A(2) that Mr Bar-Mordecai was also entitled to ask the Medical Tribunal to review the decision to make the 2000 deregistration order, or any findings made in connection with the making of that decision, if he was able to produce ‘significant fresh evidence’ not previously available for consideration.

35 That Mr Bar-Mordecai believed that a decision of the Court of Appeal in 2004, which had concluded that he had a de facto relationship with A, which he had been unable to convince the Medical Tribunal in 2000 had existed, was significant, fresh and previously unavailable evidence, does not seem surprising. Whether he was correct in that opinion, is a different matter, but the making of that review application, it seems to me, does not involve any re-litigation of matters already dealt with, as the Attorney General argued.

36 The Medical Tribunal had never before had occasion to consider the Court of Appeal's 2004 decision, nor the basis upon which it was reached. Section 94A permitted Mr Bar-Mordecai to raise that issue before the Tribunal and once raised, the Tribunal was obliged to determine it.

37 In these proceedings, Mr Bar-Mordecai does not seek to appeal the Tribunal’s conclusion, but seeks to rely upon it, to establish the bias about which he wishes to complain. That is also not a matter which has previously been litigated.

38 The Attorney General accepted that while there was no right of appeal from the Tribunal’s judgment under the statutory scheme established by the Medical Practice Act, a party to such review proceedings was entitled to bring an appeal with respect to a point of law, during the course of an inquiry being conducted by the Tribunal, with leave (see s 89(2)).

39 It must follow, in my view, that the application made by Mr Bar-Mordecai under s 94A in relation to the Medical Tribunal’s 2000 decision cannot have been an abuse of process. He was entitled to seek such a review, if he could establish that significant, fresh and previously unavailable evidence not previously considered, existed. He was unable to convince Murrell J that it did. Not having been granted leave to appeal that decision during the course of the inquiry, Mr Bar-Mordecai accepted he had no right to appeal either the merit of the decision, nor even the question of law determined by Murrell J.

40 Nevertheless, he seeks to establish bias, having regard to this, as well as other aspects of the Tribunal’s judgment. I will return to consider this further in the context of s15(1)(c), but, in my view, the mere fact that Mr Bar-Mordecai has the view that there was bias in the Medical Tribunal proceedings cannot, at this stage of these proceedings, lead to the conclusion that this application is an abuse of process.

41 Mr Bar-Mordecai is a pensioner who wishes to resume his former profession as a medical practitioner, having been precluded from doing so since 2000, as the result of the Medical Tribunal’s 2000 order. He was unsuccessful in his 2007 application for re-registration, given the conclusions reached by the Tribunal in 2009 that he lacked the necessary good character, for such an order to be made. He is plainly dissatisfied with the Tribunal’s decision, for various reasons which he has sought to explain. He accepts that under the statutory scheme, he has no general right to appeal the merits of the Tribunal’s decision, but seeks to pursue such rights which do exist, including those granted by s 69 of the Supreme Court Act 1970. That section provides:

69 Proceedings in lieu of writs

(1) Where formerly:

(b) in any proceedings in the Court for any relief or remedy any writ might have issued out of the Court for the purpose of the commencement or conduct of the proceedings, or otherwise in relation to the proceedings, whether the writ might have issued pursuant to any rule or order of the Court or of course,

then, after the commencement of this Act:

(c) the Court shall continue to have jurisdiction to grant that relief or remedy or to do that thing; but

(d) shall not issue any such writ, and

(e) shall grant that relief or remedy or do that thing by way of judgment or order under this Act and the rules, and

(f) proceedings for that relief or remedy or for the doing of that thing shall be in accordance with this Act and the rules.

(b) any writ of execution for the enforcement of a judgment or order of the Court, or

(c) any writ in aid of any such writ of execution.

(4) For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination.

(5) Subsections (3) and (4) do not affect the operation of any legislative provision to the extent to which the provision is, according to common law principles and disregarding those subsections, effective to prevent the Court from exercising its powers to quash or otherwise review a decision.

42 Dissatisfaction with the Tribunal’s decision and a desire to challenge it on available grounds, even in the case of a person such as Mr Bar-Mordecai, who has been declared a vexatious litigant, cannot, it seems to me, of itself be a basis for concluding that this application is an abuse of process.

43 Such a declaration is not intended to deprive a person declared to be a vexatious litigant of all of his or her rights to pursue any and all legal proceedings before a court to which the declaration applies. It rather imposes a leave requirement, it must be accepted, in quite onerous terms, before such rights may be exercised in future. The fact that Mr Bar-Mordecai seeks to pursue what rights he may have in relation to his failure to achieve re-registration as a medical practitioner, cannot of itself be an abuse of process.

44 Leave is sought to appeal to the Court of Appeal in relation to a decision upon which depends Mr Bar-Mordecai’s right to resume the practice of a profession which he had engaged in for some 25 years before his deregistration. That is not a decision in respect of which Mr Bar-Mordecai has ever brought any other proceedings. I can see no general basis upon which it might be concluded that a desire to pursue the right to resume medical practice, involves an abuse of process in any general way, even if his application rests on allegations of bias. Such complaints certainly appear to have been raised by other litigants before the Tribunal (as to which see, for example Lindsay v Health Care Complaints Commission (No 1) [2009] NSWCA 97 at [9]).

45 Undoubtedly, it is a fact that Mr Bar-Mordecai has made a significant number of earlier complaints about alleged bias in other proceedings. That does not mean that bias, whether apprehended or actual, could never arise in another case. In my view, in the circumstances here before the Court, the mere fact that Mr Bar-Mordecai has unsuccessfully alleged bias in other proceedings, is not a proper basis for concluding that this application involves an abuse of process.

46 No other of the Attorney General’s submissions were directed to the matters dealt with in the definition of ‘vexatious proceedings’. On the material, I am satisfied that the proceedings which Mr Bar-Mordecai seeks to bring are not vexatious, as defined, even though this is another occasion upon which Mr Bar-Mordecai seeks to show bias in those determining an application he has made.

Section 15(1)(c) - are there prima facie grounds for the proceedings in relation to the Medical Tribunals’ March decision, given the allegations of bias on which the application rests?

Onus

47 The onus imposed on Mr Bar-Mordecai under the Vexatious Proceedings Act is a high one. In Hunter v Commissioner of Police [2003] WASC 10, Pullin J had to consider applications brought under the Vexatious Proceedings Restriction Act 2002 (WA), where a similar onus is imposed by s 6(5). At [18], his Honour observed:

18 To succeed on this application, s 6(5) of the 2002 Act requires me to dismiss the application if there are no prima facie grounds for the proposed proceedings. The ordinary meaning of the words prima facie is "at first sight; on the face of it; as appears at first sight without investigation": North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 615-616; Macquarie Dictionary. In the present context, the phrase "prima facie grounds" means, in my opinion, that there is a legal basis for the claim and that there is some evidence referred to in the affidavit in support of the application which, if accepted, would be capable of sustaining the proceedings: cf North Ganalanga (supra) at 639; May v O'Sullivan (1955) 92 CLR 654 at 658.

48 Can it be concluded that this standard has been satisfied by Mr Bar-Mordecai?

49 Mr Bar-Mordecai does not appeal from the merits of the Tribunal’s decision, even though he vehemently disagrees with the conclusions reached. This is because, as was common ground, there is no right of appeal from the Medical Tribunal’s judgments under s 90 of the Medical Practice Act. The proceedings were not concerned with ‘a person about whom a complaint is referred to the Tribunal’, but with an application for the review of the Tribunal’s 2000 deregistration order. The application was brought under s 92 of the Medical Practice Act. The Act provides for no right of appeal, either on the merits of such a review, or even on a question of law.

50 The supervisory jurisdiction of this Court under s 69 of the Supreme Court Act was, however accepted by the Attorney General as being available to Mr Bar-Mordecai and he seeks to pursue that right. It was also accepted that actual or apprehended bias can amount to jurisdictional error, so as to permit relief being granted. What was in issue was whether a prima facie basis for either apprehended or actual bias had been established,

s 15(1)(c) imposing an onus on Mr Bar-Mordecai to establish such a case.

51 As I have noted, the Attorney General also accepted that s 89 of the Medical Practice Act provides a right of appeal on questions of law, arising during the course of an inquiry before the Tribunal, including during a review such as here in question. Such an appeal would have required Murrell J’s leave (s 89(2)). While Mr Bar-Mordecai believed that he had sought such leave, given the way in which he couched his request to her Honour and how she answered him, it is apparent that she did not understand that it was leave to appeal on a point of law pursuant to s 89 which he was seeking. That is not to criticise either Mr Bar-Mordecai, nor Murrell J, but to indicate that whatever be the reason, leave to appeal, if sought, was not granted, as s 89(4) required.

52 Given the statutory scheme, it seems to me that such leave, if requested, would not lightly be refused, given that there is no right to appeal a decision on such a question of law, once the Tribunal’s decision on the review is given. That is a curious and rather unsatisfactory feature of the appeal provisions of this statutory scheme (which has otherwise been discussed by the Court of Appeal in Saville v Health Care Complaints Commission & Anor [2006] NSWCA 298). Nevertheless, in this case, leave to appeal was not granted.

The refusal of the s 94A(2) application

53 I have earlier outlined what occurred in relation to this application. Mr Bar-Mordecai’s allegation of bias rested on her Honour’s rejection of his application. Presumably Mr Bar-Mordecai put the judgment in question before the Tribunal. What other material was relied on to support the application is not clear, but the circumstances in which Mr Bar-Mordecai came to make the application are those which I have earlier set out.

54 The Tribunal explained in its March decision that the reason for the view reached was that the Court of Appeal’s 2004 findings were not ‘fresh evidence’. Even if Murrell J was wrong in this conclusion, which has not been established, of itself that could not establish either apprehended, or actual bias.

55 Mr Bar-Mordecai claimed by his analysis of the Medical Tribunal’s decision, that the Tribunal’s conclusion that he had not brought forward fresh evidence, as well as the Tribunal’s factual findings and the inferences drawn from them, were in error in many significant ways. Being aggrieved with the decision reached, without more, cannot evidence bias. The Court of Appeal’s observations in Bar-Mordecai v Health Care Complaints Commission at [36] are binding in this respect. There it was said:

56 Just as a preference for one witness’s evidence over that of another, cannot be the basis of an allegation of bias, that being a matter of fact finding, a conclusion as to whether particular evidence is ‘fresh’ or not, in my view can likewise of itself not establish bias. Determining the question of whether or not the evidence sought to be relied on was fresh, was also a function which the Tribunal was obliged to exercise, given the application which Mr Bar-Mordecai had made.

57 Something other than a conclusion contrary to that urged by Mr Bar-Mordecai had to be shown, if a prima facie case of bias was to be established. Nothing was relied on in this respect, which could have provided a basis for such a conclusion.

The application made under s 154 of the

Medical Practice Act

58 As well as the application Mr Bar-Mordecai made to have the Tribunal review the 2000 decision on the basis of fresh evidence, Murrell J also dealt with two other applications which Mr Bar-Mordecai made. I will deal with the disqualification application separately.

59 At the outset of the s 92 review proceedings, Mr Bar-Mordecai sought of the Medical Tribunal that the 2000 decision under review be set aside, because of evidence which had emerged in 2002, which in his submission established that the decision of the Tribunal had not been made by the Tribunal, but by Campbell J, contrary to the requirements of s 154 of the Medical Practice Act. The section provides:

154 Decisions of the Tribunal

(1) The decision of the Chairperson or a Deputy Chairperson on any question of law or procedure arising during an inquiry or appeal at which the Chairperson or Deputy Chairperson presides is the decision of the Tribunal for the purposes of the inquiry or appeal

60 In the Tribunal’s March 2009 decision it was noted that this application was rejected because:

61 Mr Bar-Mordecai seeks to rely on this aspect of the decision, to make out his bias case. That, it seems to me, is also a claim for which no prima facie basis was established.

62 The Medical Practice Act provided a right of appeal in relation to the 2000 decision which Mr Bar-Mordecai exercised. He claims that subsequently, he obtained cogent evidence which cast doubt on the Tribunal’s compliance in 2000 with the requirements imposed upon it by s 154(2) of that Act. It is clear from the provisions of the Medical Practice Act that such a complaint is not a matter which the Parliament has empowered the Medical Tribunal itself to deal with, in later proceedings brought under the Medical Practice Act.

63 It seems to me that any failure to comply with the requirements of s 154 is a matter which might have been available to be relied on in the appeal against the Tribunal’s decision which Mr Bar-Mordecai brought under s 90 of the Medical Practice Act, if the evidence had then been available. Otherwise, Mr Bar-Mordecai would appear to have been left with whatever rights he might have had in relation to such a situation under the Supreme Court Act. Such proceedings could not be pursued before the Medical Tribunal.

64 It follows, in my view, that Murrell’s J’s decision on Mr Bar-Mordecai’s

s 154 application cannot provide any foundation for a complaint of bias, in relation to either Murrell J or the Medical Tribunal. As Murrell J concluded, the Medical Practice Act simply did not empower the Medical Tribunal to set aside the 2000 judgment, as Mr Bar-Mordecai sought.

65 It follows that no prima facie basis for this aspect of Mr Bar-Mordecai’s case was established.

Factual findings

66 As I have said, Mr Bar-Mordecai attacked the Tribunal’s conclusions as being wrong and thereby exhibiting the bias which he seeks leave to pursue. If the Tribunal erred in its task of assessing the conflicting evidence before it, that could only amount to non-jurisdictional error. There is no right of appeal from such an error provided by the Medical Practice Act, nor of itself, could such an error give rise to any relief under

s 69 of the Supreme Court Act.

67 For the Attorney General it was argued that it was not the case advanced by Mr Bar-Mordecai that there was an absence of evidence for conclusions reached by the Medical Tribunal, or that the decision was irrational or unreasonable, to the standard required to constitute jurisdictional error, that being, it was conceded, a basis upon which relief under s 69 of the Supreme Court Act might be advanced.

68 In his submissions in reply, however, as well as in his oral submissions, Mr Bar-Mordecai explained that his case went to precisely such points. Mr Bar-Mordecai argued that the Tribunal’s judgment revealed that its findings were glaringly improbable, contrary to compelling inferences and incontrovertible facts, so as also to lead to the conclusion that there had been jurisdictional error (see Fox v Percy (2003) 214 CLR 118). Mr Bar-Mordecai also argued that the Tribunal’s judgment made it apparent that its decision had rested on evidence which he had withdrawn at the hearing and which was thus not available for the Tribunal’s consideration. (See Saville at [57]; Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 40).

69 For the Attorney General it was submitted that before the Tribunal, Mr Bar-Mordecai was cross examined on both his pleadings and affidavit evidence, as well as assertions made in submissions. Mr Bar-Mordecai gave evidence that he no longer adhered to views there expressed. The submission made against him was that what was contained in his pleadings, affidavits and submissions reflected his true belief and that the evidence which he gave in cross examination, that he had altered his opinions and so withdrew those aspects of his pleadings, affidavits and submissions, was opportunistic. That submission was ultimately accepted by a majority of the Tribunal, it concluding:

70 In light of the evidence on which Mr Bar-Mordecai advanced his argument in relation to factual findings, may it be concluded that he established a prima facie basis for his allegations of bias?

71 The Tribunal’s principal conclusions on Mr Bar-Mordecai’s good character, namely, the ‘capacity to intuitively recognise doctor/patient boundaries’, on which its judgment turned, rested on evidence which it had earlier referred to under the heading ‘Understanding of Doctor/Patient Boundaries’. The Tribunal expressed its decision in this way:

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.

Medical Practice Act

72 At the hearing of this application, given the way in which this issue emerged, the parties were given a further opportunity to consider the transcript of the proceedings before the Tribunal, in order to address the question of what had happened to affidavit evidence on which Mr Bar-Mordecai had initially relied, but which he claimed he had later withdrawn, so that his earlier evidence was no longer available to be relied on by the Medical Tribunal, in the conclusions which it had reached.

73 There were two obvious possibilities from what had been referred to. Firstly, that Mr Bar-Mordecai had formally withdrawn, or not relied on the relevant parts of the affidavits in question, so that they were not before the Tribunal by way of evidence. Alternatively, that in cross examination, Mr Bar-Mordecai had recanted from those parts of his affidavit, giving oral evidence that he had altered the opinions which he had earlier expressed in his affidavits.

74 If the correct situation were the former, then it would lend obvious support for Mr Bar-Mordecai’s claim that the Tribunal was biased, that being evidenced from the fact that it had decided the case against him on material not even before it. If the situation was, however, the latter, with the result that both the affidavit material and Mr Bar-Mordecai’s oral evidence were before the Tribunal, with it having to assess whether his oral evidence that he had altered his opinions should be accepted, notwithstanding his earlier affidavit evidence, then bias would be much more difficult to establish, because the foundation for Mr Bar-Mordecai’s complaint in these proceedings would not have been established.

75 In his submissions, Mr Bar-Mordecai pointed to cross examination where he was asked about allegations made in his pleadings, in relation to ‘the second finding made on the de facto marriage issue was an acceptance of there being a de facto marriage for the prosecution of the applicant having written the medical certificate of cause of death’ and his agreement that he had withdrawn that allegation. He also pointed to cross examination where he was asked about another allegation made in his pleadings, namely that ‘the 2000 tribunal had demonstrated bias against you and your dissenting medical philosophy on the issue of a locked medical Schedule 8 storage facility’. He also agreed that he had withdrawn that part of his pleading.

76 This, it was submitted by Mr Bar-Mordecai, showed that he had withdrawn 'his incompetent evidence and wrong submissions in relation to doctor/patient boundaries at the Tribunal hearing on 28 January 2008.'

77 Mr Bar-Mordecai also referred to particular passages of evidence, to make out this part of his case. They were relatively short and it is convenient to reproduce them:

T 240.29 - 39 with regard to withdrawal of the applicant's incompetent evidence:

Q. So on that basis

you're seeking to withdraw your sworn evidence in that affidavit

that in fact in this case the tribunal should've accepted that your signing of the death certificate was not a problem?

A. Sorry, I don't understand what your question is. Is it a question?

Q. I'll rephrase it. So you are retracting the sworn evidence that you have given before this tribunal in your affidavit that in the circumstances of this case the tribunal ought to have accepted that you signing the medical certificate of cause of death was not problematic? You're asking the tribunal - you're withdrawing that evidence?

A. I'm withdrawing that evidence.

b. T 241.33-243.2 withdrawal of the Applicant's incompetent evidence:

Q. Could you please turn over the page to paragraph 155 and in that paragraph in the last sentence you say, "Therefore in the absence of a de facto relationship the signing of a medical certificate of cause of death was not subject to ethical considerations on the tribunal findings of a personal and sexual relationship that was made"?

A. That's wrong.

Q.

Do you withdraw that as well?

A.

Yes,

because it's not consistent with what I've just said.

Q.

So you ask the Tribunal to withdraw that evidence that you gave on oath?

A.

That's right.

Q. Mr Bar-Mordecai would you please turn to page 52 of that affidavit. Do you see there in the first sentence you're referring to the fifth particular of the first complaint which is the particular in relation to the medical certificate as to cause of death and you can see there that in paragraph 140 and 141 you take issue with the tribunal's finding that it was inappropriate for you to sign the death certificate and you assert there that that was on the basis that you were - sorry, you say the tribunal had rejected the tribunal finding and therefore they should not have found it was inappropriate to sign the death certificate?

A. No

Q. Can you look at that evidence. Do you stand by that evidence?

A. No, because it's wrong, obviously.

Q.

And do you withdraw that evidence as well?

A.

Yes

Q. Do you withdraw all of paragraph 140?

A. Firstly, I don't think paragraph 140 was submitted.

Q. You're probably right. It's not been admitted.

A. So how can I withdraw something that's not admitted?

Q. Well, the matter that you swore on oath Mr Bar-Mordecai and sought to have read and I'm cross-examining you on it?

DEPUTY CHAIRPERSON

Q. She is entitled to cross-examine you on that Mr Bar-Mordecai.

A. But do I need to withdraw it if it's not admitted?

Q. Just answer her question. In other words looking at it and commenting on it.

RICHARDSON

Q. You have sworn paragraphs 140 and 141 on oath and sought to have them read in November 2008, do you now looking at the content of those paragraphs do you stand by the statements you made there or do you seek to withdraw them?

A.

I seek to withdraw them.

Q. In relation to paragraph 142 you state that the tribunal showed a flagrant inconsistency in relation to particular 5, do you see that?

A. Yes.

Q.

Do you seek to withdraw that as well?

A.

Yes.

Q. And in the last sentence at paragraph 143 you allege that in relation to particular 5 there was a wilful perversion of the administration of the course of justice?

A.

I withdraw all that

. There was no mis-administration of the course of justice with regard to particular 5, with a caveat that only occurred in one instance and wasn't regular activity that I indulged in, so it only occurred once and there's case law to say that the tribunal can't indict someone for just doing something one occasion, but it's go to show that there's repetition of that sort of modus operandi.

c. At T 244.36 - 47 withdrawal of the Applicant's incompetent evidence:

Q. So you've rethought the matter since 14 October 2008 is that right?

A. Yes

Q. And you've rethought the matter since 10 November 2008 when you read the affidavit saying the exact opposite, is that correct?

A. I can tell you what my insight is now.

Q. No I'm just asking you, you took a position on 14 October 2008 and you took a position on 10 November 2008 when you read affidavits containing particular points of you(sic). You're now seeking to suggest -

you are asking the Tribunal to withdraw that evidence on oath

?

A.

That's correct.

d. T 285.32 - 287.22 withdrawal of the Applicant's incompetent evidence and submissions:

Q. Mr Bar-Mordecai in relation to particular 5 which is the particular dealing with the medical certificate, I just want to go back to that for a moment?

A. Yes.

Q. Do you recall that on the first day of the hearing in these proceedings on 10 November you handed up some submissions entitled Applicant's Opening Speech to the Review Tribunal?

A. Yes

Q.

Do you still rely on those submissions?

A.

Only in part now, and the reason is that - only in part.

Q. Only in part?

A. Only in part.

Q. Why is that?

A. Why is that, because some of it is actually wrong.

Q. Some of it--

A. Some of the submissions are wrong, so I've given the tribunal four-page submissions, I'm going to make a final 1 and a half hour I believe presentation on my submissions and I think those are the submissions that the tribunal will consider. That's just an opening and it's superseded by the actual evidence at the hearing and the submissions that I make now.

Q. Mr Bar-Mordecai you agree with me that in those opening submissions to the tribunal

you submitted that the fifth particular remained unproved

?

A.

Yes that's wrong.

Q. That's what you submitted?

A. That's wrong.

Q.

So you've changed your position since your opening submissions to the tribunal?

A. That's correct.

Q. Do you agree with me in your opening submissions you said that the reason why the fifth particular remained unproved was on the basis that "at the time of the patient's death on or about 25 June 1994 the practitioner was in a de facto marriage with the patient"?

A. That's wrong because there couldn't have been a logical reason for me signing that certificate in terms of being in a relationship other than a doctor/patient with --

Q. Mr Bar-Mordecai you agree with that's what your submissions state?

A. That's what it stated, but it was wrong.

Q. So I'm just trying to understand;

yesterday you gave evidence when you withdrew various statements on oath and you're now withdrawing these submissions

, you suggest that you developed insight at some point. Are you suggesting that this change in insight happened sometime after you stood up and put forward opening submissions to this tribunal?

A. I think it was more formalised after that time,

yes.

Q. You would agree with me that the submission you made in your opening submissions in relation to the medical certificate shows a lack of understanding of the tribunal's findings against you in relation to the medical certificate?

A. Yes I agree totally, that's why I've withdrawn it. That's my insight. If I didn't have insight I'd stick to it.

Q. Sorry what was that last sentence?

A. If I didn't have the insight I'd stick to that submission, but I have the insight. Once you gain the insight the duration of the insight I don't think is of that import as having the actual insight, and that's what treatment by a doctor is all about, gaining insight. I've got the insight and in terms of having the insight the likelihood of re-offending is marginally or greatly reduced, re-offending, once I have the insight. But if I didn't have the insight and I kept on with those submissions then you'd have something to talk about. But the fact that I've gained the insight and I can see the errors of my way, even if it was yesterday, it shows that the potential of me re-offending is nil.

Q. So you're asking the tribunal to accept your recent change in evidence that even though you've had --

A. No that's not evidence a submission, a submission is a submission, it doesn't --

Q. Mr Bar-Mordecai yesterday you withdrew statements made on oath?

A. Yes.

Q. You are asking this tribunal to accept that even though you have made statements on oath and in submissions attacking various findings of the tribunal that because you have gained insight sometime in November or December a few months ago that is enough for the tribunal to place weight on that you in fact have genuine insight?

A. Yes.

Q. That's your submission?

A. That's your submission, you have to wait for my submission.

Q. Sorry, that is your position?

A. That's my position.

e. T 295.1 295.45 withdrawal of the incompetent evidence:

Q. My next question Mr Bar-Mordecai is, do you agree that in your first affidavit of 30 August 2007 on page 21 you state "the tribunal" this tribunal "ought to readily accept that I have been subject to the uncalled for embarrassment and humiliation of public ridicule with the attendant grave damage to my reputation in the eyes of my former patients friends medical colleagues and the consequent lowering of my status in the community by virtue of the (1) contrived findings of the Medical Tribunal with regard to Particular 1, Particular 2, Particular 3, Particular 4, Particular 5 and Particular 6". Would it help you if I showed you that affidavit?

A. Yes.

Q. Do you recall swearing that on oath?

A. Yes.

Q. Do you see that on page 21?

A. Yes.

Q. I put it to you that what you swore on oath then reflects your current genuine belief?

A. No it doesn't - complaint one was that I had a sexual relationship with Evelyn Hillston--

RICHARDSON: Your Honour I'm just asking whether he's seeking to--

DEPUTY CHAIRPERSON: Yes, all that was required was a no answer.

RICHARDSON

Q.

Do you seek to withdraw that sworn evidence Mr Bar-Mordecai?

A.

Yes I do, in part

. Do you want the parts?

Q.

If you could just tell me which bits you seek to withdraw, without explanation, just so that we know what you withdraw?

A.

Complaint 1 Particular 1. Complaint 1 Particular 3. I don't withdraw Complaint 2. I just forget what Complaint 4 is - Particular--

Q.

Complaint 4 related to the morphine?

A.

Morphine - I don't withdraw the morphine issue. I forget - the medical certificate, Complaint 5, I withdraw. And I think number 6 comprised of three different parts.

78 Mr Bar-Mordecai argued:

T 397.37-39 as to change of evidence and withdrawal of evidence:

"The Board's submission that this very late change in evidence in the witness box where he sought to withdraw statements he'd made in voluminous affidavits and submissions"

T 398.3-6 no evidence as to insight to demonstrate a change in character:

There has been no evidence as to what Mr Bar-Mordecai has actually done to demonstrate his change in character or his insight into his conduct and it is submitted that he has fallen well short of the heavy onus that he bears.

to show that the Medical Board conceded that the Applicant has withdrawn voluminous affidavits and submissions with regard to late change in evidence on the issue of doctor/patient boundaries without any written or oral objections by the Medical Board.

4. The Applicant submits that his evidence in relation to the true insight he displayed at the hearing with the appropriate reasoning, was the only evidence open for the Tribunal to rely on to make an analytic determination on his genuine doctor/patient boundary evidence which was embodied in the amended submissions filed with leave on 14 April 2009.

116 Mr Bar-Mordecai’s original submissions in these proceedings sought to establish that Murrell J had an association with a party who had an interest in the litigation, namely himself, which required her Honour to accede to the application that she disqualify herself. That interest arose from his complaint to the International Court of Justice about her Honour. This complaint, Mr Bar- Mordecai sought to explain, was not an appeal from her Honour’s refusal to disqualify herself, but a punitive measure designed to have her incarcerated in the Netherlands, for ‘perpetuating the perversion of the course of justice’.

117 On Mr Bar-Mordecai’s approach, it followed that Her Honour had a personal interest in what will be found against her by the International Criminal Court and, accordingly, she ought to have acceded to the disqualification application, which Mr Bar-Mordecai had pressed in the Medical Tribunal proceedings.

118 In its March judgment, the Tribunal observed:

119 The hearing proceeded before the Tribunal over 5 days in November 2008 and January 2009. It was on 3 January 2009 that Mr Bar-Mordecai made his complaint about Murrell J to the International Criminal Court, providing a copy of the written complaint to Murrell J and to the respondent. Her Honour then relisted the matter on her own initiative, to enquire whether either party wished to make any application in relation to her continuing to sit in the proceedings. On 21 January, Mr Bar-Mordecai made an application for Murrell J to disqualify herself. Her Honour refused, giving ex tempore reasons for her decision.

120 It was Mr Bar-Mordecai’s case that the way in which her Honour had dealt with his advice of the complaint, as well as the dismissal of his application, revealed her Honour’s bias.

121 I am satisfied that no prima facie case of apprehended, or actual bias has been established.

122 As was submitted for the Attorney General, a decision of a judge not to disqualify, is not one generally susceptible to appeal, other than as an issue raised in the appeal from the final order in the proceedings, or on any interlocutory issue in respect of which there is a right to appeal. (See R v Watson ; Ex parte Armstrong (1976) 136 CLR 248, followed in Barton v Walker [1979] 2 NSWLR 740 at 751 and numerous subsequent cases.) Reference was also made to Household Financial Services Ltd v Commercial Tribunal of New South Wales (1992) 26 ALD 756, where Newman J had to consider whether an appeal lay to this Court on grounds of apprehended bias, before a decision had been given. His Honour took the view that it did not, applying the approach of Kirby J in Raybos Australia Pty Ltd v Tetracan Corporation Pty Ltd [No 9] (unreported, 27 November 1990 per Kirby P, Mahoney and Priestley JJA).

123 The provisions of the Commercial Tribunal Act 1984 being considered in Household Financial Services Ltd, were in relevantly similar terms to those in s 90 of the Medical Practice Act. It was accepted for the Attorney General, however, that under the Medical Practice Act, in review proceedings brought under s 92, in so far as any refusal to disqualify raised a question of law, such a refusal could be appealed during the course of the inquiry, with leave, under s 89. No such leave was however sought, nor granted, in this case.

124 Accepting that bias was also a matter which Mr Bar-Mordecai was entitled to raise under s 69 of the Supreme Court Act, it has to be remembered that in considering his application, her Honour was bound by various authorities which had to be applied to the circumstances which had arisen in the proceedings. Having those authorities in mind, I am satisfied that it must be concluded that Mr Bar-Mordecai has not established a prima facie case of bias.

125 There was no error on her Honour’s part in raising with the parties whether they wished to make any application. Given that Mr Bar-Mordecai was unrepresented, that was plainly appropriate. Thereby he was given the opportunity to make any application he thought appropriate. (See S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 and Dovade Pty Ltd v Westpac Banking Group (1999) 46 NSWLR 168 at [105] - [107].) Once made, the application had to be dealt with by her Honour, in the light of the authorities which bound her.

126 It has long been accepted that a mere complaint about a judicial officer can not give rise to an apprehension of bias. (see Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 294). Litigants are not entitled to pick and choose who will hear their cases, by the making of complaints during the course of proceedings. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 it was observed at 348:

[20] This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.

[21] It is not possible to state in a categorical form the circumstances in which a judge, although personally convinced that he or she is not disqualified, may properly decline to sit. Circumstances vary, and may include such factors as the stage at which an objection is raised, the practical possibility of arranging for another judge to hear the case, and the public or constitutional role of the court before which the proceedings are being conducted. These problems usually arise in a context in which a judge has no particular personal desire to hear a case. If a judge were anxious to sit in a particular case, and took pains to arrange that he or she would do so, questions of actual bias may arise.

[22] The particular principle or principles which determine the grounds upon which a judge will be disqualified from hearing a case follow from a consideration of the fundamental principle that court cases, civil or criminal, must be decided by an independent and impartial tribunal.

[23] Bias, whether actual or apprehended, connotes the absence of impartiality. It may not be an adequate term to cover all cases of the absence of independence.

127 In Attorney General of New South Wales v Klewer [2003] NSWCA 295, the complaint in question, which it was claimed had given rise to apprehended bias, had been made to the Independent Commission Against Corruption ('ICAC'). There it was observed that:

“Without doubt no litigant whether represented or otherwise should consider that the making of a complaint to an investigatory body such as ICAC or the Judicial Commission about a Judge hearing that litigant’s case will automatically involve that Judge self-disqualifying. The reasons are obvious. It would be a mechanism of much mischief in the administration of justice if that course could be taken with such facility.”

15 I agree with the view which his Honour expressed, particularly in the circumstances of the present case. From what counsel for Mrs Klewer said at the hearing on 5 December 2001, it appears that the complaint was directed generally to the judicial officers and staff of the Local Court at Coffs Harbour and to the New South Wales Police Service at Coffs Harbour and alleged a climate of hostility and bias rather than being directed to particular matters concerning Magistrate Rheinberger. Counsel referred to a non-criminal conspiracy against Mrs Klewer. Unsubstantiated allegations of this type made by disappointed litigants provide no basis upon which a judicial officer, who has been allocated to a particular matter, should recuse.

16 Thus, the position was that neither the previous matters which Magistrate Rheinberger had had with Mrs Klewer nor the complaint to the Independent Commission Against Corruption provided grounds upon which his Worship ought to have disqualified himself. Nor did a reasonable apprehension of bias arise from the fact that Hill J had ruled that another magistrate was disqualified from hearing further matters concerning Mrs Klewer. The factors which applied in that case did not apply to Magistrate Rheinberger. Nor did the transfer of other matters involving Mrs Klewer to the Downing Centre by Magistrate Rheinberger provide a reasonable apprehension that the Magistrate would not be impartial in the proceedings before him. The Magistrate made it plain that his hearing of the Social Security case would prevent him from dealing with the other matters in which Mrs Klewer was involved.

Johnson v Johnson

“It is not contended that Anderson J was affected by actual bias. It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide eg, Re Lusink; Ex parte Shaw (1980) 55 ALJR 12 …; Livesey v NSW Bar Association (1983) 151 CLR 288; Vakauta v Kelly (1989) 167 CLR 568; Webb v The Queen (1994) 181 CLR 41.

cf Locabail (UK) Ltd v Bayfield Properties Ltd

cf R v Sussex Justices; Ex parte McCarthy

R v Watson; Ex parte Armstrong

Vakauta v Kelly

Webb v The Queen

18 Levine J did not find that a reasonable apprehension of bias arose from the Magistrate’s remarks of 31 July 2001. I agree with his Honour. Although, his Worship’s remarks were somewhat elliptical, their only possible meaning was that, as the Magistrate was part heard in relation to the Social Security case, he would transfer the other matters to Sydney to be dealt with by other magistrates. No inference could be drawn from the remarks that the Magistrate would not bring an impartial, unprejudiced mind to the matter which he retained.

“I am troubled by his Worship having disposed as it were of other matters yet coming to the view represented in the elliptical paragraph of his reasons which I have cited. Exceptionally, and I cannot stress that too strongly, in that context, what his Worship said leads to the standard of reasonable apprehension to which the courts have referred being met and, accordingly, I direct that those proceedings proceed no further before him.”

20 In my view, the last paragraph of his Worship’s reasons raised no apprehension of bias on his part. He had already made it clear that his handling of the proceedings in which Mrs Klewer had been involved did not, in his view, raise any reasonable apprehension of bias. In this circumstance, his Worship’s remarks did not suggest that, in his view, there was any reasonable apprehension of bias. His Worship simply referred to what he regarded as “good policy” . His Worship was incorrect in that view for it is not good policy and certainly not appropriate that a judicial officer should disqualify himself just because one of the parties before him has lodged a complaint with the Independent Commission Against Corruption. A judicial officer should disqualify himself only if there are facts which raise a reasonable apprehension of bias on his or her part. Nevertheless, the reference to “good policy” did not suggest that Magistrate Rheinberger would fail to be impartial and unprejudiced in his handling of Mrs Klewer’s case. Indeed, the reference to what he regarded as good policy showed that the Magistrate kept in the forefront of his mind the need to be and to be seen to be without bias.

128 In this case, Mr Bar-Mordecai claimed that a reasonable apprehension of bias arose from the fact that her Honour had herself listed the matter to enquire whether either party wished to make an application, in light of Mr Bar-Mordecai’s complaint and that she had not then disqualified herself, treating the complaint to the International Criminal Court as if it had been an appeal.

129 I am satisfied that this submission may not be accepted. Her Honour was not entitled to treat a complaint to the International Criminal Court any differently to a complaint to ICAC or to the Judicial Commission (as to which see for example Kumeragamage v Rallis (No 2) [2001] NSWSC 710 at [19] - [21]). Her Honour’s refusal of Mr Bar-Mordecai’s application cannot have given rise to a prima facie case of bias, apprehended or otherwise. What was observed by the High Court in Re JRL ex parte CJL (1986) 161 CLR 342 at 352, as to acceding to disqualification applications too readily, has to be remembered:

Watson

Livesey

Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Gro

Watson

Re Lusink; Ex parte Shaw

130 It follows that Mr Bar-Mordecai’s application for leave in respect of this decision must also be refused, no prima facie case of apprehended bias having been established.

Orders

131 For the reasons given, the application for leave must be refused and the usual costs order in favour of the plaintiff must follow. I order accordingly.

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Citations

Attorney General for the State of New South Wales v Bar-Mordecai [2009] NSWSC 558

Most Recent Citation

Attorney General in and for the State of NSW v Bar-Mordecai [2010] NSWSC 323

Cases Citing This Decision

2

De Varda and Tov-Lev v The Board of Directors of the Strathfield and District Hebrew Congregation Ltd (No 2) [2012] NSWSC 1442

Attorney General in and for the State of NSW v Bar-Mordecai [2010] NSWSC 323

Cases Cited

29

Statutory Material Cited

4

Attorney General v Bar-Mordecai [2005] NSWSC 142

Bar-Mordecai v Health Care Complaints Commission [2002] NSWCA 192

Re Mr Bar-Mordecai [2009] NSWMT 1

CITATION:	Attorney General for the State of New South Wales v Bar-Mordecai [2009] NSWSC 558
HEARING DATE(S):	23 April 2009, 7 May 2009
JUDGMENT DATE :	19 June 2009
JUDGMENT OF:	Schmidt AJ
DECISION:	1. Application for leave refused. 2. Costs in favour of the plaintiff.
CATCHWORDS:	PROCEDURE - judgments and orders - amending, varying and setting aside - leave sought to file a notice of appeal to set aside Medical Tribunal judgment - vexatious litigant - whether these proceedings are vexatious - allegations of bias - no prima facie grounds in relation to allegations of bias - application for leave refused - costs
LEGISLATION CITED:	Medical Practice Act 1992 Supreme Court Act 1970 Vexatious Proceedings Act 2008 Vexatious Proceedings Restriction Act 2002 (WA)
CATEGORY:	Principal judgment
CASES CITED:	Attorney-General in and for the State of New South Wales v Bar-Mordecai [2005] NSWSC 142 Attorney General for State of New South Wales v Bar-Mordecai [2009] NSWSC 218 Attorney General of New South Wales v Klewer [2003] NSWCA 295 Bar-Mordecai v Health Care Complaints Commission [2002] NSWCA 192 Bar-Mordecai v Hillston [2004] NSWCA 65 Bar-Mordecai v Rotman [2005] NSWCA 71 Barton v Walker [1979] 2 NSWLR 740 Blair v Curran, Curran and Perpetual Trustee Co Ltd v Blair (1939) 62 CLR 464 Bromely v Bromely [1965] P 111 Dovade Pty Ltd v Westpac Banking Group (1999) 46 NSWLR 168 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Ex parte Armstrong (1976) 136 CLR 248, Fox v Percy (2003) 214 CLR 118 Gorman v Health Care Complaints Commission [2002] NSWCA 396 Household Financial Services Ltd v Commercial Tribunal of New South Wales (1992) 26 ALD 756 Hunter v Commissioner of Police [2003] WASC 10 In Re Dr Michael Jacob Bar-Mordecai and the Medical Practice Act (Medical Tribunal of New South Wales, 6 September 2000, unreported) Kumeragamage v Rallis (No 2) [2001] NSWSC 710 Lindsay v Health Care Complaints Commission (No 1) [2009] NSWCA 9 Livesey v New South Wales Bar Association (1983) 151 CLR 288 Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 Raybos Australia Pty Ltd v Tetracan Corporation Pty Ltd [No 9] (unreported, 27 November 1990 per Kirby P, Mahoney and Priestley JJA) Re Mr Bar-Mordecai [2009] NSWMT 1 Re JRL ex parte CJL (1986) 161 CLR 342 Saville v Health Care Complaints Commission & Anor [2006] NSWCA 298 Sirius Shipping Corporation v The Ship Sunrise [2007] NSWSC 766 S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358
PARTIES:	Plaintiff - Attorney General for the State of New South Wales Defendant - Michael Bar-Mordecai
FILE NUMBER(S):	SC 10622/04
COUNSEL:	Plaintiff - Mr M Dalla-Pozza Defendant - Mr Bar-Mordecai (in person)
SOLICITORS:	Plaintiff - Crown Solicitor's Office Defendant - unrepresented