Attorney-General for the State of New South Wales v Bar-Mordecai

[2009] NSWSC 218

CITATION:	Attorney-General for the State of New South Wales v Bar-Mordecai [2009] NSWSC 218
HEARING DATE(S):	12 March 2009, 13 March 2009
JUDGMENT DATE :	31 March 2009
JUDGMENT OF:	Johnson J at 1
DECISION:	1. Applications by Defendant for leave under s.84(4) Supreme Court Act 1970 to institute proceedings refused. 2. Notices of Motion filed on 10 and 17 October 2008 dismissed. 3. Defendant to pay the Plaintiff’s costs of the applications.
CATCHWORDS:	PROCEDURE - vexatious litigant - applications for leave to institute proceedings - proceedings seek to set aside judgments as being procured by fraud - allegations of perjury by witnesses and parties in proceedings before Supreme Court and Medical Tribunal - necessary for Defendant to establish prima facie ground for proposed proceedings and that proceedings not abuse of process - applications refused
LEGISLATION CITED:	Supreme Court Act 1970 Vexatious Proceedings Act 2008 Vexatious Proceedings Act 2005 (Qld) Civil Procedure Act 2005 Medical Practice Act 1992 Civil Procedure Rules (UK)
CATEGORY:	Principal judgment
CASES CITED:	Attorney-General for the State of NSW v Bar-Mordecai [2005] NSWSC 142 Attorney-General for the State of New South Wales v Spautz [2001] NSWSC 66 Williams v Spautz [1991-1992] 174 CLR 509 Ramsey v Skyring (1999) 164 ALR 378 Clark v State of New South Wales (2006) 66 NSWLR 640 Attorney-General for the State of New South Wales v Bhattacharya [2003] NSWSC 1150 Attorney-General for the State of New South Wales v Wentworth (1988) 14 NSWLR 481 Jones v Skyring (1992) 66 ALJR 810 Lohe v Mansukhani [2007] QSC 69 Bhamjee v Forsdick (No. 2) [2004] 1 WLR 88; [2003] EWCA Civ 1113 Wentworth v Graham (2003) 57 NSWLR 741 National Australia Bank Limited v Freeman [2006] QSC 86 Batistatos v Roads and Traffic Authority (NSW) [2006] 226 CLR 256 Rogers v The Queen [1994] 181 CLR 251 D’Orta-Ekenaike v Victoria Legal Aid [2005] 223 CLR 1 DJL v The Central Authority [2000] 201 CLR 226 Wentworth v Rogers (No. 5) (1986) 6 NSWLR 534 Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 Bar-Mordecai v Rotman [2000] NSWCA 123 Bar-Mordecai v Health Care Complaints Commission [2002] NSWCA 192 Bar-Mordecai v Hillston [2004] NSWCA 65 Bar-Mordecai v Rotman; Bar-Mordecai v Hillston [2005] NSWCA 71 Bride v Commonwealth Bank of Australia (No. 2) [2007] WASCA 225 Bar-Mordecai v Australian Medical Insurance Limited; Bar-Mordecai v United Medical Protection Limited [2005] NSWSC 407 Attorney-General of NSW v Bar-Mordecai [2008] NSWSC 774 Attorney-General of NSW v Bar-Mordecai [2008] NSWSC 1094 Attorney-General of NSW v Bar-Mordecai [2009] NSWSC 117
PARTIES:	Attorney-General for the State of New South Wales (Plaintiff) Michael Jacob Bar-Mordecai (Defendant)
FILE NUMBER(S):	SC 10622/04
COUNSEL:	Ms DL Ward (Plaintiff) Defendant in person
SOLICITORS:	Crown Solicitor's Office (Plaintiff)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Johnson J

31 March 2009

10622/04 Attorney-General for the State of New South Wales v Michael Jacob Bar-Mordecai

JUDGMENT (on applications by Defendant as vexatious litigant for leave to institute proceedings)

1 JOHNSON J: By three Notices of Motion filed on 10 and 17 October 2008, the Defendant, Michael Jacob Bar-Mordecai, a vexatious litigant, seeks leave pursuant to s.84(4) Supreme Court Act 1970, to institute proceedings in this Court. By these Notices of Motion, amended on 12 March 2009, the Defendant seeks the following orders:

(a) that leave be granted to file a Statement of Claim against Leviu Rotman, Alexander Hillston and Allan Hillston in the Supreme Court of NSW to set aside the Probate judgment of Einstein J dated 18 June 1998, which is said to have been procured by fraud (Notice of Motion of 10 October 2008) - (13 additional proposed Defendants have since been identified by the present Defendant (see [64]-[65] below);

(b) that leave be granted to file a Statement of Claim against the Health Care Complaints Commission in the Supreme Court of NSW to set aside the judgment of 6 September 2000 of the Medical Tribunal, which is said to have been procured by fraud (Notice of Motion of 17 October 2008);

(c) that leave be granted to file a Statement of Claim against the Administrator of the Eveline Hillston Estate, Allan Hillston, in the Supreme Court of NSW to set aside the Equity judgments of Bryson J dated 28 February 2003 in Hillston v Bar-Mordecai (No. 3240/98), Bar-Mordecai v Hillston (No. 1709/99) and Bar-Mordecai v Hillston (No. 3039/02), which are said to have been procured by fraud (Notice of Motion of 17 October 2008).

2 On 25 February 2005, on application made by the Plaintiff, the Attorney-General for the State of New South Wales, Patten AJ made orders under s.84 Supreme Court Act 1970 that the Defendant shall not, without leave of this Court, institute proceedings in any Court: Attorney-General for the State of NSW v Bar-Mordecai [2005] NSWSC 142.

3 Patten AJ found that the Defendant had habitually and persistently, and without any reasonable ground, instituted proceedings against a variety of persons, including, amongst others, members of the Hillston family, lawyers, judges and members of the Medical Tribunal. His Honour concluded at [101] that the “sheer number of them, coupled with the relative brevity of the period” during which proceedings were commenced, led inescapably to the conclusion that the Defendant was a vexatious litigant under s.84 of the Act.

Considerations Where Vexatious Litigant Seeks Leave to Institute Proceedings

The Statutory Regime for Leave Applications

4 It was common ground that these applications fall to be determined by reference to the provisions of s.84 Supreme Court Act 1970, which was repealed on 1 December 2008. On that day, the Vexatious Proceedings Act 2008 commenced. The present applications for leave were commenced in October 2008. Accordingly, they are applications made under the repealed s.84 Supreme Court Act 1970 which were pending immediately before the commencement of the Vexatious Proceedings Act 2008 on 1 December 2008, and they may be continued and dealt with under the provisions of s.84 as if that provision had not been repealed: cl.3(1), Schedule 1, Vexatious Proceedings Act 2008.

5 Where the Court has made an order under s.84(1) or (2) against any person, the Court shall not give that person leave to institute or continue any proceedings unless the Court is satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings: s.84(4) Supreme Court Act 1970. The onus lies upon the Defendant to satisfy the Court that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings: Attorney-General for the State of New South Wales v Spautz [2001] NSWSC 66 at [21].

6 According to the agreement in principle speech (Legislative Assembly, 26 June 2008, Hansard, page 9459), the Vexatious Proceedings Act 2008 is designed to expand the powers of the Courts to control vexatious litigants and is based upon model legislation approved by the Standing Committee of Attorneys-General. Both Queensland and the Northern Territory have introduced legislation consistent with the model Bill. The new procedure under the Vexatious Proceedings Act 2008 involves a two-stage process where a vexatious litigant makes application for leave to institute proceedings. Firstly, it is necessary for an applicant to comply with s.14 of the Act, with the Court empowered to dismiss the application under s.15 without the application being served or a contested hearing taking place. The equivalent provisions of the Vexatious Proceedings Act 2005 (Qld) were considered in Re Freeman [2008] QSC 200, where Martin J dismissed an application for leave at the first stage, without directing service of the application.

7 It seems clear from s.15(2), that an ex-parte hearing of the application at the first stage will take place in open court. However, given the structure of the provisions in ss.14-16, it might be expected that a brief oral hearing is envisaged, at which the only questions to be determined are whether the application ought be dismissed or, alternatively, whether more detailed argument ought occur following service of the application on affected persons, in the form of a contested hearing in open court under s.16(1) of the Act.

8 However, the 2008 statutory scheme does not apply to an application for leave under s.84 Supreme Court Act 1970. In this case, the Notices of Motion, and other materials, have been served upon the Plaintiff and counsel has appeared for the Plaintiff at a contested hearing of the application in open court. The hearing of the leave applications proceeded before me over parts of two sitting days.

Controlling Vexatious Litigants

9 Freedom of access to the Courts by citizens is a fundamental principle: Williams v Spautz [1991-1992] 174 CLR 509 at 519; Ramsey v Skyring (1999) 164 ALR 378 at 389 [51]; Clark v State of New South Wales (2006) 66 NSWLR 640 at 655-565 [63]. The making of an order under s.84 effects a significant curtailment of a citizen’s rights: Attorney-General for the State of New South Wales v Bhattacharya [2003] NSWSC 1150 at [14]. An order under s.84 has been described as an extreme remedy: Attorney-General for the State of New South Wales v Wentworth (1988) 14 NSWLR 481 at 484; Ramsey v Skyring at 389 [51].

10 However, provisions such as s.84 (and the Vexatious Proceedings Act 2008) give effect to an important countervailing policy. The provision is designed to protect the Court’s own processes against unwarranted usurpation of its time and resources and to avoid loss caused to those who face actions which lack substance: Jones v Skyring (1992) 66 ALJR 810 at 814. Linked with that objective is the need to protect the community, including citizens who wish their disputes to be resolved in an orderly and expeditious manner, against disruption of the court system flowing from the repeated institution of groundless proceedings: Ramsey v Skyring at 389 [52].

11 An order under s.84 has been made against the Defendant. The Court has determined that the statutory restriction upon his ability to institute and continue proceedings ought apply. There is no injustice if a vexatious litigant is required to establish, on any subsequent occasion he wishes to litigate, that the proposed litigation is not just more of the same: Lohe v Mansukhani [2007] QSC 69 at [51].

12 In Bhamjee v Forsdick (No. 2) [2004] 1 WLR 88; [2003] EWCA Civ 1113 at 90-91 [3], Lord Phillips of Worth Matravers MR (in delivering the judgment of the Court of Appeal) observed that the “courts are facing very serious contemporary problems created by the activities of litigants … who are bombarding them with applications which have no merit at all”. This statement has been applied by the Court of Appeal, where it was said that the Courts of this State face similar problems: Wentworth v Graham (2003) 57 NSWLR 741 at 742 [3]-[4].

13 The Court’s overriding objective in civil proceedings is to facilitate the just, quick and cheap resolution of the real issues in dispute: s.56 Civil Procedure Act 2005. The Court must have regard to the dictates of justice (s.58), and factors including the efficient disposal of the business of the Court, the efficient use of available judicial and administrative resources and the timely disposal of all proceedings in the Court, at a cost affordable to the respective parties (s.57). In Bhamjee v Forsdick (No. 2), the Master of the Rolls observed at 93 [15] that similar objectives under the Civil Procedure Rules (UK) were undermined by the activities of vexatious litigants:

“The court, therefore, has power to take appropriate action whenever it sees that its functions as a court of justice are being abused. The advent of the Civil Procedure Rules makes the nature of those functions more transparent. A court's overriding objective is to deal with cases justly. This means, among other things, dealing with cases expeditiously and allotting to them an appropriate share of its resources (while taking into account the need to allot resources to other cases). This objective is thwarted and the process of the court abused if litigants bombard the court with hopeless applications. They thereby divert the court's resources from dealing with meritorious disputes, delay the handling of those disputes, and waste skilled and scarce resources on matters totally devoid of any merit.”

These comments have been applied by Australian Courts applying the model legislation now reflected in the Vexatious Proceedings Act 2008 : National Australia Bank Limited v Freeman [2006] QSC 86 at [26]. The provisions of the Civil Procedure Act 2005 are pertinent when the Court considers applications for leave under s.84(4) Supreme Court Act 1970 or ss.14-16 Vexatious Proceedings Act 2008 .

14 Vexatious proceedings are damaging to the public interest: Bhamjee v Forsdick (No. 2) at 92 [9]. The distraction of the Courts so as to deal with vexatious proceedings is damaging to the right of citizens generally to have access to the Courts.

15 A further aspect should be noted. In Ramsey v Skyring, Sackville J observed at 392 [67]:

“The cost to the court system and the community of litigants who refuse to accept that a point has been decided authoritatively against them, or who are otherwise determined to pursue hopeless courses in the courts, can be very high. Such litigants are often immune to costs orders and exempt from paying the court fees which other litigants must meet. The present case illustrates the amount of time and the extent of the resources required to address the obstinacy of a single litigant.”

16 The Master of the Rolls made a similar point in Bhamjee v Forsdick (No. 2) at 91 [3], in noting that many vexatious litigants “have no fees disincentive because they automatically qualify for fees exemption” and that they “are often without the means to pay any costs order made against them”.

17 The protections applicable to advocates and litigants concerning statements made in open court are an important feature, which bolsters the rights of citizens to have access to the courts and the ability of the courts to administer justice.

18 Where a litigant is declared vexatious and is made the subject of an order under s.84, the ability of that litigant to bring proceedings is restricted. It is open to the litigant to make application for leave to initiate or continue proceedings. It is important, however, that the leave application itself is not used as an opportunity to engage in protracted litigation or to abuse the privilege applicable to citizens who bring proceedings before the Court. The making of an application for leave ought not become an occasion for further abuse of process itself by the making of scandalous and vexatious statements and allegations in written and oral submissions advanced in open court, purportedly in support of the application for leave. As with leave applications generally, an application for leave to institute proceedings ought be presented succinctly and in a focused way. I will return to this topic later in this judgment.

Abuse of Process

19 It is necessary for the Defendant to establish that the proposed proceedings are not an abuse of process: s.84(4).

20 The term “abuse of process” is used in many senses: Batistatos v Roads and Traffic Authority (NSW) [2006] 226 CLR 256 at 262 [1]. What amounts to abuse of process is not susceptible of a formulation comprising closed categories: Batistatos at 265 [9].

21 There are two aspects to abuse of process: first, the aspect of vexation, oppression and unfairness to the other party to the litigation and, secondly, the fact that the matter complained of will bring the administration of justice into disrepute: Rogers v The Queen [1994] 181 CLR 251 at 256; D’Orta-Ekenaike v Victoria Legal Aid [2005] 223 CLR 1 at 28 [74].

22 With respect to that class of abuse of process involving improper purpose, the criterion for abuse of process is whether the improper purpose is the predominant purpose of the moving party: Williams v Spautz at 529. If the proceedings are used as an instrument for vexation and oppression, they are an abuse of process: Williams v Spautz at 543.

23 Ordinarily, the onus of satisfying the Court that there is an abuse of process lies upon the party alleging it: Williams v Spautz at 529. Because of the s.84 order made concerning the Defendant, he bears the onus of satisfying the Court that the proceedings which he seeks to institute, by leave, are not an abuse of process.

Setting Aside a Judgment for Fraud

24 It is necessary for the Defendant to establish that there are prima facie grounds for the proposed proceedings: s.84(4).

25 A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be re-opened except in a few, narrowly defined, circumstances, an example of which is contained in the rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud: D’Orta-Ekenaike v Victoria Legal Aid at 17 [34].

26 In D’Orta-Ekenaike v Victoria Legal Aid, Gleeson CJ, Gummow, Hayne and Heydon JJ observed at 18 [37]:

“Parties who fail in litigation, whatever its subject, may well consider the result of that litigation to be wrong, even unjust. Seldom will a party have contested litigation without believing, or at least hoping, that it will be resolved in that party's favour. If that party does not succeed, an explanation for failure may be sought in what are perceived to be the failures of others - the judge, the witnesses, advocates - anyone other than the party whose case has been rejected.”

As their Honours observed at 18 [38], this is no new phenomenon.

27 With respect to the impeachment of judgments for fraud, the appropriate course involves the institution of a separate proceeding: DJL v The Central Authority [2000] 201 CLR 226 at 245 [37].

28 Each of the Defendant’s proposed proceedings seeks to impugn earlier judgments on the basis that they were obtained by fraud. The Defendant alleges that certain witnesses knowingly gave false evidence for material gain (whether because they had been bribed to do so or because they stood to gain from any judgment in their favour or otherwise).

29 As the Court must consider on the present applications whether there are prima facie grounds for the proposed proceedings, it is appropriate to refer to the principles applicable where application is made to set aside a judgment for fraud: Wentworth v Rogers (No. 5) (1986) 6 NSWLR 534 at 538-539; Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 at 700.

30 In Wentworth v Rogers (No. 5) at 538-539, Kirby P (Hope and Samuels JJA agreeing) identified the following six principles as being applicable to this class of claim.

31 Firstly, the essence of the action is fraud and particulars of the fraud must be exactly given and the allegations must be established by the strict proof which such a charge requires.

32 Secondly, it must be shown by the party asserting that a judgment was procured by fraud, that there has been a new discovery of something material, in the sense that fresh facts have been found which, by themselves or in combination with previously known facts, would provide a reason for setting aside the judgment. There is a public interest in finality of litigation. Parties ought not, by proceeding to impugn a judgment, to be permitted to re-litigate matters which were the subject of the earlier proceedings which gave rise to the judgment. In particular, they should not be permitted, if they move on nothing more than the evidence upon which they have previously failed.

33 Thirdly, mere suspicion of fraud, raised by fresh facts later discovered, will not be sufficient to secure relief. The claimant must establish that the new facts are so evidenced and so material that it is reasonably probable that the action will succeed. This rule is founded squarely in the public interest in finality of public litigation and in upholding judgments duly entered at the termination of proceedings in the courts.

34 Fourthly, although perjury by the successful party or a witness or witnesses may, if later discovered, warrant the setting aside of a judgment on the ground that it was procured by fraud, and although there may be exceptional cases where such proof of perjury could suffice, without more, to warrant relief of this kind, the mere allegation, or even the proof, of perjury will not normally be sufficient to attract such drastic and exceptional relief as the setting aside of a judgment. In hard-fought litigation, it is not at all uncommon for there to be a conflict of testimony which has to be resolved by a judge or jury. In many cases of contradictory evidence, one party may be mistaken. He or she may even be deceiving the Court. The unsuccessful party in the litigation will often consider that failure in the litigation has been procured by false evidence on the part of the opponent and the witnesses called by the opponent. If every case in which such an opinion was held gave rise to proceedings of this kind, the Courts would be even more burdened with the review of first-instance decisions than they are. For this reason, and in defence of finality of judgments, a more stringent requirement than alleged perjury alone is required.

35 Fifthly, it must be shown by admissible evidence that the successful party was responsible for the fraud which taints the judgment under challenge. The evidence in support of the charge ought to be extrinsic. It is not sufficient to show that an agent of the successful party was convicted of giving perjured evidence in the former proceeding, the result of which it is sought to impeach. It must be shown that the agent, in so acting, was in concert with the party who derived the benefit of the judgment.

36 Sixthly, the burden of establishing the components necessary to warrant the drastic step of setting aside a judgment, allegedly affected by fraud or other relevant taint, lies on the party impugning the judgment. It is for that party to establish the fraud and to do so clearly.

The Defendant’s Principal Contentions

37 Put shortly, the Defendant submits that leave ought be granted to institute proceedings for the following reasons.

38 Firstly, he contends that the question whether he was in a de facto relationship at relevant times with the late Eveline Hillston was critical to the determination of each of the judgments adverse to him reached by Einstein J, Bryson J and the Medical Tribunal.

39 Secondly, there have been separate decisions of the Court of Appeal on appeal from the judgments of Einstein J and Bryson J, which have reached different conclusions concerning the existence of a de facto relationship between the Defendant and Ms Hillston. The Defendant submits that these different judgments of the Court of Appeal are a critical part of his application for leave.

40 Thirdly, the Defendant submits that a number of persons gave perjured evidence before Einstein J, Bryson J and/or the Medical Tribunal with respect to the existence of a de facto relationship between Ms Hillston and himself. The Defendant submits that such perjured evidence can be detected by an examination of the evidence of the specified witnesses in contrast with evidence of other witnesses, including himself. The Defendant does not submit that any witness, whom he alleges has committed perjury, has recanted or withdrawn evidence previously given or admitted the giving of perjured evidence.

41 Fourthly, the Defendant submits that several of these persons who gave perjured evidence perpetrated a fraud in that judgments were given in their favour, and adverse to the Defendant, with respect to property and legal costs. Others, the Defendant contends, were bribed or otherwise influenced to give perjured evidence.

42 Fifthly, the Defendant submits that the judgments given by Einstein J, Bryson J and the Medical Tribunal adverse to him were procured by fraud by way of the alleged perjured evidence of the witnesses.

43 Sixthly, the Defendant submits that he has exhausted his remedies with respect to these judgments by appeals all the way to the High Court of Australia.

44 Seventhly, the Defendant submits that he has never framed any of his earlier claims as proceedings seeking the setting aside of judgments on the ground that they had been procured by fraud. He submits that the proposed proceedings are of a type never brought by him before.

45 Ms Ward, counsel for the Plaintiff, submits that the Defendant’s applications fall very far short of constituting a prima facie case that judgments were procured by fraud. She submits that the Defendant points, in substance, to factual disputes as between witnesses in different proceedings, thereafter seeking to ascribe the label of perjured evidence to those who gave evidence contrary to the interests of the Defendant. Ms Ward points as well to statements in various decisions of the Court of Appeal which place in their proper context, findings made concerning the alleged de facto relationship. The Plaintiff submits that the applications for leave should be dismissed.

The Court of Appeal Decisions

46 In my view, and contrary to the Defendant’s submissions, an examination of the Court of Appeal decisions does not assist the Defendant on these applications.

47 A topic common to each of the proceedings before Einstein J, Bryson J and the Medical Tribunal was the association in the period 1983 to 1994 between the Defendant (born in 1947) and Eveline Hillston (born in 1911 and died in 1994).

Appeal from the Decision of Einstein J

48 An appeal from the decision of Einstein J was dismissed by the Court of Appeal in Bar-Mordecai v Rotman [2000] NSWCA 123 (Sheller, Stein and Giles JJA). The Court referred to Einstein J’s finding that the relationship between the Defendant and Ms Hillston was not a de facto relationship (at [92]-[93]). The Court observed that Einstein J then turned to the revocation of will issue, recording that once it was answered, it made the de facto issue irrelevant (at [94]).

49 With respect to the findings of Einstein J adverse to the Defendant on the revocation issue, the Court concluded at [132]:

“In our opinion, Einstein J's findings were well and truly open to his Honour. Indeed, we think that no other findings would be reasonably open to his Honour. The appellant's evidence was incredible, riddled with critical inconsistencies and lacking in corroboration. It was just not believable.”

50 The Court of Appeal concluded on the revocation issue at [140]:

“The ultimate finding of Einstein J was that the will was not destroyed by the deceased in the presence of the appellant, or ever by her whilst she lived, but stood as her last testamentary instrument at her date of death. We agree. The evidence pointed inexorably to this conclusion.”

51 The Court of Appeal then turned (at [141]) to the de facto relationship issue noting that, although the findings as to revocation would dispose of the appeal, the de facto relationship issue was an alternative basis for Einstein J’s decision and should not be passed over. After recounting the evidence touching upon the de facto relationship issue, the Court of Appeal concluded at [170]-[176] that the finding of the trial Judge that a de facto relationship had not been established was open to his Honour. The Court concluded at [175]-[176]:

“Einstein J had to evaluate the evidence of a number of witnesses, some of potential weight and some of little moment, and many of them conflicting in different ways; he had to do so against facts established beyond controversy or not reasonably open to challenge, and with regard to the probabilities; and he had the advantage of seeing and hearing the witnesses for such assistance as he found in his task. This was a classic exercise in finding primary facts and arriving at conclusions as to secondary facts. In our opinion, his Honour was fully entitled to find that the appellant's evidence going to the existence of a de facto relationship was false, that his case for such a relationship should not be accepted, and that, particularly in the light of the position of influence assumed by the appellant over the deceased, there was not a de facto relationship between the appellant and the deceased within the meaning of the Act. Grounds for overturning that finding have not been established.

In connection with the existence of the de facto relationship, his Honour found that the appellant was 'well aware of the ... indicia taken into account by the Court in determining this question'. His Honour found that the appellant set out to establish such indicia with 'such vigour and detail that ultimately I formed the view that the Plaintiff had spent many years seeking to build up just such a case'. The evidence amply justified that view. We do not think that anything in the consideration of the de facto relationship issue casts doubt on the ultimate finding as to revocation. On the contrary, the compelling reasons for regarding the appellant's evidence of destruction of the 1989 will as made up, in order to take on intestacy, make the appellant's evidence as to a de facto relationship the more unacceptable.”

52 The Court of Appeal turned to the Defendant’s submission that witnesses adverse to him had committed perjury (at [206]-[207]):

“The appellant maintained that a number of witnesses who gave evidence in the case for the respondents committed perjury. They include Mr Alan Hillston, Mr Alex Hillston, Mrs Connell, Mr Axenfeld and Mrs Jane Hillston. The appellant said that since (in his view) they told lies on oath, their evidence should be ignored by this Court.

His Honour examined the evidence of the witnesses mentioned above in some detail. For the most part he accepted the credibility of their evidence, acknowledging some discrepancies and shortcomings in their testimony. He had the task of evaluation of evidence which we have earlier described. His Honour had a very considerable advantage over us, and an examination of the transcript of their evidence and the material relevant to it does not lead us to doubt his Honour's assessment of their evidence. We do not believe that any of the credit findings made by his Honour with respect to their evidence should be disturbed, nor for that matter with respect to the evidence of any other witness. That the appellant categorises evidence as 'perjured' establishes nothing. This element in the appellant's case in the appeal is misconceived.”

53 Before making final orders dismissing the appeal with costs, the Court of Appeal observed with respect to other issues raised by the Defendant in his submissions (at [211]-[212]):

“Following the institution of the appeal the appellant filed a 600 page submission which addressed his Honour's judgment in the most minute detail. His further written submissions on the appeal, filed prior to the hearing, exceeded 300 pages. During the hearing of the appeal the appellant handed up three further written submissions totalling 71 pages. On any assessment the written submissions were prolix. This would be of less concern were it not for the repetitious nature of a great deal of the material. Selective quoting of the evidence was heightened by the frequent reproduction of rejected evidence or evidence not called in the trial or received on appeal. The unnecessarily vituperative nature of much of the almost 1000 pages, added nothing to its substance.

Many of the frequently repeated submissions were manifestly untenable, and many were manifestly misconceived or lacking in any substance. To address every one of the matters purported to be raised in the submissions of the appellant (written and oral) would be well nigh impossible. It is also unnecessary, because while we have considered all that the appellant put in his submissions there is no need to discuss arguments which are hopeless or inconsequential to the result in the proceedings. In accord with the approach explained in Australian Breeders Co-operative Society Ltd v Jones (1997) 150 ALR 488 at 503 and Amadio Pty Ltd v Henderson (1998) 81 FLR 149 at 175, we have confined these reasons to those issues with which we understand the appellant has principally concerned himself and which we see as of some significance or consequence.”

Appeal from Decision of Medical Tribunal

54 On 6 September 2000, the Medical Tribunal (Cooper DCJ, Dr J Woodforde, Dr J Richards and Ms M Brophy) made orders, including an order deregistering the Defendant under the Medical Practice Act 1992. In a detailed judgment, the Medical Tribunal was satisfied to the requisite standard that:

(a) the Defendant treated Eveline Hillston whilst, at the same time, having a personal and sexual relationship with her, and that this constituted improper and unethical conduct relating to the practice of medicine, with the Defendant displaying a flagrant disregard for and lack of knowledge of the ethics governing the boundaries between doctor and patient (Medical Tribunal judgment, page 9);

(b) the Defendant obtained financial advantage from Eveline Hillston whilst treating her as a patient in circumstances which constituted improper or unethical conduct relating to the practice of medicine (judgment, page 13);

(c) the Defendant destroyed or suppressed the 1989 will of Ms Hillston and he lied in written and oral testimony in Supreme Court proceedings relating to the will (judgment, page 33);

(d) steps were taken by the Defendant in 1993-1994 to obtain financial benefits from Ms Hillston on her death by acquiring financial interests with and from her, and those financial benefits arose out of the patient/doctor relationship then subsisting between them and amounted to professional misconduct (judgment, page 36);

(e) the Defendant administered 30 mg of morphine in 1994 to Ms Hillston (then 83 years old), who had severe airway limitations and renal failure, this step being excessive and very likely to cause her harm by producing respiratory suppression - this demonstrated a lack of adequate knowledge, skill, judgment and care in the practice of medicine and constituted professional misconduct (judgment, pages 53-54);

(f) it was inappropriate for the Defendant to sign the death certificate for Ms Hillston and this constituted unsatisfactory professional conduct (judgment, pages 55-56);

(g) the Defendant failed to keep a drug register in June 1994 for Schedule 8 drugs of addiction (judgment, pages 59-60);

(h) the Defendant, whilst treating Patient B, disclosed to the husband of Patient B (Patient C) in a consultation, confidential information obtained in the treatment of Patient B and the Defendant gave inappropriate advice to Patient C concerning his relationship with Patient B (judgment, pages 69-70);

(i) there were serious defects in the Defendant’s character demonstrated by:


(i) his inability to distinguish the boundaries of the professional doctor/patient relationship with resulting transgressions thereof;

(ii) his repeated acts of sexual relationship with patients;

(iii) his avarice demonstrated by his suppression or destruction of the will of his late patient so that he could claim for the totality of her estate;

(iv) his lack of integrity as demonstrated by his lies on oath in written and oral evidence to the Supreme Court (judgment, pages 71-72).

55 The Court of Appeal dismissed an appeal from this decision: Bar-Mordecai v Health Care Complaints Commission [2002] NSWCA 192 (Meagher and Beazley JJA, Pearlman AJA). In delivering the leading judgment in the Court of Appeal, Beazley JA (Meagher JA and Pearlman AJA agreeing) observed at [7]-[8]:

“The first particular of complaint one was that between August 1983 and June 1994 the appellant treated the late Mrs Hillston whilst at the same time having a personal and sexual relationship with her. The Tribunal found and recorded that it was common ground between the parties before the Tribunal that there was a very close personal relationship between the respondent and Mrs Hillston, and that there was evidence to support the appellant's contention that at least for some part of the time it was a sexual relationship. The appellant argues forcefully that that finding in effect misstates the nature of the relationship, because the relationship between him and Mrs Hillston was that of de facto husband and wife.

For myself, I do not see that having regard to the matters in issue before the Tribunal, that that distinction is either relevant or undermines the finding of fact to which I have referred. This is because the Tribunal correctly identified the question before it as being whether, in all the circumstances having regard to the fact of the relationship, whether described as a very close personal one which included a sexual relationship or which would properly be referred to as a de facto relationship, it was improper or unethical for the appellant to treat her during the currency of the relationship.”

56 Beazley JA adverted to the Defendant’s submission that various witnesses had committed perjury and concluded at [35]-[38]:

“[35] In his submissions from time to time, the appellant also alleged that the Tribunal was biased. That might arguably give rise to an error of law. The bias which seems to have been identified in the submissions is that the Tribunal failed to prosecute various of the witnesses before it for perjury, thus illustrating what at one stage was described as gross bias. I refer, for example, to submission 25, subpara5, and submission 30.

[36] A tribunal's preference for one witness's evidence over another cannot be the basis for any allegation of bias. That is the function of fact finding by a tribunal. Accordingly, that error of law, should it exist, has not been made out.

[37] Some of the submissions of the appellant also seem to indicate that he considers that the Tribunal failed to take into account a number of relevant considerations, in particular that he and Mrs Hillston were in a de facto relationship, and also by failure to take into account certain matters in mitigation. I will deal with those matters when I deal with the orders.

[38] In relation to the question of the de facto relationship, I have already referred to this in the course of these reasons. The findings of the Tribunal of the close personal relationship of a sexual nature were sufficient for it to proceed as it did, identifying the real issues as to being whether there had been inappropriate behaviour arising out of the doctor patient relationship, given those matters.”

57 The appeal was dismissed with costs.

Appeal from Decision of Bryson J

58 In Bar-Mordecai v Hillston [2004] NSWCA 65, the Court of Appeal (Mason P, Tobias JA, Davies AJA) allowed an appeal, in part, from the decision of Bryson J. Having considered the evidence adduced at the hearing before his Honour, the Court of Appeal reached a different view concerning the de facto relationship issue. However, the Court of Appeal concluded at [144]-[146]:

“[144] Our respectful disagreement with Bryson J on the issues of de facto relationship and undue influence (as regards Eastbourne Ave: see below) must be taken into account in a fresh analysis by this court as to the s 16 issue. The adjustments cut both ways. The appellant’s position is strengthened somewhat by recognising his status as an eligible person. But his financial position consequent upon the death of the deceased is also materially better than as ordered by Bryson J. That is because (as we later hold) he retains the interest in Eastbourne Ave, he does not have to account for use and occupation preceding its sale and because there should be some adjustment of the adverse costs order in the undue influence proceedings.

[145] Taking account of these further matters we conclude that the order refusing an extension of time should stand. We have already indicated our entire agreement with the findings and conclusions of Bryson J relevant to the absence of sufficient cause for delay and its costly impact on the estate. We do not think that the appellant has demonstrated the likelihood of an order in his favour in substantive family provision proceedings. He will be restored to his entitlement to his share of the proceeds of Eastbourne Ave. Of course, his earning capacity has been severely affected by his striking off as a medical practitioner, but the reasons for that disciplinary measure scarcely assist him in a claim against the estate of this particular deceased. Bryson J’s conclusions at paras [260]-[261] of his reasons (already set out) are unaffected by placing a different legal character on the couple’s relationship. We agree with them.

[146] Accordingly, the appeal in the family provision proceedings must be dismissed with costs.”

59 The Court of Appeal referred to other grounds of appeal pressed by the Defendant at [185]-[191]:

“[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. The Grepe order made on 31 May 2002 was entirely justified for the reasons given by Bryson J (Red 110–122).

[189] Another group of grounds allege misconduct in the administration of the deceased’s estate by Allan Hillston, the administrator. These mainly present as attacks on his credibility, but are also pertinent to the appeal in the probate proceedings litigated before Bryson J in which the appellant sought revocation of the letters of administration. The respondent was well entitled to defend the family provision claims and to dispute the claim as to a de facto relationship. Bryson J dismissed those proceedings for reasons stated at [262] of his judgment. We entirely agree with the judge’s reasons and would therefore dismiss with costs the appeal against the orders made in proceedings 3039 of 1992.

[190] The respondent seeks costs on the indemnity basis, pointing to the order to that effect made at the trial and the well-founded reasons for it. With hesitation we decline to make a special order. This part of the appeal took up very little time and attracted few written submissions. It would complicate assessment of costs to differentiate the costs touching this issue in the circumstances.

[191] The crippling costs of the two sets of litigation were sufficient reasons in themselves to justify the administrator’s sale of Eastbourne Ave (in 2001) and of the Mount St unit (in 2002). The appellant appears to accept this (Grounds 40–41). His 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.”

60 Although the lastmentioned judgment of the Court of Appeal is pivotal to the Defendant’s submissions on the present applications, it may be seen that the Court’s conclusions provide no real assistance to the Defendant.

Application to Re-Open Appeals

61 By Notice of Motion filed 20 January 2005, the Defendant sought leave to reopen the appeals determined by the Court of Appeal in Bar-Mordecai v Rotman [2000] NSWCA 123 and Bar-Mordecai v Hillston [2004] NSWCA 65. In the course of refusing the Defendant’s application on 4 March 2005, Mason P (Giles and Tobias JJA agreeing) expressed conclusions which are most pertinent to the present applications for leave. Mason P said (Bar-Mordecai v Rotman; Bar-Mordecai v Hillston [2005] NSWCA 71 at [7]-[12]):

“[7] The present motion is a further attempt to reopen that appeal. It is vexatious and must be refused summarily. The statement in para 5 of the earlier judgment of the Court of Appeal is equally applicable. The grounds attempt to re-agitate issues finally decided long ago. Furthermore, none of the evidence seems to be fresh, but it would not matter if it were because the appellate processes in this Court are over. There is also a plethora of baseless, often scandalous, allegations of judicial bias. Other grounds seem to proceed on the basis that this Court can entertain an appeal from its own decision.

[8] The only matter deserving limited attention is that which appears to be a driving element of this application. The claimant contends that there is an inconsistency or incompatibility between the decision of the Court of Appeal in its first judgment in the equity appeal and the decision of Einstein J in the probate proceedings that stands in consequence of the dismissal of the appeal from that judgment.

[9] The evidence in the probate and equity proceedings was different, although there was an overlap. Some witnesses were called in one proceeding who were not called in the other. The claimant had contended in the probate proceedings that a de facto relationship existed at the date of death. There were indeed findings on this issue adverse to the claimant in the probate proceedings. Whether those findings were dispositive such as to constitute an issue estoppel is an interesting question, but it was not a matter raised in the equity proceedings. Both before Bryson J and in this Court, both parties abjured any reliance on issue estoppel. Had there been an issue estoppel arising out of the probate proceedings, then the claimant would not have been permitted to agitate the de facto issue in the equity or family provision proceedings, at least as at the date of the deceased’s death. What is also clear is that this Court has no power to permit the reopening of the probate proceedings simply because of different findings on the de facto relationship issue in the equity proceedings and equity appeal.

[10] As I have observed, there was an overlap of the evidence on this issue in both proceedings, but the evidence including the cross-examination was certainly far from identical. The fact that one court comes to a conclusion on an issue based on the evidence before it whereas another court on similar but far from identical evidence comes to a different conclusion has never before been and is not now a legitimate basis upon which the finding of one court can be reopened and set aside, and the finding of the other court substituted therefore. Yet this is the thrust of the claimant’s motion. It is misconceived.

[11] The claimant repeated in this context his previously ventilated allegations that members of the Hillston family committed fraud, thereby procuring judgment in their favour. This allegation is not made out by repetition of submissions made at the trial and on appeal, that the evidence of witnesses adverse to the claimant’s interest was fraudulent, and it is unsupported by the evidence. Furthermore, this is not a matter apt to be raised in a motion to reopen an appeal.

[12] The motion must therefore be dismissed with costs. In the circumstances indicated above, those costs should be paid by the claimant on an indemnity basis.”

Determination of Applications for Leave

62 These are not applications for leave to institute proceedings in an area which is entirely unrelated to the proceedings which gave rise to the vexatious litigant order. Rather, the present applications involve the same persons and proceedings which resulted in that order. For that reason, it was relevant to set out, in some detail, the above extracts from the judgments of the Court of Appeal. For that same reason, it is relevant to say more concerning findings in earlier proceedings brought by the Defendant, to assist an assessment whether he has made out a basis for leave under s.84(4) of the Act.

63 I have considered the submissions made with respect to the applications for leave, and the evidence to which my attention was drawn during the course of submissions. The Defendant tendered four lever-arch folders of material on the applications for leave, together with other documents provided with detailed written submissions.

64 The Defendant furnished four Draft Statements of Claim in support of his applications. One Draft Statement of Claim (MFI1) related to the Probate judgment of Einstein J and another related to the Medical Tribunal judgment (MFI2). Two Draft Statements of Claim (MFI3 and MFI4) related to the Equity judgment of Bryson J. These four proposed proceedings fall broadly under the umbrella of the three Notices of Motion filed by the Defendant in October 2008, referred to at [1] above.

65 The Draft Statement of Claim (MFI1) is 58 pages in length. It comprises a wide range of allegations against a large number of people who were parties, witnesses or legal representatives for parties opposed to the Defendant. It nominates 16 persons as proposed Defendants in those proceedings.

66 The Draft Statement of Claim (MFI2) is 47 pages in length. Like MFI1, it contains a wide range of allegations against a large number of people. It nominates the Health Care Complaints Commission as the proposed Defendant.

67 The Draft Statement of Claim (MFI3) is 41 pages in length. Like MFI1 and MFI2, it contains a wide range of allegations against a large number of people. It nominates Allan Hillston as the proposed Defendant.

68 The Draft Statement of Claim (MFI4) is 42 pages in length. Like MFI1, MFI2 and MFI3, it contains a wide range of allegations against many people. It nominates Allan Hillston as the proposed Defendant.

69 I am entirely unpersuaded that any basis for leave has been demonstrated by the Defendant. I accept the submissions of the Plaintiff with respect to the applications (see [45] above).

70 The evidence falls far short of demonstrating prima facie grounds for the proposed proceedings in accordance with each of six factors set out at [31] to [36] above.

71 The Draft Statements of Claim (MFI1-4) relied upon by the Defendant do not assist him on this application. The assertion that perjury has been committed is not enough. Whatever may be the subjective view of the Defendant, no objective foundation has been demonstrated so as to constitute a prima facie case in support of proceedings to set aside judgments in accordance with the relevant principles.

72 The Defendant is re-agitating challenges to witnesses’ credibility which have been rejected in past proceedings, nearly all of which were foundational to the s.84 order made against him by Patten AJ on 25 February 2005.

73 The observations of Mason P in the 2005 Court of Appeal judgment (at [61] above) are pertinent, with respect to both the existence of a prima facie case of procuring judgment by fraud and the question whether the present applications constitutes an abuse of process, both issues being relevant on the application for leave under s.84(4) of the Act.

74 As the judgment of Patten AJ makes clear, the Defendant has brought a variety of unsuccessful proceedings which contend, in different ways, that witnesses have perjured themselves in earlier proceedings - see, for example, Patten AJ’s judgment at [33]-[36] (William Widoger), [39]-[42] (Allan Hillston), [51]-[54] (Leviu Rotman), [55]-[56] (Jane Hillston), [57]-[59] (Alexander Hillston) and [60] (Peter Rowston). He has brought vexatious proceedings against judicial officers and Tribunal members who have determined proceedings adversely to him (Patten AJ’s judgment at [61]-[66], [91]-[93]). He has brought vexatious proceedings against lawyers who appeared in proceedings determined adversely to him (Patten AJ’s judgment at [43]-[50]). The observations of members of the High Court in D’Orta-Ekenaike v Victoria Legal Aid at [26] above are especially pertinent to the Defendant.

75 The Defendant has demonstrated, once again, a propensity to build submissions of impropriety on a tenuous basis. It seems clear that he is advancing arguments with respect to witnesses which have previously been made and rejected in various Courts and in the Medical Tribunal. Although he contends that a new case is being advanced based upon the alleged procuring of judgments by fraud, the Defendant seeks to re-visit issues, witnesses and parties from earlier proceedings on no fresh basis. In truth, this is a variation on a well-worn theme advanced by him. Using the words of the Court of Appeal of Western Australia in Bride v Commonwealth Bank of Australia (No. 2) [2007] WASCA 225 at [97], the “same complaints have been formulated and reformulated time and again [by the Defendant] without regard to adverse conclusions reached by various Courts”.

76 I have referred to statements by the Court of Appeal, in various judgments, concerning the Defendant’s propensity to launch attacks upon litigants, witnesses and judicial officers in the midst of his litigation (see [53], [56], [59] and [61] above). This propensity has demonstrated itself, once again, on the present applications. From time to time, the Defendant made comments in his written and oral submissions attacking judicial officers and attempting to make statements which did not relate to his leave applications. The Defendant was reminded by the Court, on more than one occasion, of his responsibilities in addressing the Court on these applications. The observations of the Court of Appeal in Wentworth v Graham at 744-745 [23]-[24] are pertinent, concerning the challenges for the administration of justice where scurrilous and baseless allegations are made concerning judicial officers. The fact that the Defendant resorts to such attacks in his submissions undermines his claim that the proposed proceedings are not an abuse of process.

Applications for Leave by the Defendant Since February 2005

77 Before concluding this judgment, I observe that the present applications, and other applications brought by the Defendant for leave under s.84(4), have absorbed a significant level of judicial resources. It is, of course, the Defendant’s right to make such applications. However, the observations at [11] to [18] above are pertinent as to the determination of such applications.

78 Several applications for leave have been brought by the Defendant since Patten AJ made the order under s.84 on 25 February 2005. All applications which have been determined so far have failed. Those applications are:

(a) Bar-Mordecai v Rotman; Bar-Mordecai v Hillston [2005] NSWCA 71 - application for leave to re-open appeals filed 20 January 2005 and determined 4 March 2005 - as the Defendant had been declared a vexatious litigant by Patten AJ on 25 February 2005, leave to continue the application was required - the Court of Appeal granted the Defendant leave under s.84(4) to continue the proceedings, but refused leave to re-open the proceedings and ordered the Defendant to pay costs on an indemnity basis (see [61] above);

(b) Bar-Mordecai v Australian Medical Insurance Limited; Bar-Mordecai v United Medical Protection Limited [2005] NSWSC 407 - application for leave to continue appeal against two decisions of a Master - Simpson J refused leave to continue the appeal;

(c) Attorney-General of NSW v Bar-Mordecai [2008] NSWSC 774 - application for leave to institute proceedings against Health Care Complaints Commission for alleged failure to comply with legislative requirements during investigation of the Defendant - McCallum J refused leave to institute proceedings with costs;

(d) Attorney-General of NSW v Bar-Mordecai [2008] NSWSC 1094 - application for leave to institute an appeal to the District Court against the making of an apprehended violence order - Harrison AsJ refused leave to institute proceedings with costs;

(e) Attorney-General of NSW v Bar-Mordecai - application for leave to commence Supreme Court proceedings against police officers alleging malicious prosecution and unlawful imprisonment in relation to arrest for breach of an apprehended violence order - hearing before Smart AJ on 10-11 December 2008 with judgment reserved;

(f) Attorney-General of NSW v Bar-Mordecai - the three Notices of Motion to commence separate proceedings, the subject of this judgment;

(g) Attorney-General of NSW v Bar-Mordecai - application for leave to institute an appeal from the decision of the Medical Tribunal on application for review of 2000 Medical Tribunal judgment - listed for hearing in the Common Law Division on 23 April 2009.

79 The present applications came before me only after Rothman J on 19 February 2009 (Attorney-General of NSW v Bar-Mordecai [2009] NSWSC 117) and Hislop J on 12 March 2009 found it necessary to disqualify themselves from hearing the applications.

80 The Notices of Motion filed by the Defendant on 10 and 17 October 2008 each indicate that the payment of fees has been postponed. I do not know the reason why payment of filing fees was postponed. The payment of filing fees, at the time of filing, is an ordinary incident of litigation which ought apply to all citizens who institute proceedings, subject to well-recognised exceptions. The observations in Ramsey v Skyring and Bhamjee v Forsdick (No. 2), set out at [15]-[16] above are relevant.

Conclusions and Orders

81 The Defendant has not demonstrated prima facie ground for the proceedings which he seeks to bring, by leave. Nor has the Defendant demonstrated that the proposed proceedings are not an abuse of process. Indeed, the present applications bear the hallmarks of an abuse of process (see [21]-[22] above).

82 I make the following orders:

(a) I refuse the Defendant leave under s.84(4) Supreme Court Act 1970 , to institute proceedings as identified in paragraphs [1] and [64]-[68] of this judgment;

(b) the three Notices of Motion filed on 10 and 17 October 2008 are dismissed;

(c) the Defendant is to pay the Plaintiff’s costs of these applications.

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