Attorney General in and for the State of NSW v Bar-Mordecai

[2013] NSWSC 129

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Attorney General in and for the State of NSW v Bar-Mordecai [2013] NSWSC 129
Hearing dates:	10 December 2012, 11 December 2012
Decision date:	27 February 2013
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	Application for leave refused.
Catchwords:	PROCEDURE - notice of motion - leave sought under section 14 of the Vexatious Proceedings Act 2008 to bring proceedings in negligence - whether plaintiff entitled to press application for leave in relation to the proposed amended statement of claim - disputed expert reports - whether s 79 of the Evidence Act 2005 applies to the disputed reports - requirements of Rule 31.36 of the Uniform Civil Procedure Rules 2005 - whether the plaintiff has a prima facie case - no prima facie case established - whether plaintiff complied with s 14(3)(c) - obligation to disclose all material facts not complied with - whether plaintiff established that proceedings were not vexatious - not established - application for leave refused - orders - costs
Legislation Cited:	Civil Liability Act 2002 Civil Procedure Act 2005 Evidence Act 1995 Medical Practice Act 1992 (repealed) Poisons Act 1966 Uniform Civil Procedure Rules 2005 Vexatious Proceedings Act 2008 Vexatious Proceedings Restriction Act 2002 (WA)
Cases Cited:	Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 Attorney General v Bar-Mordecai [2005] NSWSC 142 Attorney General (NSW); Bar-Mordecai v State of New South Wales [2012] NSWCA 207 Attorney-General of NSW v Bar -Mordecai [2011] NSWSC 100 Attorney-General (NSW) v Bar-Mordecai [2009] NSWSC 218 Attorney-General for the State of New South Wales v Bar-Mordecai [2009] NSWSC 218 Attorney-General v Wentworth (1988) 14 NSWLR 481 Bar-Mordecai v Attorney General (NSW);Bar-Mordecai v State of New South Wales [2012] NSWCA 207 Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 D'orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 Hunter v Commissioner of Police [2003] WASC 10 International Finance Trust Company Limited v New South Wales Crime Commission [2008] NSWCA 291; (2008) 251 ALR 479 In re Dr Michael Jacob Bar-Mordecai and the Medical Practice Act (unreported, Medical Tribunal of New South Wales, 6 September 2000) Mann v O'Neill [1997] HCA 28; (1997) 191 CLR 204 Re Bar-Mordecai [2009] NSWMT 1 Salzke v Khoury [2009] NSWCA 195; (2009) 74 NSWLR 580 Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82
Category:	Principal judgment
Parties:	Attorney General in and for the State of NSW (Plaintiff) Michael Jacob Bar-Mordecai (Defendant)
Representation:	Counsel: K Oliver (Plaintiff) M Lynch (Dr XY) Solicitors: IV Knight (Plaintiff) Mr Bar-Mordecai (unrepresented) (Defendant) Avant Legal (Dr XY)
File Number(s):	2004/180898
Publication restriction:	None

Judgment

1. Mr Bar-Mordecai was declared a vexatious litigant on 25 February 2005 (see Attorney General v Bar-Mordecai [2005] NSWSC 142). By notice of motion filed in October 2010, he sought leave to bring proceedings in negligence against Dr XY, a psychiatrist, under s 14 of the Vexatious Proceedings Act 2007. It is now settled that the correct procedure was to bring the application by way of summons, but nothing turns on that in this case (see Bar-Mordecai v Attorney General (NSW); Bar-Mordecai v State of New South Wales [2012] NSWCA 207).

1. On 25 October 2010, Hulme J granted Mr Bar-Mordecai leave under s 16(1) of the Act to serve his application on Dr XY and the Attorney General. In November 2010, James J ordered that Dr XY's identity not be published. In March 2011, Davies J answered questions raised by a motion filed by the Attorney, concluding amongst other things that Mr Bar-Mordecai could not serve further evidence in support of his application, without the Court's prior leave (see Attorney-General of NSW v Bar -Mordecai [2011] NSWSC 100). In July 2011 in Bar-Mordecai v Attorney General (NSW); Bar-Mordecai v State of New South Wales [2012] NSWCA 207, an appeal from his Honour's decision was upheld. It was there concluded amongst other things that:

"(i) the Vexatious Proceedings Act does not confer on the Court power to require the applicant, by order or otherwise, to serve evidence additional to the affidavit required by s 14(3) of the Act;

(ii) the Vexatious Proceedings Act does not require that the applicant obtain leave to rely upon evidence in addition to the affidavit provided under s 14(3) at any hearing in respect of the application;

(iii) the Vexatious Proceedings Act does not permit, and impliedly prohibits, the service by the applicant on any person of any evidential material relevant to his application prior to the Court ordering that the application and affidavit under s 14(3) be served, pursuant to s 16(1)(a);

(iv) the Court may give such directions or make such orders as may properly be made in accordance with the Civil Procedure Act and the Uniform Civil Procedure Rules in respect of any hearing in respect of the application, including as to the manner and circumstances in which evidence may be proffered."

1. By motion filed in August 2011, Mr Bar-Mordecai sought leave to file an amended statement of claim. In August 2012, he filed another motion seeking leave to file another amended statement of claim and leave to rely on the reports of two psychiatrists, as well as a report he had himself provided. Mr Bar-Mordecai later served various other affidavits. In November 2012, Mr Bar-Mordecai filed yet another draft further amended statement of claim, which he sought leave to pursue, as well as another affidavit. He filed yet another affidavit in December.

1. At the hearing in December, Mr Bar-Mordecai filed another motion, where he pressed an application for leave to institute proceedings by way of an amended statement of claim marked MFI 4. That proposed pleading was in substantially different terms to the statement of claim in respect of which Hulme J gave leave in October 2010.

1. For his part, on 19 September 2012, Dr XY filed a motion seeking orders that Mr Bar-Mordecai's application for leave be dismissed; that his 25 October 2010 motion be dismissed; that the proceedings be struck out under Rule 11. 28 of the Uniform Civil Procedure Rules 2005; that they be dismissed under Rule 31.36(3) and that Mr Bar-Mordecai pay Dr XY's costs of the proceedings.

1. This motion was listed for hearing at the same time as the s 16 hearing. It was supported by an affidavit sworn by Dr XY's solicitor Mr Tsaousidis. Various documents were annexed to that affidavit, including reports provided by two other psychiatrists to Mr Bar-Mordecai, which he had referred to in an affidavit he had sworn on 3 August 2012. They were reports of Dr Yolande Lucire of 3 March 2011 and Dr Ahmed of 2 August 2012.

1. Mr Bar-Mordecai appeared unrepresented at the hearing. The Attorney General and Dr XY both opposed the leave which he sought.

The background to the application

1. Mr Bar-Mordecai was a practicing medical practitioner who in September 2000 was deregistered by order of the New South Wales Medical Tribunal made under the then Medical Practice Act 1992. In 2009 the Tribunal refused an application for review of that decision.

1. In opening his case Mr Bar-Mordecai explained that the prima facie ground for the negligence claim which he wishes to bring against Dr XY, his treating psychiatrist for some eight years, was that Dr XY had breached the duty of care which he owed him, by failing to assist him to recognise doctor/patient boundaries and to appreciate the reasons for those boundaries. The result was that his application for review of his deregistration was refused by the Medical Tribunal in 2009.

1. Dr XY had treated Mr Bar-Mordecai after his de-registration, after referral by his GP following an attempted suicide. In 2006 Mr Bar-Mordecai applied for re-registration under s 87 of the Medical Practice Act. He represented himself in the proceedings, giving evidence and relying on reports Dr XY had provided, which supported his application.

1. Dr XY was subpoenaed to produce documents and give evidence at the hearing. He was then questioned by Mr Bar-Mordecai and cross-examined by the Medical Board of New South Wales, the contradictor in the proceedings. Dr XY also answered questions posed to him by the Deputy Chairperson of the Tribunal, Murrell J and other Tribunal members. Reports prepared by another psychiatrist, Dr Jonathan Phillips, who had examined by Mr Bar-Mordecai at the request of the Medical Board, were also tendered and he was called and cross-examined by Mr Bar-Mordecai.

1. The Tribunal refused Mr Bar-Mordecai's application, concluding that it was not satisfied that he was a person of good character. Under s 64(3) of the Medical Practice Act it ordered that there be no review of the 2000 decision for a further period of 3 years.

1. Mr Bar-Mordecai claims that it was Dr XY's breach of his duty of care which caused the Tribunal to dismiss his application, as well as causing him other serious harm and resulting in his de-skilling, because the refusal of his application prevented him from practicing as a doctor.

The proposed claim

1. In the draft statement of claim finally pressed, it is alleged that but for the alleged breaches of duty on Dr XY's part, Mr Bar-Mordecai would have achieved emotional insight into his past ethical transgressions; his character would have been reformed; and the Tribunal would have registered him as a medical practitioner in 2009. The damages claimed are pecuniary loss of income and pain and suffering, consequent on the refusal of his re-registration application.

The Medical Tribunal's decisions

1. In order to resolve the matters over which the parties joined issue, it is necessary to refer to the two Tribunal decisions. In 2000, Mr Bar-Mordecai was deregistered following upon various complaints which were found proven (see In re Dr Michael Jacob Bar-Mordecai and the Medical Practice Act (unreported, Medical Tribunal of New South Wales, 6 September 2000)).

1. The Tribunal then concluded that Mr Bar-Mordecai's conduct had amounted to improper or unethical conduct, which constituted professional misconduct within the meaning of s 37 of the Medical Practice Act. That conduct was found to have commenced in 1983, when he was aged 36 years. The complaints concerned his treatment and relationships with a number of patients and his obedience of the law in relation to the keeping of a drug register and the way in which drugs were kept.

1. The Tribunal found that serious defects in Mr Bar-Mordecai's character had been established, including in his inability to distinguish the boundaries of the professional doctor/patient relationship, with resulting transgression; repeated acts of sexual relationships with patients; avarice demonstrated by suppression or destruction of a patient's will; and a lack of integrity demonstrated by lies on oath in Court proceedings. The Tribunal also found that he had no insight or remorse for admitted transgressions.

1. Mr Bar-Mordecai pursued his review application under s 94A of the Medical Practice Act. In its 2009 decision the Tribunal noted that the obligation falling upon him was to establish that he was both competent to practice and of good character (see Re Bar-Mordecai [2009] NSWMT 1). The issues which the Tribunal identified as then arising to be determined were:

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

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

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

1. The Tribunal found that it was not until November 2008 that Mr Bar-Mordecai had acknowledged the impropriety of a medical practitioner treating his de facto partner. Despite this, the Tribunal had 'profound disquiet' about his current appreciation of doctor/patient boundaries. The Tribunal noted the Medical Board's submission that Mr Bar-Mordecai's evidence of a belated acceptance of the rule that it is improper for a doctor to treat his de facto partner was an opportunistic lie, evidenced by his many past statements to different effect, including in the proceedings.

1. The Tribunal was divided on the issue of whether Mr Bar-Mordecai had an intellectual acceptance and understanding of the rule, but all Tribunal members were puzzled and troubled by his apparent lack of emotional insight or intuitive appreciation of such boundaries. Reference was made to examples of such a lack of intuitive understanding shown by his past behaviour, such as when he had instituted the process by which a person with whom he had had a past sexual relationship was made an involuntary psychiatric patient, even though he had not examined her and had been told that 10 other doctors had declined to do so.

1. The Tribunal observed:

"33. Dr XY agreed that Mr Bar-Mordecai's understanding of boundaries was intellectual rather than emotional or intuitive. He was not convinced that Mr Bar-Mordecai had developed true insight into his conduct. However, he pointed out that intellectual understanding is the first step to gaining true insight. Nevertheless, Dr XY considered that, if reinstated as a practitioner, Mr Bar-Mordecai was unlikely to commit boundary transgressions.

34. Dr Phillips, the psychiatrist briefed by the Medical Board, agreed. He said that "fear of the big stick" would probably prevent transgressions. However, Dr Phillips remained concerned about the possibility of future transgressions. His concern arose from the number of past transgressions and Mr Bar-Mordecai's "struggle" to appreciate the impropriety of those transgressions. He said that Mr Bar-Mordecai lacked an appreciation of the bases of the findings of the 2000 Tribunal, and his insight regarding boundary violations was and remained unsatisfactory."

1. As to Mr Bar-Mordecai's understanding of patient confidentiality, the Tribunal was of the view that his understanding of its importance was superficial, amounting to an intellectual understanding not reinforced by any intuitive appreciation for the rule.

1. As to his integrity, the Tribunal concluded that Mr Bar-Mordecai had not established that he was now a person of high integrity. Some Tribunal members accepted the Medical Board's submission that he had engaged in an opportunistic lie in the proceedings. Reference was also made to his admission of having lied in Supreme Court proceedings, as well as his evasiveness as to the nature of such lies and their circumstances. In the result the Tribunal was concerned as to the level of Mr Bar-Mordecai's acceptance and remorse in relation to his past dishonesty.

1. Other matters relating to his good character, which the Tribunal considered included circumstances where Mr Bar-Mordecai had considered assaulting Bryson J, who was presiding in proceedings in which Mr Bar-Mordecai was involved in this Court. The Tribunal also referred to a paper he had authored, proposing the existence of a 'battered litigant syndrome'; that a person suffering such a syndrome may contemplate maiming or killing a judicial officer; and that such a person should not be held responsible for such conduct. The Tribunal noted Mr Bar-Mordecai's reluctant concession that this rested exclusively on his own experiences. The Tribunal also noted Dr Phillips' concern about the paper. It took the view that these matters reflected adversely on Mr Bar-Mordecai's judgment and caused deep concern about his character.

1. The Tribunal also referred to the litigation in which Mr Bar-Mordecai had been involved for a decade; his dissatisfaction with every judicial officer he had encountered; his conviction that the judicial system was riddled with corruption and meshed in conspiracy; and his complaints to the International Criminal Court about most, if not all, judicial officers who had made findings against him. The Tribunal also concluded that suspicion, dislike or hatred of the judiciary did not prima facie evidence lack of good character, but respect for the rule of law did bear on the question.

1. The Tribunal noted the common views of Dr XY and Dr Phillips that Mr Bar-Mordecai did not suffer any mental illness and Dr Phillips' view that he was a person inclined towards obsessive/compulsive behaviour and that such persons tended to make good doctors.

1. The Tribunal dealt with the question of Mr Bar-Mordecai's competence, noting that it had been nine years since he had practiced and that he did not propose a firm return to practice plan, which in its view would need to include supervision. The Tribunal doubted that he would accept such supervision.

1. The Tribunal concluded:

"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."

The parties' cases

Mr Bar-Mordecai's case

1. It is necessary to say something about the way in which Mr Bar-Mordecai's case developed over the course of the hearing. It became apparent that he wishes to pursue a case which is somewhat inconsistent with the case which he advanced before the Medical Tribunal.

1. In these proceedings, Mr Bar-Mordecai's case is that Dr XY did not treat him for adjustment disorder with depressed mood, other than on their first consultation, when that diagnosis was established. He pursued Dr XY's help over the 8 years of his treatment, in order to obtain insight into doctor- patient boundary violations, as well as advice as to whether Dr XY thought that he had gained sufficient insight, but that he did not receive such treatment from Dr XY. He claims that had he been treated differently, by someone who had the necessary skills to provide the treatment he had sought, the Tribunal would have come to a different conclusion in 2009 in relation to his re-registration application.

1. Mr Bar-Mordecai also says that Dr XY did not have the requisite skills to give him the treatment which he had sought, in relation to the ethical violations for which he was deregistered. Dr XY failed to inform him of this; he did not refer him to another psychiatrist who had such skills; nor did he obtain informed consent to the treatment which he gave Mr Bar-Mordecai. Mr Bar-Mordecai also says that Dr XY breached his duty of care, by failing to keep records in relation to some 36 consultations, as required by the applicable Medical Practice Regulations; as well as by failing to provide letters to referring doctors, explaining his progress; failing to refer him to another treating psychiatrist, when he ceased treating him; and failing to formulate a treatment management plan for him.

1. Mr Bar-Mordecai also says that while in his 2009 reports Dr XY had expressed opinions such as that Mr Bar-Mordecai had gained genuine insight into his problems and boundary violations; that he had genuinely changed his beliefs about his previous behaviour; and that the risk of his re-offending was minimal, Mr Bar-Mordecai now says that Dr XY had no basis for expressing those opinions. They were incorrect and unfounded.

1. His case is that Dr XY was a treating doctor, whose clinical records revealed that he had no experience with medical ethics, something which he had never revealed to Mr Bar-Mordecai. The fact that Dr XY was called to give evidence before the Tribunal, could give him no immunity in relation to his inadequate treatment, or the breach of his duty of care and its consequences.

1. Mr Bar-Mordecai also explained, at one point, that he sought to attack the evidence which Dr XY had given before the Tribunal, rather than the Tribunal's findings. He wanted to show that while Dr XY's reports, like those of Dr Phillips, supported his application, Dr XY had lied in his evidence before the Tribunal; that he was not a credible witness; and that he had given answers to questions asked of him by a Tribunal member, which were not responsive, answers on which the Tribunal's decision ultimately turned. Those answers rested on Dr XY's negligent treatment, with the result that the Tribunal's decision and the costs of those proceedings were a consequence of that negligence, as were his loss of three and a half years of income, loss of his reputation and anxiety.

1. Later, however, it became apparent that in part at least, Mr Bar-Mordecai's case did rest on a challenge to the Tribunal's decision. Mr Bar-Mordecai also explained his case to be that neither Dr XY nor Dr Phillips had a proper basis for expressing their opinions as to his insights, because at the time he did not have such insights. Mr Bar-Mordecai says that was because of Dr XY's negligent treatments. He claims that he did come to have those insights during the course of the hearing, but only after he himself researched the applicable 1991 policies, which resulted in him gaining the necessary insight to permit his registration. Dr XY ought to have drawn his attention to these policy documents and given him advice about them. Thus, while the Tribunal considered that he had lied in his evidence about the insight he had gained during the course of the hearing, it was wrong. He explained that was why he had later pressed the prosecution of certain judges in the International Criminal Court.

1. To establish that he had a prima facie case, Mr Bar-Mordecai sought to rely on an expert report which he had himself prepared, as well as reports provided Dr Cidoni and Dr Teoh, both psychiatrists. While reports from other psychiatrists who Mr Bar-Mordecai had engaged to advise him, Dr Lucire and Dr Ahmed were in evidence, he did not rely on them to support his application.

1. On the first day of the hearing, Mr Bar-Mordecai accepted that none of the evidence on which he relied established that, if he had been treated as he claimed he ought to have been, the outcome in the Tribunal proceedings would have been any different.

1. Mr Bar-Mordecai then explained that he had approached some 200 psychiatrists, seeking reports to assist his case. All of the doctors who had provided reports had refused to prognosticate the future, in terms he had sought of them. He explained that there were, in his view, various problems with the reports provided by Dr Cidoni, Dr Ahmed and Dr Lucire. Amongst other things there was a failure to comply with Rule 31.36 and a failure to express opinions relevant to his claim. In the result Mr Bar-Mordecai submitted that those reports did not support his claim, other than in very limited respects.

1. It was finally Dr Teoh's report which Mr Bar-Mordecai's pressed as supporting the existence of a causal connection between Dr XY's negligence and what he claimed to have suffered as a result.

1. On the following day, however, Mr Bar-Mordecai sought an adjournment, so that he could obtain supplementary experts' reports supportive of his case against Dr XY. He then explained that the application followed his appreciation that the reports on which he had sought to rely did not establish the existence of a causal connection between the alleged negligence and what he claimed resulted therefrom. The application was opposed and Mr Bar-Mordecai was then given an opportunity to give evidence, to support the application.

1. Mr Bar-Mordecai then tendered letters which he had sent to Dr Teoh and Dr Cidoni that morning. They were in similar terms providing:

"Dear Dr Cidoni,

Re: Letter of request pertaining to the filing of a Statement of claim in Bar-Mordecai v [Dr XY] for medical negligence

1. I refer to the above matter and confirm that your report was tendered and accepted by the Supreme Court in evidence on 10.12.2012.

2. In addition, the Court requires you to supply a very short supplementary report under your letterhead and signed by you with the following text or words to that effect:

It is my opinion that if the treating psychiatrist Dr XY had not been negligent and had exercised his duty of care, and treated Michael Bar-Mordecai appropriately, according to the definition of emotional insight, that the patient would have obtained the required level of insight into all his former ethical medical transgressions not to reoffend, and this would have impacted positively on the Medical Tribunal, such that Mr Bar-Mordecai would have been re-registered as a medical practitioner.

3. The hearing is currently in session and the Court [Schmidt J] seeks to have your supplementary report tendered in evidence during the hearing by 10.00am today or soon thereafter this morning

4. Would you kindly fax the report immediately under your letterhead by 9.30am today to the following FAX number, namely: 02 xxxx.xxxx?

5. I undertake to pay your account for such a report?

Yours faithfully,

Michael Bar-Mordecai"

1. In his evidence Mr Bar-Mordecai explained that he had that morning gone to the homes of Dr Ahmed and Dr Lucire, asking them to write further reports in similar terms to what was sought in these letters. They refused. He had also faxed his request to Dr Teoh and had spoken to his secretary. Dr Teoh was overseas, but she told him that she thought that he would be happy to comply. He had also emailed the request to Dr Cidoni, but had not been able to speak to him. He had also gone to another of his treating psychiatrists, Dr O'Dea's rooms and asked him for a similar report.

1. In cross-examination, Mr Bar-Mordecai agreed that he did not know whether Dr Teoh, Dr Cidoni or Dr O'Dea were prepared to give him the opinions he sought. When pressed, he agreed that the letters he had written were untrue, as they plainly were. He explained that he had written as he had, because he thought that Dr Cidoni, for instance, would brush off any request which he made of him. He explained the pressure that he was under and how he had succumbed to it. He also apologised to the Court for the way in which he had couched his requests, which he accepted had misled the recipients.

1. In the circumstances, the adjournment was refused, it seeming unlikely in the extreme that reports in the terms which Mr Bar-Mordecai had sought, would be forthcoming from any of the experts he had approached.

The Attorney General's case

1. The Attorney General's case was that in accordance with s 15(1)(a) of the Act, Mr Bar-Mordecai's application had to be dismissed, because his s 14(3) affidavit had not substantially complied with the requirements of s 14(3)(c), which required that he disclose 'all facts material to the application, whether supporting or adverse to the application', that were then known to him. That was disclosed by the affidavits which Mr Bar-Mordecai had later sworn and the case which he had finally advanced.

1. The Attorney General submitted that causation of damages was a constitutive element of a cause of action in negligence. The onus fell on Mr Bar-Mordecai to establish that the loss and damage he alleged was caused by the breach of duty alleged. In the absence of prima facie evidence that the losses complained of were caused by some breach of Dr XY's duty, the application had to be dismissed under s 15(1)(c).

1. There was no admissible evidence that any person qualified by expertise to do so, had formed an opinion, based on their specialised training, study or experience, that but for the breaches of duty alleged, that Mr Bar-Mordecai's character would have been sufficiently reformed, for the Medical Tribunal to have decided to re-register him. In the result, Mr Bar-Mordecai could not show that the loss and damage he complained of had been caused by any breach of duty on Dr XY's part.

1. In the absence of admissible prima facie evidence, that but for Dr XY's alleged breaches of duty, Mr Bar-Mordecai would have been registered as a medical practitioner in 2009, a necessary element of his cause of action was lacking. Rule 31.36(1)(c) also required that unless otherwise ordered, a person commencing a professional negligence claim must file with the claim an expert's report that includes an opinion supporting the causal relationship between the alleged breach of duty and the damage alleged. The reports tendered did not include such opinions and were not, in any event, admissible. There being no prima facie case, the application had to be dismissed under s 15(1)(c).

1. In any event, in so far as the cause of action rested on evidence given by Dr XY before the Tribunal, the claim would fail, because Dr XY had a defence of absolute privilege (see Mann v O'Neill [1997] HCA 28; (1997) 191 CLR 204 at 212.) The proposed proceedings were thus utterly hopeless, so as to be vexatious (see Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491D).

1. The evidence also established that the proceedings were vexatious, being conducted in a way so as to harass and annoy Dr XY, or to achieve another wrongful purpose. The application thus had to be dismissed under s 15(1)(b).

Dr XY's case

1. Dr XY's case was that the evidence established that Mr Bar-Mordecai's proposed claim was vexatious, an abuse of process and instituted for a wrongful purpose, as well as having no prospects of success. He relied on a letter sent to his professional indemnity insurer, to establish that the proceedings were designed to embarrass him and subject him to unnecessary cost and inconvenience. There Mr Bar-Mordecai wrote amongst other things that Dr XY and his secretary had committed medical fraud and proposed that:

"In the circumstances to avoid unnecessary publicity and possible criminal history and possible deregistration for Dr [XY] and exclusion from the Medicare program for 1 or more years, the writer seeks that you settle the Medical Negligence Claim currently languishing in the Supreme Court expeditiously, say by 11.30am on 20.04.2012 for the amount of $1,500,000, so that further action in relation to the fraud matter will not be pursued.

Should Avant legal and or Dr [XY] not settle the Medical Negligence Claim by that time and date, namely, 11.30am on Friday 20.04.2012, Mr Thurgood, Assessment officer, Health Care Complaints Commission, of Level 13, 323 Castlereigh(sic) Street, Sydney NSW 200O and the Medicare Australia [hot line at 131.524] and at 130 George Street, Parramatta NSW 2150 and the Medical Board of Australia will be informed by formal complaints with an attached affidavit listing the documented medical consultations as they appear in Dr [XY's] case notes collated with the Medicare Australia Claim evidence with dates and item numbers to highlight the fraud. The medical negligence aspect where no documentation occurred in Dr [XY's] notes will also be highlighted and must be distinguished from the medical fraud.

The writer hopes that Avant Legal, in consultation with Dr [XY] can solve this unfortunate turn of events and settle the Medical Negligence Claim before it proceeds further in the Supreme Court of NSW."

1. Dr XY also submitted that the expert evidence on which Mr Bar-Mordecai relied was not admissible; that he had no duty to Mr Bar-Mordecai in the proceedings before the Tribunal, other than to give his expert opinion; that the proposed statement of claim was a collateral attack on the decision of the Medical Tribunal, to which the principal of finality applied, in the absence of a successful appeal; and that a psychiatrist owed no duty to convert by means of therapy, a person who lacks good character, into a person who is of good character.

1. There were also issues as to what the evidence established as to the existing records of Dr XY's treatment of Mr Bar-Mordecai; and what the Tribunal's decision had in truth turned on, on Dr XY's case, that it was not satisfied that Mr Bar-Mordecai was a person of good character, within the meaning of the relevant legislation. On Dr XY's case that conclusion did not only rest on the question of Mr Bar-Mordecai's insight or the answers he had given when questioned by the Tribunal.

1. The proposed proceedings were submitted to be but another in a long line of attempts made by Mr Bar-Mordecai to overturn the Medical Tribunal's decisions. The evidence showed that in the 2009 proceedings, Mr Bar-Mordecai had said one thing in his sworn affidavits and opening submissions and later something else, in his evidence. That was the foundation of the Tribunal's view that he had engaged in an opportunistic lie, to which considerable weight was given in the conclusion reached that he lacked credit and was not a person of good character. The Tribunal was also alarmed about his notion of the so-called battered litigants syndrome and the possible assassination of judicial officers involved in proceedings which he had been involved in. There were other independent factors identified in the decision, all of which reflected adversely on him and led it to the view that Mr Bar-Mordecai should not be registered. In the result, there was no prospect that he could establish that Dr XY's alleged breach of duty was the cause of the Tribunal's decision.

1. Even if the expert evidence which Mr Bar-Mordecai had sought later to lead had been forthcoming, the case he sought to advance could not have been established under s 5D of the Civil Liability Act and the but for test discussed in Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420.

The evidence

1. To demonstrate that he had a prima facie case and that the proceedings he wished to pursue against Dr XY were not vexatious, Mr Bar-Mordecai relied on the original affidavit sworn in October 2010 in support of his application under s 14, as well as the further affidavits he had later sworn, to which various documents were annexed.

1. Mr Bar-Mordecai's 25 October 2010 affidavit referred to him coming under Dr XY's care in October 2000 for continuing management of his depression 'due to recent severe losses' and for assessment and treatment for his breach of ethics. The referral letter to Dr XY from his former GP, Dr Bloom was also in evidence. It provided:

"Dear Dr XY

I am referring for continuing management of Michael Bar-Mordecai of xx xxxxxxxxxx xxxxxx, Clovelly. He is depressed due to recent severe losses he needs assessment and treatment."

1. Later referrals to Dr XY from Mr Bar-Mordecai's brother, a doctor, were for his indefinite assessment and treatment. Mr Bar-Mordecai explained his ongoing monthly consultations with Dr XY over the ensuing eight years, of which he complained insufficient records had been kept and treatment relevant to his medical ethical violations not provided. Reference was made to the history taken from him, including in relation to an attempted suicide, the circumstances dealt with in the 2000 Tribunal judgment and his involvement in various litigation between 1994 to 2010.

1. Mr Bar-Mordecai also outlined the evidence given by Dr XY in the 2009 proceedings before the Tribunal, its decision and matters referred to in Dr XY's clinical notes, which he said showed that he had sought treatment, so that he would gain adequate insight into his admitted transgressions, that he would not re-offend and would comply with doctor/patient boundaries. He also referred to expert reports he had sought and to instructions he had given to Dr O'Dea.

1. Annexed to the affidavit was a draft statement of claim in which general, special, punitive, aggravated, exemplary and reputation damages were sought for alleged negligence, extensive particulars of which were given. Various clinical records were also annexed, together with reports made by Dr XY on 20 December 2001, 22 September 2006, 29 August 2007, March 2008, May 2008, August 2008 and affidavits sworn in the Tribunal proceedings in September 2006 and March 2008, annexing certain of these reports, as well as various newspaper articles.

1. Dr XY's reports referred to his ongoing treatment of Mr Bar-Mordecai, their discussions of the need for him to comply with the regulation of the Poisons Act 1966 with regard to security of drugs and records of medications, stock and dispensing; and their wide-ranging discussions of boundary issues regarding doctors and patients, their financial dealings and sexual relationships. He expressed very supportive opinions of Mr Bar-Mordecai's re-registration application, including for example in his opinion of September 2006, that:

"Following these discussions, Michael Bar-Mordecai has changed his position regarding the acceptability of the sexual relationships he had previously had with patients.

I understand that previously he had denied wrongdoing, but now he recognises the fact that Ms actions in regard to these patients were ethically unacceptable, and were an abuse of his professional position.

I believe the he has gained genuine insight into these problems, and to the fact that it was a "boundary" violation for him to sign the Medical Cause of Death Certificate of Eveline Hillston, as he had been living in a de facto relationship with her, and that the person who signed the certificate, should have been "at arms length" of the deceased.

Michael Bar-Mordecai has stated that he did not reoffend with regard to breaking professional boundaries from 1994 to September 2000 when he was deregistered.

I understand Michael Bar-Mordecai is reapplying to be reinstated on the Medical Register, ahead of the seven years suspension, and that he has been spending considerable time on keeping his medical knowledge up to date.

It is my opinion that Michael Bar-Mordecai has genuinely changed his belief on his previous behaviour, and that the risk of him re offending is minimal."

1. In his August 2007 report Dr XY's opinion was that:

"It is my opinion that he now recognises the fact that it was unethical for him to have sexual relationships with patients, and that he should not have written the Medical Certificate of Cause of Death for Evelyn Hillston, and that he did not fulfil the requirements of the Poisons Act with regard to keeping Schedule 8 drugs in a locked cupboard, and he did not use a written record of the Schedule 8 drugs, but rather used a computerised record of his own devising. He is cognisant of the confidentiality issues that occur between married patients within a practice.

It is my opinion that following recognising his errors, it is unlikely that he will reoffend with regard sexual misdemeanours with patients, or that he would make the mistake of not completely fulfilling the requirements of the legislation regarding Schedule 8 drugs.

...

It is my opinion that Michael Bar-Mordecai is medically and psychiatrically fit to practice medicine, and that he has acknowledged his previous errors and shows remorse and contrition for them. I believe that he is highly unlikely to reoffend in the future and is a fit and proper person to practice."

1. Mr Bar-Mordecai's May 2012 affidavit annexed various Medicare records; documents produced by Dr XY under subpoena in the 2009 Tribunal proceedings; and another draft amended statement of claim. The 3 August affidavit disclosed that Mr Bar-Mordecai had approached 200 psychiatrists; the instructions he had given to Dr Lucire; that he had seen her on numerous occasions from 2010 to 2011, before she provided a report of 3 March 2011, which was only of limited assistance to him. In mid-2012 he had contacted 100 psychiatrists and had received only one written response from Dr Wijeratne, which was negative. While the letters of instructions were annexed to the affidavit, the reports were not.

1. In July 2012, Mr Bar-Mordecai received a report from Dr Ahmed, which he said was unsatisfactory and which the doctor refused to amend, despite the legal advice Mr Bar-Mordecai had received. This report was also not annexed to the affidavit, but the report which Mr Bar-Mordecai had himself authored, was. Written submissions made in the Court of Appeal proceedings were also annexed, as was correspondence with Dr XY's lawyers.

1. An affidavit sworn on 3 August dealt further with Dr XY's treatment, alleged failures and negligence, as well as his evidence before the Tribunal and that given by Dr Phillips.

1. The 12 November affidavit referred to four psychiatrists' reports and annexed the reports of Dr Teoh and Dr Cidoni. Dr Teoh's report referred to the documents with which he was briefed, including the two Tribunal judgments, clinical records, Medicare documents, affidavits sworn by Mr Bar-Mordecai and Dr XY, as well as August 2001 NSW Medical Board Policies concerning Medical Practitioners treating relatives and self and as well as sexual misconduct. Mr Bar-Mordecai's 10 December affidavit dealt with service of certain documents, as well as his medical history.

1. The affidavit sworn by Dr XY's solicitor, Mr Tsaousidis, annexed various documents, including the Tribunal decisions, Dr Phillips' reports, the clinical records subpoenaed from Dr XY in the proceedings, correspondence received from Mr Bar-Mordecai and the reports of Dr Lucire and Dr Ahmed.

1. There was no question as to the expertise of any of the doctors who had provided Mr Bar-Mordecai with reports, but the question of the reports provided by Dr Cidoni and Dr Teoh, on which Mr Bar-Mordecai relied, complying with the requirements of the Evidence Act 1995 and what the High Court discussed in Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 was raised. Dr Cidoni and Dr Teoh's reports were objected to and were received provisionally. Mr Bar-Mordecai's case was that these requirements did not apply to an application such as this. Why that was so, could not be explained.

1. The written submissions advanced for the respondent in the Tribunal proceedings were also tendered by Dr XY, as was the transcript of the proceedings.

1. Mr Bar-Mordecai relied on the evidence given by Dr XY in response to questions asked of him by Tribunal members, on which Mr Bar-Mordecai considered the Tribunal's decision turned. Dr XY was asked by Tribunal members about Mr Bar-Mordecai's opening statement to the Tribunal, that his character had changed with Dr XY's assistance and what changes had occurred. Dr XY's evidence included:

"A. The death of Mrs Hillston, the prolonged matters which he's been involved within the courts. I think he shows some remorse about previous sexual dealings of patients.

Q. Is the insight you've seen a matter of intellectual insight or does it go beyond an intellectual insight?

A. I think it's an intellectual insight that it is wrong. I believe - and I do believe that he will not reoffend.

DEPUTY CHAIRPERSON

Q. What is the stage beyond intellectual insight?

A. The definition of "remorse" I looked up the other day and it was to do with emotional insight as well as intellectual insight. There's perhaps less emotional than intellectual insight to Mr Bar-Mordecai.

Q. What is the process by which a person develops beyond intellectual insight to emotional insight?

A. It's difficult to answer that question; maybe time and contemplation."

1. In his cross-examination, Dr XY also agreed that the opinions he had expressed in his reports reflected an assumption on his part, that what Mr Bar-Mordecai had told him was true, over their many hours of discussions. He was also cross-examined about his notes of those consultations, which he accepted were not always adequately kept.

1. It was after Dr XY gave his evidence, that Mr Bar-Mordecai sought to withdraw various submissions and evidence which he had already given in the proceedings by which he had attacked the 2000 Tribunal judgment in various ways. In cross-examination, he explained that this was the result of insight which he had gained, which would satisfy the Tribunal that he would not re-offend .

1. Dr Phillips was called afterwards. He had listened to some of Mr Bar-Mordecai's evidence and in cross-examination gave evidence such as:

"Q. Dr Phillips, do you think I will re-offend in any of my former admitted transgression? I know you've heard Dr XY' response. Do you feel after assessing me I will re-offend?

A. Well I'd already stated in relation to two of your patients that I thought you had learnt a hard lesson and you probably would not re-offend, and I held that view fairly strongly. I don't think at this stage though I hold it as strongly as I did before. I've listened carefully in the court, or as carefully as I could, and it seems to me that whilst you have a sort of general understanding that doctors cannot under any conditions have a sexual relationship with a patient. I am not convinced that that is held truly and firmly by you, you seem to waver around the point to a degree.

Q. I put to you that you're totally wrong, Dr Phillips. Would anything - would you like to support your opinion by any concrete evidence for the Tribunal?

A. I think it's more. It's not easy to be concrete it's the overall presentation of the gestalt that you seem not to have absorbed totally. There's very fundamental business that sex and medical practice have no connection with each other, they do not go together. To go to say a thing is more concrete no, because I a lot of the discussion today has not been concrete it's been quite hard to follow and at times quite ambiguous and awkward and I just don't think that I have heard anything from you today which would convince me that you have accepted this fundamental notion in the way that I would anticipate you should have."

1. The submission which Mr Bar-Mordecai advanced before the Medical Tribunal in relation to Dr XY's evidence was:

"The applicant's treating psychiatrist, Dr XY, gave evidence in the public interest that the applicant is a fit and proper person to be registered as a medical practitioner of good character and has overcome his defects in character that led to his deregistration, has gained insight into his admitted transgressions, and will be unlikely to re-offend. And the fact that Dr XY said "unlikely to re-offend", he gave evidence on that on at least five to eight occasions where he said that I will not re-offend. Dr XY has been the respondent's witness. He was my treating psychiatrist, but at all times has been the respondent's witness and the respondent was able to cross-examine him. Dr XY owed me no allegiance. No complaints are made as to Dr XY's evidence.

...

The applicant has clearly stated that he has accepted all the bone fide findings made by the Tribunal against him. He has given oral evidence at the hearing in support of insight into his admitted transgressions which was supported by Dr XY's expert evidence, and opinion. I say that Dr XY showed honesty, integrity and his evidence was powerful and objective, except where it became a memory test on 11 December 2008 when Ms Richardson tried to make a fool of the expert witness with recalling events that were just not mentioned in the Tribunal judgment."

1. The case against Mr Bar-Mordecai before the Tribunal was that he would not be accepted to be a witness of truth. The mere effluxion of time since his deregistration and the absence of disreputable conduct in that time was submitted not to be sufficient to establish a change of his character. It was argued that his withdrawal of ongoing attacks on the 2000 Tribunal judgment, in the course of his evidence before the Tribunal in 2009, would not be accepted, particularly given how he had opened his case, by way of attack on the 2000 decision. His later evidence of having gained insight and remorse for his transgressions was submitted not to have been a genuine reflection of his beliefs and was rather an opportunistic change in his evidence, in the face of cross-examination about his voluminous statements to the opposite effect. He was submitted to have had an inflexible focus on the law, rather than on his ethical requirements. Dr XY's evidence was submitted to be of their therapeutic relationship, and that his evidence lacked independence and objectivity, so that the opinions of Dr Philips, who had reservations about his true understanding, should be preferred.

The statutory scheme

1. The relevant sections of the Vexatious Proceedings Act provide:

"14 Application for leave to institute proceedings

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

(a) subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or

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

(2) The applicant may apply to an appropriate authorised court for leave to institute proceedings that the order would otherwise prohibit the person from instituting.

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

(a) lists all occasions on which the applicant has applied for leave:

(i) under this section, or

(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

(b) lists all other proceedings the applicant has instituted in Australia, including proceedings instituted before the commencement of this section, and

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

(4) The applicant must not serve a copy of the application or affidavit on any person unless:

(a) an order is made under section 16 (1) (a), and

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

(5) An appropriate authorised court may dispose of the application by:

(a) dismissing the application under section 15, or

(b) granting the application under section 16.

(6) Despite any other Act or law, the applicant may not appeal from a decision disposing of the application.

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:

(a) the affidavit required by section 14 (3) does not substantially comply with that subsection, or

(b) the proceedings are vexatious proceedings, or

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

(2) The application may be dismissed even if the applicant does not appear at the hearing of the application.

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:

(a) order that the applicant serve each relevant person with a copy of the application and affidavit and a notice that the person is entitled to appear and be heard on the application, and

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

(2) At the hearing of the application, the court may receive as evidence any record of evidence given, or affidavit filed, in any proceedings in any Australian court or tribunal in which the applicant is, or at any time was, involved either as a party or as a person acting in concert with a party.

(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:

(a) the proceedings are not vexatious proceedings, and

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

(5) In this section:

relevant person, in relation to the applicant for leave to institute proceedings, means each of the following persons:

(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):

(i) who applied for a vexatious proceedings order in relation to the applicant, and

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

(f) any person:

(i) who made an application in relation to the applicant under section 70 of the Land and Environment Court Act 1979 or section 84 of the Supreme Court Act 1970 before the commencement of this section, and

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

1. In Bar-Mordecai v Attorney General (NSW);Bar-Mordecai v State of New South Wales [2012] NSWCA 207 the operation of these provisions was considered. It was there observed:

"16 The broad structure of these provisions may be understood as involving, though not necessarily imposing, a three-stage structure:

Stage 1 - applicant files application with affidavit (s 14(3));

Stage 2 - court considers whether to dismiss the application under s 15 or make an order for service of the application and the affidavit on "each relevant person", under s 16(1)(a);

Stage 3 - the court conducts a hearing under s 16(1)(b), and determines whether to dismiss or grant the application."

1. These proceedings are now at stage 3, as to which it was observed at [18] that:

"... There is some overlap between s 15(1) and s 16(4); the latter states that the Court may grant leave "only if" the court is satisfied that the proceedings are not vexatious proceedings and that there is a prima facie ground for them. The absence of reference in s 16(4) to the s 14(3) affidavit suggests that, if the court considers the affidavit does not substantially comply it will already have dismissed the proceedings before the hearing, although no doubt non-compliance may be revealed at the hearing so that the obligation under s 15(1) will then be engaged."

1. It was observed in relation to a s 16 hearing that:

"59 There are two procedural points which should be identified in this context. First, the Vexatious Proceedings Act envisages that evidence other than the s 14(3) affidavit may be received at a hearing of the application. That implication is to be derived from s 16(2), which expressly permits the admission of evidence given in other proceedings in which the applicant was a party. The purpose of such an inclusive provision would appear to be to overcome any objection that it was inadmissible; there is no suggestion in the provision that such evidence is the only evidence which could be presented, additional to the s 14(3) affidavit. There is a degree of uncertainty as to whether the implication from s 16(2) applies to any hearing which might be allowed or required before an order for service had been made under s 16(1)(a). Section 16(2) is silent as to which party would be entitled to tender the material to which it refers and it should therefore be inferred that either party would have the right to take that step. If that is so, and if the applicant wished to tender such material, or indeed any material additional to the s 14(3) affidavit, in support of his application, that might provide additional support for the availability of a hearing before dismissal of the application.

...

61 The argument in favour of a right of an applicant, subject to the general control of the trial court, to tender further evidence is stronger once an order for service has been made under s 16(1)(a). That is for three reasons. First, it is clear that not only the applicant, but each person served with the material must have an opportunity to be heard. It may be that the judge hearing the application will properly seek to keep the hearing within the bounds implicit in the nature of the application, being an application for leave to institute proceedings, so as to prevent that application becoming a stage rehearsal for the trial, which may not even be proposed to occur in the Supreme Court. Secondly, if there is to be a hearing, as required by the Act, it is difficult to identify a prohibition on the person served with the application and affidavit tendering evidence which might supplement or contradict that provided by the applicant. If that is to occur, it cannot be a one-sided process: the applicant must be permitted to respond in an appropriate way by tender of further evidence. Thirdly, because the test required to be satisfied before leave can be granted is only that the proceedings are not vexatious proceedings and that there is at least one prima facie ground for the proceedings, it may well be unlikely that the judge would permit cross-examination, or at least other than on a parsimonious basis. Nevertheless, any controls over the steps which will be permitted in the proceedings are not to be found in the Vexatious Proceedings Act, but rather in the case management powers enjoyed by the judge under the Civil Procedure Act and the UCPR."

1. The onus lies on Mr Bar-Mordecai. The grant of the leave which he seeks depends on him establishing the matters dealt with in s 15, namely that:

1. the affidavit required by s 14 (3) substantially complied with that subsection, that is, that it disclosed all facts material to the application, whether supporting or adverse to the application, that were known to him;

2. the proceedings are not vexatious proceedings; and

3. there is a prima facie ground for the proceedings.

Is Mr Bar-Mordecai entitled to press his application for leave in relation to MFI 4, the proposed amended statement of claim?

1. There is no question that this version of the proposed statement of claim was in quite different terms to the pleading in respect of which Hulme J granted leave under s 16(1) in 2010. While in proceedings such as this the Court may undoubtedly exercise the case management powers it is granted by the Civil Procedure Act 2005, including that granted by s 64(1), to order that any document be amended, it seems to me that this power must be exercised in such a way that the requirements of the Vexatious Proceedings Act are not overborne.

1. The structure of that legislation is to impose the three-stage procedure earlier referred to. It is at the second stage that leave to pursue an application is granted under s 16(1). This application is now the third stage, where what has to be determined under s 16(3) is whether the leave sought to bring the proposed proceedings should be granted, the parties having been given an opportunity to be heard on the matters over which they have joined issue.

1. It seems to me that when the application for leave which is finally pressed at such a hearing is made in respect of a proposed pleading which has been served at such a time that the parties are able to be given a fair opportunity to be heard on the matters in issue, that the Court may exercise its power to permit the amendment of the pleadings in respect of which the leave is sought. In exercising its powers the Court must ensure, as required by s 56(1) of the Civil Procedure Act, that it 'facilitates the just, quick and cheap resolution of the real issues in the dispute or proceedings.'

1. Were the Court simply to refuse an application for leave to amend a proposed pleading out of hand, there would potentially be an unnecessary increase in cost and delay, entirely inconsistent with the underlying purpose of the Vexatious Proceedings Act itself. After all, as the Court of Appeal has discussed, an applicant refused such leave can then make a fresh application for leave.

1. It seems to me that it must also be accepted, however, that if the leave sought is in relation to such an altered pleading, that it must be concluded that the initiating affidavit which supported the leave initially sought, did not comply with the requirements of s 14(3), then s 15(1)(a) will require that the application for amendment be refused, or the application dismissed. That is a reflection of the balance which the interaction between the respective legislative schemes achieves.

1. In my assessment in this case, while there are difficulties with Mr Bar-Mordecai's compliance with the requirements of s 14(3), to which I will return, as well as other problems with his application, the discretion to grant him leave to amend the statement of claim which he seeks to pursue should be exercised. The parties have been fully heard on the question not only of whether the leave sought under s 14 should be granted, but also whether Mr Bar-Mordecai's application must be dismissed, given the requirements of s 15.

1. It would not be just, in the circumstances, to prevent Mr Bar-Mordecai from pressing the statement of claim marked MFI 4.

Does s 79 of the Evidence Act 2005 apply to the disputed reports?

1. It is convenient next to consider the issues raised by the experts' reports on which Mr Bar-Mordecai relied. He did not rely on all of the reports he had obtained. Two of them were relied on by the other parties to show that Mr Bar-Mordecai had not complied with his obligations under the Vexatious Proceedings Act and could not establish that he had a prima facie case.

1. As Mr Bar-Mordecai himself accepted, the reports on which he relied did not adhere to the requirements of s 79 of the Evidence Act, as discussed in Dasreef. The psychiatrists had not been asked to provide diagnostic opinions. Rather their expert opinions were sought as to matters such as whether Dr XY's treatment had been negligent and whether if it had not been, Mr Bar-Mordecai would have achieved insight into the problems with his conduct and been re-registered.

1. If the requirements of the Evidence Act applied to the reports, they had to be presented in a form which makes it possible to identify that the opinions expressed were wholly or substantially based on each expert's specialised knowledge, training, study or experience. They also had to reveal the factual assumptions on which the opinions expressed were based, as well as the reasoning by which the expert reached his or her conclusions and how the conclusions flowed from those facts, so as to reveal that the opinion was based on the expert's expertise.

1. Mr Bar-Mordecai explained that he was not in a position to control the opinions which the experts had expressed in their reports, or how they were couched. That may be so, but like any other litigant, if he wishes to rely on experts' reports to meet the onus imposed on him under the Vexatious Proceedings Act, he has to ensure that the opinions expressed in such reports not only support his case, but that the reports are prepared in the way which the law requires.

1. The disputed reports could clearly not be received in evidence at any hearing of the claim in respect of which Mr Bar-Mordecai seeks leave, because they did not meet these requirements. Dr Teoh's short report, for example, summarised his understanding of the history, based on the documents provided to him and expressed his opinion that:

"Summary of History (Based on Documents Provided)

Mr Bar-Mordecai was referred to Dr XY by Dr L Bloom following a suicide attempt in 2000.

In a report by Dr XY dated 20 December, 2009, he wrote that he saw Mr Bar-Mordecai on 30 October, 20000, and he had treated Mr Bar-Mordecai for "Adjustment Disorder with Depressed Mood".

Dr XY wrote that Mr Bar-Mordecai's condition was caused by several events, including the death of his de-facto wife, an investigation by the Commonwealth of Health, which resulted in litigation, and investigation by the Health Care Complaints Commission, and litigation with the Medical Tribunal.

Mr Bar-Mordecai saw Dr XY about every month for nine years.

Dr XY's medical record did not indicate that Mr Bar-Mordecai was suffering from a psychotic illness, severe mood disorder or personality disorder.

Mr Bar-Mordecai provided documents from Medicare Claims, which does not match the dates on his notes. There were several claims of attendance that were not documented. Over 36 consultations out of the 109 consultations were not documented from 30 October, 2000 to 11 February, 2010.

The medical notes of Dr XY revealed that the consultations were consistent with supportive psychotherapy.

Mr Bar-Mordecai claimed that Dr XY did not assess him for "ethical transgressions as found by the 2000 Tribunal", and 'insight" at anytime during his consultations.

Mr Bar-Mordecai stated that Dr XY did not addresse(sic) issues related to his doctor/patient boundary transgression.

Mr Bar-Mordecai claimed that he was not given any advice of alternative treatment, or referral to a specialist, for the management of his ethical transgression.

A review of the notes of Dr XY showed that there was no discussion in relation to a referral to a specialist to address Mr Bar-Mordecai's problems relating to ethical transgression.

There was no evidence of discussion about insight into boundary issues relating to Mr Bar-Mordecai's relationship with his patients.

There was no evidence that .there was a management plan to address ethical transgressions.

Summary and Opinion

It is my opinion that Dr XY had failed to address the problems of ethical transgressions that Mr Bar-Mordecai had expected during his nine years of consultations.

There was evidence of the lack of making adequate medical records in accordance with practice standards.

It is my opinion that Dr XY had failed in his duty of care to:

1. Address the issues of ethical transgression,

2. Refer Mr Bar-Mordecai to an appropriate specialist, and

3. Refer Mr Bar-Mordecai to another psychiatrist following the termination of treatment on 25 February, 2010.

Because of the failure of duty of care, Mr Bar Mordecai has not been able to be employed in his professional capacity as a medical practitioner, and he has suffered financial loses as a consequence."

1. Dr Cidoni's report also noted being briefed with similar materials, but he came to different conclusions:

"1. Mr Bar-Mordecai has suffered from periods of depression which had been in the context of his registration and other legal matters. The symptoms are consistent with an adjustment disorder with depressed mood.

2. Currently he is not displaying evidence of this disorder.

3. It is very difficult in the absence of specific medical notes to evaluate the treatment of Dr XY.

4. There is no specific evidence in Dr XY's notes that the boundary violations were specifically discussed or the reasons behind them, or Mr Bar-Mordecai's insight into them.

5. In relation to Dr XY's opinion about insight, Dr XY had accumulated a large number of sessions with Dr Bar-Mordecai, which is likely to have afforded him ample opportunity to assess insight. However, insight is not documented as being assessed.

6. In relation to insight, there is a distinction between intellectual and emotional insight defined by Albert Ellis in 1963, emotional insight is defined as the individual knowing or seeing the cause of their problems and working in a determined manner to apply this knowledge to the solution of these problems.

7. Dr XY's conclusions about Mr Bar-Mordecai's insight are not clear; on one had genuine insight is mentioned, on another, intellectual insight; it is difficult to know as neither is explained or justified in his notes.

8. It is difficult to see how Mr Bar-Mordecai would have been able to obtain emotional insight without the issues specifically being addressed in the manner according to the definition.

9. Without being privy to discussions, if any, that occurred in the therapy around the boundary violations and insight, it is difficult to be clear as the degree to which Dr XY addressed these issues. As such, is difficult to be clear as to any breach of duty of care.

10. In relation to the report of 22 September 2006, it is difficult to find the corresponding evidence in the clinical notes to justify the conclusions drawn.

11. It is my opinion that it would have been an important part of therapy in treating a patient like Mr Bar-Mordecai. At the least, specific discussion of the details, chronology and evolution of the transgressions, reasons behind them, insight into them, and plan to address issues raised.

12. In relation to the specific diagnosis of intellectual insight, the diagnosis itself is not necessarily incorrect; it is, however, unclear as to how such diagnosis was arrived at."

1. It is in that context that the question of the admissibility of the reports on this application must be determined.

1. It seems to me that given the nature of these proceedings, concerning as they do an application for leave to proceed under s 16 of the Vexatious Proceedings Act, that the reports must be in admissible form, as the provisions of the Evidence Act require, if they are to be relied on by Mr Bar-Mordecai.

1. The proceedings are not interlocutory in nature. They will determine Mr Bar-Mordecai's leave application. Even if the proceedings were interlocutory, the requirements of the Evidence Act would apply (see s 4(1)(b) discussed in International Finance Trust Company Limited v New South Wales Crime Commission [2008] NSWCA 291; (2008) 251 ALR 479).

1. There is no provision in the Evidence Act, like that provided in s 75 in relation to the hearsay rule, which removes the application of the expert opinion rule provided in s 79 in interlocutory proceedings. The exercise of the power given by s 190(3) to dispense with that rule in cases where its operation would cause or involve unnecessary expense or delay, was not sought to be invoked by Mr Bar-Mordecai. Nor can I see how that power could have arisen to be exercised in this case, had such an application been made, given the nature of these proceedings, the claims sought to be pursued and how the matter has been litigated.

1. It follows that the disputed psychiatric reports are not strictly admissible on this application.

1. Even if that view were wrong, a prima facie case is not made out by those reports, for reasons which I will explain below.

The requirements of Rule 31.36 of the Uniform Civil Procedure Rules 2005

1. The parties also addressed submissions to the requirements of Rule 31.36, which provides:

"31.36 Service of experts' reports in professional negligence claims

(cf SCR Part 14C, rules 1 and 6; DCR Part 28, rule 9B)

(1) Unless the court orders otherwise, a person commencing a professional negligence claim (other than a claim against a legal practitioner) must file and serve, with the statement of claim commencing the professional negligence claim, an expert's report that includes an opinion supporting:

(a) the breach of duty of care, or contractual obligation, alleged against each person sued for professional negligence, and

(b) the general nature and extent of damage alleged (including death, injury or other loss or harm and prognosis, as the case may require), and

(c) the causal relationship alleged between such breach of duty or obligation and the damage alleged.

(2) In the case of a professional negligence claim against a legal practitioner, the court may order the plaintiff to file and serve an expert's report or experts' reports supporting the claim.

(3) If a party fails to comply with subrule (1) or (2), the court may by order made on the application of a party or of its own motion dismiss the whole or any part of the proceedings, as may be appropriate.

(4) Without limiting subrule (1) or (2), the court may, on the application of any of the parties, give directions as to the expert evidence to be adduced at trial.

(5) Directions under subrule (4) may be sought at any directions hearing or case management conference or by notice of motion.

(6) Unless the court otherwise orders, no party may adduce any expert evidence at trial unless the evidence:

(a) has been filed and served under subrule (1) or (2), or

(b) has been served pursuant to directions given under subrule (4)."

1. In Salzke v Khoury [2009] NSWCA 195; (2009) NSWLR 580 at [55] - [66], it was observed that:

"60 UCPR 31.36(1) requires a plaintiff in a professional negligence action to disclose, when the statement of claim is filed, the expert opinion on which the claim is based. The rule, however, is not inflexible. UCPR 31.36(1) expressly provides that the court may order "otherwise". UCPR 31.36(4), (5) and (6) contemplate that orders may be made after the claim has been commenced relating to expert evidence not filed and served at the time the claim was commenced.

61 Other aspects of the rule are to be noted. Firstly, the rule cannot be construed to mean that an individual expert's report must include an opinion supporting all the matters referred to in sub-rule 1(a), (b) and (c). Those matters would usually involve fundamentally different categories of expertise. The rule could not be intended to preclude the case of an expert's report relevant only to one or two of those matters. Accordingly, the fact that opinions in an expert's report support only one or even part of one of the matters in paragraphs (a), (b) and (c) does not detract from the use that may be made of that report to support a plaintiff's claim for the purposes of UCPR 31.36(1). The opinions expressed in an expert's report as to any one or part of the elements of breach of duty of care, or damages or causation, may assist in providing the support contemplated by the rule. The opinions may only support a single link in the chain that constitutes the plaintiff's case. Opinions of that kind are nevertheless relevant in determining whether there has been compliance with UCPR 31.36(1).

62 Secondly, the opinions in the expert's report merely have to "support" one or more of the matters referred to in sub-rule 1(a), (b) or (c). The opinions do not have to "prove" anything. A report, at the stage that it is considered for the purposes of UCPR 31.36, is not evidence.

63 Thirdly, due regard must be had to the fact that UCPR 31 (the rule dealing with expert evidence) contemplates that experts will prepare their own reports (see, for example, UCPR 31.23(3) and clause 5(2) of the Expert Witness Code of Conduct (schedule 7 to the UCPR). This is consistent with the principle that expert evidence presented to the court should be the independent product of the expert: National Justice Compania Naviera SA v Prudential Assurance Company Limited (the "Ikarian Reefer") [1993] 2 Lloyds Rep 68. Thus, the report should be construed benevolently and not as if it were a pleading or an affidavit or even a statement of a witness prepared by a lawyer.

64 Fourthly, the power under UCPR 31.36(3) to dismiss the whole or any part of the proceedings is based on non-compliance with sub-rule (1). The court, in dealing with an application under UCPR 31.36(3), is not concerned with an application for dismissal of the proceedings for want of prosecution or an application for summary judgment by the defendant."

1. It follows that while the report Mr Bar-Mordecai finally relied on, could be considered as one which supports the proposed claim, by itself it does not satisfy all of the requirements of the Rule. Nor do any of the other psychiatrist's reports which Mr Bar-Mordecai obtained. To the contrary, some of them cast considerable doubt on the case he seeks to pursue. It follows that even if granted the leave which he seeks, it is apparent that Mr Bar-Mordecai is not in a position to pursue his claim.

1. In the result it is apparent that the expert evidence on which Mr Bar-Mordecai seeks to rely neither meets the requirements of Rule 31.36, nor establishes that Mr Bar-Mordecai has a prima facie case, as s 15(1) of the Vexatious Proceedings Act requires be established, before leave under s 16(2) may be granted. That is a more onerous burden than that imposed by the Rule. Neither has been met.

Has Mr Bar-Mordecai established that he has a prima facie case?

1. 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"

1. That the duty which Dr XY owed Mr Bar-Mordecai, his patient, was a duty to take reasonable care, was not in issue, but that this duty encompassed what he seeks to pursue in these proceedings, was in issue.

1. The application which the Medical Tribunal refused in 2009 depended on Mr Bar-Mordecai establishing that he was of 'good character'. Section 13 of the Medical Practice Act provided that a person could not be registered as a medical practitioner unless of good character, a term not defined in that Act. In Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448, the meaning of the term in predecessor legislation was discussed by all members of the Court. At 451-2, it was observed by Walsh J:

"I am of opinion that, in dealing with this application, the court is required to examine for itself the evidence placed before it and to determine as a question of fact whether or not the court is satisfied that the applicant is a person of good character. If it is so satisfied, then, in a case such as this one in which no other matter relevant to the applicant's registration is suggested to be outstanding or to be in dispute, the court should make an order directing the board to register him. If not so satisfied, the court should decline to make any order. This accords with the opinion stated concerning the effect of similar legislation in In re Becker ([1934] S.A.S.R.137, at p.139).

In so far as the decision of the question of fact which the court has to determine may depend upon the onus of proof, I think it is clear that the onus is on the applicant. This does not mean that, if some particular act or conduct has been alleged as indicating that the applicant is not of good character, but no evidence at all is given in support of the allegation, the applicant has the onus of disproving that particular allegation. If an applicant produces some evidence of his good character, this would not be regarded as displaced or cut down merely because some charge had been made against him without any evidence to support it. But, if there are acknowledged writings or statements of the applicant which in their natural meaning provide evidence that he is not of good character and, if explanations are offered by the applicant designed to show that they do not really indicate that, I think the court may take such writings and statements into consideration if the explanations are unconvincing, even if the court may not be able to decide positively and confidently that the explanations are false. The question before the court is not whether it is satisfied affirmatively that the applicant is of bad character. The ultimate question for the court is whether it is satisfied that he is of good character.

Notwithstanding submissions to the contrary, I am of opinion that, in deciding this question, the court is required to consider matters affecting the moral standards, attitudes and qualities of the applicant and not merely to consider what is his general reputation.

I think, further, that we are entitled to inquire into what may be described as personal misconduct, as distinct from professional misconduct, in determining in this case whether or not the applicant is a man of good character, whilst recognizing that there may be some kinds of conduct deserving of disapproval which have little or no bearing on the question whether or not it is shown that an applicant for registration as a medical practitioner is a person of good character. In this respect, I think that some assistance can properly be obtained as to the mode of approach to be made from observations made in cases where the question was whether or not a person was a fit and proper person to be a barrister such as those made in Ziems v. The Prothonotary of the Supreme Court of N.S.W.(3) by Dixon C.J., at p. 285, by Fullagar J., at pp. 288 and 290, by Kitto J., at pp. 298 and 299 and by Taylor J., at p. 301."

1. At 475-6 by Holmes JA:

"The Act provides for the circumstances in which the name of a registered medical practitioner may be removed from the register and the expression "infamous conduct in a professional respect" has been used to define such conduct. "Good character" is not a summation of acts alone, but relates rather to the quality of a person. The quality is to be judged by acts and motives, that is to say, behaviour and the mental and emotional situations accompanying that behaviour. However, character cannot always be estimated by one act or one class of act. As much about a person as is known will form the evidence from which the inference of good character or not of good character is drawn.

There is a problem of construction in the Act under consideration of which mention should be made. "Bad character" and "infamous conduct in a professional respect" are two different species. So that if a man of "good character" being registered, after registration loses that quality, it does not seem that he can be removed from the register. Does this mean that "good character" as used in the Act is a quality which if possessed is a virtue which can never be lost? If so, is the converse true? These questions would have to be answered if we thought that a man was not of good character at some point of time but when considering his application now we were at liberty to consider character as capable of change, so that he might have rid himself of that quality and acquired a better one. As will presently be seen I do not think that it is necessary to solve that problem in this case."

1. Wallace P agreed with these observations, observing that in determining character, the manner in which evidence was given, was also an important factor to consider (at 451).

1. Under s 14 of the Medical Tribunal Act, a person who had been deregistered was precluded from seeking registration. The only way such a person could again be registered was on a later review of the order by which the person was deregistered. That review had to be conducted in accordance with s 94A, which provides:

"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."

1. In Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82, Mason P discussed the onus which falls on an applicant to displace the original decision being reviewed. The critical issue on the evidence in that case was also whether good character had been established, so that the applicant could be returned to practice. Like the circumstances in Zaidi, Mr Bar-Mordecai commenced and initially pursued his application with a continuing attack on the 2000 decision, in which various complaints against him had been found proven. He also led evidence in support of his application from Dr XY and later gave evidence himself, as to the insight he had gained. It was only after Dr XY answered questions put to him by Tribunal members, as to the nature of the insights he believed that Mr Bar-Mordecai had achieved, which he agreed were more intellectual than emotional, that Mr Bar-Mordecai recanted his attack on the 2000 decision. That attack had earlier been pursued in other litigation and in both his evidence and submissions before the Tribunal. It was this alteration which was accepted by the Tribunal to have involved an opportunistic lie.

1. Mr Bar-Mordecai explained in these proceedings that it was his own study of the applicable Rules, in the course of the Tribunal proceedings, which brought about his change and that the favourable opinions which Dr XY had earlier expressed and which he had relied on in the proceedings were wrong and had no foundation. That does not appear to have been something which Mr Bar-Mordecai revealed to the Tribunal. Had it been, that development might well have confirmed the view which the Tribunal otherwise reached, that Mr Bar-Mordecai did not have the capacity to intuitively recognise doctor/patient boundaries and appreciate the reasons for those boundaries, but had rather gained an intellectual understanding of those boundaries and a desire to avoid transgression from his recent study.

1. In the result, it is difficult to see that it could conceivably be concluded that Mr Bar-Mordecai could establish that he has a prima facie basis for the proposed claim, or that the evidence he relies on to support that claim would, if accepted, be capable of sustaining the proposed proceedings.

1. The evidence does not provide a basis for concluding that had Dr XY provided Mr Bar-Mordecai with the treatment he claims he did not receive, that would have resulted in a change in his character; or the intuitive recognition of doctor/patient boundaries and appreciation of the reasons for those boundaries, which the Tribunal considered that he did not have, or the Tribunal's acceptance that he was a person of good character. Nor does the evidence show that had he received the treatment he claims Dr XY should have provided, it would have resulted in the Tribunal taking any different view of the other concerns which it had as to his character, which the Tribunal discussed in its decision.

1. Mr Bar-Mordecai finally sought to rely on his own report and that of Dr Teoh to establish that he had a prima facie case. His own report could not be received. Mr Bar-Mordecai does not have the expertise to give the opinions expressed in that report. As he explained, while he has a medical degree, the opinions there expressed were in reality but an account of his understanding of opinions Dr Lucire had expressed in some of his numerous sessions with her, but which she herself refused to provide in her own report.

1. The basis of Dr Teoh's opinions is not adequately explained in his report, as Mr Bar-Mordecai himself accepted. Also to be considered is that Dr Teoh was clearly not instructed with all the relevant material. In particular, the evidence which Dr XY and Mr Bar-Mordecai each gave before the Tribunal and what Mr Bar-Mordecai revealed in these proceedings as to what transpired during the Tribunal proceedings, does not appear to have been disclosed to Dr Teoh.

1. Mr Bar-Mordecai explained in these proceedings that gaining the necessary insight into his ethical obligations was not a matter which finally required psychiatric treatment at all. He had obtained those insights by his own study of the applicable ethical rules which bound him during the course of the Tribunal proceedings. He explained that it was that study which resulted in the change in his evidence, the change which the Tribunal considered involved an opportunistic lie. That account suggests that Mr Bar-Mordecai's earlier reliance on Dr XY's reports occurred at a time when he knew that he did not in fact have the insight which both Dr XY and Dr Phillips believed he had gained. Mr Bar-Mordecai's conduct in the proceedings was plainly an important matter to be considered by the Tribunal.

1. When all of this is considered with the evidence that other psychiatrists' opinions do not support the claim which Mr Bar-Mordecai seeks to advance against Dr XY, it cannot be concluded that the evidence establishes that he has a prima facie case. Amongst many other things, for example, Dr Lucire observed in her report:

"It was his expectation that a period of treatment with Dr. XY might rehabilitate him, although it is hard to understand this kind of reasoning, based, as it is on a legal fiction that if a doctor commits transgressions it is because there is something wrong with him that is accessible to a medical specialty, psychiatry. This legal fiction spawns more legal fictions such as this contrived differentiation between "intellectual" and "emotional" "insight." This is a concept beyond my understanding, and one that appears in the Tribunal Judgment.

...

The NSW Medical Tribunal seems to have considered something that is 'not advisable in policy documents to be "a strike off' or "keep off the register" offence, and subject to something called "emotional insight" a concept in this context with which with which I am not familiar for which further "contemplation" is required.

With due respect, Dr XY's evidence with regard to his opinion at the hearing of

"at an intellectual level he accepts that what he has done is wrong but on an emotional level he doesn't want to"

with reference to Mr Bar-Mordecai's eleven year treatment of his former de facto wife makes not sense to me.

...

The damage alleged to flows from the right of the tribunal to choose what option it accepted from Dr. XY, between

"... it is not against the law, is it"

and

"... what most peers would think"

So what influenced the Tribunal (and it was influenced, as it accepted the second answer not the first) was what Dr. XY believed most peers would think. As Dr. XY had correctly stated, namely that treating a relative was not against the law or ethics but that "most peers would" think it was."

1. It also has to be considered that the claim which Mr Bar-Mordecai seeks to pursue would be governed by the provisions of the Civil Liability Act, which include:

"5B General principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm."

5C Other principles

In proceedings relating to liability for negligence:

(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.

5D General principles

(1) A determination that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:

(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party."

1. These provisions raise a number of considerable difficulties for the case which Mr Bar-Mordecai seeks to pursue, all of which it is unnecessary to discuss. It is sufficient to observe that apart from the problems flowing from its admissibility, which I have already discussed, Dr Teoh's report could not establish the necessary requirements which flow from this statutory scheme as to causation. That is, that it was the alleged negligence in Dr XY's treatment of Mr Bar-Mordecai and the other alleged failures which he seeks to rely on, which caused the Tribunal to reach the conclusion that he was not a person of good character.

1. The but for test discussed in Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420 at [43] - [44] could not be satisfied on this evidence. It could not establish that the alleged negligent acts, Dr XY's treatment and failures, were a necessary condition of the occurrence of the harm relied on, which resulted from the Tribunal's decision. Mr Bar-Mordecai could not thereby prove on the balance of probabilities that without the alleged negligence the Tribunal would not have made the decision it did.

Immunity from suit

1. In so far as Mr Bar-Mordecai's case rests on the evidence which Dr XY gave when questioned by the Tribunal which he considers was critical to the decision it reached, he faces a further difficulty, namely that this evidence is privileged, as explained in Mann v O'Neill at 211 - 214:

"It is well settled that absolute privilege attaches to all statements made in the course of judicial proceedings, whether made by parties [See Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130 at 140 per Starke J; Dawkins v Lord Rokeby (1873) LR 8 QB 255 at 263-264; Royal Aquarium and Summer and Winter Garden Society v Parkinson [1892] 1 QB 431 at 446 per Fry LJ, 451 per Lopes LJ.], witnesses [Revis v Smith [1856] EngR 51; (1856) 18 CB 126 at 140-144; [1856] EngR 51; 139 ER 1314 at 1319-1321; Dawkins v Lord Rokeby (1873) LR 8 QB 255 at 263-264; Seaman v Netherclift (1876) 2 CPD 53 at 56-57 per Cockburn CJ, 61 per Amphlett JA; Watson v M'Ewan [1905] UKHL 1; [1905] AC 480 at 486 per Earl of Halsbury LC; Hargreaves v Bretherton [1959] 1 QB 45 at 51-54; Marrinan v Vibart [1963] 1 QB 528 at 534-536 per Sellers LJ. See also Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130 at 140 per Starke J.], legal representatives [Munster v Lamb (1883) 11 QBD 588 at 599, 603-604 per Brett MR. See also Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130 at 140 per Starke J; Clyne v NSW Bar Association [1960] HCA 40; (1960) 104 CLR 186 at 200-201; More v Weaver [1928] 2 KB 520 at 522 per Scrutton LJ; Rondel v Worsley [1967] UKHL 5; [1969] 1 AC 191 at 229 per Lord Reid, 252 per Lord Morris of Borth-y-Gest, 266-267, 271 per Lord Pearce], members of the jury [Bushell's Case [1826] EngR 98; (1670) 1 Freeman 1; 89 ER 2. See also Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130 at 140 per Starke J; Royal Aquarium and Summer and Winter Garden Society v Parkinson [1892] 1 QB 431 at 451 per Lopes LJ.] or by the judge [See Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130 at 140 per Starke J; Dawkins v Lord Rokeby (1873) LR 8 QB 255 at 263-264; Royal Aquarium and Summer and Winter Garden Society v Parkinson [1892] 1 QB 431 at 446 per Fry LJ, 451 per Lopes LJ; More v Weaver [1928] 2 KB 520 at 522.]. It extends to oral statements and to statements in originating process [Lilley v Roney (1892) 61 Law J Rep QB 727 at 727-728; Bottomley v Brougham [1908] 1 KB 584 at 588. See also Lincoln v Daniels [1962] 1 QB 237 at 257 per Devlin LJ.], in pleadings[Lord Beauchamps v Sir Richard Croft [1794] EngR 610; (1595) 3 Dyer 285a at 285a; [1794] EngR 1033; 73 ER 639 at 639. See also Lincoln v Daniels [1962] 1 QB 237 at 257 per Devlin LJ.] or in other documents produced in evidence [See Lincoln v Daniels [1962] 1 QB 237 at 257 per Devlin LJ.] or filed in the proceedings [See Royal Aquarium and Summer and Winter Garden Society v Parkinson [1892] 1 QB 431 at 451 per Lopes LJ; Lincoln v Daniels [1962] 1 QB 237 at 257 per Devlin LJ.]. It is said that it extends to any document published on an "occasion properly incidental [to judicial proceedings], and necessary for [them]" [Gatley on Libel and Slander, 8th ed (1981), par 412, referring to Attwood v Chapman [1914] 3 KB 275 at 287].

It is also settled law that absolute privilege attaches to statements made in the course of quasi-judicial proceedings, ie proceedings of tribunals recognised by law and which act "in a manner similar to that in which a Court of justice acts"[Copartnership Farms v Harvey-Smith [1918] 2 KB 405 at 408 per Sankey J. See also Royal Aquarium and Summer and Winter Garden Society v Parkinson [1892] 1 QB 431 at 442 per Lord Esher MR; O'Connor v Waldron [1935] AC 76 at 81 per Lord Atkin; Trapp v Mackie [1979] 1 WLR 377 at 379 per Lord Diplock, 385-386 per Lord Fraser of Tullybelton; [1979] 1 All ER 489 at 491, 497.]. Various considerations are relevant to the question whether proceedings are quasi-judicial [See Trapp v Mackie [1979] 1 WLR 377, especially at 379 and 383 per Lord Diplock; [1979] 1 All ER 489 at 491-492, 495. Absolute privilege has been held to attach to proceedings in a military court: Dawkins v Lord Rokeby (1873) LR 8 QB 255; Bamford v Clarke (1876) 14 SCR (NSW) 303; a solicitors' disciplinary committee: Addis v Crocker [1961] 1 QB 11; Teletax Consultants Ltd v Williams [1989] 1 NZLR 698; Hercules v Phease [1994] 2 VR 411; an inquiry of Benchers of an Inn of Court: Lincoln v Daniels [1962] 1 QB 237; an ecclesiastical commission: Barratt v Kearns [1905] 1 KB 504; a board of inquiry into police malpractice: Bretherton v Kaye & Winneke [1971] VicRp 12; [1971] VR 111; an appeal to a public service board: Thompson v Turbott [1962] NZLR 298; hearings by a local authority into a town planning scheme: Atkins v Mays [1974] 2 NZLR 459; and an inquiry into the dismissal of a school teacher: Trapp v Mackie [1979] 1 WLR 377; [1979] 1 All ER 489.]. However, the overriding consideration is "whether there will emerge from the proceedings a determination the truth and justice of which is a matter of public concern" [Lincoln v Daniels [1962] 1 QB 237 at 255-256 per Devlin LJ.]. The privilege extends to members of tribunals [Copartnership Farms v Harvey-Smith [1918] 2 KB 405 at 408 per Sankey J.] and to "advocates, litigants, and witnesses"[Copartnership Farms v Harvey-Smith [1918] 2 KB 405 at 408 per Sankey J.]. And its scope is no less extensive in other respects than in the case of statements made in the course of judicial proceedings.

It is sometimes said that absolute privilege is founded on public policy considerations [See, for example, Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130 at 139 per Rich ACJ, 141 per Starke J, 144-145 per McTiernan J, 149 per Williams J; Munster v Lamb (1883) 11 QBD 588 at 603-605 per Brett MR; Royal Aquarium and Summer and Winter Garden Society v Parkinson [1892] 1 QB 431 at 442 per Lord Esher MR, 451 per Lopes LJ, cf at 447 per Fry LJ, Bottomley v Brougham [1908] 1 KB 584 at 587; Lincoln v Daniels [1962] 1 QB 237 at 255-256 per Devlin LJ, 267 per Danckwerts LJ; Trapp v Mackie [1979] 1 WLR 377 at 378-379 per Lord Diplock; [1979] 1 All ER 489 at 491. See also Gatley on Libel and Slander, 8th ed (1981), par 384.]. It may be that, so far as concerns communications between officers of State in the course of their official duties, absolute privilege attaches by reason of broad considerations of public policy and convenience [See, for example, Dawkins v Lord Paulet (1869) LR 5 QB 94 at 114-117 per Mellor J; Chatterton v Secretary of State for India in Council [1895] 2 QB 189 at 191 per Lord Esher MR, 195 per Smith LJ; M Isaacs & Sons Ld v Cook [1925] 2 KB 391 at 397-398.]. However, a more precise basis was identified for that aspect of the privilege in Gibbons v Duffell, it being said in that case that absolute privilege attaches because it is "indispensable to the effective performance of ... official functions."[[1932] HCA 26; (1932) 47 CLR 520 at 528 per Gavan Duffy CJ, Rich and Dixon JJ.]

Whatever the position with respect to communications between officers of States, absolute privilege attaches to statements made in the course of parliamentary and judicial proceedings for reasons of necessity. Thus, it has been said that absolute parliamentary privilege arises from "inherent necessity"[See, for example, Gipps v McElhone (1881) 2 NSWR 18 at 21-22 per Martin CJ, 25-26 per Windeyer J but cf at 24 per Manning J; Chenard & Co v Joachim Arissol [1949] AC 127 at 133-134; Australian Broadcasting Corporation v Chatterton (1986) 46 SASR 1 at 18 per Zelling ACJ.]. And absolute privilege attaches to statements made in the course of judicial proceedings because it is an indispensable attribute of the judicial process [See Gibbons v Duffell [1932] HCA 26; (1932) 47 CLR 520 at 528 per Gavan Duffy CJ, Rich and Dixon JJ.]. It is necessary that persons involved in judicial proceedings, whether judge, jury, parties, witnesses or legal representatives, be able to discharge their duties freely and without fear of civil action for anything said by them in the course of the proceedings [See, with respect to criminal proceedings, Jamieson v The Queen [1993] HCA 48; (1993) 177 CLR 574 at 590-591 per Toohey and McHugh JJ, 594-596 per Gaudron J.]. Were civil liability to attach or be capable of attaching, it would impede inquiry as to the truth and justice of the matter and jeopardise the "safe administration of justice"[Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130 at 139 per Rich ACJ. See also Jamieson v The Queen [1993] HCA 48; (1993) 177 CLR 574 at 589-90 per Toohey and McHugh JJ, 595 per Gaudron J.]."

1. In the result, it cannot be concluded that Mr Bar-Mordecai has established a prima facie case and accordingly his case must be dismissed under s 15(1)(c).

Has Mr Bar-Mordecai established that he complied with s 14(3)(c)?

1. The obligation imposed on Mr Bar-Mordecai was to disclose all facts material to his application, whether supporting or adverse to the application, that were known to him.

1. In Bar-Mordecai v Attorney General (NSW); Bar-Mordecai v State of New South Wales [2012] NSWCA 207, it was observed at [54] that 'If the affidavit provides the information required by s 14(3) as at the date it is filed with the application, it will comply with that subsection. The fact that it may become out of date will not render it non-compliant.' Circumstances in which evidence as to material facts known to an applicant but not disclosed at the hearing might be received at a s 16(2) hearing were discussed at [59] - [62].

1. Here such additional evidence was led. It revealed that some of the factual material tendered by Mr Bar-Mordecai was known to him at the time of his original application, but not disclosed. By numerous later served affidavits and even documents tendered at the hearing, Mr Bar-Mordecai continued to disclose further factual material, in order to make out his case for leave under s 16(2). At the hearing it was apparent that there were other facts material to his application which had still not been disclosed, even at the hearing, even though they were referred to in his submissions.

1. In the result, there can be no question that it must be concluded that Mr Bar-Mordecai did not comply with the obligation imposed upon him by s 14(3).

1. Dr XY also tendered material which Mr Bar-Mordecai had not disclosed. A great deal of this was unquestionably material in his possession before his application was made, including a transcript of, and documents tendered in, the Tribunal proceedings and the Tribunal's decision itself, an integral part of the case which he explained in his submissions that he seeks to advance. That material shed considerable light on the difficulty which he faces in pursuing such a case.

1. Given the account which Mr Bar-Mordecai gave in his submissions of his pursuit of some 200 psychiatrists who had refused to provide him opinions supportive of his claim, it would appear that in his initial affidavit he also did not disclose material facts which were adverse to his application, as he was obliged to do. In his submissions, he also gave an account of having had numerous sessions with the psychiatrists who finally provided the reports which he tendered. This was also not referred to in his original affidavit, nor was any reference there made to his ongoing treatment by another psychiatrist, which was also seemingly material to his application. That was revealed by the attempt made by Mr Bar-Mordecai during the course of the hearing, to adjourn the proceedings in order obtain a report from that doctor.

1. The obligation to disclose such material in the original affidavit, is in order that consideration can be given to whether or not the initial leave provided for in s 16(1) should be given. Here material not disclosed as s 14(3) required, appears to have been relevant to the determination of that question.

1. Mr Bar-Mordecai explained that he had received legal advice as to his application and that he had not originally disclosed factual material on which he finally relied at the hearing, because he was advised that he was not entitled to rely upon it. By way of example, he referred to Davies J having taken the view that transcript of the Tribunal proceedings was very important material, at an earlier point in the proceedings, when he had opposed Dr XY seeking to subpoena that transcript. Mr Bar-Mordecai explained that this was why he later relied upon it at the hearing, in order to establish that he had a prima facie case.

1. While that may explain some of Mr Bar-Mordecai's failure to disclose the factual material which he was obliged by s 14(3) to disclose in his original affidavit, it does not provide a basis upon which it may be concluded that his extensive failure to adhere to the requirements of the applicable legislative scheme can be overlooked.

1. That is particularly so when it is considered that it is a particular answer which Dr XY gave in answer to a question asked of him by a Tribunal member, on which the case Mr Bar-Mordecai explained that he wishes to advance, turns.

1. In the result it must be concluded that Mr Bar-Mordecai did not comply with his obligations under s 14(3) and that accordingly, the application must be dismissed, in accordance with s 15(1)(a).

Has Mr Bar-Mordecai established that the proceedings are not vexatious?

1. 'Vexatious proceedings' are defined in s 6 to be:

"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."

1. In Attorney-General (NSW) v Bar-Mordecai [2009] NSWSC 218, Johnson J considered what was encompassed in an abuse of process, observing:

"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."

1. In D'orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1, where the High Court had to consider the concept of finality in litigation, it was observed at [37] - [38] that:

"[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.

[38] This is no new phenomenon. It is a problem with which the common law has had to grapple for centuries. Its response has been the development of immunities from suit for witnesses, judges and advocates. The origin of these rules can be traced to decisions of the 16th and 17th centuries [As to witnesses, see, for example, Jerom and Knight's Case (1588) 1 Leo 107 [74 ER 99]; Damport v Sympson (1596) Cro Eliz 520 [78 ER 769]; Harding v Bodman (1617) Hut 11 [123 ER 1064]; Eyres v Sedgewicke (1620) Cro Jac 601 [79 ER 513]. As to judges, see, for example, Windham v Clere (1589) Cro Eliz 130 [78 ER 387]; Floyd v Barker (1607) 12 Co Rep 23 [77 ER 1305]; Metcalfe v Hodgson (1633) Hut 120 [123 ER 1143]; Nichols v Walker (1635) Cro Car 394 [79 ER 944]."

1. This is such a situation. Mr Bar-Mordecai has long been of the view that the Tribunal's 2000 and 2009 decisions were wrong. He has since repeatedly pursued that belief in various proceedings, as well as his belief that he has been the victim of a wrongful, even criminal, conspiracy.

1. In his submissions, Mr Bar-Mordecai explained that he seeks to establish not only that Dr XY's reports, which he relied on before the Tribunal as being supportive of his application for re-registration, were wrong, but also that he did not then have the insight which Dr XY believed he had gained. He now says that it was only during the course of the hearing before the Tribunal, that he finally came to have such insight into his past wronging, as the result of his study of the ethical rules which always bound him. Thereby he seeks to establish not only Dr XY's alleged breach of duty and negligent treatment, but also the incorrectness of the conclusions which the Tribunal reached. The Tribunals' decision may not be so challenged.

1. It should also not be overlooked that on his submissions it appears that Mr Bar-Mordecai believes that in order to obtain the necessary insight which he claimed he had only achieved during the proceedings before the Tribunal in 2009, all that was required was a study of the applicable policy. That was a study which he undertook, unassisted by anyone else. His evidence that he had obtained such insight was considered by the Tribunal to be an opportunistic lie. That was a matter for the Tribunal to determine and not something which Mr Bar-Mordecai can challenge in the proposed proceedings, as he explained he seeks to do.

1. Mr Bar-Mordecai's letter to Dr XY's insurer, earlier quoted, also throws considerable light on his purpose in pursuing this application. In the face of that intention, it appears that to permit his pursuit of the proposed claim could only bring the administration of justice into disrepute.

1. In the result it must be concluded that the proposed proceedings are vexatious, that they constitute an abuse of process and are sought to be taken for a number of wrongful proposes, including his continued attempts to establish that the 2009 Tribunal decision was wrongly decided.

1. In the result, for all of these reasons, I am satisfied that this application must be refused under s 15(1)(b).

Orders

1. The usual order is that costs should follow the event. Unless the parties approach to be heard on the question of costs within 7 days, the Court's order will be that the application for leave is refused, with Mr Bar-Mordecai to pay the other parties' costs, as agreed or assessed.

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Amendments

28 November 2013 - Inserted missing word 'Mr' in second last sentence

Amended paragraphs: [11]

29 July 2013 - Decision field on coversheet amended.

Amended paragraphs: Coversheet

Decision last updated: 28 November 2013