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

[2010] NSWSC 323

CITATION:	Attorney General in and for the State of NSW v Bar-Mordecai [2010] NSWSC 323 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	8 April 2010
JUDGMENT DATE :	23 April 2010
JUDGMENT OF:	R A Hulme J
DECISION:	1. An order pursuant to s 98(4)(d) of the Civil Procedure Act 2005 that the defendant pay forthwith $10,000 as a proportion of the costs of the Attorney General for the State of New South Wales in respect of the order made by Johnson J on 31 March 2009 in Attorney General for the State of New South Wales v Bar Mordecai [2009] NSWSC 218. 2. Until such time as the above costs have been paid, the hearing of the second further amended notice of motion filed on 1 March 2010 is stayed and no further amended notice of motion is to be filed. 3. The second further amended notice of motion is dismissed if the above costs have not been paid by 23 October 2010. 4. If the above costs are paid on or before 23 October 2010 the defendant is to have liberty to restore the matter to the list upon seven days notice for the purpose of satisfying the Court as to compliance with order 1 herein so as to permit the Court to make directions for the hearing of the second further amended notice of motion. 5. The defendant is to pay the plaintiff's costs of the plaintiff's notice of motion.
CATCHWORDS:	PROCEDURE - miscellaneous procedural matters - other matters - vexatious litigant - extensive history of failure to comply with orders for costs - assessment of proportion of costs pursuant to s 98(4) of the Civil Procedure Act - PRACTICE - stay of further proceedings in which leave sought to institute proceedings until satisfaction of prior costs order pursuant to r 12.10 Uniform Civil Procedure Rules and/or stay of proceedings pursuant to s 67 Civil Procedure Act
LEGISLATION CITED:	Vexatious Proceedings Act 2008 Supreme Court Act 1970 Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005
CASES CITED:	Attorney General in and for the State of NSW v Bar-Mordecai [2005] NSWSC 142 Attorney General of New South Wales v Bar-Mordecai [2008] NSWSC 774 Attorney General of NSW v Bar-Mordecai [2008] NSWSC 1094 Attorney General for the State of New South Wales v Bar-Mordecai [2009] NSWSC 218 Attorney General for the State of New South Wales v Bar-Mordecai [2009] NSWSC 558 Bar-Mordecai v Hillston [2003] NSWSC 1269 Bar-Mordecai v Hillston [2004] NSWCA 65 Bar-Mordecai v Hillston [2005] HCATrans 82 Bar-Mordecai v Hillston [2005] HCATrans 731 Bar-Mordecai v Rotman & ors [2000] NSWCA 123 Bar-Mordecai v Rotman & ors [2001] HCATrans 175 Bar-Mordecai v Rotman & ors [2003] NSWCA 53 Bar-Mordecai v Rotman; Bar-Mordecai v Hillston [2005] NSWCA 71 Byrnes v John Fairfax Publications Ltd [2006] NSWSC 251 Harrison v Schipp [2002] NSWCA 213; 54 NSWLR 738 Hillston v Bar-Mordecai [2003] NSWSC 89 Hillston v Bar-Mordecai [2003] NSWSC 231 Markisic v Department of Community Services NSW & Ors [2006] NSWCA 106 Michael Bar-Mordecai v John Bryson; Michael Bar-Mordecai v Clifford Einstein; Michael Bar-Mordecai v Paul Stein & 2 ors; Michael Bar-Mordecai v Harvey Cooper & 3 ors [2002] NSWSC 815 Project 28 Pty Ltd (Formerly Narui Gold Coast Pty Ltd v Barr; Project 28 Pty Ltd (Formerly Narui Gold Coast Pty Ltd) v Tim Barr Pty Ltd & Ors [2005] NSWCA 240
PARTIES:	Attorney General in and for the State of New South Wales (Plaintiff) Michael Jacob Bar-Mordecai (Defendant)
FILE NUMBER(S):	SC 2004/180898
COUNSEL:	Mr K E Oliver (Plaintiff) Defendant in person
SOLICITORS:	Crown Solicitor's Office (Plaintiff)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

R A Hulme J

23 April 2010

180898/04 Attorney General in and for the State of New South Wales v Michael Jacob Bar-Mordecai

JUDGMENT

1 HIS HONOUR: By a second further amended notice of motion filed on 1 March 2010, Michael Bar-Mordecai, a vexatious litigant, seeks leave to file statements of claim for the purpose of obtaining orders setting aside the judgments of Einstein J of 4 September 1998 (matter 120009/94) and Bryson J of 28 February 2003 (matters 3240/98, 1707/99 and 3039/02).

2 The application is brought pursuant to s 14 of the Vexatious Proceedings Act 2008. The applicant had been declared a vexatious litigant by Patten AJ who made orders under s 84 of the Supreme Court Act 1970 on 25 February 2005 that the defendant shall not, without leave of this court, institute proceedings in any court: Attorney General in and for the State of NSW v Bar-Mordecai [2005] NSWSC 142.

3 The Attorney General filed a notice of motion on 12 March 2010 seeking orders with the following effect:

1. An order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 that the defendant pay costs pursuant to an order made by Johnson J on 31 March 2009 (see Attorney General for the State of New South Wales v Bar-Mordecai [2009] NSWSC 218) forthwith in the sum of $20,000 or in such other sum as the court may think proper.

2. That until such time as the above costs, or such proportion as the court may order, have been paid the hearing of the second further amended notice of motion be either stayed or not listed for hearing.

3. A self-executing order that the second further amended notice of motion be dismissed if the above costs have not been paid by a specified date.

4. That the defendant have liberty to restore the matter to the list with the consent of the plaintiff, or otherwise on three days notice, for the purpose of satisfying the court that he has complied with any order made pursuant to the preceding prayers so as to permit the court to make directions for the hearing of the defendant’s motion.

5. Such other orders as the court may think appropriate.

Nature of the proceedings before Einstein J and Bryson J

4 Bryson J set out a convenient summary of the nature of the proceedings that were before him, and those that had earlier been before Einstein J, at the beginning of his judgment of 28 February 2003: Hillston v Bar-Mordecai [2003] NSWSC 89. This summary is useful in order to obtain an understanding of not only those proceedings but all that have followed and what Mr Bar-Mordecai is currently seeking to pursue.

[2] The Litigation and the Parties : Eveline Hillston late of 30 Eastbourne Avenue, Clovelly, New South Wales, died there on 25 June 1994 aged 83 years. On 22 October 1998 this Court granted to Allan David James Hillston letters of administration of her estate with a copy of her last will dated 31 August 1989 annexed. Mr Allan Hillston was one of many beneficiaries under the will. He is the plaintiff in proceedings 3240 of 1998, and the defendant in two other proceedings heard with them. He is one of the two sons of Simon Hillston, a brother of Jack Henry Hillston, who died on 4 August 1983 and was the husband of Eveline Hillston; hence Mr Allan Hillston and his brother Alex Hillston were and were treated by Eveline Hillston as her nephews. The will appointed Michael Jacob Bar-Mordecai as executor and trustee of the will, but this Court did not grant probate to him as he was regarded as unsuitable to exercise the office of executor. Although the grant of probate is dated 22 October 1998 Mr Allan Hillston held earlier interim grants from 21 July 1998 on.

[3] In proceedings 3240 of 1998 Mr Allan Hillston sued Mr Michael Bar-Mordecai to set aside and obtain remedies against a number of gifts made by Eveline Hillston to Michael Bar-Mordecai in her lifetime on the ground that the gifts were obtained by the presumed exercise of undue influence by Mr Michael Bar-Mordecai as Eveline Hillston’s medical advisor. In proceedings 1707 of 1999 Mr Michael Bar-Mordecai claims further provision out of the estate for himself alleging that he is an eligible person within the definition in s.6(1)(a)(ii) of the Family Provision Act 1982 as in force at the time Mrs Eveline Hillston died. His claim under the Family Provision Act is a claim against a deceased estate and his evidence should be considered with the special care required by the decision in Plunkett v. Bull (1915) 19 CLR 544: see Isaacs J at 548-549.

[4] The definition of “eligible person” in s.6(1)(a)(ii) is in these terms:“eligible person”, in relation to a deceased person, means -

(a) a person who -… (iii) where the deceased person was a woman, was a man who, at the time of her death, was living with the deceased person as her husband on a bona fide domestic basis;

[5] What Mr Bar-Mordecai claimed was that, in every-day language, he was living in a de facto relationship with the deceased. He made a further claim under paragraph (d) of the definition of “eligible person”, which relates to a dependent member of a household; but he did not press this claim at the hearing.

[6] Mr Michael Bar-Mordecai claimed, in the probate proceedings which the Court (Einstein J) decided in 1998, that he was entitled to administration on intestacy as the de facto husband of Mrs Eveline Hillston in the meaning given to that expression by s.32G of the Wills Probate and Administration Act 1898; that definition has a strong general similarity to the definition of “eligible person,” although there are differences of expression. He claimed that the will of 31 August 1989 had been revoked, and that he as de facto husband was entitled to Mrs Eveline Hillston’s estate on intestacy; Einstein J determined that the will had not been revoked. This decision was affirmed on appeal. His Honour also found that Mr Michael Bar-Mordecai was not Mrs Eveline Hillston’s de facto husband, although that decision was not essential for the outcome.

[7] In the Summons in proceedings 3039 of 2002 Mr Michael Bar-Mordecai claimed an order that the letters of administration granted to Mr Allan Hillston be revoked, that Mr Allan Hillston be removed as administrator and that Mr Michael Bar-Mordecai be appointed administrator. He filed a Statement of Claim in those proceedings; the Statement of Claim makes various claims for damages, costs and interest, on the basis of allegations which contain much material which is obviously extraneous; the Statement of Claim when taken as a the whole cannot be understood, and it cannot be treated as a pleading of facts which support the claims in the Summons.

5 To summarise, in the proceedings before Einstein J (120009/94) Mr Bar-Mordecai claimed to be entitled to be appointed as administrator of the estate of the late Ms Hillston upon the basis that she had died intestate and that he was her defacto husband.

6 Proceedings 3240/98 concerned a claim by Mr Allan Hillston to set aside and obtain remedies in respect of gifts made by the late Ms Hillston to Mr Bar-Mordecai prior to her death on the basis of them having been made as a result of undue influence by Mr Bar-Mordecai, he having been her medical advisor.

7 Proceedings 1707/99 were brought by Mr Bar-Mordecai against Mr Hillston in his capacity as administrator of the estate of the late Ms Hillston in which he sought provision out of the estate for himself upon the basis that at the time of her death he was her defacto husband.

8 Proceedings 3039/02 were also brought by Mr Bar-Mordecai against Mr Hillston, seeking Mr Hillston’s removal as administrator of the estate and claiming that he was entitled to be so appointed.

A lengthy history of litigation

9 There is a lengthy history of litigation brought by Mr Bar-Mordecai concerned with a variety of issues. It has mostly, but not only, been concerned with the late Ms Hillston’s estate. Mr Bar-Mordecai has long agitated his view that he is entitled to receive the whole of the estate. It is claimed that the estate was of considerable value. He now claims an entitlement in the order of $16,000,000

10 The history of litigation that is relevant to the present applications appears to be as follows. I cannot guarantee that it is complete because the history is a long and tortured one.

11 The proceedings before Einstein J were instituted by Mr Bar-Mordecai in 1994. The defendants were Ms Selma Rotman, Mr Alex Hillston and Mr Allan Hillston. There was a lengthy hearing before his Honour delivered judgment on 16 June 1998. Mr Bar-Mordecai’s claims were dismissed with costs. He subsequently filed notices of motion seeking to re-open the proceedings. Einstein J dismissed both with costs on 3 July 1998: this part of the history was subsequently set out in Attorney General in and for the State of NSW v Bar-Mordecai [2005] NSWSC 142 at [77] – [82].

12 There was an appeal to the Court of Appeal determined by Sheller, Stein and Giles JJA on 16 May 2000: Bar-Mordecai v Rotman & ors [2000] NSWCA 123. Included amongst the claims raised by Mr Bar-Mordecai were assertions that the respondent’s witnesses had committed perjury. The appeal was dismissed with costs.

13 On 4 May 2001 the High Court of Australia refused special leave to appeal against the judgment of the Court of Appeal: Bar-Mordecai v Rotman & ors [2001] HCATrans 175.

14 On 31 October and 2 November 2001, Mr Bar-Mordecai filed notices of motion seeking to have the judgment of Einstein J of 16 June 1998 set aside “as a consequence of the perjury of several witnesses”. They were dismissed by Windeyer J on 19 November 2001: see Attorney General in and for the State of NSW v Bar-Mordecai [2005] NSWSC 142 at [83] – [85].

15 On 8 August 2002, Windeyer J dismissed with costs proceedings brought in the Equity Division by Mr Bar-Mordecai, inter alia, seeking leave to prosecute four witnesses in the proceedings before Einstein J for perjury: Supreme Court 2548/2002, unreported. An appeal to the Court of Appeal (40755/02) was dismissed as incompetent: see Attorney General in and for the State of NSW v Bar-Mordecai [2005] NSWSC 142 at [33] – [37], [51] – [56] and [60].

16 On 9 August 2002, Windeyer J dismissed with costs similar proceedings that Mr Bar-Mordecai had brought seeking leave to prosecute for perjury another witness in the proceedings before Einstein J: see Attorney General in and for the State of NSW v Bar-Mordecai [2005] NSWSC 142 at [40] – [42].

17 On 6 September 2002 Dowd J gave judgment in the matter of Michael Bar-Mordecai v John Bryson; Michael Bar-Mordecai v Clifford Einstein; Michael Bar-Mordecai v Paul Stein & 2 ors; Michael Bar-Mordecai v Harvey Cooper & 3 ors [2002] NSWSC 815. The proceedings insofar as they concerned Sheller, Stein and Giles JJA related to their disposition of the appeal ([2000] NSWCA 123) and involved a multitude of allegations including that their Honours were guilty of judicial incompetence, bias, fraud, contrivance and suppression of evidence. All of the claims in this proceeding, including against those judges, were dismissed with costs. The Court of Appeal refused leave to appeal: see Attorney General in and for the State of NSW v Bar-Mordecai [2005] NSWSC 142 at [66].

18 On 28 February 2003, after a hearing spanning some 47 sitting days, Bryson J gave judgment in Hillston v Bar-Mordecai [2003] NSWSC 89. This judgment resolved each of proceedings 3240/98, 1707/99 and 3039/02 which I have described earlier. The proceedings brought by Mr Hillston were successful whilst the proceedings brought against him by Mr Bar-Mordecai failed. The question of costs was reserved. In a later judgment (Hillston v Bar-Mordecai [2003] NSWSC 231), Bryson J ordered that costs be paid by Mr Bar-Mordecai in each of the three proceedings, some on an indemnity basis.

19 On 25 March 2003 Mr Bar-Mordecai’s application by way of notice of motion seeking leave to reopen the Court of Appeal proceedings that had been determined on 16 May 2000 (Bar-Mordecai v Rotman & ors [2000] NSWCA 123) was dealt with by the Court of Appeal: see Bar-Mordecai v Rotman & ors [2003] NSWCA 53. The notice of motion was dismissed with costs.

20 On 27 June 2003 Mr Bar-Mordecai was back before Bryson J seeking leave to prosecute Mr Alexander Hillston for perjury in respect of the evidence that Mr Hillston had given in the proceedings before Einstein J, Bryson J and the Medical Tribunal: see Bar-Mordecai v Hillston [2003] NSWSC 1269. Leave to commence such prosecutions was refused with costs. Leave to appeal to the Court of Appeal in respect of this judgment was refused with costs on 25 September 2003: see Attorney General in and for the State of NSW v Bar-Mordecai [2005] NSWSC 142 at [59].

21 There was an appeal against the judgment of Bryson J given in Hillston v Bar-Mordecai [2003] NSWSC 89 on 28 February 2003 determined by the Court of Appeal on 17 March 2004: Bar-Mordecai v Hillston [2004] NSWCA 65. In the proceedings brought by Mr Hillston against Mr Bar-Mordecai (3240/98) Mr Bar-Mordecai’s appeal was upheld in part. In the appeals brought in relation to the claims that he had instituted himself (1707/99 & 3039/02) his appeals were dismissed with costs.

22 It was, as observed earlier, on 25 February 2005 that Patten AJ gave judgment in which he, in effect, made the declaration that Mr Bar-Mordecai was a vexatious litigant: Attorney General in and for the State of NSW v Bar-Mordecai [2005] NSWSC 142.

23 On 3 March 2005 the High Court of Australia (McHugh and Heydon JJ) dismissed an application for special leave to appeal in respect of the decision of the Court of Appeal of 17 March 2004 in Bar-Mordecai v Hillston [2004] NSWCA 65: Bar-Mordecai v Hillston [2005] HCATrans 82.

24 The following day, 4 March 2005, Mr Bar-Mordecai was back before the Court of Appeal: Bar-Mordecai v Rotman; Bar-Mordecai v Hillston [2005] NSWCA 71. He sought to reopen the proceedings in Bar-Mordecai v Rotman [2000] NSWCA 123 and Bar-Mordecai v Rotman & Ors [2003] NSWCA 53 that had been determined on 16 May 2000 and 25 March 2003 respectively. In respect of those applications Mason P, with whom Giles and Tobias JJA agreed, stated that the applications were vexatious and should be summarily refused. Indemnity costs were ordered. The applicant also sought leave to reopen the appeal that had been determined on 25 March 2003 ([2003] NSWCA 53). This was the matter that the High Court had dealt with the previous day. In respect of that matter Mason P said in part:

[17] The grounds for reopening raised in the documents filed by the claimant and developed in his oral submissions amount to no more than a vexatious and at times scandalous re-agitation of issues disposed of earlier in the main judgment of 17 March 2004 and the further judgment of 21 December 2004. The allegations that the judgment in the equity appeal was the product of fraud is not made out by repetition of submissions made at the trial and on appeal that the evidence of witnesses adverse to the claimant’s interest was fraudulent. It is unsupported by evidence. Furthermore, it is not a matter apt to be raised in a motion to reopen.

25 It is interesting to observe also the remarks made by Mason P in the course of indicating the appropriateness of granting any leave to Mr Bar-Mordecai to bring the proceedings that were before the Court of Appeal on that occasion in the light of the then recent declaration that he was a vexatious litigant. The President said:

[14] Section 84(1) of the Supreme Court Act and the law of contempt that applies with respect to repeated baseless invocation of court process will I trust provide an adequate sanction to ensure that this is the last time that this Court is troubled with groundless motions relating to the probate proceedings.

26 Those remarks obviously did not dissuade Mr Bar-Mordecai one iota. He sought special leave to appeal to the High Court of Australia but that was refused by Hayne and Callinan JJ on 8 September 2005: Bar-Mordecai v Hillston [2005] HCATrans 731.

27 Then, on 10 and 17 October 2008, Mr Bar-Mordecai filed notices of motion seeking leave pursuant to s 84(4) of the Supreme Court Act 1970 to institute proceedings in this Court. The leave that he sought was set out in the judgment of Johnson J in Attorney General for the State of New South Wales v Bar-Mordecai [2009] NSWSC 218 in the first paragraph of his judgment as follows:

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

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

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

28 Johnson J concluded that Mr Bar-Mordecai had not demonstrated a prima facie ground for the proceedings which he was seeking to bring and had not demonstrated that the proposed proceedings were not an abuse of process. Johnson J added (at [81]) that, “Indeed, the present applications bear the hallmarks of an abuse of process”.

A history of failing to pay costs

29 The Crown Solicitor’s Office wrote to Mr Bar-Mordecai on 7 April 2009 referring to the costs order made by Johnson J and informing him that the costs amounted to $21,711.45 together with disbursements of $8404.41. The letter continued:

In the interests of settling the issue of costs without the need for preparation of formal bill or assessment, which will entail further costs, my client is prepared to accept $20,000 in full and final settlement of its costs. I believe that my client would be awarded considerably more than this sum, if it’s costs are assessed.

30 The letter concluded with advice that if Mr Bar-Mordecai was unable to pay that amount as a lump sum he should contact a nominated person in order to discuss payment options.

31 Mr Bar-Mordecai responded in writing on 17 April 2009, indicating that he was not agreeable to settling “your client’s fees as I shall lodge an appeal in due course”. The balance of his letter is concerned with pedantically correcting a typographical error in the Crown Solicitor’s letter and discussing his proposed appeal.

32 Mr Bar-Mordecai has been involved in other proceedings within the past two years relating to matters other than the estate of the late Eveline Hillston. Those proceedings are as follows.

33 Leave was sought to institute proceedings against the Health Care Complaints Commission and the New South Wales Medical Board. McCallum J refused leave: Attorney General of New South Wales v Bar-Mordecai [2008] NSWSC 774. She ordered that Mr Bar-Mordecai pay the Attorney General’s costs.

34 In a letter of 4 August 2008 the Crown Solicitors Office reminded Mr Bar-Mordecai of the costs order by McCallum J and indicated that fees in respect of the matter amounted to $10,532 together with disbursements of $6243. It proceeded to indicate that in the interests of settling the issue the Attorney General was prepared to accept $11,000 in full and final settlement. Again Mr Bar-Mordecai was told that if he was unable to pay that amount as a lump sum he should contact a nominated person to discuss payment options. The evidence before me is that there was no reply to that letter.

35 Mr Bar-Mordecai sought leave to appeal against a decision of a Local Court Magistrate of the 23 October 2007 in relation to an apprehended violence order. On 20 October 2008 Harrison AsJ refused leave and ordered that Mr Bar-Mordecai pay the Attorney General’s costs as agreed or assessed: Attorney General of NSW v Bar-Mordecai [2008] NSWSC 1094. On 23 October 2008 the Crown Solicitors Office wrote to Mr Bar-Mordecai reminding him of the order, informing him that costs were $17,401.15 with disbursements of $12,117.56, and proposing settlement by way of a lump sum of $20,000. Again information was provided that if Mr Bar-Mordecai was unable to pay that amount as a lump sum he should contact a nominated person to discuss payment options. The evidence before me is to the effect that there had been no response.

36 Mr Bar-Mordecai sought leave to appeal against judgments of the Medical Tribunal of 21 January and 18 March 2009. That matter came before Schmidt AJ (as her Honour then was) with the result that leave was refused with costs: Attorney General for the State of New South Wales v Bar-Mordecai [2009] NSWSC 558. On 25 June 2009 a letter in similar terms to the ones referred to above was sent advising that costs amounted to $18,277.40 but that the Attorney General was prepared to accept two thirds, being $12,184.95. In contrast to the earlier letters there was no suggestion of Mr Bar-Mordecai discussing payment options if he was unable to pay that amount as a lump sum. A possible inference is that it was thought that the provision of such information was futile given the lack of response to the earlier correspondence, although I express no concluded view about that. Once again the evidence before me is to the effect that there was no response from Mr Bar-Mordecai.

37 In proceedings before Smart AJ on 27 October 2009 Mr Bar-Mordecai was cross-examined about his attitude towards complying with adverse costs orders. He indicated that he felt that he was accountable where he considered that a debt had been incurred fairly, as opposed to orders he regard as unfair. His evidence included the following:

A. I am accountable for all my debts provided they are arrived at fairly and I am not going to say it again so if I have a debt for something arrived at fairly I think I am obliged to pay it but if it is like the Hillston fraud where I am defrauded of $10 million, I think that the debt I owe them is not arrived at fairly because of they are fraud and therefore I don’t owe that so that is just simply put.

Q. And you also don’t think that the debt that the Court has said you owe the State of New South Wales the proceedings that you brought against judges of this Court for example, you do not think that debt was incurred fairly do you?

A. No that was debt wasn’t incurred fairly on the basis of the law that I didn’t know at the time that Justice Einstein was immune from prosecution so I say that debt was incurred fairly. It is debts that are not incurred fairly that I say, say like Justice Johnson’s judgment of 31st March 2009. (27/10/09 T38).

and:

Q. You have worked out that I am going to be suggesting to his Honour that you would not pay these costs even if you had the money to do so? That is true, isn’t it?

A. Not for Justice Johnson’s case, absolutely not. I would not be paying it. (27/10/09 T39.50).

38 He was then asked about something that appeared in an affidavit he had affirmed on 13 October 2009 and he said:

That paragraph in (sic) embraces all the costs orders that I say some of them were not arrived at fairly and there is those not arrived at fairly I would not be paying. (27/10/09 T40.5).

39 Mr Bar-Mordecai also gave evidence to the effect that if he was permitted to re-litigate the Hillston estate matters, in respect of which he expected to be successful, he would then have ample funds and would be quite happy then to pay all of the costs that he had been ordered to pay.

Assessment of costs in a gross sum

40 The first prayer for relief is for an order pursuant to s 98(4)(c) of the Civil Procedure Act that the defendant pay the costs ordered by Johnson J forthwith in the sum of $20,000 or such other sum as the Court may think proper.

41 Section 98(4) is in these terms:

(4) In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to:


(a) costs up to, or from, a specified stage of the proceedings, or

(b) a specified proportion of the assessed costs, or

(c) a specified gross sum instead of assessed costs, or

(d) such proportion of the assessed costs as does not exceed a specified amount.

42 In Harrison v Schipp [2002] NSWCA 213; 54 NSWLR 738, Giles JA discussed the power of the Court under the preceding similar provision in Part 52A r 6(2) of the Supreme Court Rules:

[21] The power conferred by r 6(2) is not confined, and may be exercised whenever the circumstances warrant its exercise. It may appropriately be exercised where the assessment of costs would be protracted and expensive, and in particular if it appears that the party obliged to pay the costs would not be able to meet a liability of the order likely to result from the assessment ( Leary v Leary (1987) 1 WLR 72; Sparnon v Apand Pty Ltd (von Doussa J, 4 March 1998, unreported); Beach Petroleum NL v Johnson (1995) 57 FCR 119; Hadid v Lenfest Communications Inc [2000] FCA 628).

43 In the present case I am satisfied that an assessment of costs would exacerbate the expense already incurred by the Attorney General (and, therefore the taxpaying community) and, more particularly, it would seem unlikely that Mr Bar-Mordecai would be able to meet the liability in the full sum likely to be assessed.

44 The actual costs incurred by the Attorney General, as set out in the letter to Mr Bar-Mordecai from the Crown Solicitor’s Office that I have referred to, are $30,115.86. Since the writing of that letter the amount of costs (including disbursements) has been clarified and it has now been ascertained that the total is $31,307.28. The $20,000 sought by the Attorney General represents approximately two-thirds of that amount.

45 The costs have been itemised but Mr Bar-Mordecai takes issue with some aspects. Indeed, he raised an issue as to the need for intervention in the proceedings before Johnson J by the Attorney General at all, arguing that he should not be entitled to any costs. That, however, is not a matter for my determination. The fact of the matter is that the Attorney General did participate in those proceedings, understandably as Mr Bar-Mordecai nominated him as the plaintiff, and an order was made in his favour that his costs be paid by Mr Bar-Mordecai. The correctness of that order is not open to question in the present proceedings. However, given there is some controversy about some of the cost items, it seems to me appropriate to take a conservative approach and make an order, as the Attorney General conceded that I could, pursuant to s 98(4)(d).

46 A rather novel point was raised by Mr Bar-Mordecai in relation to Uniform Civil Procedure Rule (UCPR) 42.7 which is in these terms:

42.7 Interlocutory applications and reserved costs

(1) Unless the court orders otherwise, the costs of any application or other step in any proceedings, including:

(a) costs that are reserved, and

(b) costs in respect of any such application or step in respect of which no order as to costs is made,
are to be paid and otherwise dealt with in the same way as the general costs of the proceedings.

(2) Unless the court orders otherwise, costs referred to in subrule (1) do not become payable until the conclusion of the proceedings.

47 The present proceedings are accepted by the Attorney General to be interlocutory. They are brought within the proceedings entitled Attorney General for the State of New South Wales v Bar-Mordecai which were instituted in early 2004 (“the original proceedings”). Those proceedings comprised the application by the Attorney General for Mr Bar-Mordecai to be declared a vexatious litigant and culminated with Patten AJ making orders to that effect on 25 February 2005. There have since been the various applications by Mr Bar-Mordecai that I have referred to for leave to institute proceedings. Those applications have all been made by way of notice of motion filed in the original proceedings. As a result of this, Mr Bar-Mordecai contended that the original proceedings have not reached a conclusion and so, according to UCPR 42.7(2), the costs he has been ordered to pay by Johnson J, McCallum J, Harrison AsJ and Schmidt AJ have not become payable.

48 If this contention be correct, the result would be that the original proceedings will never come to a conclusion while ever there is the opportunity for the filing of further notices of motion within them. It seems to me that it has been erroneous for applications for leave to commence proceedings to be made by way of notice of motion in the original vexatious declaration proceedings. Those proceedings concluded upon entry of the judgment of Patten AJ. Motions are appropriate in cases where a party seeks to move the court to make interlocutory or procedural orders in pending proceedings. The original proceedings are not pending. The present proceedings should have been brought by way of summons (UCPR 6.4(1)(h)). Be that as it may, the situation I am dealing with is whether Mr Bar-Mordecai should be ordered to pay costs pursuant to the order made by Johnson J on 31 March 2009. The order that I propose to make pursuant to s 98 Civil Procedure Act will meet the proviso in UCPR 42.7(2) of, “Unless the court orders otherwise”.

49 As he has done in previous proceedings and seems to be his want, Mr Bar-Mordecai has filed a multitude of written submissions. The vast majority of the submissions are irrelevant, misconceived, not based upon evidence or are just simply repetitious. I have limited my reference to his submissions to those that have some degree of relevance and do not intend to deal with those that so obviously lack merit. For example, the submissions proceed upon a basis that Mr Bar-Mordecai has a “right” to bring legal proceedings and argues that the Attorney General’s motion is an attempt to frustrate that “right”. As a declared vexatious litigant, of course, Mr Bar-Mordecai has no such right.

50 Another fundamental flaw in the submissions is an assertion by Mr Bar-Mordecai that he has a strong probability of succeeding in the litigation he is seeking to pursue, something that he has comprehensively failed to achieve despite numerous attempts in the past. He argues that he stands to recover some $16 million when he is successful in the proposed litigation and he will then be in a position to fulfil his obligations to comply with all previous costs orders. That is a monumental example of putting the cart before the horse.

51 In oral submissions Mr Bar-Mordecai sought to obtain from me a view as to whether his application to bring the proceedings is likely to succeed. He was concerned to know so that if I ordered him to pay a sum of costs but also indicated a view that his prospects of success were negative, he could save himself the trouble of paying the Attorney General’s costs. This further served to confirm his reluctance to comply with his obligations under previous court orders.

52 Mr Bar-Mordecai gave evidence before me in support of his claim to be impecunious. He said that he was in receipt of Centrelink benefits and he tendered a photocopy of a Centrelink pensioner concession card. The benefits are said to be in the nature of a carer’s allowance. He claimed to be in receipt of $880 per fortnight. He said that he was precluded from employment, partly because his age made it inappropriate for him to do physical work (although he did not explain why) and partly because he was studying medicine on a daily basis in the hope of seeking re-registration as a medical practitioner at some stage in the future. I accept that medical science is subject to frequent advances but why keeping up to date required daily study was something that Mr Bar-Mordecai did not care to explain. It seems to me to be a reasonable inference that the main reason Mr Bar-Mordecai does not have time for employment is that he is so consumed with his litigation.

53 There have been findings adverse to Mr Bar-Mordecai’s credibility in the past and they were taken up with him in the course of cross-examination by Mr Oliver on behalf of the Attorney General. He was also referred to evidence he had given in the past in which he had admitted to lying on oath.

54 To definitively resolve the question of Mr Bar-Mordecai’s credibility in respect of his claimed impecuniosity would involve a detailed analysis of evidence given and findings made in a multitude of prior proceedings. Having regard to the nature of the issues that I am called upon to resolve that would be an exercise out of all proportion to the benefit that might ensue. I acknowledge that there is no evidence to the contrary and so, for that reason alone, I am prepared to proceed for present purposes upon an acceptance of Mr Bar-Mordecai’s evidence.

55 I propose making an order pursuant to s 98(4)(d) in the sum of $10,000. In the light of the assumption I am making as to Mr Bar-Mordecai’s impecuniosity I acknowledge that payment of this sum will be a burden to him. However, the history of the litigation that I have taken the trouble to outline, together with the recalcitrant attitude Mr Bar-Mordecai has amply demonstrated towards orders for costs made against him, lead inevitably to the conclusion that it is an appropriate burden for him to bear.

Stay pending payment of costs

56 The second prayer for relief is, in part, concerned with UCPR 12.10 which is in the following terms:

12.10 Stay of further proceedings to secure costs of proceedings dismissed

If:

(a) as a consequence of the dismissal of proceedings, a party is liable to pay the costs of another party in relation to those proceedings, and

(b) before payment of the costs, the party commences further proceedings against that other party on the same or substantially the same cause of action, or for the same or substantially the same relief, as that on or for which the former proceedings were commenced,

the court may stay the further proceedings until those costs are paid and make such consequential orders as it thinks fit.

57 The Attorney General contends that the proceedings now sought to be brought by Mr Bar-Mordecai are within the terms of that rule in that the proceedings before Johnson J resulted in a dismissal with an order that Mr Bar-Mordecai was liable to pay the Attorney General’s costs, and that Mr Bar-Mordecai has now commenced further proceedings against the Attorney General on the same or substantially the same cause of action, or for the same or substantially the same relief.

58 UCPR 12.10 speaks of the Court’s power to order a stay of “proceedings”. On behalf of the Attorney General it was submitted that “proceedings” in this context is a term sufficiently wide to encompass interlocutory proceedings. The proceedings before Johnson J, and those presently pending before the Court are of that class. In the alternative, it was submitted that the Court has an inherent jurisdiction to stay proceedings that are an abuse of process: Byrnes v John Fairfax Publications Ltd [2006] NSWSC 251 per Simpson J at [35]. In the circumstances of that case, her Honour ordered a stay of proceedings until the payment of costs ordered to be paid by the Supreme Court of the Australian Capital Territory. She declined to do so pursuant to UCPR 12.10 but relied upon the general power to stay proceedings in s 67 of the Civil Procedure Act 2005. I accept that there is power, if not under UCPR 12.10, then at least under s 67, to make an order in terms of prayer 2 of the Attorney General’s notice of motion. Even if recourse is had to the power under s 67, the pre-conditions in UCPR 12.10 are relevant matters to consider in the exercise of the discretion under that provision.

59 Submissions made by the parties tended to focus upon a comparison of proposed statements of claim in the proceedings before Johnson J and the proposed statements of claim which are the foundation of the proceedings Mr Bar-Mordecai now seeks leave to pursue. However, it appears to me that the focus should be upon the orders that Mr Bar-Mordecai sought to be made in the proceedings before Johnson J and a comparison made with those that he now seeks to be made for the purpose of determining the issue in UCPR 12.10(b).

60 I have set out the terms of the orders sought in the proceedings before Johnson J. In the present proceedings prayer 1 of the second further amended notice of motion is in these terms:

An Order that leave be granted to file the Amended Probate Draft Statement of Claim along with the other three Draft Statements of Claim already in train, to set aside the judgments of:

a. Einstein J in the Probate Court dated 4.9.1998 in Bar-Mordecai v Rotman and Hillston matter no. 120009/94;

b. Bryson J in the Equity Court dated 28.2.2003 in Bar-Mordecai v Hillston matter no. 1707/99;

c. Bryson J in the Equity Court dated 28.2.2003 in Hillston v Bar-Mordecai matter no. 3240/98.

d. Bryson J in the Equity Court dated 28.2.2003 in Bar-Mordecai v Hillston matter no. 3039/02; (sic).

61 It is immediately apparent that the relief sought in both proceedings (putting aside proposed proceedings concerning the Health Care Complaints Commission) was leave to file statements of claim seeking the setting aside of the judgments of Einstein J in matter 120009/94 and Bryson J in matters 3240/98, 1707/99 and 3039/02. The notices of motion both before Johnson J and myself nominate the Attorney General as the plaintiff. In my view, all of the pre-conditions in UCPR 12.10 (a) and (b) are met for the exercise of the discretion to stay the further proceedings until costs of the earlier proceedings have been paid to be enlivened.

62 If, although I doubt it, this exercise should also include an examination of the terms of the draft statements of claim upon which Mr Bar-Mordecai seeks to proceed, then the answer is the same. Not all of those which were before Johnson J are before me, but such as there are, compared with those for which leave is now sought, clearly indicate that the primary relief sought is the setting aside of the above judgments. It is asserted that the basis upon which this should be done is that the judgments were procured by fraud. It is unnecessary to descend into detail but the primary argument upon which this is based is that there are certainly differences in additional relief sought but they may be regarded as ancillary or consequential to the primary relief. There are additional defendants nominated in the present draft statements of claim but such defendants are relevant to the ancillary or consequential relief. Those factors do not alter my view that if the previous and current proposed proceedings are not “the same” they are substantially so, both in terms of the cause of action and the relief sought.

63 Mr Bar-Mordecai seems to be of the view that he can keep on bringing the same or similar proceedings after multiple previous failed attempts and contend, in effect, that he is immune from earlier costs orders because of his claimed impecuniosity. The remarks of Ipp JA in Markisic v Department of Community Services NSW & Ors [2006] NSWCA 106 are apt:

[28] The appellant in this case is impecunious and says that if the full amount of costs has to be paid by him forthwith he would not be able to continue with the litigation. I accept that proposition which was not disputed by any of the opponents. Nevertheless, it does seem to me that the constraints that ordinarily flow from adverse costs orders have not been so far a fetter to the appellant in the litigation for the very reason that he is impecunious. It is undesirable for this to be allowed to continue.

64 I accept the submission made on behalf of the Attorney General that it is a fair inference from the history of Mr Bar-Mordecai repeatedly and vexatiously seeking to re-litigate issues long ago decided that the mere existence of liability for costs is not a consequence that is sufficiently disagreeable to him to discourage unmeritorious and vexatious leave applications.

65 In Project 28 Pty Limited (Formerly Narui Gold Coast Pty Ltd) v Barr; Project 28 Pty Ltd (Formerly Narui Gold Coast Pty Ltd) v Tim Barr Pty Ltd & Ors [2005] NSWCA 240, Ipp JA spoke about the purpose of the general expectation that an unsuccessful litigant will bear the costs of the successful opponent. In this context he said, in part:

[112] The adversarial system owes its form to its gradual and piecemeal development over centuries. The rules of the system have been produced by pragmatic reactions to a multiplicity of pressures over the centuries. They are interdependent and subtly influence each other. The system is effective by reason of its operation as a whole. One of its important features is the discipline imposed by the knowledge that an unsuccessful party is likely to be ordered to pay the costs of the successful party. This rule provides a bridle against lack of restraint in taking points that are hardly arguable, or not arguable at all, and against other possible excesses in the conduct of litigation. It provides a measure of protection to those involved in litigation, and to the Court itself, against unscrupulous attempts to manipulate the system. It provides an incentive to act carefully in a measured way.

66 In the light of the long history of litigation vexatiously brought by Mr Bar-Mordecai I have come to the view that it would be just to impose some impediment in the way of him bringing further proceedings in almost blissful ignorance of his responsibility to pay the costs of proceedings that have previously failed. Such flagrant disregard for his responsibilities cannot be permitted to continue. He needs at “bridle”, to adopt Ipp JA’s terminology, against his lack of restraint and his excesses in the conduct of litigation.

67 Mr Bar-Mordecai raised an argument before me that none of the costs pursuant to the various orders I have referred to have become payable because they have yet to be assessed. I am satisfied, that it would, in a practical sense, be a waste of time and money for the Crown Solicitor to proceed to take that step. Mr Bar-Mordecai has made it abundantly clear that he is not prepared to pay the costs ordered by Johnson J because, in his view, the judgment and orders of his Honour are unfair.

68 I propose to make the order sought that there be a stay of the present proceedings until such time as he has paid the proportion of the costs I am going to order that he pay in respect of the order made by Johnson J. Further, it is appropriate that the present matter not be permitted to remain on foot for an unlimited period. Accordingly I propose to make the order sought in prayer 3 of the Attorney General’s notice of motion that if the costs are not paid within 6 months the proceedings are taken to be dismissed. It is appropriate to also make the order sought in prayer 4 to, in effect, put the matter back on track in the event that the costs are paid.

Irresponsible litigation

69 I earlier referred to the remarks of Mason P in Bar-Mordecai v Rotman; Bar-Mordecai v Hillston [2005] NSWCA 71 at [14] to the effect that he hoped that was the last occasion that the Court of Appeal would be troubled with groundless motions relating to the probate proceedings and I added the comment that these remarks did not trouble Mr Bar-Mordecai one iota.

70 Since being declared a vexatious litigant Mr Bar-Mordecai has unsuccessfully sought leave to institute proceedings on no less than five occasions. On one occasion he required the leave of the Court of Appeal to continue with appeal proceedings that had commenced prior to the vexatious declaration. (Leave was granted but not because the appeal had merit, only to ensure finality of the proceedings). He has been successful on one occasion, but that had nothing to do with the Hillston estate litigation. The present proceedings constitute an eighth occasion of seeking leave to institute/continue proceedings in just over five years. Adverse costs orders have not deterred him as he simply does not comply with them. The general requirement to pay court filing fees is no deterrent either as, for some reason, such fees have either been waived or postponed.

71 It is worth emphasising the following from the judgment of Johnson J:

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

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

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


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

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

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

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

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

72 Johnson J remarked (at [80]) that the payment of filing fees in the proceedings before him had been postponed for no apparent reason. It is unclear whether filing fees have been paid in the present proceedings.

73 These considerations add further support to the proposition that Mr Bar-Mordecai must be made to realise, and accept, that the institution of litigation is not an unfettered right. It is something that is accompanied by a duty to act responsibly. He should be required to pay fees as the vast majority of other litigants do. He should comply with court orders as to costs. Most of all he should confine his litigious activities to causes that have a reasonable prospect of success, something that history indicates is beyond his own assessment.

Orders

74 I make the following orders:

1. An order pursuant to s 98(4)(d) of the Civil Procedure Act 2005 that the defendant pay forthwith $10,000 as a proportion of the costs of the Attorney General for the State of New South Wales in respect of the order made by Johnson J on 31 March 2009 in Attorney General for the State of New South Wales v Bar Mordecai [2009] NSWSC 218.

2. Until such time as the above costs have been paid, the hearing of the second further amended notice of motion filed on 1 March 2010 is stayed and no further amended notice of motion is to be filed.

3. The second further amended notice of motion is dismissed if the above costs have not been paid by 23 October 2010.

4. If the above costs are paid on or before 23 October 2010 the defendant is to have liberty to restore the matter to the list upon seven days notice for the purpose of satisfying the Court as to compliance with order 1 herein so as to permit the Court to make directions for the hearing of the second further amended notice of motion.

5. The defendant is to pay the plaintiff’s costs of the plaintiff’s notice of motion.

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27/04/2010 - Typographical error - Paragraph(s) 14