Attorney-General of New South Wales v Bar-Mordecai (No 3)

[2009] NSWSC 1242

CITATION:	Attorney-General of New South Wales v Bar-Mordecai (No 3) [2009] NSWSC 1242
HEARING DATE(S):	27 October 2009
JUDGMENT DATE :	19 November 2009
JUDGMENT OF:	Smart AJ
DECISION:	Leave granted to Mr Bar-Mordecai to commence proceedings against the State in the District Court. Motion of 9 July 2009 of the Attorney-General seeking a stay or conditions as to pre-payment of costs dismissed. See paragraph 45 for detailed orders.
CATCHWORDS:	Portions of Statement of Claim struck out due to pleading deficiencies. - In actions for wrongful arrest and false imprisonment once arrest and imprisonment proved defendant is required to justify each of these. - Leave to proceed on Statement of Claim with portions struck out. - Whether stay should be granted or pre-payment conditions as to costs imposed where plaintiff in impoverished circumstance and effect would be to stultify causes of action.
LEGISLATION CITED:	Supreme Court Act 1970 Vexatious Proceedings Act 2008
CATEGORY:	Principal judgment
CASES CITED:	Dallison v Caffery 1965 1 QB 348 Hall v Nominal Defendant (1966) 117 CLR 423 Pedler v Hunters Hill Municipal Council (1976) 2 NSWLR 411 Williams v The Minister (1994) 35 NSWLR 497
PARTIES:	Attorney-General In and For the State of New South Wales (Plaintiff) Michael Jacob Bar-Mordecai (Defendant)
FILE NUMBER(S):	SC 10622/04
COUNSEL:	K Oliver (Attorney-General) MJ Bar-Mordecai in person
SOLICITORS:	IV Knight, State Crown Solicitor (Attorney-General)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Smart AJ

Thursday 19 November 2009


10622/04 Attorney-General in and for the State of New South Wales v Michael Jacob Bar-Mordecai
(No 3)

JUDGMENT

1 I refer to the judgments (2) delivered on 18 May 2009.

2 There are two tasks before the Court:

1. whether the draft amended statement of claim proposed by Mr Bar-Mordecai pursuant to leave granted on 24 July 2009 is such that leave should be granted to file it, or an amended version of it, in the District Court; and

2. whether conditions as to prior payment of costs by Mr Bar-Mordecai should be imposed on any leave granted to him to bring proceedings consequent upon my judgments of 18 May 2009 and subsequently, or a stay granted pending payment of costs.

Proposed Statement of Claim

3 Consequent upon the judgment of 18 May 2009, Mr Bar-Mordecai propounded a draft statement of claim about 30 June 2009. During a further directions hearing on 24 July 2009 I indicated that the statement of claim in the form propounded was not satisfactory. It contained material which was surplus or irrelevant or embarrassing.

4 I drew attention to two principles:

1) Since arrest involves trespass to the person and any trespass to the person is prima facie tortious, the onus lies on the arrestor to justify the trespass by establishing reasonable and probable cause for the arrest. The trespass by the arrestor continues so long as he retains custody of the arrested person, and he must justify the continuance of his custody by showing that it was reasonable. (Per Diplock LJ in Dallison v Caffery 1965 1 QB 348 at 370 – 371.)

2) A plaintiff only has to show that he was imprisoned. If he or she does so, it is for the defendant to show that it, its servants and agents did not falsely imprison, that is, that their act of imprisonment was legally justified. (Per Crockett J in Carnegie v Victoria, O’Bryan and Gray JJ concurring and cited with approval by Kirby P in Williams v The Minister (1994) 35 NSWLR 497 at 512D-G. The Crown Advocate accepted that this was a correct statement of the law.)

5 This means that on two of the causes of action (wrongful arrest and false imprisonment) the State will have to justify what was done once the arrest and the imprisonment are proved. I will not speculate as to what may happen on the assault count. Consequent upon the discussion in Court on 24 July 2007 and the leave granted, the plaintiff delivered a further draft proposed amended statement of claim.

6 That contains a number of matters that are surplusage. There is also the problem that the plaintiff seems to be alleging unnecessary facts given the onus that lies upon the defendant.

7 Taking the draft bearing date 31 July 2009, I would strike out the following:

Paragraph 1 -	the words “without a warrant”
Paragraph 2 -	the words “following which the plaintiff was released”
Paragraphs 3, 4, 5, 6 -	the whole
Paragraph 8 -	the words “without a warrant”
Paragraphs 10, 11, 12, 13 -	the whole
Paragraphs 16, 17, 18 -	the whole
Paragraph 19 -	the whole – this seems to repeat paragraph 14
Paragraph 21 -	the whole


(The last sentence of Particulars, paragraph 20 appears to be repeated in paragraph 22, but this should not cause embarrassment.)

8 Counsel for the Attorney-General urged the Court not to take this course. He contended that the Court was providing Mr Bar-Mordecai with legal advice and going farther than it should. I did not agree. The Court has struck out material which was impermissible and which could hinder an orderly trial. Mr Bar-Mordecai has already shown that he has an arguable case on the merits. Questions of onus of proof can be important. If Mr Bar-Mordecai leads evidence in his case in chief on issues on which he does not bear the onus of proof he could be taken to have split his case and not be permitted to lead other evidence in opposition to the evidence of lawful justification led by the defendant. This could make the trial difficult to manage and give rise to some rather technical argument. Difficult questions of whether to grant leave to lead the evidence, and, if so, on what terms, could arise. These problems could be magnified if Mr Bar-Mordecai conducts his own case.

9 Both pleadings and particulars are designed to ensure that the defendant is adequately apprised of the case which it has to meet.

Conditions as to Costs

10 The inability of the plaintiff to propound a Statement of Claim that complies with the rules or principles of pleading has augmented the costs of the Attorney-General and imposed costs burdens on the public purse. The 31 July 2009 version was arguably the eighth version. While Mr Bar-Mordecai has repeatedly told the Court that he does not have the skills to prepare a Statement of Claim which complies with the Court’s rules and the principles of pleading, there is a limit to the number that the Attorney-General and his advisers can be expected to consider and to continue to bear the expense of doing so. The Attorney-General and his advisers are not required to instruct Mr Bar-Mordecai in the Court’s rules and the principles of pleading or to act as his advisers.

11 Mr Bar-Mordecai told me that, because of his lack of the requisite skills, he had a barrister prepare the Statement of Claim of 30 June 2009.

12 When the argument took place on 10 and 11 December 2008, the principal issue debated was whether leave should be granted to Mr Bar-Mordecai to commence proceedings for wrongful arrest and false imprisonment. There were other issues raised. I raised a constitutional issue but counsel for the Attorney-General persuaded me that this did not arise. The form of the then drafted proposed statement of claim was considered and was the subject of adverse comment. Mr Bar-Mordecai sought leave to propound a further draft proposed statement of claim. Mr Bar-Mordecai touched on other issues which did not arise in the context of his leave application. I was invited by the Attorney-General to consider what would have happened if, instead of indicating that leave should be granted to the plaintiff to proceed in respect of certain causes of action, I had dismissed his application because of pleading deficiencies.

13 I did not take that course. There is some debate whether an order refusing leave to proceed under s 84 of the Supreme Court Act (1970) is a final order or an interlocutory order. Refusal of leave prevents an action being brought. See generally Pedler v Hunters Hill Municipal Council (1976) 2 NSWLR 411 – I am indebted to counsel for the Attorney-General for drawing attention to that decision. Even if counsel be correct in his contention that a decision under s 84 refusing leave is an interlocutory one, a relevant consideration would be what changes had occurred since the previous decision. A similar approach is reflected in the remarks of Taylor J in Hall v Nominal Defendant (1966) 117 CLR 423 at 440 – 441. See also the comments of Windeyer J at 444 – 445. I doubt if it would be sufficient to contend that pleading deficiencies in the earlier proposed statement of claim had been remedied. The question would arise why those deficiencies had not been remedied previously. Although an order may be legally characterised as interlocutory, it may have the practical effect of operating as a final order.

14 While the hearing on 10 and 11 December 2008 was principally concerned with the question whether leave should be granted, it would not have been necessary for the form of the draft proposed amended statement of claim to have been raised if it had not been cast in impermissible terms. Further, but for such failings, it would not have been necessary to give leave on 18 May 2009 to Mr Bar-Mordecai to advance a further proposed draft amended statement of claim, nor to hold a directions hearing on 24 July 2009 or for a further hearing on 27 October 2009.

15 The hearing on 24 July 2009 and on 27 October 2009 involved the Notice of Motion of 9 July 2009 filed on behalf of the Attorney-General seeking that any leave granted under s 84 be “on all or any of the following terms:

(c) that the defendant shall first have paid:

(i) the plaintiff’s costs of the pending leave application up to and including 18 May 2009; or
(ii) alternatively, the plaintiff’s costs thrown away by reason of the adjournment of the hearing of the pending leave application pursuant to the order of his Honour Smart AJ on 18 May 2009.

(d) further, that the defendants shall first have complied with the costs orders made in these proceedings in favour of the plaintiff:

(i) by Justice McCallum on 30 July 2008;
(ii) by Associate Justice Harrison on 20 October 2008;
(iii) by Justice Johnson on 31 March 2009; and
(iv) by Acting Justice Schmidt on 19 June 2009.”

16 I have read and had regard to each of those judgments. McCallum J was dealing with an application by Mr Bar-Mordecai for leave to institute legal proceedings against the Health Care Complaints Commission and the New South Wales Medical Board. He had been deregistered as a medical practitioner on 6 September 2000 with an order preventing the bringing of an application for review of the order for seven years. She wrote at [3], “The claims sought to be brought, as best as I am able to understand them, are for damages for breach of duty of care and apparently breach of contract based on the alleged failure to comply with identified provisions of the legislation.” Large sums were claimed. Her Honour found there was no prima facie ground for Mr Bar-Mordecai’s claims. The application was dismissed and Mr Bar-Mordecai was ordered to pay the Attorney-General’s costs.

17 Harrison AsJ refused to grant leave to Mr Bar-Mordecai to appeal against the decision of Magistrate Madgwick of 23 October 2007 in relation to the duration of an Apprehended Violence Order. The Magistrate’s decision was said to be erroneous by “failing to give judicial reasoning for such a prolonged period”. Harrison AsJ held at [32], “I cannot conclude that Mr Bar-Mordecai has a prima facie case”. She further held at [40], “Overall, I am not satisfied that this application is not an abuse of process.” She determined that leave ought not be granted under s 84(4) of the Supreme Court Act. Mr Bar-Mordecai’s application was dismissed and he was ordered to pay the Attorney-General’s costs.

18 Johnson J at [1] dealt with three Notices of Motion filed on 10 and 17 October 2008 in which Mr Bar-Mordecai sought the following orders:

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

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

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

19 Johnson J undertook a summary and review of some of the previous decisions. In paragraph [78] he summarises the various applications made by Mr Bar-Mordecai. At [64] – [68] the Judgment considered four draft Statements of Claim. Each was a lengthy document containing a wide range of allegations against many people.

20 Johnson J at [81] said:

“The Defendant has not demonstrated prima facie ground for the proceedings which he seeks to bring, by leave. Nor has the Defendant demonstrated that the proposed proceedings are not an abuse of process. Indeed, the present applications bear the hallmarks of an abuse of process.”

That Judge refused leave to institute any of the proceedings and dismissed the three Notices of Motion. Mr Bar-Mordecai was ordered to pay the Attorney-General’s costs.

21 Schmidt AJ dealt with an application by Mr Bar-Mordecai to file a Notice of Appeal, pursuant to s 14 of the Vexatious Proceedings Act 2008, against judgments of the Medical Tribunal given on 21 January 2009 and 18 March 2009. Her Honour undertook a detailed review and analysis of the proceedings under consideration, the complaints made by Mr Bar-Mordecai and the grounds underlying his complaints. She refused his application for leave to proceed. She ordered him to pay the Attorney General’s costs. She was not satisfied that a prima facie ground existed in respect of either judgment. Schmidt AJ referred to Mr Bar-Mordecai wishing to resume his profession as a medical practitioner and to his stated financial position at [15] and [41].

22 Mr Bar-Mordecai is 63 years of age. He felt that he was still capable of practising as a medical practitioner and would be in 2012 if he were permitted to practise. He said that he was continuing with his medical studies so as to keep himself up to date.

23 He stated that his only source of income was $760.00 per fortnight, which he was being paid as a carer’s pension by Centrelink. He was caring for his elderly parents. He said that he owned no property. He has substantial debts. These include the substantial amounts he owes to the Attorney-General for costs. While these costs have not been taxed when regard is had to the amounts claimed they total, having regard to the discounts offered, in excess of $50,000. He has liabilities under the costs orders made by Einstein J, Bryson J and the Court of Appeal. He estimated the costs he had been ordered to pay as over $1 million. While this figure was not supported adequately, the costs that he has been ordered to pay would amount to a substantial sum. I would not be surprised if they exceeded $500,000 for the substantial hearings which occurred. It was Mr Bar-Mordecai’s contention that, if he recovered the properties he had lost, they would have a present value of $10 million and that he would have enough money to pay all creditors.

24 It was put to Mr Bar-Mordecai that he could obtain other employment and make payments out of the income he earned to his various creditors.

25 At the age of 63 and by virtue of his personality it was unrealistic to suggest that he could be retrained or earn any appreciable income. I did not see him as being able to do any physical work or work in a clerical capacity or as a salesman in health or related fields. Perhaps he may be able to work with computers. That will depend upon his inventive skills. I do not see him as being an acceptable employee. Much of his time is devoted to his medical studies. He said that he had previously invented computerisation of prescriptions in 1998 commonly used now by doctors. He claimed that he had invented a new (computer) system in medicine by which, if a doctor puts in some signs and symptoms and results (presumably of tests and examinations), he will be able to arrive at the correct diagnosis of the condition or disease from which the patient is suffering. Mr Bar-Mordecai hopes that this new system invented by him will be marketed within the next six to twelve months. I will not speculate whether it will be accepted and successful. If it is accepted and successful, Mr Bar-Mordecai thinks that it will be worth many millions of dollars. That is a matter for the future. It if occurs he will have funds to which his debtors will probably be able to have recourse.

26 For the time being and probably for the next few years it is necessary to proceed on the basis that the income of Mr Bar-Mordecai is limited to $760.00 every two weeks, that he has no property and he has substantial debts. A major attack was made on his truthfulness and general credibility but I thought that these details as to his present financial position were probably correct. Mr Bar-Mordecai relied heavily on his impoverished circumstances.

27 The Attorney-General also sought, either by way of a precondition to commencing proceedings or a stay, that Mr Bar-Mordecai pay his costs of the unsuccessful applications for leave to commence proceedings, including appeals.

28 I have treated the various applications for leave to commence proceedings mentioned above as separate matters. Different facts were under consideration in each matter. In each case the application for leave failed. There were findings that no prima facie ground for the proceedings existed. The Attorney-General has incurred considerable expense in resisting the applications made by Mr Bar-Mordecai.

29 While Mr Bar-Mordecai pointed to what he regarded as discrepancies or shortcomings in the evidence against him in the earlier proceedings, he did not appear able to accept that his evidence was suspect and that on some issues he lacked credibility.

30 I do not question that Mr Bar-Mordecai must pay the various sums which he has been ordered to pay. He must also pay the costs occasioned by his many amendments to the proposed amended statement of claim.

31 The critical question is whether payment of these costs, or any of them, should be a precondition to him starting proceedings against the State of New South Wales, or proceedings should be stayed pending payment. I do not doubt that I have jurisdiction to make such orders in the appropriate case. Access to the Courts is a valuable right of every citizen. On the other hand, when the Court is moved by the Attorney-General and declares a person to be a vexatious litigant, his access to the Courts is restricted in the public interest. Having to defend litigation is time consuming and expensive. It can also inhibit the prospective defendant from attending to his personal and business affairs.

32 If either preconditions as to payment are imposed or a stay is granted pending payment, this will have the effect of stultifying Mr Bar-Mordecai’s strongly arguable causes of action. I regard wrongful arrest and unlawful imprisonment by the police as serious matters which should be investigated and litigated. They bear upon the liberty of the subject.

33 In my opinion an important factor is the strength of the case the vexatious litigant desires to bring. Mr Bar-Mordecai appears to have a strongly arguable case against the State of New South Wales. The alleged offence appears to have occurred about 4 March 2008. On 5 March 2008 Mr Bar-Mordecai attended at Rose Bay Police Station voluntarily and was warned not to breach the conditions of the AVO. He was not arrested at that stage.

34 Early on 17 March 2008 two police officers attended at the home of Mr Bar-Mordecai’s parents, where he was residing, and arrested him. It does not appear that any new facts of significance had emerged. The police obviously knew where Mr Bar-Mordecai was residing. It does not appear why, if the plaintiff was residing at a place known to the police and the plaintiff had not been arrested on 4 or 5 March 2008, it was necessary or reasonable or legitimate to arrest him on 17 March 2008 and convey him by caged truck to Waverley Police Station and detain him there for some hours. The length of the period of detention is a matter of some debate.

35 Mr Bar-Mordecai claimed $700,000.00 by way of damages and compensation. He has particularised loss of liberty, indignity, anxiety and mental distress. He has not particularised any sustainable economic loss. On the facts, as known, he could not do so.

36 The events involving Mr Bar-Mordecai appear to have lasted about five hours on one day. That tends to suggest that any award in his favour is unlikely to be large.

37 Payments of costs thrown away and payment of costs of unsuccessful applications for leave are important. However, where the effect of imposing prepayment conditions or a stay is to stultify proceedings for unlawful arrest and wrongful imprisonment by the police because of the impoverished circumstances of the intending litigant, such prepayment conditions or a stay should not be imposed. However, if, prior to the hearing of Mr Bar-Mordecai’s action against the State, his financial circumstances should appreciably improve, leave should be reserved to the Attorney-General to apply for a stay or for conditions as to prior payment of his costs by Mr Bar-Mordecai.

38 A test of Mr Bar-Mordecai’s financial circumstances appreciably improving is very general and lacks specificity, but I have not been able to devise a more precise test. Increases in pension and Social Security benefits are not included. However, if Mr Bar-Mordecai succeeds with his design of computer-aided diagnosis of medical conditions and that yields substantial income that would amount to appreciably improving his financial circumstances irrespective of the form of the transaction. Mr Bar-Mordecai should report in writing on or about 31 October each year to the Attorney General in detail:

a) on the progress of his proposed invention (computer-aided diagnosis of medical conditions) and the income being received from it and its implementation over the previous 12 months; and
b) on his income and assets over the previous 12 months;

with the first report due on 31 October 2010.

Costs

39 The question of costs gives rise to difficulties. On 10 and 11 December 2008 a couple of hours was taken up with a constitutional issue I raised. Most of the remainder of the time was taken up with the issue whether Mr Bar-Mordecai should be granted leave to commence proceedings for wrongful arrest and false imprisonment. A little time was spent on the terms of the then draft proposed amended statement of claim.

40 On 18 May 2009 I published a judgment in which I held that Mr Bar-Mordecai should be granted leave to proceed on his causes of action for wrongful arrest, portion of his claim for false imprisonment and assault (covering both the initial events and the alleged threats made by the custody sergeant). I refused leave to institute proceedings relying on a cause of action in negligence and one for malicious prosecution. I wrote at [64] that I would not be prepared to grant leave to proceed on the basis of the proposed draft amended statement of claim for the reasons there stated. I thought that the draft needed to be radically recast. Mr Bar-Mordecai, having succeeded on some of the points of substance, was required to put his draft proposed statement of claim in an acceptable form. Both substance and form are important if there is to be an orderly trial. By “form” I refer to a statement of claim complying with the rules and principles as to pleading.

41 The draft proposed statement of claim, formulated consequent upon the judgment of 18 May 2009, was not an acceptable document.

42 On 12 July 2009 the Attorney-General caused his motion of 9 July 2009 and a folder containing an affidavit and substantial exhibits to be served on Mr Bar-Mordecai. Unsurprisingly, Mr Bar-Mordecai was unprepared to meet it on 24 July 2009. On 23 July 2009 the Attorney-General caused to be delivered by post a 14-page submission. It required some consideration. A litigant in person would need a reasonable time to digest it, decide whether he wished to lead evidence in reply and prepare his response.

43 Between 24 July 2009 and 27 October 2009 further affidavit material was adduced. On 27 October 2009 the objectionable and some surplus material was struck from the proposed draft amended statement of claim of 31 July 2009. Most of the hearing on that day was occupied with the Attorney-General’s motion seeking prepayment of the costs of the Attorney-General in relation to the costs of Mr Bar-Mordecai’s application for leave to proceed and the costs of his various other unsuccessful applications for leave to proceed. This led to an investigation of Mr Bar-Mordecai’s financial affairs. Because of the defective proposed draft statement of claim delivered about 31 July 2009, it was necessary for the Attorney-General to appear on 27 October 2009. On Mr Bar-Mordecai’s application for leave to proceed, he was partly successful and partly unsuccessful on the substantive issues. He did not produce an acceptable draft amended statement of claim.

44 In the circumstances, I propose to make no order as to the costs of the parties of the hearings on 10 and 11 December 2008, the delivery of the judgment on 18 May 2009, the directions hearing on 24 July 2009 and the hearing on 27 October 2009. It was not until the last mentioned date that an acceptable draft proposed amended statement of claim emerged as a result of the portions struck out by the Court. It was Mr Bar-Mordecai’s responsibility to prepare and propound a proposed amended statement of claim which complied with the rules and principles of pleading.

45 I make the following orders:

1. Leave granted to Mr Bar-Mordecai to commence proceedings in the District Court of New South Wales against the State of New South Wales in accordance with a draft proposed amended statement of claim delivered about 31 July 2009, the subject of this judgment and with the portions struck out as stated in this judgment.
2. Dismiss motion of 9 July 2009 of the Attorney-General.
3. Mr Bar-Mordecai is to pay the costs of the Attorney-General of considering and dealing with eight proposed draft statements of claim and the costs thereby thrown away.
4. The Attorney-General is pay the costs of the Mr Bar-Mordecai of the Attorney-General’s motion of 9 July 2009 but not including the costs of the directions hearing on 24 July 2009 and the hearing on 27 October 2009.
5. Otherwise I make no order as to the costs of the parties of Mr Bar-Mordecai’s applications for leave to proceed against the State of New South Wales, the hearing on 10 and 11 December 2008, the delivery of the judgment on 18 May 2009, the directions hearing on 24 July 2009 and the hearing on 27 October 2009.
6. In the event of the financial circumstances of Mr Bar-Mordecai appreciably improving before the hearing of his action against the State, leave is reserved to the Attorney-General to apply for a stay of his action against the State or for conditions as to the time for payment of the costs which Mr Bar-Mordecai is hereby ordered to pay, and those he has been ordered to pay pursuant to the judgments of McCallum J on 30 July 2008, Harrison AsJ on 20 October 2008, Johnson J on 31 March 2009 and Schmidt AJ on 19 June 2009.
7. Prior to the hearing of Mr Bar-Mordecai’s action against the State, he is to report in writing on or about 31 October in each year to the Attorney-General in detail:
a) on the progress of his proposed invention (computer-aided diagnosis of medical conditions) and the income being received from it and its implementation over the previous 12 months; and
b) his income and assets over the previous 12 months;
with the first report due on 31 October 2010.


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