Attorney General of NSW v Bar-Mordecai

[2008] NSWSC 1094

CITATION:	Attorney General of NSW v Bar-Mordecai [2008] NSWSC 1094
HEARING DATE(S):	10 September 2008
JUDGMENT DATE :	20 October 2008
JURISDICTION:	Common Law
JUDGMENT OF:	Harrison AsJ
DECISION:	(1) Leave to appeal under s 84(4) of the Supreme Court Act is refused. (2) The defendant's amended notice of motion filed 10 September 2008 is dismissed. (3) The defendant is to pay the plaintiff's costs as agreed or assessed.
CATCHWORDS:	LEAVE to institute an appeal in the District Court
LEGISLATION CITED:	Crimes (Appeal & Review) Act 2001 Crimes (Domestic and Personal Violence) Act 2007 Supreme Court Act 1970
CATEGORY:	Procedural and other rulings
CASES CITED:	Attorney General v Bar-Mordecai [2005] NSWSC 142 Sea Culture International Pty Limited v Scoles (1991) 32 FCR 275 Young v Cesta-Incani & Anor [2007] NSWCA 229
PARTIES:	Attorney General of New South Wales (Plaintiff) Michael Bar-Mordecai (Defendant)
FILE NUMBER(S):	SC 10622/2004
COUNSEL:	K Oliver (Plaintiff)
SOLICITORS:	Crown Solicitors (Plaintiff) Bar-Mordecai (Defendant in person)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

MONDAY, 20 OCTOBER 2008

10622/2004 - ATTORNEY GENERAL OF NEW SOUTH
WALES v MICHAEL BAR-MORDECAI
JUDGMENT (Leave to institute an appeal in the
District Court)

1 HER HONOUR: On 25 February 2005, this court ordered that the defendant shall not, without leave of this court, institute proceedings in any court – Attorney General v Bar-Mordecai [2005] NSWSC 142. Mr Bar-Mordecai seeks leave to appeal the decision of her Honour Magistrate Madgwick dated 23 October 2007 in relation to the duration of an Apprehended Violence Order (AVO).

2 The leave that Mr Bar-Mordecai required is set out in s 84(4) of the Supreme Court Act. It reads:

“Where the Court has made an order under subs(1) or subs(2) against any person, the Court shall not give that person leave to institute or continue any proceedings unless the Court is satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings.”

3 The defendant concedes that he needs such leave. The onus is upon Mr Bar-Mordecai to show that the intended District Court appeal is not an abuse of process and that there is a prima facie ground for the appeal

4 The motion that was listed for hearing on 10 September 2008 is dated 23 November 2007. That motion and submissions involved many and varied grounds of appeal. At the outset of the hearing Mr Bar-Mordecai indicated that he wanted only to pursue a limited ground of appeal, Counsel for the Attorney General agreed to that course of action provided that Mr Bar-Mordecai consented to the earlier notice of motion being dismissed and that he pay the Attorney General’s costs. Ultimately, the new notice of motion and draft ground of appeal were filed at noon on 10 September 2008. The notice of motion was filed 23 November 2007 was dismissed with an order that the defendant pay the plaintiff’s costs.

5 An AVO was granted and it is for five years duration from 23 October 2007. This AVO order expires on 23 October 2012. The notice of motion filed 10 September 2008 seeks that leave be granted to Mr Bar-Mordecai to file an appeal with the District Court of New South Wales. The only ground of appeal is that he says the Magistrate erred in law by failing to give judicial reasoning for such a prolonged period.

6 In the Local Court “AB”, the daughter of Mr Bar-Mordecai, sought an AVO on behalf of herself, her husband and their children. The children are Mr Bar-Mordecai’s grandchildren. I have referred to the daughter as “AB” because children are involved and their names should not be published.

7 On 23 October 2007, the Magistrate Madgwick made the following orders.

“TERMS OF FINAL ORDER
TO THE DEFENDANT:
The Court has made an Apprehended Violence Order against you in the following terms:
This Order is in force for a period of FIVE (5) YEARS.
MANDATORY ORDERS:
1.a. The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.
1.b. The defendant must not engage in conduct that intimidates the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.
1.c. The defendant must not stalk the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.
ADDITIONAL ORDERS:
7. The defendant must not approach or contact the protected person(s) by any means whatsoever, except through the defendant’s legal representative.
9. The defendant must not approach the school or other premises at which the protected person(s) may from time to time attend for the purposes of education or child care or other specified premises.” (Ex B)

Duty to give reasons

8 Recently the judicial obligation to provide reasons was considered in Young v Cesta- Incani & Anor [2007] NSWCA 229 where the Court of Appeal at [54] stated:

“The relevant principles are not in issue. They were relevantly summarised by Ipp JA, with whom Bryson JA and Stein AJA agreed, in Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127 at 135-136; [2004] NSWCA 174:


“56 A miscarriage of justice can arise where what is and is not disclosed in a judge's reasons is a breach of the principle that justice must not only be done but must be seen to be done: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 431, per Mason P

57 As McHugh JA explained in Soulemezis v Dudley (Holdings) PtyLtd (1987) 10 NSWLR 247 at 279, one of the purposes served by a judicial decision is that:

‘[I]t enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge's decision.’
Accordingly, as McHugh JA said (at 278-279):
‘…[A] judicial decision must be a reasoned decision arrived at by finding the relevant facts and then applying the relevant rules or principles. A decision which is made arbitrarily can not be a judicial decision; for the hallmark of a judicial decision is the quality of rationality…’.

58 In Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377; [2000] 1AIIER 373, which was followed in Moylan v Nutrasweet Co [2000] NSWCA 337, Henry LJ said (at 381-382; 377-378) in regard to the general duty of a judge to give reasons for his or her decision (particularly in relation to expert evidence):

‘(1) The duty is a function of due process, and therefore of justice. Its rationale has two principal aspects. The first is that fairness surely requires that the parties especially the losing party should be left in no doubt why they have won or lost. This is especially so since without reasons the losing party will not know ... whether the court has misdirected itself, and thus whether he may have an available appeal on the substance of the case. The second is that a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not.’

59 It is, of course, well settled that a judge does not need to refer to all the evidence in the proceedings or to indicate which of the evidence is accepted or rejected. The extent of the duty to give reasons depends upon the circumstances of the individual case: Mifsud vCampbell (1991) 21 NSWLR 725 at 728 (per Samuels JA, with whom Clarke JA and Hope AJA agreed). But it is not for nothing that in some bilingual countries the judgment of the court is given in the language of the unsuccessful party. The proper administration of justice requires reasons to be given in a form, firstly, that will enable the losing party to understand properly the grounds upon which the case was lost, and, secondly, that will not, effectively, frustrate the losing party's right of appeal: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 666-667."

9 In short, the judicial officer should make it clear what he or she is deciding and why.

The hearing in the Local Court

10 At the outset of the hearing the transcript records Mr Wallach, counsel acting for “AB”, saying:

“…we’d be seeking an order in terms of the interim order but for a period of two years.” (t 2.30-2.31)

11 The evidence is that since 1998 “AB” severed contact with her father and they have only seen each other five or six times since then. There were two meetings that occurred on 20 July 2007 and 1 August 2008 that caused “AB” to seek an AVO.

12 The Magistrate in her extempore reasons relevantly stated:

“Now there is no dispute, it has been made quite clear to the defendant that the applicant has had no desire to have any contact with him for the last eight, nine years. She’s not initiated any contact and does not wish him to have contact with her or her family…
The fear she has expressed in relation to the defendant that he has twice approached her over a period of ten, eleven days and because of his behaviour to her as a child she was fearful he may do something inappropriate to her or her children and that she felt, one could say, she was fearful of him.
The fact that on the first occasion it was in the street and on the second occasion he drove into the common driveway of the block of units where she was living and made her feel that the contact was being accelerated. As I said there was an acceleration of contact ie, the two visits within an under two week period has caused her to be fearful.
Now the defendant has known from 1998 that there had been an allegation and that his daughter had nothing to do with him…
I found the defendant’s evidence unconvincing. He would not admit that in approaching the children he would also be approaching his daughter. He was prepared to approach her and the children irrespective of her wishes that she did not wish to have contact with him. He admits he is angry with her and he says that’s because he (sic) lies and false allegations. So one would have to ask why then is he approaching her when she has made it clear she does not wish to have anything to do with him.
He says that the reason that he approached her because it was his need to make contact with his grand daughter. Says in a way it is his daughter’s fault in that she has not introduced her children to the family and he mentions an incident where she, I think, introduced them to his mother at some stage six months ago or in a restaurant or some such thing.
It is quite clear that the defendant feels he has a right to approach his daughter and her family, as I said, has scant regard to her wellbeing. He has no insight into his behaviour and how it would effect his daughter and sees nothing wrong with it. He says there’s nothing wrong in merely confronting someone about lying.
So having heard the evidence of the defendant do I feel that she has fears and are they reasonable? I have heard her evidence. … There is the evidence that’s not in dispute that he has twice approached her over a period of time. There is the evidence he feels he has a perfect right to approach her and her children and it is that boldness in a way that causes me to feel that her fears are reasonable. I am going to make the order.
I FIND THAT THE APPLICANT HAS FEARS AND THAT THOSE FEARS ARE REASONABLE.”

13 This finding is not subject to challenge. It is only the duration of the orders that is the subject of the intended appeal. After the Magistrate made this finding, the transcript records:

Wallach “Your Honour, we would be asking for an order for a period of five years and in otherwise similar terms to the interim orders.”
Her Honour “Mandatory orders.”
Wallach “Yes, your Honour.” (t 45.21-45.30)

The first limb – prima facie case

14 The first limb of the test set out in s 84(4) is whether there is a prima facie ground for the proceedings.

15 According to Mr Bar-Mordecai, the five year AVO “is a compromise of my liberty and it a compromise on my grandchildren having access to me regardless of my daughter’s wishes.” (t 41.21-23). I accept that to take away a right to appeal is a very serious step.

16 Section 79 of the Crimes (Domestic and Personal Violence) Act 2007 refers to the duration of an order and reads:

“79 Duration of final apprehended violence orders

(1) A final apprehended violence order remains in force for such period as is specified in the order by the court.

(2) The period specified in the order by the court is to be as long as is necessary, in the opinion of the court, to ensure the safety and protection of the protected person.

(3) If the court fails to specify a period in the order, the order remains in force for a period of 12 months after the date that the order is made.

(4) This section is subject to section 73 (Variation or revocation of final apprehended violence orders and interim court orders).”

17 I shall refer to s 73 in more detail shortly.

18 Mr Bar-Mordecai referred to a document produced by the NSW Bureau of Crime Statistics and Research entitled “NSW Criminal Courts Statistics 2005 No. of domestic apprehended violence orders granted by duration of order, in years” (Ex C). The statistics show that in 2005 the number of orders granted were 20,256, with an average order length of 15.2 months and the median order length being 11 months.

19 Mr Bar-Mordecai submitted that the function of the Magistrate was to make a decision in the particular case taking into account all relevant considerations, so as to justify the prolonged duration of the order and that the Magistrate in the exercise of her discretion did not take any of the relevant factors into account and therefore an injustice has occurred. Mr Bar-Mordecai further submitted that the Magistrate ordered that the duration of the AVO was five years, but gave no reason for the making of such a prolonged order and the Magistrate erred in her decision.

20 Mr Bar-Mordecai says that the Magistrate gave no express reasons and therefore it is open to this Court and the Local Court to conclude that the Magistrate overlooked the issue and this is a jurisdictional error. Mr Bar-Mordecai submitted that the Magistrate erred in failing to outline her process for evaluation for an extended AVO period of five years, failed to detail any special, particular or unique circumstances in the case demanding such a prolonged period of time for the order and that a five year AVO order will almost certainly create some kind of injustice.

21 Mr Bar-Mordecai says that both he and his grandchildren have been disadvantaged by the duration of the five year order. It is Mr Bar-Mordecai’s contention that an order for an AVO for a five year period is more than two standard deviations from the mean and falls within 0.1% bracket of total orders. According to Mr Bar-Mordecai, the order should have been fixed in accordance with s 79(3), that is a period of 12 months.

22 Counsel for the Attorney General submitted that it was not necessary for the Magistrate to give further reasons as to why she determined the duration to be five years. The reason why the duration was fixed at five years is set out in s 79(2). Section 79(2) specifies that the period “is to be as long as is necessary, in the opinion of the Court, to ensure the safety and protection of the protected person.” In this case, the period that is as long as necessary to ensure the safety of the protected person was determined by the Court to be five years.

23 Counsel for the Attorney General submitted that Mr Bar-Mordecai cannot appeal under s 18 of the Crimes (Appeal & Review) Act 2001 and his recourse to have the duration varied, is an application lodged pursuant to s 72.

24 Section 72 of the Crimes (Domestic and Personal Violence) Act reads:

“72 Application for variation or revocation of final apprehended violence orders

(1) An application may, at any time, be made to a court for the variation or revocation of a final apprehended violence order or interim court order.

(2) An application for variation or revocation may be made only by:


(a) the protected person (whether or not the protected person made the application for the original order) or, if there is more than one protected person, by one or more of the protected persons, or

(b) a police officer, or

(c) the defendant.


(3) Despite subsection (2), an application for variation or revocation of a final apprehended violence order or interim court order must be made by a police officer if the protected person or one of the protected persons under the order is a child at the time of the application.

…

25 According to s 72(3) because children are named as protected persons in the AVO, it appears that Mr Bar-Mordecai cannot lodge an application to have the AVO varied under this section. The application for variation of the AVO has to be lodged by a police officer. Further, s 73(3) provides:

“The court may decline to hear an application for variation or revocation of a final apprehended violence order or interim court order if the court is satisfied that there has been no change in the circumstances on which the making of the order was based and that the application is in the nature of an appeal against the order.”

26 Mr Bar-Mordecai was clear on this point. He stated that there has been no change in circumstances. Therefore, it seems likely that the Court would decline to hear Mr Bar-Mordecai’s application for variation under s 73(3). That being so, the only possible way Mr Bar-Mordecai may be entitled to have the duration of the AVO varied is by virtue of the provisions of s 84 of the Crimes (Domestic and Personal Violence) Act and s 18 of the Crimes (Appeal and Review) Act. The Attorney General submitted that Mr Bar-Mordecai cannot appeal under s 18 of the Crimes (Appeal and Review) Act.

27 Starting at s 84 of the Crimes (Domestic and Personal Violence) Act that reads:

84 Review and appeal provisions concerning making etc of apprehended violence orders

(1) An application may be made under Part 2 of the Crimes (Appeal and Review) Act 2001 by the defendant for the annulment of an apprehended violence order made by the Local Court or the Children’s Court in the same way as an application may be made under that Part by a defendant for the annulment of a conviction or sentence arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986 .

(2) An appeal may be made to the District Court:


(a) by the defendant against the making of an apprehended violence order by the Local Court or the Children’s Court, or

…

(c) by a party to an apprehended violence order against the variation or revocation of the order by the Local Court or the Children’s Court, or

(d) by a party to an apprehended violence order against a refusal by the Local Court or the Children’s Court to vary or revoke the order.

(3) An appeal under subsection (2):


(a) may be made under Part 3 of the Crimes (Appeal and Review) Act 2001 in the same way as an application may be made under that Part by a defendant against a conviction or sentence arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986 , and

(b) …

(4) The Crimes (Appeal and Review) Act 2001 applies to an application or appeal arising under this section with such modifications as are made by or in accordance with the regulations under that Act.

28 Now, turning to s 18 of the Crime (Appeal and Review) Act, it reads:

“Appeal against conviction is to be by way of rehearing on the transcripts of evidence

(1) An appeal against conviction is to be by way of rehearing on the basis of certified transcripts of evidence given in the original Local Court proceedings, except as provided by section 19;
(2) Fresh evidence may be given, but only by leave of the District Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given.”

29 Counsel for the Attorney General opposed leave being granted to appeal under this section because Mr Bar-Mordecai would then be able to seek to have his daughter called to give further evidence.

30 Mr Bar-Mordecai has indicated to this Court that he does not intend to rely upon fresh evidence. However, for reasons I set out later, this Court cannot be confident that Mr Bar-Mordecai would not use this as an opportunity to try to compel his daughter to give further evidence.

31 Counsel for the Attorney General also submitted that s 84(2)(a) provides that the right of appeal is restricted to “the making of an apprehended violence order” and the order does not include its duration. As the order states “This order is in force for a period of FIVE (5) years” in my view it is at least arguable that Mr Bar-Mordecai has a right of appeal under s 84(2)(a).

32 While I accept that Mr Bar-Mordecai has a right of appeal under s 84(2)(a), had s 79(2) not specifically stipulated what has to be considered when the court fixes the duration of the AVO, I would have held the view that Mr Bar-Mordecai may have satisfied the first limb of s 84(4) of the Supreme Court Act in that he may have had a prima facie case, but when the Magistrate’s reasons are read in conjunction with s 79(2) his argument is not that strong. It is clear that the reason why the Magistrate fixed five years was because she considered that it was as long as necessary to ensure the protection of the protected person. In these circumstances, I cannot conclude that Mr Bar-Mordecai has a prima facie case.

The second limb - Abuse of process

33 In Sea Culture International Pty Limited v Scoles (1991) 32 FCR 275 where French J (as he then was) said at 279:

“The possible varieties of abuse of process are only limited by human ingenuity and the categories are not closed. … An attempt to litigate in the court a dispute or issue which has been resolved in earlier litigation in this or another court or tribunal may also, according to the circumstances, constitute an abuse of process even if not attracting the doctrines of res judicata or issue estoppel.

Underlying the power that courts have assumed to stay or dismiss proceedings for abuse of process is a policy of preventing waste of judicial resources and their use for purposes unrelated to the determination of genuine disputes. There is, in my opinion, another element to be considered and that is the necessity to maintain confidence in and respect for the authority of the courts.”

34 In these proceedings, the trial judge in declaring Mr Bar-Mordecai a vexatious litigant referred to other proceedings instituted by Mr Bar-Mordecai. I have read the earlier judgment. In the judgment, the trial judge referred to a passage where Bryson J formed an unfavourable view of Mr Bar-Mordecai’s credibility. Paragraph [18] of the judgment which reproduces Bryson J’s finding states:

“A great deal of time and attention was given during the hearing to issues relating to Mr Bar-Mordecai’s credit. On many subjects he was shown by cross-examination, or even by comparison of evidence which he has given at different places, to be an unreliable witness. He has often given evidence which contradicts his evidence in other places or which introduces qualifications or supplementary explanations so far-reaching as to disavow evidence which he has given elsewhere. From time to time, when confronted with some adverse evidence, he produced new affidavits, with new explanations of conduct or events which he could well have produced earlier, if they were true…”

35 Mr Bar-Mordecai, despite being declared vexatious, has continued to adopt the approach outlined above. He had not, despite the s 84(1) order being made, sought to change his behaviour. Mr Bar-Mordecai made contradictory statements during the hearing of this application. When an earlier statement did not support a later point he sought to make, he changed tack. As to the reason for bringing this application, Mr Bar-Mordecai initially submitted:

“My medical re-registration comes on on 10 November and I don’t want an AVO hanging over me.” (t 9.10-15)

36 However when this Court later asked him about his application for reinstatement as a medical practitioner and the effect of the AVO upon it, he replied:

“…there is no detrimental effect of the AVO standing even if I get a review of my medical registration. It is just if there is a breach of the AVO, so if I breach the AVO then it becomes criminal and results in the Medical Board refusing my re-registration.” (t 42.27-30)

37 Mr Bar-Mordecai’s stance changed from not wanting the AVO hanging over his head to it only becoming important should he be in breach of its conditions.

38 Mr Bar Mordecai continued to assert that his daughter was allegedly suffering a psychiatric condition termed “family alienation syndrome”. That condition, he stated, was the reason his daughter had originally sought the AVO. Counsel for the Attorney General submitted that Mr Bar-Mordecai’s daughter’s alleged condition was not relevant to the prospects of success on the prima facie ground. On this point, the Court pointed out to Mr Bar-Mordecai that such information was not relevant to the current proceedings. Nevertheless, Mr Bar-Mordecai referred to his daughter’s alleged condition a further six times in an effort to undermine the merits of her application and absolve himself from taking any responsibility for the schism in the relationship between him and his daughter (t 20.1-15; 23.30-37; 25.4-7; 25.39-43; 39.45-48; 41.31-33).

39 Mr Bar-Mordecai informed the Court that he intends to or has made an application in the Family Court seeking to have contact with his grandchildren. While I accept that Mr Bar-Mordecai feels aggrieved that he does not have contact with his grandchildren he seeks two legal avenues for redress, both an appeal and an application to the Family Court.

40 Overall, I am not satisfied that this application is not an abuse of process. The result is that leave ought not be granted under s 84(4) of the Supreme Court Act.. The defendant’s amended notice of motion filed 10 September 2008 is dismissed.

41 Costs are discretionary. Costs normally follow the event. The defendant is to pay the plaintiff’s costs as agreed or assessed.

The Court orders

(1) Leave to appeal under s 84(4) of the Supreme Court Act is refused.

(2) The defendant’s amended notice of motion filed 10 September 2008 is dismissed.

(3) The defendant is to pay the plaintiff’s costs as agreed or assessed.
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