Attorney General v Bar-Mordecai - [2010] NSWSC 1410

CITATION: Attorney General v Bar-Mordecai [2010] NSWSC 1410
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 29 & 30 November 2010

JUDGMENT DATE :
3 December 2010

JURISDICTION: Common Law

JUDGMENT OF: McCallum J

DECISION: 1. The orders in respect of Mr Bar-Mordecai’s applications dated 26 November 2010 are:
(1) Upon payment of the prescribed fee for filing a notice of motion, I grant Mr Bar-Mordecai leave to file his initiating notice of motion dated 26 November 2010 seeking leave to file the substantive notice of motion for trial by jury in various matters;
(2) Leave to file the substantive notice of motion dated 26 November 2010 is refused.
2. The appropriate orders in respect of Mr Bar-Mordecai’s applications dated 29 November 2010 are:
(1) I grant Mr Bar-Mordecai leave to file his initiating notice of motion dated 29 November 2010 seeking leave to file the substantive notice of motion for leave to commence proceedings against the State of New South Wales;
(2) Upon payment of the prescribed fee for filing a notice of motion, I grant Mr Bar-Mordecai leave to file his substantive notice of motion dated 29 November 2010.
(3) The leave sought in orders 2 and 3 of the substantive motion is refused.

LEGISLATION CITED: Court Security Act 2005
Supreme Court Act 1970
Vexatious Proceedings Act 2008

CATEGORY: Procedural and other rulings

CASES CITED: Attorney General v Bar-Mordecai [2005] NSWSC 142
Attorney General v Bar-Mordecai [2010] NSWSC 323

PARTIES: Attorney General in and for the State of New South Wales (Plaintiff)
Michael Bar-Mordecai (Defendant)

FILE NUMBER(S): SC 04/180898

COUNSEL: In person (Defendant)

SOLICITORS: Crown Solicitors (Plaintiff)

- 16 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCallum J

3 December 2010

2004/180898 Attorney General v Michael Bar-Mordecai

JUDGMENT

1 HER HONOUR: On 25 February 2005, Mr Michael Bar-Mordecai was found to be a “vexatious litigant” within the meaning of s 84 of the Supreme Court Act 1970. On that date, on the application of the Attorney General, Patten AJ made orders prohibiting Mr Bar-Mordecai from instituting or continuing proceedings in any court without leave of this Court: Attorney General v Bar-Mordecai [2005] NSWSC 142 at [103], orders 1 and 2.

2 Patten AJ made the following further order (order 5):

“That Michael Jacob Bar-Mordecai give not less than 3 days notice to Crown solicitor of any application to institute proceedings for leave pursuant to orders 1 and 2 above” (as written)

3 Since the making of those orders, s 84 of the Supreme Court Act has been repealed and replaced by the Vexatious Proceedings Act 2008. The process by which Mr Bar-Mordecai may apply for leave to institute proceedings is now governed by Part 3 of that Act (see Schedule 1 to the Act, clause 4(2)).

4 The new Act poses a difficulty for Mr Bar-Mordecai in that there is an inconsistency between s 14(4) of the Act and order…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWSC 1410
Decision Date: 3 December 2010

CaseChat Overview and Summary

Michael Bar-Mordecai, identified as a vexatious litigant, sought leave to file two applications for relief. The first application, dated 26 November 2010, sought leave to file a substantive motion requesting trial by jury in various matters, including setting aside judgments he believed were obtained through fraud. The second application, dated 29 November 2010, sought leave to file an application for leave to institute proceedings against the State of New South Wales for unlawful assault and detention. The court had to decide whether to grant leave for Mr Bar-Mordecai to file these motions, considering the constraints imposed by prior orders and statutory requirements.

The court found that the first application did not have a prima facie ground as the issues were not suitable for jury determination and were premature. The second application, however, was granted leave to be filed, subject to the payment of the appropriate fee, but the substantive relief sought was refused as the allegations did not establish a prima facie ground for the proceedings. The court reasoned that Mr Bar-Mordecai's removal from the courtroom, even if unlawful, did not provide a basis for prosecuting the State for assault or unlawful detention, as the officers acted within their lawful powers under the Court Security Act.

The final orders granted Mr Bar-Mordecai leave to file the initiating motion for the first application upon fee payment but denied leave to file the substantive motion. For the second application, leave was granted to file both the initiating and substantive motions, subject to fee payment, but the leave sought for trial by jury and the substantive proceedings was denied.

Orders