Attorney General v Bar-Mordecai - [2004] NSWSC 1277

CITATION: Attorney General v Bar-Mordecai [2004] NSWSC 1277 revised - 03/03/2005

HEARING DATE(S): 16/11/04
18/11/04
19/11/04

JUDGMENT DATE:
25 February 2005

JURISDICTION:
Common Law Division

JUDGMENT OF: Acting Justice Patten

DECISION: 1. That Michael Jacob Bar-Mordecai shall not, without leave of this court, institute proceedings in any court.; 2. That any legal proceedings instituted by Michael Jacob Bar-Mordecai, in any court before the date of this order shall not be continued by him without leave of this court.; 3. That Michael Jacob Bar-Mordecai pay the costs of these proceedings.; 4. The exhibits may be returned.; 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.

LEGISLATION CITED: Supreme Court Act
Family Provision Act
Conveyancy Act
Corporations Act
Medical Practice Act

CASES CITED: Attorney Genreal v Bhattarcharya (unreported 10 December 2003)
Attorney General v Betts (unreported 30 September 2004)
Attorney General v Wentworth (1988) 14 NSWLR 481
Re Venazza (1960) 1QB 197
Gallo v Attorney General (Full Court of Victoria unreported 4 September 1984)

PARTIES :
Attorney General in and for the State of NSW
Michael Jacob Bar-Mordecai

FILE NUMBER(S): SC 10622/04

COUNSEL: Mr D Officer QC / Mr R C Titterton - Plaintiff
Mr M Bar-Mordecai in person - Defendant

SOLICITORS: I V Knight - Plaintiff
Defendant in person

- 50 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

PATTEN AJ

25 FEBRUARY 2005

No: 10622 of 2004

THE ATTORNEY GENERAL IN AND FOR THE STATE OF NEW SOUTH WALES
v
MICHAEL BAR-MORDECAI

JUDGMENT:

1. HIS HONOUR: This is an application by the Attorney General under s 84(1) of the Supreme Court Act (the Act). That subsection provides:-

“84 (1) Where any person (in this subsection called the vexatious litigant) habitually and persistently and without any reasonable ground institutes vexatious legal proceedings, whether in the Court or in any inferior court, and whether against the same person or against different persons, the Court may, on application by the Attorney General order that the vexatious litigant shall not, without leave of the Court, institute any legal proceedings in any court and that any legal proceedings instituted by the vexatious litigant in any court before the making of the order shall not be continued by the vexatious litigant without leave of the Court.”

2. Many authorities establish the principles which inform the exercise of the jurisdiction conferred by the sub-section. I adopt (as did Whealy J in Attorney General v Bhattarcharya; (unreported 10 December 2003) and Hoeben J in Attorney General v Betts (unreported 30 September 2004), the statement of Roden J in Attorney General v Wentworth (1988) 14 NSWLR 481 at 491):

“1 Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.

2 They are vexatious if they are brought for collateral purposes and not for the purpose of having the court adjudicate…

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: [2004] NSWSC 1277
Decision Date: 25 February 2005

CaseChat Overview and Summary

The case of Attorney General v Bar-Mordecai involved an application by the Attorney General under section 84(1) of the Supreme Court Act to restrain Michael Jacob Bar-Mordecai from instituting vexatious legal proceedings. The Supreme Court found that Mr Bar-Mordecai had instituted numerous proceedings, many of which were found to be vexatious, either for the purpose of annoying or embarrassing the defendants or because they were manifestly groundless. The court held that Mr Bar-Mordecai had habitually and persistently instituted these proceedings without any reasonable ground. As a result, the court made an order that Mr Bar-Mordecai shall not, without leave of the court, institute proceedings in any court and that any legal proceedings instituted by him in any court before the date of the order shall not be continued by him without leave of the court. Additionally, Mr Bar-Mordecai was ordered to pay the costs of the proceedings.

Orders