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Attorney General v Bar-Mordecai

Attorney General v Bar-Mordecai

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Case Copied 25 February 2005 68 min read

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CITATION:
Attorney General v Bar-Mordecai [2005] NSWSC 142

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

JUDGMENT DATE :

25 February 2005

JURISDICTION:
Common Law Division

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

LOWER COURT JURISDICTION:

- 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 on the issues to which…

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: [2005] NSWSC 142
Decision Date: 25 February 2005

CaseChat Overview and Summary

The case of Attorney General v Bar-Mordecai was heard in the Supreme Court of New South Wales, Common Law Division. The matter was an application by the Attorney General under s 84(1) of the Supreme Court Act for an order to prevent Dr Michael Jacob Bar-Mordecai from instituting or continuing vexatious legal proceedings in any court without leave of the court. The Attorney General's application was based on the numerous legal proceedings instituted by Dr Bar-Mordecai in relation to the estate of Eveline Hillston, who had died intestate in 1994. The legal issues the court was required to decide were whether Dr Bar-Mordecai's numerous legal proceedings were vexatious within the meaning of s 84(1) of the Supreme Court Act and whether he habitually and persistently instituted such proceedings without reasonable ground. The court considered the nature of the proceedings, the intention behind them, and whether they were obviously untenable or manifestly groundless. After reviewing the evidence and the various judgments in the proceedings, the court found that Dr Bar-Mordecai had indeed instituted numerous vexatious proceedings in the court and the Court of Appeal over a period of about five years. The court concluded that the proceedings were commenced without any reasonable ground and were habitually and persistently instituted by Dr Bar-Mordecai. As a result, the court made orders prohibiting Dr Bar-Mordecai from instituting or continuing legal proceedings in any court without leave of the court and ordered him to pay the costs of the proceedings.

Orders