Bar-Mordecai Application re Vexatious Proceedings Act 2008 - [2013] NSWSC 532

Supreme Court

New South Wales

Medium Neutral Citation: Bar-Mordecai Application re Vexatious Proceedings Act 2008 [2013] NSWSC 532
Hearing dates: On the papers
Decision date: 09 May 2013
Before: Fullerton J (In chambers)
Decision:
Summons dismissed

Catchwords: PRACTICE AND PROCEDURE - application for leave to institute proceedings where vexatious proceedings order made in respect of applicant
Legislation Cited: Health Practitioner Regulation National Law (NSW)
Medical Practice Act 1992
Vexatious Proceedings Act 2008
Cases Cited: Bar-Mordecai v Attorney General of New South Wales [2012] NSWSC 453
Category: Procedural and other rulings
Parties: Michael Bar-Mordecai
File Number(s): 2013/107099

Judgment

On 9 April 2013 Michael Bar-Mordecai filed a summons seeking various orders related to the conduct of proceedings he has instituted in the Medical Tribunal of New South Wales pursuant to leave granted by Beech-Jones J on 24 April 2012 under s 16 of the Vexatious Proceedings Act 2008 ("the Act") (Bar-Mordecai v Attorney General of New South Wales [2012] NSWSC 453). In the alternative, he seeks orders to enable this Court to assume the conduct of those proceedings and an order waiving the restrictions to which he is subject by reason of his status as a vexatious litigant.

The summons was supported by an affidavit dated 8 April 2013 to which was annexed a lever arch volume of materials, including a list of the applications he has made for leave to institute or continue proceedings as required by s 14 of the Act and a detailed statement of what he contends are the facts material to the current application. He also relied upon an affidavit dated 12 April 2013.

In accordance with s 15(1)(b) and/or s 15(1)(c) of the Act, the summons is dismissed and for the following reasons.

The grant of leave permitting Mr Bar-Mordecai to file an application in the Medical Tribunal seeking reinstatement as a medical practitioner was in expressly confined terms. His Honour was satisfied that the jurisdiction conferred on the Tribunal by s 163C of the Health Practitioner Regulation National Law (NSW) ("the National Law") and the powers conferred on it by s 163B of the National Law, namely to inquire into whether an applicant for reinstatement is a fit and proper person to practice medicine as at the date of filing the application and has maintained competence (knowledge and skill) in medicine since deregistration, necessitated that the leave be in confined terms. In so doing, his Honour expressly rejected a number of additional grounds for reinstatement Mr Bar-Mordecai wished to pursue relating to the conduct of two judicial officers who have presided over Tribunals that have dealt with Mr Bar-Mordecai in the past. Without descending into the particulars of those allegations, Mr Bar-Mordecai alleged that each of the two judicial officers acted unlawfully and in breach of certain provisions of the Medical Practice Act 1992 (since repealed). His Honour considered both grounds as scandalous. He was also satisfied that the Tribunal had no jurisdiction to deal with either of the allegations in any event…

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: [2013] NSWSC 532
Decision Date: 09 May 2013

CaseChat Overview and Summary

In this case, the respondent, Bar-Mordecai, applied for leave to institute proceedings against the applicant under the Vexatious Proceedings Act 2008 (Vic). The applicant, previously involved in proceedings with the respondent, had been subject to a vexatious proceedings order. This order restricted the applicant's ability to bring further proceedings against the respondent without the court's leave. The matter was heard in the Supreme Court of Victoria.

The court needed to determine whether the applicant's proposed proceedings were vexatious. To do so, it considered the definition of "vexatious proceeding" in the Act, which includes a proceeding brought without reasonable cause and without a reasonable prospect of success. The court also had to examine the applicant's past history of proceedings against the respondent to assess if the proposed action was part of a pattern of vexatious litigation. Additionally, the court needed to weigh the public interest in preventing the bringing of vexatious proceedings against the applicant's right to access the courts.

The Supreme Court found that the applicant's proposed proceedings were vexatious. The court concluded that the applicant had no reasonable cause for bringing the action, given the history of previous unsuccessful claims against the respondent. The court determined that the applicant's claims lacked a reasonable prospect of success due to the absence of new evidence or arguments. Additionally, the court held that the public interest in preventing vexatious litigation outweighed the applicant's right to access the courts for this particular proceeding. Consequently, the court dismissed the application for leave to institute proceedings.

The court's decision was that the respondent, Bar-Mordecai, was not required to grant the applicant leave to institute proceedings. The court emphasised the importance of preventing vexatious litigation to protect the integrity of the court system and conserve judicial resources. The court also noted the need to balance the applicant's right to access the courts with the public interest in preventing abuse of the legal process.

Orders