Bar-Mordecai v Attorney General (NSW); Bar-Mordecai v State of New South Wales

The case of *Bar-Mordecai v Attorney General (NSW)* and *Bar-Mordecai v State of New South Wales* concerned appeals to the Court of Appeal of New South Wales regarding the construction of orders made under the *Vexatious Proceedings Act 2008* (NSW) and the procedural requirements for vexatious litigants. The applicant, Mr. Bar-Mordecai, sought to appeal decisions that had impacted his ability to serve and rely on evidence in support of his applications for leave to commence proceedings, and a separate appeal concerning a motion dismissed by the District Court.

The primary legal issues before the Court of Appeal were: (1) whether an affidavit filed pursuant to section 14(3) of the *Vexatious Proceedings Act 2008* (NSW) must continue to provide the information required by that section throughout the proceedings, and whether a vexatious litigant is prohibited from serving or relying on other material relevant to their application; (2) the source of the requirement for a vexatious litigant to obtain leave to commence proceedings, and whether this requirement extends to interlocutory steps in proceedings for which leave has already been granted; and (3) the proper construction of orders made under the *Vexatious Proceedings Act 2008* (NSW), particularly concerning the ability of the court to authorise a vexatious litigant to serve or rely on evidence beyond that mandated by section 14(3).

The Court of Appeal reasoned that the *Vexatious Proceedings Act 2008* (NSW) does not confer power on the court to compel a vexatious litigant to serve evidence beyond the affidavit required by section 14(3), nor does it require leave to rely on additional evidence at a hearing. The Act implicitly prohibits the service of such material by the applicant prior to the court ordering service of the application and affidavit under section 16(1)(a). However, the court retains power under the *Civil Procedure Act* and *Uniform Civil Procedure Rules* to make directions regarding the manner and circumstances in which evidence may be proffered at any hearing. The court also clarified that the requirement for leave to commence proceedings under section 13 of the Act applies to the commencement of proceedings, not necessarily to all subsequent interlocutory steps, depending on the terms of the vexatious litigant order.

In matter CA 2004/180898, the Court of Appeal granted leave to appeal, allowed the appeal, set aside the previous answers given, and directed that the questions be answered in accordance with the principles outlined. The respondent was ordered to pay the applicant's costs as an unrepresented party. In matter CA 2009/338296, leave to appeal was granted, the appeal was allowed, the District Court's order was set aside, and the matter was remitted to the District Court to consider the applicant's motion according to law. The respondent was also ordered to pay the applicant's costs in this court as an unrepresented party.