Bar-Mordecai v Attorney General of New South Wales

[2012] NSWSC 453

Supreme Court

New South Wales

Medium Neutral Citation:

Bar-Mordecai v Attorney General of New South Wales [2012] NSWSC 453

Hearing dates:

24 April 2012

Decision date:

24 April 2012

Jurisdiction:

Common Law

Before:

Beech-Jones J

Decision:

(1) I grant leave to the Plaintiff to lodge with the executive officer of the Medical Council an application for review in the Medical Tribunal of New South Wales under s 163A of the Health Practitioner Regulation National Law for the review of the decision of 6 September 2000 that his name be removed from the register of medical practitioners on condition that:

(a)The only grounds of the application be those that are identified in 5(a) and 5(e) of the proposed application, that is, annexure A to the Plaintiff's affidavit affirmed on 19 March 2012 and filed in these proceedings (the proposed application).

(b)The relief sought be that identified in 7(b) of the proposed application.

(c)The application not specify any other ground or any other form of relief.

(d)The application not include the matters in paragraphs 6, 8 and 9 of the proposed application.

(2) Plaintiff to pay a third of the Attorney General of New South Wales' and Medical Council of New South Wales' costs of today.

Catchwords:

VEXATIOUS LITIGANT - leave granted to institute proceedings - appropriate conditions on grant of leave - costs

Legislation Cited:

Health Practitioner Regulation National Law
Medical Practice Act 1992
Supreme Court Act 1970
Vexatious Proceedings Act 2008

Cases Cited:

Attorney General v Bar-Mordecai [2005] NSWSC 142
Attorney General of NSW v Bar-Mordecai [2011] NSWSC 100
Bar-Mordecai v Health Care Complaints Commission [2002] NSWCA 192

Category:

Principal judgment

Parties:

Michael Bar-Mordecai (Plaintiff)
Attorney General of New South Wales (First Defendant)
Medical Council of New South Wales (Second Defendant)

Representation:

Counsel:
Mr Michael Bar-Mordecai (Litigant in Person)
Mr J S Emmett (First Defendant)
Ms D Ward (Second Defendant)
Solicitors:
Crown Solicitor's Office (First and Second Defendants)

File Number(s):

2012/87278

EX TEMPORE Judgment

1. Before me is an application brought pursuant to s 14(2) of the Vexatious Proceedings Act 2008 for leave to institute proceedings by making an application to the Medical Tribunal of New South Wales (the "Tribunal").

1. The plaintiff seeks leave to apply to the Tribunal for review of a decision made on 6 September 2000 to remove him from the register of medical practitioners.

1. In circumstances that I will explain, the Attorney General and the Medical Council of New South Wales (the "Council") have been heard on the application. They accept that the plaintiff should be allowed to file his application but seek the imposition of conditions upon that application pursuant to s 16(3) of the Vexatious Proceedings Act. The plaintiff opposes the imposition of those conditions.

Background

1. On 6 September 2000 the Tribunal ordered that the plaintiff be deregistered as a medical practitioner and that an application for review of the Tribunal's orders not be made until after the expiration of seven years from the date of the decision. An appeal to the Court of Appeal from that decision was dismissed in 2002 (Bar-Mordecai v Health Care Complaints Commission [2002] NSWCA 192).

1. On 12 December 2006 the Tribunal dismissed an application that had been made to review the 2000 orders. On 18 March 2009 the Tribunal dismissed an application for review of the Tribunal's 2000 orders. The Tribunal ordered that there be no review for three years.

1. Now that those three years have expired the plaintiff has filed proceedings in the Tribunal, the subject of this application for leave.

1. In the mean time, on 25 February 2005 Patten AJ made orders under s 84(1) of the Supreme Court Act 1970 that the plaintiff not institute proceedings in any Court without leave of the Supreme Court (Attorney General v Bar-Mordecai [2005] NSWSC 142).

1. After the Vexatious Proceedings Act came into force that order was taken to be, and have effect as if it were, a "vexatious proceedings order" made under the Vexatious Proceedings Act (see cl 4 sch 1).

1. On 3 March 2011 Davies J varied aspects of the orders made by Patten AJ but the effect of Patten AJ's order, which became a vexatious proceedings order, was not altered (Attorney General v Bar-Mordecai [2011] NSWSC 100).

1. It follows that by the operation of s 13(1) of the Vexatious Proceedings Act the plaintiff is prevented from instituting "proceedings" of the kind to which the order relates without leave under s 16.

1. The definition of "proceedings" is set out in s 4 of the Act. It includes:

"any cause, matter, action, suit, proceedings, trial, complaint or inquiry of any kind within the jurisdiction of any court or tribunal".

1. It was common ground that the effect of the orders that had been made by Patten AJ and the operation of the Vexatious Proceedings Act was that, in the absence of leave being granted, the plaintiff could not make his application to the Tribunal.

1. Sections 14 to 16 of the Vexatious Proceedings Act relevantly provide:

Part 3 Particular consequences of vexatious proceedings orders

...

14 Application for leave to institute proceedings

(1) This section applies to a person (the applicant) who is:

(a) subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or

(b) acting in concert with another person who is subject to an order referred to in paragraph (a).

(2) The applicant may apply to an appropriate authorised court for leave to institute proceedings that the order would otherwise prohibit the person from instituting.

(3) The applicant must file an affidavit with the application that:

(a) lists all occasions on which the applicant has applied for leave:

(i) under this section, or

(ii) before the commencement of this section-as required by an order under section 70 of the Land and Environment Court Act 1979 or section 84 of the Supreme Court Act 1970, and

(b) lists all other proceedings the applicant has instituted in Australia, including proceedings instituted before the commencement of this section, and

(c) discloses all facts material to the application, whether supporting or adverse to the application, that are known to the applicant.

(4) The applicant must not serve a copy of the application or affidavit on any person unless:

(a) an order is made under section 16 (1) (a), and

(b) the copy is served in accordance with the order.

(5) An appropriate authorised court may dispose of the application by:

(a) dismissing the application under section 15, or

(b) granting the application under section 16.

(6) Despite any other Act or law, the applicant may not appeal from a decision disposing of the application.

15 Dismissing application for leave

(1) An appropriate authorised court must dismiss an application made under section 14 for leave to institute proceedings if it considers:

(a) the affidavit required by section 14 (3) does not substantially comply with that subsection, or

(b) the proceedings are vexatious proceedings, or

(c) there is no prima facie ground for the proceedings.

(2) The application may be dismissed even if the applicant does not appear at the hearing of the application.

16 Granting application for leave

(1) Before an appropriate authorised court grants an application made under section 14 for leave to institute proceedings, it must:

(a) order that the applicant serve each relevant person with a copy of the application and affidavit and a notice that the person is entitled to appear and be heard on the application, and

(b) give the applicant and each relevant person an opportunity to be heard at the hearing of the application.

(2) At the hearing of the application, the court may receive as evidence any record of evidence given, or affidavit filed, in any proceedings in any Australian court or tribunal in which the applicant is, or at any time was, involved either as a party or as a person acting in concert with a party.

(3) The court may grant leave to institute proceedings subject to the conditions that the court considers appropriate.

(4) However, the court may grant leave only if it is satisfied that:

(a) the proceedings are not vexatious proceedings, and

(b) there are one or more prima facie grounds for the proceedings.

(5) In this section:

relevant person, in relation to the applicant for leave to institute proceedings, means each of the following persons:

(a) the person against or in relation to whom the applicant proposes to institute the proceedings,

(b) the Attorney General,

(c) the Solicitor General,

(d) the appropriate registrar for the authorised court that made the vexatious proceedings order concerned if the registrar applied for the order in relation to the applicant,

(e) any person referred to in section 8 (4) (d) or (e):

(i) who applied for a vexatious proceedings order in relation to the applicant, and

(ii) who the appropriate authorised court dealing with the application considers should be served,

(f) any person:

(i) who made an application in relation to the applicant under section 70 of the Land and Environment Court Act 1979 or section 84 of the Supreme Court Act 1970 before the commencement of this section, and

(ii) who the appropriate authorised court dealing with the application considers should be served.

1. On 19 March 2012 the plaintiff filed the summons in these proceedings which sought leave to apply to the Tribunal for further review of the orders made by the Tribunal in 2000.

1. The summons came before McCallum J on 3 April 2012. Her Honour concluded that the plaintiff had substantially complied with the requirements of s 14(3) of the Vexatious Proceedings Act (s 15(1)(a)). Her Honour did not conclude that the proceedings were either "vexatious" or that there was "no prima facie ground" for them within the meaning of ss 15(1)(b) and (c) of the Vexatious Proceedings Act. Accordingly, her Honour directed the documents filed by the plaintiff be served on the Council, the Attorney General and the Solicitor General.

1. This led to the matter being listed before me. As I have said, I heard submissions from the Council and the Attorney General.

The Proposed Application

1. In July 2010 the Health Practitioner Regulation National Law (the "National Law") came into force in New South Wales. Division 8 of Part 8 of that legislation provides for review of various decisions. Section 163(1) defines an appropriate review body to be, depending on the circumstances, the Council, the "National Board" or the Tribunal. It was common ground that in the case of the plaintiff the relevant review body is the Tribunal. Section 163(2) provides that the application for review must be lodged with the executive officer of the Council of the health profession in which the person is or was registered.

1. Section 163A confers a right of review in respect of, inter alia, a "relevant order made in relation to the person." Section 163(a) defines a relevant order as including an order that the person's registration as a registered health practitioner is suspended or cancelled or that the person is disqualified from being registered in a particular health profession.

1. Section 163B defines the powers of the review body, to include the power to dismiss the application or shorten the period of suspension concerned; make a reinstatement order; or make an order altering or removing the conditions to which the person's registration is subject.

1. Section 163C is of particular significance. It provides:

163C Inquiry into review application [NSW]

(1) A review under this Division is a review to determine the appropriateness, at the time of the review, of the order concerned.

(2) The review is not to review the decision to make the order, or any findings made in connection with the making of that decision.

(3) In addition to any other matter the review may take into account, the review must take into account any complaint made or notified to a Council or a National Board, or a former Board under a repealed Act, about the person, whether the complaint was made or notified before or after the making of the order that is the subject of the review and whether or not the complaint was referred under Subdivision 2 of Division 3 or any other action was taken on the complaint.

1. Thereafter provision is made for the establishment and composition of the Tribunal. It is unnecessary to discuss those provisions in detail.

1. The application that the plaintiff seeks to lodge with the executive office of the Council for referral to the Tribunal is set out at pps 37 to 42 of his affidavit sworn 3 April 2012.

1. Part 5 of the application sets out the grounds upon which it is based. Ground 5(a) asserts that one of the grounds is that the plaintiff "is a fit and proper person to practice medicine at the date of filing this application".

1. Ground 5(e) contends that one of the grounds of the application is that the plaintiff "has maintained his competence (knowledge and skill) in medicine". Various particulars of that contention are provided.

1. Part 7 of the application sets out the orders sought by the plaintiff on review. Part 7(b) seeks an order that the plaintiff's name be entered in the medical register without interim or long term conditions.

1. The two grounds and the order that I have just described are all framed in a manner that is consistent with the jurisdiction conferred on the Tribunal by s 163C of the National Law and the powers conferred upon it by s 163B(1) of the National Law. No doubt for that reason, this part of the plaintiff's application is not opposed by the Attorney General or the Council. Given that they are framed in appropriate terms, and relate to the plaintiff's ability to practice his profession, I consider it appropriate to allow him to file an application raising those two grounds and seeking that relief.

1. However, the substance of the dispute concerns the balance of the grounds and the balance of the relief sought. I address those matters individually below.

1. At the outset I will address a submission made on behalf of the plaintiff. He accepted that some of the matters in the grounds of his application were not matters that fell within the jurisdiction of the Tribunal under s 163C, especially having regard to s 163C(2). Nevertheless, he indicated he sought leave to file his application and sought some form of order from this Court that it "vest" in the Tribunal various powers and jurisdiction including a power to investigate allegations of judicial corruption.

1. There are so many obstacles in the face of that submission that I cannot address them all. It is only necessary to note that the Court has no such power. Even if it was otherwise minded, which it is not, the Court cannot confer extra functions on the Tribunal or alter its composition in a manner inconsistent with itsenabling statute.

1. I will now address the grounds of the proposed application that are in dispute. Grounds 5(b) and 5(c) make insulting references to two of the judicial officers who have presided over Tribunals concerning the plaintiff in the past. They allege that their conduct was unlawful and in breach of certain provisions of the Medical Practice Act 1992.

1. The grounds are scandalous. Leaving that aside, there is no power in the Tribunal to deal with those contentions in light of s 163C(2), nor is there any power in this Court to confer such a power on the Tribunal to consider those allegations. The leave that I grant the plaintiff will not extend to grounds 5(b) or 5(c).

1. Ground 5(d) makes an allegation that a public servant had refused to acknowledge the "criminality of the judicial conspirators" and three judicial officers are there named. That ground is flawed for the same reasons.

1. Ground 6 of the application does not appear to either allege a ground of review or seek an order. Instead it simply makes scandalous and insulting references to the conduct of judicial officers who previously constituted the Tribunal. Whatever the statusof that paragraph is, it will be a condition of any leave that I grant that no such paragraph be included in the application.

1. Proposed order 7(a) seeks an order that the four member Tribunal be constituted by "impartial members who have no former connections with the NSW Medical Board, the HCCC or the Medical Tribunal of NSW". It also seeks an order that the Tribunal be constituted by three or four independent medical practitioners and a member of the public. It seeks the exclusion of any District Court judge or any retired judicial officer from hearing the application. It then gives examples of three judicial officers who specifically should be excluded and insulting reasons why they should be excluded.

1. The question of the constitution of the Tribunal is a matter for the National Law and, in that context, the chairperson and deputy chairperson of the Tribunal (see ss 165A, 165B of the National Law). I have no power to either alter that statutory provision or otherwise order that it be constituted in a particular way. It is theoretically open to the plaintiff to make whatever application he wishes to make in respect of the composition of the Tribunal, if there is a proper basis for apprehending some bias of a particular member. However, he should not be given any leave by this Court to continue to make scandalous attacks upon District Court judges under the veil of making submissions about the composition of the Tribunal.

1. The order I make will not allow the application to go forth to include claim for relief 7(a) or anything stated thereunder.

1. The relief sought in ground 7(c)(i) and (ii) seeks that the Tribunal set aside two of the previous decisions made concerning him by the Medical Board, being the decision made in 2000 and the decision made in March 2009. It follows from s 163C that the Tribunal cannot embark on such a course. More importantly, if such an application is included, the likelihood is that the plaintiff will use it as a vehicle to continue to make scandalous accusations against judicial officers. I will not allow that to occur. Any relief that I grant will have as a condition that those claims for relief not be included.

1. Prayer for relief 7(c)(iii) seeks orders that the Tribunal order the HCCC, the Medical Board of Australia and the Council to pay the applicant $6 million for having conspired with various judicial officers. The observations I have just made apply with even more force to that allegation.

1. Prayer for relief 7(d) seeks an order that the Council be barred from appearing as the contradictor in the proceedings. In support thereof, the plaintiff makes serious and scandalous allegations about what occurred in previous Tribunal hearings. The question of who is entitled to appear is dictated by the National Law and it is otherwise within the power of the Tribunal. More importantly, to allow that claim for relief to go forward only increases the likelihood of the plaintiff using it as a vehicle to continue to make scandalous allegations. I will not allow that to occur.

1. Prayer for relief 7(e) seeks an order that the matter be heard ex parte and expeditiously by medical practitioners "who are not known lackeys of the Medical Council of NSW".

1. It seems to me inconsistent with the terms of the National Law for a hearing before the Tribunal to occur ex parte. Whether or not it is to occur expeditiously will be a matter for the Tribunal. The composition of the Tribunal is a matter I have already addressed.

1. I will not allow that claim for relief to go forward because of the likelihood that it will be used as a vehicle by the plaintiff to continue to make scandalous and vexatious allegations.

1. In disallowing prayer 7(e) I am not suggesting that the plaintiff would be prevented from requesting that his case be dealt with expeditiously, but such an application seems to me to be one that need not necessarily be included in his initiating application.

1. Prayer for relief 7(f) seeks an order that compliance with s 14 of the Vexatious Proceedings Act be waived. The control of the plaintiff under that Act is vested in this Court. It is not a matter for the Tribunal. I will not allow that to go forward in the initiating application.

1. Prayer for relief 7(g) seeks an order that any directions hearing "be adjudicated and heard by one or more of the expert medical members of the newly constituted Medical Tribunal of NSW in the absence of a judicial officer". Properly understood, this claim for relief seeks to reconstitute the Tribunal. For the reasons I have given, I will not allow that to go forward.

1. Paragraph 8 contains a gratuitous and scandalous attack on a judicial officer. I will not allow that to go forward.

1. Paragraph 9 alleges various issues concerning the plaintiff's compliance with s 14 of the Vexatious Proceedings Act. The question of the compliance with those provisions in order to allow this application to be made to the Tribunal has already been addressed by McCallum J.

1. The question as to whether any other application meets the requirements of s 14 of the Vexatious Proceedings Act will be considered by this Court as and when it is made. It is no function of the Tribunal to address those provisions.

1. To allow such a hopeless claim for relief to go forward to the Tribunal will only increase the risk that there will be attempts to pursue scandalous and vexatious allegations in that body. I will not allow that prayer to go forward.

Costs

1. The Attorney General and the Council seek their costs of today's proceedings. The Attorney General sought his costs on an indemnity basis on and from 24 April 2012. I understand the basis for the application is that the matters that I have allowed the plaintiff to pursue with the Tribunal are the matters that it had indicated to the plaintiff it would consent to.

1. There is the difficulty that even if Mr Bar-Mordecai had agreed to modify his application to the Tribunal in the way they suggested, it still would have been necessary to bring the matter before me and have some debate, although the time taken and the cost of preparation would have been significantly reduced. Doing the best I can, the order I make is that the plaintiff pay a third of the Attorney General's and the Council's costs of today.

orders

1. Accordingly, the orders of the Court are as follows:

(1)I grant leave to the Plaintiff to lodge with the executive officer of the Medical Council an application for review in the Medical Tribunal of New South Wales under s 163A of the Health Practitioner Regulation National Law for the review of the decision of 6 September 2000 that his name be removed from the register of medical practitioners on condition that:

(a)The only grounds of the application be those that are identified in 5(a) and 5(e) of the proposed application, that is, annexure A to the Plaintiff's affidavit affirmed on 19 March 2012 and filed in these proceedings (the proposed application).

(b)The relief sought be that identified in 7(b) of the proposed application.

(c)The application not specify any other ground or any other form of relief.

(d)The application not include the matters in paragraphs 6, 8 and 9 of the proposed application.

(2)Plaintiff to pay a third of the Attorney General of New South Wales' and Medical Council of New South Wales' costs of today.

Decision last updated: 09 May 2012