Bar-Mordecai v Bryson and Ors - [2002] NSWSC 815

CITATION: Michael Bar-Mordecai v John Bryson; Michael Bar-Mordecai v Clifford Einstein; Michael Bar-Mordecai v Paul Stein & 2 ors; Michael Bar-Mordecai v Harvey Cooper & 3 ors. [2002] NSWSC 815

FILE NUMBER(S): SC 020205/02; 020209/02; 020229/02; 020231/02

HEARING DATE(S): 20/08/02

JUDGMENT DATE: 6 September 2002

PARTIES :

Michael Bar-Mordecai
The Hon. Justice John Bryson
The Hon. Justice Clifford Einstein
The Hon. Justice Paul Stein
The Hon. Mr Justice Charles Sheller
The Hon. Justice Roger Giles
His Honour Judge Harvey Cooper
John Woodforde
John Richards
Moira Brophy

JUDGMENT OF: Dowd J at 1

COUNSEL : Plaintiff: in person
Defendants: I M Jackman

SOLICITORS:
Defendants: I V Knight, Crown Solicitor

CATCHWORDS: Motion to strike out Statement of Claim - Judicial immunity - Abuse of process - Non-judicial Tribunal members' abuse of process

LEGISLATION CITED: Medical Practitioners Act 1938

CASES CITED: Bhagat v Young [2002] NSWSC 331(unreported) 24 April 2002
Darker v Chief Constable of the West Midlands Police [2000] 3 WLR 747
Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404
Hunter v Chief Constable of the West Midlands Police [1982] AC 529
Rajski v Powell (1987) 11 NSWLR 522
Re East and Others; Ex Parte Nguyen (1998) 196 CLR 354
Reichel v Bishop of Oxford (1889) 14 app Cas 665
Rippon v Chilcotin 53 NSWLR 198.
Wentworth v Wentworth (2001) 52 NSWLR 602
Yeldham v Rajski (1989) 18 NSW LR 48

DECISION: Statements of Claim struck out; Each of the suits dismissed; Plaintiff to pay defendants' costs

- 13 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DOWD J

Friday 6 September 2002

020205/02 Michael Bar-Mordecai v John Bryson
020209/02 Michael Bar-Mordecai v Clifford Einstein
020229/02 Michael Bar-Mordecai v Paul Stein & 2 ors
020231/02 Michael Bar-Mordecai v Harvey Cooper & 3 ors

JUDGMENT

1 HIS HONOUR: The plaintiff, who uses the title, “Dr.” Michael Bar-Mordecai, commenced proceedings in this division of the court respectively against: Bryson J (proceedings 20205/2002); Einstein J (proceedings 20209/2002); Sheller JA, Giles JA and Stein JA (proceedings 20229/2002); and Cooper DCJ, John Woodforde, John Richards and Moira Brophy (proceedings 20231/2002).

2 Each of the judges of this Court and the Court of Appeal have been sued in their capacity as judicial officers in the proceedings brought in the Supreme Court by the plaintiff. The Judges of Appeal constituted the Court of Appeal in an appeal by the plaintiff from a decision of Einstein J. Subsequent application for special leave to appeal to the High Court from that decision of the Court of Appeal was also dismissed.

3 Judge Cooper and the other three persons were members of a Medical Tribunal and were sued following a decision affecting the plaintiff when sitting as a Medical Tribunal. That decision was the subject of an appeal which was dismissed by the Court of Appeal differently constituted from the proceedings above.

4 Each of the defendants above have sought orders dismissing, or permanently staying, proceedings commenced against them by the plaintiff.

The subject Statements…

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: [2002] NSWSC 815
Decision Date: 6 September 2002

CaseChat Overview and Summary

The case of Bar-Mordecai v Bryson and Ors involved a motion to strike out the statement of claim filed by the plaintiff, Bar-Mordecai, against the defendants, Bryson and others, including the members of a non-judicial tribunal. The plaintiff sought to hold the defendants accountable for their alleged misuse of process and sought judicial review of the tribunal's decisions. The defendants, in turn, argued that the plaintiff's claims should be dismissed as they were barred by judicial immunity and the principle of abuse of process. The matter was heard in the Federal Court of Australia.

The central legal issues the court had to resolve included whether the defendants were entitled to judicial immunity, whether the plaintiff's claims were an abuse of process, and whether the non-judicial tribunal members were protected from liability under the principle of abuse of process. The court was required to determine the scope of judicial immunity and its applicability to the defendants' actions and whether the plaintiff's claims were an abuse of the court's process, given the circumstances of the case.

The court found that the defendants were entitled to judicial immunity as their actions were integral to their judicial functions, and thus, the plaintiff's claims against them were barred. The court further held that the plaintiff's claims against the non-judicial tribunal members were an abuse of process, as the plaintiff had no reasonable prospect of success in establishing the alleged misuse of process. The court reasoned that the plaintiff's claims were vexatious and that the defendants were not liable under the principle of abuse of process. The court dismissed the plaintiff's claims and ordered the plaintiff to pay the defendants' costs.

The final orders of the court were that the plaintiff's claims against the defendants were to be struck out and dismissed, and the plaintiff was to pay the defendants' costs of the proceeding. The court's decision underscored the importance of judicial immunity and the principle of abuse of process in protecting the integrity of the judicial system and preventing frivolous litigation.

Orders