Bar-Mordecai v Health Care Complaints Commission

[2024] NSWSC 1364

Supreme Court

New South Wales

Medium Neutral Citation:

Bar-Mordecai v Health Care Complaints Commission [2024] NSWSC 1364

Hearing dates:

On the papers

Date of orders:

30 October 2024

Decision date:

30 October 2024

Jurisdiction:

Common Law

Before:

Harrison CJ at CL

Decision:

Application dismissed

Catchwords:

CIVIL PROCEDURE – Parties – vexatious litigants – leave to institute proceedings – affidavit filed pursuant to s 14(3) Vexatious Proceedings Act 2008 (NSW) – whether affidavit substantially complied with requirements of s 14(3) – failure to disclose at least two recent applications for leave – application dismissed

Legislation Cited:

Vexatious Proceedings Act 2008 (NSW) ss 9, 14, 15

Cases Cited:

Application of Bar-Mordecai [2020] NSWSC 796

Application of Bar-Mordecai [2020] NSWSC 1334

Bar-Mordecai v Attorney-General of NSW [2013] NSWSC 1303

Category:

Procedural rulings

Parties:

Michael Bar-Mordecai (Plaintiff)
Attorney General in and for the State of NSW (first interested person)
Health Care Complaints Commission (First Defendant)
Medical Council of NSW (Second Defendant)
David Swain (Third Defendant)
Frances Zaharias (Fourth Defendant)
Nicole Lawless (Fifth Defendant)

File Number(s):

N/A

Publication restriction:

Nil

JUDGMENT

1. HIS HONOUR: By his summons filed on 1 October 2024, Michael Bar-Mordecai seeks leave to file a statement of claim in the NSW Civil and Administrative Tribunal (NCAT).

2. The statement of claim names five defendants:

1. The Health Care Complaints Commission (HCCC);

2. The Medical Council of NSW;

3. David Swain;

4. Frances Zaharias;

5. Nicole Lawless.

3. The relief claimed includes punitive damages against the first defendant for failing to investigate a conspiracy and fraud allegedly perpetrated by the third defendant and others in what is described as the “Bar-Mordecai-Zaharias” matter.

4. Also sought is an order that the decision of the Medical Tribunal of 6 September 2000 be set aside on the basis it was procured by a conspiracy and fraud of the HCCC.

5. Mr Bar-Mordecai is currently subject to an order made by Fagan J on 2 November 2018, pursuant to the Vexatious Proceedings Act 2008. That order is as follows:

“Pursuant to s 9(1) of the Vexatious Proceedings Act 2008 (NSW) I vary order 1 made by Patten AJ on 25 February 2005 by removing the words “in any court” and adding the words ‘in New South Wales’ so that the order as amended reads ‘That Michael Jacob Bar-Mordecai shall not, without leave of this court, institute proceedings in New South Wales.’”

6. Pursuant to s 14(2) of the Act, Mr Bar-Mordecai may apply to an appropriate authorised court for leave to institute proceedings that the order would otherwise prohibit him from instituting.

7. Section 14(3) of the Act provides that Mr Bar-Mordecai must file an affidavit with the application. That sub-section is as follows:

(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.

8. By s 15 of the Act, an appropriate authorised court must dismiss an application made under s 14 for leave to institute proceedings if it considers –

1. The affidavit required by s 14(3) does not substantially comply with that subsection, or

2. The proceedings are vexatious proceedings, or

3. There is no prima facie ground for the proceedings.

9. Mr Bar-Mordecai has filed an affidavit purportedly in compliance with s 14 dated 1 October 2024. The affidavit lists 39 previous occasions when he has sought leave to commence proceedings pursuant to the Act. The affidavit sets out a number of applications made prior to the commencement of the Act and all other proceedings instituted by Mr Bar-Mordecai in Australia.

10. In relation to the first category of proceedings in which Mr Bar-Mordecai sought leave to commence proceedings under the Act, the last of those matters in date order is the matter of Schwarz v Bar-Mordecai (2007/146343) in which Garling J granted leave on 13 September 2013: see Bar-Mordecai v Attorney-General of NSW [2013] NSWSC 1303.

11. However, the affidavit fails to mention at least two more recent applications for leave:

1. Application of Bar-Mordecai [2020] NSWSC 1334 (Button J).

2. Application of Bar-Mordecai [2020] NSWSC 796 (Ierace J).

Decision

12. In my opinion, Mr Bar-Mordecai’s application should be dismissed under s 15(1)(a) of the Act because he has failed to comply with the requirements of s 14(3) as there are at least two recent decisions of the Supreme Court which involve a refusal to grant leave which have not been included in the supporting affidavit. The affidavit therefore does not substantially comply with s 14(3).

Further Basis

13. However, under s 15(1)(b), the Court must also dismiss the application if the proceedings are vexatious proceedings.

14. I note that in Application of Michael Bar-Mordecai [2013] NSWSC 1265, Garling J said:

“[15] … Mr Bar-Mordecai in many different ways has attempted to challenge, and have set aside, the orders made by the Medical Tribunal in September 2000. So far as appears from the affidavit and the annexures which have been filed in support of the present application, there have been at least 10 attempts…”

15. Noting the relief sought in the current proposed statement of claim seeks yet again to agitate decisions made in the Medical Tribunal, I am of the view that such claims are clearly vexatious.

16. For the reasons above, the application must be dismissed.

**********