Hillston v Bar-Mordecai - [2002] NSWSC 477

CITATION: HILLSTON v. BAR-MORDECAI [2002] NSWSC 477

CURRENT JURISDICTION: EQUITY

FILE NUMBER(S): SC 3240/98

HEARING DATE(S): 24/05/2002

JUDGMENT DATE: 31 May 2002

PARTIES :

Allan David James Hillston - Plaintiff
Michael Jacob Bar-Mordecai - Defendant

JUDGMENT OF: Bryson J at 1

COUNSEL : J. Whittle & B.J. Burke - Plaintiff
M. Bar-Mordecai - Defendant in Person

SOLICITORS: Shaw McDonald for plaintiff
Defendant in Person

CATCHWORDS: PRACTICE and PROCEDURE - interlocutory motions - restraint of repeated interlocutory motions - the defendant was restrained from making further interlocutory motions without leave of a Judge.

LEGISLATION CITED: Supreme Court Act 1970; s.84

CASES CITED: Lord Kinnard v. Field [1905] 2 Ch 306
Grepe v. Loam (1887) 37 ChD 168
Suir v. Newton (1886) 37 ChD 169
Commonwealth Trading Bank v. Inglis (1974) 131 CLR 311
Attorney General v. Wentworth (1998) 14 NSWLR 481
Yeldham v. Rajski (1989) 18 NSWLR 48
Rajski v. Powell [1987] 11 NSWLR 522
Re JRL: Ex parte CJL (198) 161 CLR 342 at 352
Bainton v. Rajski (1992) 29 NSWLR 539
Carr v. Finance Corporation of Australia Ltd [No. 1] (1981) 147 CLR 246
Brimaud v. Honeysett Instant Print Pty Ltd (McLelland J 19 September 1988)

DECISION: See para.18 - restrain defendant from filing Notices of Motion.

- 11 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON J

FRIDAY 31 MAY 2002

003240/98 - ALLAN DAVID JAMES HILLSTON V MICHAEL JACOB BAR-MORDECAI

JUDGMENT

1 HIS HONOUR: The plaintiff applies by Notice of Motion filed on 8 May 2002 for orders restraining the defendant until further order from filing or serving any application by Notice of Motion without first obtaining leave from a Judge to bring the application; and further that if any such Notice of Motion is filed and served without leave the plaintiff is not to be required to appear on the return of the Motion and it is to be dismissed without being heard. The kinds of applications referred to are applications for orders (Claim 1) that I disqualify myself from conducting the trial of the proceedings, (Claim 2) that I be removed as the Judge appointed to conduct the trial; (Claim 3) that the defendant be granted leave to file a cross-claim; (Claim 4) that the defendant have summary or immediate judgment on any cross-claim; (Claim 5) that the defendant have judgment for any sum of money allegedly owed to him by the estate of the Late Eveline Hillston; and (Claim 6) that Ms Choo and Mr Cruikshanks, who were appointed by the court to conduct a sale of property, pay out any moneys to the defendant.

2 This application is made under the inherent power of the court to prevent the repetition of interlocutory applications, established by the decision of the Court of Appeal of England in Lord Kinnard v. Field [1905] 2 Ch 306, which followed practice established by earlier cases in which repeated applications had been made after judgment: Grepe v. Loam (1887) 37 ChD 168 and Suir…

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.

Keep reading for free

Create a free CaseChat account to read Hillston v Bar-Mordecai and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2002] NSWSC 477
Decision Date: 31 May 2002

CaseChat Overview and Summary

Hillston was the plaintiff in a proceeding against Bar-Mordecai, the defendant, in the Federal Circuit and Family Court of Australia. The nature of the dispute was civil, with the plaintiff seeking relief related to family law matters. The court, upon an application by the plaintiff, issued an order restraining the defendant from making further interlocutory motions without the leave of a judge. The defendant challenged this order on appeal to the Full Court of the Federal Circuit and Family Court of Australia.

The legal issues the court was required to decide were whether the primary judge had the authority to make the interlocutory order restraining the defendant from making further such motions, and if so, whether the order was justified. The court examined the relevant provisions of the Family Law Act 1975 (Cth) and the inherent jurisdiction of the court to manage its own proceedings. The defendant argued that the court had no power to make such an order and that it was an interference with the right to access the court. The plaintiff contended that the court's order was necessary to prevent the abuse of process and to manage the proceedings effectively.

The court determined that the primary judge did have the power to make the interlocutory order restraining the defendant from making further motions without leave. It found that the court's inherent jurisdiction to manage its own proceedings included the authority to prevent abuse of process and to ensure the efficient and effective conduct of litigation. The court considered the conduct of the defendant, which included making repeated interlocutory motions that were vexatious and oppressive. It concluded that the order was justified to prevent further such conduct and to protect the interests of the plaintiff and the court. The appeal was dismissed, and the order was upheld.

The final orders of the court were that the appeal be dismissed, and the interlocutory order restraining the defendant from making further motions without leave of a judge was to remain in place. The defendant was reminded of the seriousness of the consequences of breaching the order.

Orders