Michael Bar-Mordecai - Application - Ms Daych (No.2) - [2014] NSWSC 766

Supreme Court

New South Wales

Medium Neutral Citation: Michael Bar-Mordecai - Application - Ms Daych (No.2) [2014] NSWSC 766
Hearing dates: 14/03/2014; 08/04/2014
Decision date: 13 June 2014
Before: Garling J
Decision:
(1) Further Amended Summons filed 24 March 2014 dismissed.
(2) Plaintiff to pay the costs of Ms Daych of the whole application.
(3) If Ms Daych seeks any other or different order, then any application and affidavit in support is to be filed on or before 27 June 2014
(4) Attorney-General to pay his own costs of the application.

Catchwords: PROCEDURE - vexatious litigant - Vexatious Proceedings Act 2008 - application for leave to institute proceedings - ordinary procedure - whether proceedings to be instituted lack prima facie ground - whether vexatious - no matter of general principle
Legislation Cited: Limitation Act 1969
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005
Vexatious Proceedings Act 2008
Cases Cited: Aboody v Ryan [2012] NSWCA 395
Attorney-General v Bar-Mordecai [2005] NSWSC 142
Category: Principal judgment
Parties: Michael Bar-Mordecai (P)
Attorney-General of NSW (D)
Tatyana Daych (Interested Person)
Representation: Counsel:
In person (P)
K G Oliver (for Attorney-General)
M J Heath (for Ms Daych)

File Number(s): 2013/244198

Judgment

On 12 August 2013, Michael Bar-Mordecai, filed a Summons in which he claimed the following relief:

"1. An order that the Court grant leave to the plaintiff to extend the time of filing in order to file his Statement of Claim in the supreme Court on Ms Tatyana Daych in spite of the statute of limitation of six years.

2. An order that the plaintiff be granted leave to file a statement of claim for his equity in his former marital unit with Ms Tatyana Daych in the District Court of NSW. Ms Daych being the plaintiff's former de facto wife, on the grounds the grounds that he five years out of time.

3. Costs." (sic)

On that day, the Court made an order pursuant to s 16(1)(a) of the Vexatious Proceedings Act 2008, that Mr Bar-Mordecai was to serve both the Attorney-General of NSW and Ms Daych with a copy of the Summons and also with a copy of his affidavit of 12 August 2013, upon which he relied in support of his Summons.

Vexatious Litigant

The applicant, Mr Bar-Mordecai, is a vexatious litigant.

On 24 February 2005, Patten AJ made an order pursuant to s 84(1) of the Supreme Court Act 1970, with respect to Mr Bar-Mordecai, in the following terms:

"1. That Michael Jacob Bar-Mordecai shall not, without leave of this Court institute proceedings in any Court.

2. That any legal proceedings instituted by Michael Jacob Bar-Mordecai, in any Court before the date of this order, shall not be continued by him without leave of this Court."

There were other consequential orders: Attorney-General v Bar-Mordecai [2005] NSWSC 142.

On 1 December 2008, the Vexatious Proceedings Act (the "VP Act"), commenced. Orders pursuant to s 84 of the Supreme Court Act, which were in existence at that time, are…

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: [2014] NSWSC 766
Decision Date: 13 June 2014

CaseChat Overview and Summary

The case of Michael Bar-Mordecai involved an application for leave to institute proceedings under the Vexatious Proceedings Act 2008. The applicant, Bar-Mordecai, sought to commence legal action against Ms Daych. This application was heard in the Supreme Court of New South Wales. The dispute centred around whether the proceedings proposed by Bar-Mordecai lacked a prima facie ground and whether they were vexatious in nature.

The primary legal issue before the court was to determine if the proposed proceedings had sufficient merit to warrant proceeding with the case. Additionally, the court had to consider if the proceedings were vexatious, as defined by the Act, and whether there was any matter of general principle involved. The court examined the substance and prospects of the claim to assess its validity and the potential for it being vexatious.

In delivering the judgment, the court found that the application did not disclose a cause of action that had a prima facie ground. Furthermore, the court concluded that the proceedings were vexatious, as they were likely to cause unnecessary expense and delay. The court did not find any matter of general principle that would alter this conclusion. Consequently, the application was dismissed, and Bar-Mordecai was denied leave to institute the proceedings against Ms Daych. The court's decision was based on the lack of merit in the proposed claim and the vexatious nature of the proceedings.

Orders