Supreme Court New South Wales Medium Neutral Citation: Application of Bar-Mordecai [2020] NSWSC 796 Hearing dates: On the papers Decision date: 24 June 2020 Jurisdiction: Common Law Before: Ierace J Decision: (1) In proceedings 2020/143803: (a) Refuse leave to institute proceedings. (b) Dismiss the summons. (2) In proceedings 2020/143835: (a) Refuse leave to institute proceedings. (b) Dismiss the summons. Catchwords: CIVIL PROCEDURE – vexatious litigants – Vexatious Proceedings Act 2008 (NSW) – leave to institute proceedings – leave to file Notice of Appeal in the Court of Appeal – leave refused Legislation Cited: Vexatious Proceedings Act 2008 (NSW) Supreme Court Act 1970 (NSW) Cases Cited: Application by Bar-Mordecai [2016] NSWSC 1728 Attorney General for NSW v Bar-Mordecai [2019] NSWSC 13 Attorney General v Bar-Mordecai [2005] NSWSC 142 Attorney-General of NSW v Bar-Mordecai [2011] NSWSC 100 Jewish National Fund of Australia Ltd v Bar-Mordecai [2020] NSWSC 384 Category: Principal judgment Parties: Michael Bar-Mordecai (Applicant) File Number(s): 2020/143803; 2020/143835 Judgment 1. HIS HONOUR: The applicant, Michael Bar-Mordecai, was declared a vexatious litigant in 2005 pursuant to orders made by Patten AJ in this Court: Attorney General v Bar-Mordecai [2005] NSWSC 142. Those orders prohibited the applicant from instituting proceedings in any court without the leave of this Court. On 2 November 2018, the orders were varied by Fagan J to provide that the applicant is prohibited from instituting proceedings in New South Wales without the leave of this Court: Attorney General for NSW v Bar-Mordecai [2019] NSWSC 13. The orders made in 2005 were pursuant to s 84(1) of the Supreme Court Act 1970 (NSW), which had been repealed by the time the 2018 orders were made. Accordingly, under transitional provisions, the 2005 orders were taken to have the effect of orders made pursuant to the Vexatious Proceedings Act 2008 (NSW) ("the Act"). 2. On 12 May 2020, the applicant filed two summons in this Court, each seeking leave to institute proceedings by filing notices of appeal in the Court of Appeal against orders made by Davies J in Jewish National Fund of Australia Ltd v Bar-Mordecai [2020] NSWSC 384 on 15 April 2020. Proceedings subject of the application for leave to appeal 1. The plaintiff, the Jewish National Fund of Australia Ltd, initiated two sets of proceedings by statements of claim filed on 27 March 2019 against the applicant, Mr Bar-Mordecai (the defendant in those proceedings), each seeking possession of a property occupied by the applicant. The properties are apartments in the same block; proceedings 2019/96140 (proceedings 2020/143835 on this application) concerned Unit 5, and proceedings 2019/162728 (proceedings 2020/143803 on this application) concerned Unit 7. 2. The plaintiff pleaded that Unit 5 had belonged to Elias Cohen, who in his will gave a life estate in that property to his sister, Seemah Morris, and the estate in remainder to the plaintiff. Mr Cohen died on 18 October 2013. Ms Morris died on 30 January 2019, and left the property to the plaintiff in her will. 3. The applicant filed a defence on 8 April 2019 in respect of Unit 5, admitting those matters. He did not admit that he had been occupying the property. 4. In the other proceedings, the plaintiff pleaded that Ms Morris owned Unit 7, and that she left the property to the plaintiff in her will. In his defence in relation to Unit 7, the applicant admitted those matters and that he had been in part-time occupation of that property since 8 December 2018. In relation to both proceedings, the applicant claimed to be the first cousin once removed of Mr Cohen and Ms Morris and that shortly before her death, Ms Morris gifted both properties to him. 5. In each of the proceedings, the applicant sought leave by notice of motion to file an amended defence and a cross-claim against the plaintiff, and in proceedings concerning Unit 5, he named four other proposed cross-defendants. 6. On 30 August 2019, Hamill J made orders requiring the applicant to file a notice of motion by 13 September 2019 seeking, if necessary, leave pursuant to ss 14 to 16 of the Act to file and rely on a cross-claim in the proceedings concerning Unit 5; leave to file an amended defence in those proceedings; and leave to file a cross-claim in the proceedings. The applicant filed a notice of motion seeking those three orders and additional orders for which no leave had been granted. 7. In relation to the proceedings concerning Unit 7, although no leave had been granted to do so, the applicant filed a notice of motion similarly seeking leave pursuant to the same provisions of the Vexatious Proceedings Act to file and rely on a cross-claim in those proceedings. In the notice of motion concerning Unit 5, the applicant also sought leave to issue six subpoenas, leave having been declined in respect of three of them by a deputy registrar of this Court. 8. The notices of motion in respect of both proceedings were set down for hearing by Davies J on 6 March 2020. At the outset of the hearing, the applicant asked his Honour to recuse himself because of a judgment that his Honour had given involving the applicant on 3 March 2011: Attorney-General of NSW v Bar-Mordecai [2011] NSWSC 100. His Honour declined the application for recusal. 9. His Honour made orders dismissing both notices of motion and an order that the applicant pay the plaintiff's costs in each of the proceedings. His Honour dealt with both proceedings in the same judgment. In relation to the proceedings concerning the proposed cross-claims, his Honour concluded, at [101] of his judgment: "… [the applicant] does not demonstrate that there is a prima facie ground for bringing that cross-claim for the reasons I have given. In those circumstances I am obliged to dismiss the application pursuant to the provisions of s 15 of the Vexatious Proceedings Act. Even if [the applicant] did not need to overcome that hurdle, the position is that the proposed cross-claim does not disclose a reasonable cause of action. In such circumstances it would be futile to permit [the applicant] to proceed with it." The relevant law 1. The application for leave to institute proceedings was made under s 14 of the Act. That section provides: "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. (4A) An authorised court may decline to consider an application made under this section if the court is not satisfied that the application is materially different from an earlier application under this section that was dismissed under section 15 (1) (b) or (c). (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." 1. Section 15 of the Act, which provides for the circumstances in which such an application must be dismissed, states: "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: (a) even if an oral hearing is not held, or (b) even if the applicant does not appear at any hearing of the application." 1. Section 16 provides for the circumstances in which the Court may grant an application for leave, and the powers of the Court to do so. It states: "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. (4A) A grant of leave to institute proceedings made under this section includes leave to make interlocutory applications, and other procedural applications, in connection with or incidental to those proceedings, unless the grant of leave specifies otherwise. (4B) However, a grant of leave to institute proceedings does not include leave to make the following applications (unless the grant of leave specifically extends to such applications): (a) an application to join a new party to the proceedings, (b) an application to introduce into the pleadings for the proceedings a substantially new cause of action based on facts different from those already pleaded, (c) an application to remove the proceedings from one court or tribunal to another. (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. "Instituting proceedings" is defined in s 5 of the Act as follows: "5 Instituting proceedings (1) In this Act, institute, in relation to proceedings, includes: (a) for civil proceedings—the taking of a step or the making of an application that may be necessary before proceedings can be started against or in relation to a party, and (b) for proceedings before a tribunal—the taking of a step or the making of an application that may be necessary before proceedings can be started before the tribunal, and (c) for criminal proceedings—the making of a complaint or the obtaining of a warrant for the arrest of an alleged offender, and (d) for civil or criminal proceedings or proceedings before a tribunal—the taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceedings or to a decision made in the course of the proceedings. (2) A reference in this Act to instituting proceedings includes a reference to instituting: (a) proceedings generally, and (b) proceedings in relation to a particular matter, and (c) proceedings against or in relation to a particular person, and (d) proceedings in a particular court or tribunal." 1. "Vexatious proceedings" is defined in s 6 of the Act as follows: "6 Meaning of 'vexatious proceedings' In this Act, vexatious proceedings includes: (a) proceedings that are an abuse of the process of a court or tribunal, and (b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and (c) proceedings instituted or pursued without reasonable ground, and (d) proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose." The applicant's submitted materials 1. The applicant submitted two folders for the applications, one for each of the proceedings. Each of these folders contains the relevant summons for the respective proceedings, and lists the orders sought and the appeal grounds. The folders also include submissions in support of the summons, affidavits purported to be filed in compliance with s 14C of the Act (which I take to mean s 14(3) of the Act), and a number of documents annexed to the affidavits purporting to be relevant material. 2. The submissions and appeal grounds for both proceedings contain highly emotive and accusatory statements, referring to various persons' "lies" in their evidence; "suppressed evidence"; "dishonest, contrived and untrue" evidence; and include allegations of conspiracy and fraud. The applicant also makes allegations of corruption in respect of multiple judicial officers who have refused to grant him leave to institute proceedings on previous occasions. Appeal grounds Proceedings 2020/143835 (Unit 5) 1. The applicant asserts a number of appeal grounds. They may be summarised, as best as I can ascertain, as follows. 1. His Honour erred in law by: 1. failing to correctly apply the Act. His Honour determined the applicant's notice of motion and an application for leave to amend his pleadings without leave having first been granted under the Act, due to his status as a vexatious litigant; 2. failing to "recognise the need to protect the integrity of the Court's process", by refusing to admit certain evidence relied on by the applicant of supposed "crimes and abuses" perpetrated against him by the Prothonotary; 3. failing to provide "remedies" or "penalties" against the Prothonotary or an "alternative for [the applicant] to circumvent the abuses of processes and the criminalities perpetrated by the Prothonotary" by the Prothonotary declining to waive the applicant's fee for a copy of the transcript of the proceedings so that he could prosecute this application for leave to appeal; and 1. His Honour erred by failing to recuse himself from the hearing when asked to do so by the applicant, in circumstances where the applicant alleged a lack of impartiality. 2. His Honour showed actual bias against the applicant at the hearing by: 1. treating the plaintiff favourably and the applicant unfavourably on the same issues; 2. admitting into evidence the plaintiff's submissions which had been filed out of time; and 3. refusing to admit into evidence the applicant's affidavits because the Prothonotary had not made orders permitting the applicant to do so, and then admitting them into evidence. 1. His Honour erred by making "multiple serious errors of fact in his judgment" and failing to make certain findings of fact, including: 1. finding that two certain organisations were one and the same, whereas in fact they are not; 2. finding that the applicant still occupied Unit 5 at the date of the hearing; 3. finding that a certain will had been "made" on a particular date, when it was in fact "executed" on that date; 4. finding that a certain will existed, when it was the applicant's case that the particular will was made without instructions and therefore did not exist; 5. finding that the date of a grant of probate was 4 January 2014, when in fact it was 14 January 2014; 6. finding that certain allegations made by the applicant were "slanderous and scandalous allegations", where this finding was unjustified because the named persons or entities had committed crimes and/or abuses of process, which his Honour had not addressed; and 7. finding that certain wills were prepared by lawyers acting for the testator, whereas it was the applicant's case that the lawyers were acting for a beneficiary under those wills. Proceedings 2020/143803 (Unit 7) 1. Some of the grounds of appeal for these proceedings were identical to those in the proceedings in respect of Unit 5 above. The applicant also contended that his Honour erred in over thirty articulated findings of fact. In my opinion, it is unnecessary for the purposes of this application to attempt to summarise each of these contested findings. In relation to some of the disputed findings, the applicant attributed various reasons, including judicial bias, his Honour's "failure to recall long-term events" and "incompetent and misleading submission[s]" of counsel for the plaintiff. Consideration Form requirements 1. The proceedings sought to be initiated fall within the definition of "institute", in relation to proceedings, under s 5(1)(d) of the Act. 2. Each application includes what purports to be an affidavit that to conform with the requirements of s 14(3) of the Act. They appear to comply with ss 14(3)(a) and (b), but not (c), in that the applicant has used it as an opportunity to make further serious allegations of a scandalous nature against various individuals, rather that confine himself to "facts material to the application". 3. Although the affidavits are not in the correct form, I am prepared to proceed to evaluate the substance of the applications, based on the same rationale as that provided by Wilson J on a previous application for leave to institute proceedings by the applicant, in Application by Bar-Mordecai [2016] NSWSC 1728. At [14], her Honour said: "The question is whether the affidavits as filed substantially comply with s 14(3), for the purposes of s 15(1)(a). Although I have reservations that the affidavit evidence does represent compliance with s 14(3), little would be served in rejecting the application on that basis, other than to invite a fresh application with an affidavit that meets the requirements, presumably also accompanied by many folders of documentary evidence, which would have to be considered." Substance of the applications 1. I will refer to the grounds relied upon by the applicant by reference to the paragraph numbers of my summary of them above, at [19]. The applicant's allegations of errors of law made by his Honour are plainly unfounded. Ground 1(a), as best I can understand it as explained in the applicant's submissions, bizarrely alleges that his Honour had not applied the Act, by entertaining the applicant's notice of motion concerning Unit 7, although neither Hamill J nor the registrar had granted him leave to file that notice. With respect to ground 1(a), the applicant submitted: "Applications by a vexatious litigant can only be filed following leave being granted by the Supreme Court. Justice Davies knowingly determined the Defendant's Notice of Motion and an application for leave to amend his pleadings, without Supreme Court leave having been granted to the Defendant to file those two instruments, as a vexatious litigant. Davies J failed to comply with the prohibitions imposed by [the Act]. This was an error in law, and as a consequence the Court of Appeal should set aside the two judgments of Davies J [sic] dated 15.04.2020." 1. His Honour's hearing of that notice in spite of the absence of leave was beneficial to the applicant. 2. Some grounds concern a perceived failure by his Honour to respond to the applicant's allegations of criminal offences and serious breaches of ethical obligations made against certain officers of the Court and others. Apart from other quite justifiable concerns expressed by his Honour, those allegations were not relevant to the substantive issues raised by the proposed cross-claims and amended defences and, in any event, were without foundation in view of findings of fact that were relevantly made by his Honour. Grounds 1(b), (c) and 4(f) and (g) come within that ambit, as well as a number of the grounds of appeal concerning Unit 7. 3. In relation to the procedural decisions and findings of fact said to reflect actual bias, I make the following observations. As to ground 3(a), a decision that favours one party is not, in itself, evidence of bias, and the applicant does not develop his concerns beyond that basis in the submitted materials. As to ground 3(b), it is apparent from the judgment that the applicant benefitted significantly from decisions by his Honour to overlook failures by the applicant to comply with the procedural requirements of the Act and the Court and consider the substance of the materials he submitted. In such circumstances, his Honour permitting the plaintiff to file submissions out of time, especially when there is no suggestion of detriment to the applicant, is not evidence of bias. As to ground 3(c), in view of the ultimate decision of Davies J to allow in the affidavits, there can be no actual complaint. 4. The alleged errors of fact contained in grounds 4(b), (c) and (e) are clearly irrelevant to the findings made by his Honour and thus are of no substance. In so saying, I do not mean to suggest that any of them are made out; rather, if any were, it would be of no consequence in any event. The error that is alleged in ground 4(d) is actually simply a finding of fact by his Honour with which the applicant disagrees, and therefore is of no substance as a ground of appeal. 5. There are two grounds that require more consideration. The first is ground 3(a), which is referred to in his s 14(3) affidavit and for which he has submitted evidence on appeal. The background concerns a provision in Ms Morris' will by which she left her property to an Israeli organisation that was expressed to be represented by the plaintiff: "Keren Kayemeth Leisrael, Jerusalem, Israel (also known as the 'Jewish National Fund') represented in Australia by the Jewish National Fund of Australia Inc." 1. The applicant wished to abandon that part of his filed defence in which he had conceded that the property was left to the plaintiff in Ms Morris' will. His Honour said, at [107] of the judgment: "… [the applicant] now wants to assert that the plaintiff is not the true or correct owner of the property because both the will of Mr Cohen and the will of Ms Morris left the units to Keren Kayemeth Leisrael. The evidence of the plaintiff (and indeed the wills on their face themselves) demonstrate that Keren Kayemeth Leisrael and the plaintiff are relevantly the same organisation. In any event, the plaintiff is the registered proprietor of the two units and [the applicant] does not have standing to challenge its right to possession of the land." 1. The further evidence proposed by the applicant is a web address for a four-paragraph article dated 9 November 2017 on a Jewish news website, "J-Wire", that reported a statement issued by "JNF Australia", concerning its relationship to "KKL" ("the J-Wire article"). I assume for the purposes of the application that these are references to the plaintiff and Keren Kayemeth Leisrael. The article stated: "Following the announcement by Prime Minister Benjamin Netanyahu regarding the appropriation of KKL revenues by the Israeli Government, JNF Australia has declared it is not linked to KKL. In a statement JNF says: 'JNF Australia and KKL are linked together by history, emotion and mission. We share a common narrative that connects us to the 5th Zionist Congress and the establishment of the Jewish National Fund in 1901. Yet, we are a separate, independent entity. JNF Australia and KKL work together in cooperation to enhance and further our mutual purposes and objectives. Each of us are legally and operationally separate, with our own separate Board of Directors, employees, and donors. No member of the Board of JNF Australia serves on the Board of KKL, and vice versa. Our donors select and designate where their contributions go and the projects and programs to support, which are actively monitored by JNF Australia. KKL is one of many partners that JNF Australia works with all over Israel, including other not for profits and municipalities, in order to source and implement vital projects. The funds raised by JNF Australia go directly towards these projects, with not one dollar used to fund KKL. In fact on many occasions KKL have added 25% to the funds we have directed to the projects. Recent moves by the Government of Israel to appropriate some of KKL's revenues will therefore have no impact on JNF Australia or its donors.'" 1. In the hearing before his Honour, in support of his submission that the two entities were distinct, the applicant said: "The properties were not left to JNF, they were left to Keren Kayemet LeIsrael, that's a different legal entity, it is a foundation or fund for people to contribute, so that Israel will stay viable, from around the world. But the two legal entities are totally different according to the President of Israel and there is a quote from the newspaper about what he says, but they are two different, separate entities." 1. The J-Wire article supports the applicant's submission to his Honour but is not "fresh" evidence, since it is apparent on its face that it was available at the time of the hearing before his Honour. It tends to contradict the plaintiff's submission that the two organisations were the same, referred to by his Honour, subject to what was meant by "relevantly the same organisation". The J-Wire article is not necessarily inconsistent with the terms of the will provision, in that it does not contradict the proposition that KKL was "represented" in Australia by the plaintiff. 2. A more fundamental problem for the plaintiff is that, as his Honour has observed, ultimately it was an argument of little assistance to the applicant because he was without standing to challenge the plaintiff's right to possession. 3. The second is ground 2, in which the applicant alleges that his Honour should have recused himself. His Honour said: "42 At the outset of the hearing of [the applicant's] notices of motion, [the applicant] asked me to recuse myself, as a result of a judgment I had given involving him on 3 March 2011: Attorney-General of NSW v Bar-Mordecai [2011] NSWSC 100. [The applicant] asserted that I had adjudicated two matters involving him where my determinations were found to be wrong. On that basis [the applicant] said that I lacked objectivity to adjudicate on any matter involving him. 43 I am only aware of one matter in which I adjudicated, being the matter identified above. In that matter I was asked to answer, on a separate question application, two questions formulated by the Attorney-General in relation to the procedure to be followed involving ss 14-16 of the Vexatious Proceedings Act. The questions involved a construction of the Act. The Court of Appeal took a different view of s 14 of the Act. In giving its judgment, the Court of Appeal said that the questions formulated by the Attorney-General which I answered were inapt: Bar-Mordecai v Attorney General (NSW); Bar-Mordecai v State of New South Wales [2012] NSWCA 207. My determination was adverse to [the applicant] only inasmuch as I determined that leave was necessary for the filing of additional evidence to the affidavit required by s 14(3) of the Act. The Court of Appeal said leave was not necessary. 44 I informed [the applicant] that I would not recuse myself because the matter I adjudicated concerned only procedural and construction matters, and did not involve the determination of credit or substantive issues." 1. The applicant submitted that his Honour should have recused himself, but did not address his Honour's reasoning for having not done so. The applicant submitted: "… a justice should recuse himself/herself from the hearing, when asked to do so by a party, in circumstances that the adjudicator may not recognise that he/she lacked the pre-requisite impartiality to adjudicate the subsequent matters, in having dealt with the same party previously." 1. A finding against a party does not, by itself, provide a basis for recusal. It would have been inappropriate for his Honour to recuse himself on the basis of a prior finding against the party seeking recusal, which was based on procedural matters not involving any adverse finding of credit. 2. In accordance with s 15(1)(c) of the Act, I find that none of the proposed grounds of appeal constitute prima facie grounds for consideration of the Court of Appeal, for the reasons I have expressed. Some of the proposed grounds also come within s 15(1)(b) of the Act, conformably with the definition of "vexatious proceedings" as defined in s 6 of the Act. I find that there are no issues of substance that would warrant the filing of a notice of appeal in the Court of Appeal, as the applicant appears to merely be seeking to re-litigate issues already determined by his Honour Davies J without proper bases at law. Accordingly, leave for both applications should be refused. Orders 1. I make the following orders: 1. In proceedings 2020/143803: 1. Refuse leave to institute proceedings. 2. Dismiss the summons. 1. In proceedings 2020/143835: 1. Refuse leave to institute proceedings. 2. Dismiss the summons. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 June 2020