Application of Bar-Mordecai [2020] NSWSC 1334

Supreme Court New South Wales

Medium Neutral Citation: Application of Bar-Mordecai [2020] NSWSC 1334 Hearing dates: On the papers Decision date: 01 October 2020 Jurisdiction: Common Law Before: Button J Decision: Leave to institute proceedings refused. Catchwords: Application for leave to institute proceedings – recent, relevant judgment not included in affidavit evidence – legal and factual consequences of judgment not the subject of submissions in support of application – essential statutory precondition for grant of leave not fulfilled Legislation Cited: Vexatious Proceedings Act 2008 (NSW) Cases Cited: Application of Bar-Mordecai [2020] NSWSC 796 Jewish National Fund of Australia Ltd v Bar-Mordecai [2020] NSWSC 384 Category: Principal judgment Parties: Michael Bar-Mordecai (Applicant) File Number(s): 2020/189704 Publication restriction: Nil

Judgment

Introduction 1. Mr Michael Bar-Mordecai (the applicant) is currently subject to an order made by Fagan J on 2 November 2018, pursuant to the Vexatious Proceedings Act 2008 (NSW) ("the VPA"). 2. That order is as follows: 3. 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". 4. As can be seen, the order continued, and expanded upon, an order restricting the rights of the applicant as a litigant that had been made by an Acting Judge of this Court as long ago as in 2005. 5. Pursuant to Part 3 of the VPA, the applicant has made an application for leave to institute proceedings against a solicitor whose office is located in the eastern suburbs of Sydney ("the proposed defendant"). 6. The relevant portions of the VPA are as follows: 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. 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. The applicant has filed a folder of documents. They include a summons seeking the necessary leave pursuant to the VPA, and an affidavit of himself with a large number of annexures. Those annexures in turn include a draft statement of claim, some written submissions in support of leave (the applicant is unrepresented), correspondence between the applicant and the proposed defendant, and affidavits of a number of persons, including the proposed defendant. 2. He has also filed a further affidavit entitled "The Plaintiff's 14C Affidavit 1". That affidavit extends over 11 pages, and refers to over 30 proceedings in which the applicant has been a party, many of which are unsuccessful applications for leave pursuant to the VPA.