BAR-MORDECAI v ROTMAN & ORS [2003] NSWCA 53

New South Wales Court of Appeal

CITATION : BAR-MORDECAI v ROTMAN & ORS [2003] NSWCA 53 HEARING DATE(S) : In Chambers JUDGMENT DATE : 25 March 2003

JUDGMENT OF : Sheller JA; Stein JA; Giles JA DECISION : Notice of motion dismissed with costs

CATCHWORDS : Application to reopen LEGISLATION CITED : N/A Bailey v Marinoff (1971) 125 CLR 529 CASES CITED : Gamser v Nominal Defendant (1977) 136 CLR 145 FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 Michael Bar-Mordecai - Claimant PARTIES : Selma Rotman - First Opponent Alex Hillston - Second Opponent Allan David James Hillston - Third Opponent FILE NUMBER(S) : CA 40568/98 Claimant in person COUNSEL : J B Whittle SC - First Claimant B J Burke - Second and Third Claimants Claimant in person SOLICITORS : Stewart Levitt & Co Solicitors - First Claimant Shaw McDonald - Second and Third Claimants

LOWER COURT Supreme Court - Equity Division JURISDICTION : LOWER COURT EQ 120009/94 FILE NUMBER(S) : LOWER COURT Einstein J JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40568/98

SHELLER JA STEIN JA GILES JA

Tuesday, 18 March 2003 BAR-MORDECAI v ROTMAN Judgment 1 THE COURT: This is an application by notice of motion by Michael Bar-Mordecai for orders which include an order that this Court grant leave to reopen the appellant's case in CA 40568/98 for the purpose of making new orders and: "7. An Order that the former Order made by the Court of Appeal on the 16.5.2000, that 'the Appeal be dismissed with costs' be set aside, until a new hearing redetermine the: a. De facto issue; b. Revocation issue; c. Undue influence issue." 2 The application is supported by an affidavit made by Michael Bar-Mordecai on 22 May 2002. Paragraph 3 of the affidavit refers to proceedings brought by the applicant in the Common Law Division of the Court against, amongst others, the three judges Sheller, Stein and Giles JJA, who sat on the appeal. It is convenient and appropriate that this new application be considered by the same Bench. However, it was also considered appropriate to await the outcome in this Court of the Common Law proceedings against those three judges. 3 On 6 September 2002 Dowd J dismissed the Common Law proceedings and ordered the plaintiff to pay the defendants' costs. On 28 February 2003 this Court refused leave to appeal from that decision. 4 In the affidavit reference is also made to an appeal to this Court in CA 40793/00. The applicant claims that the reopening of this appeal and the due hearing of the two appeals concurrently is an economic and the only logical way to proceed in the matters. It is said that new evidence is available to corroborate evidence given by the appellant. 5 Judgment in this Court was given on 16 May 2000 and entered on 18 May 2000. A principle of general law is that when proceedings have been disposed of by a final order which has been entered, the proceedings are at an end and cannot be revived; Bailey v Marinoff (1971) 125 CLR 529; Gamser v Nominal Defendant (1977) 136 CLR 145 and FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268. Such exceptions as there are to this rule would not permit this Court to set aside its former order. No grounds are shown for doing so. In fact, the applicant sought special leave to appeal to the High Court from this Court's decision. That application was refused with costs on 4 May 2001. 6 The notice of motion should be dismissed with costs.