Attorney General of NSW v Bar-Mordecai [2008] NSWSC 1094

New South Wales Supreme Court

CITATION : Attorney General of NSW v Bar-Mordecai [2008] NSWSC 1094

HEARING DATE(S) : 10 September 2008

JUDGMENT DATE : 20 October 2008

JURISDICTION : Common Law

JUDGMENT OF : Harrison AsJ

(1) Leave to appeal under s 84(4) of the Supreme Court Act is refused. DECISION : (2) The defendant's amended notice of motion filed 10 September 2008 is dismissed. (3) The defendant is to pay the plaintiff's costs as agreed or assessed.

CATCHWORDS : LEAVE to institute an appeal in the District Court

Crimes (Appeal & Review) Act 2001 LEGISLATION CITED : Crimes (Domestic and Personal Violence) Act 2007 Supreme Court Act 1970

CATEGORY : Procedural and other rulings

Attorney General v Bar-Mordecai [2005] NSWSC 142 CASES CITED : Sea Culture International Pty Limited v Scoles (1991) 32 FCR 275 Young v Cesta-Incani & Anor [2007] NSWCA 229

PARTIES : Attorney General of New South Wales (Plaintiff) Michael Bar-Mordecai (Defendant)

FILE NUMBER(S) : SC 10622/2004

COUNSEL : K Oliver (Plaintiff)

SOLICITORS : Crown Solicitors (Plaintiff) Bar-Mordecai (Defendant in person)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

MONDAY, 20 OCTOBER 2008

10622/2004 - ATTORNEY GENERAL OF NEW SOUTH WALES v MICHAEL BAR-MORDECAI

JUDGMENT (Leave to institute an appeal in the District Court) 1 HER HONOUR: On 25 February 2005, this court ordered that the defendant shall not, without leave of this court, institute proceedings in any court – Attorney General v Bar-Mordecai [2005] NSWSC 142. Mr Bar-Mordecai seeks leave to appeal the decision of her Honour Magistrate Madgwick dated 23 October 2007 in relation to the duration of an Apprehended Violence Order (AVO). 2 The leave that Mr Bar-Mordecai required is set out in s 84(4) of the Supreme Court Act. It reads: "Where the Court has made an order under subs(1) or subs(2) against any person, the Court shall not give that person leave to institute or continue any proceedings unless the Court is satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings." 3 The defendant concedes that he needs such leave. The onus is upon Mr Bar-Mordecai to show that the intended District Court appeal is not an abuse of process and that there is a prima facie ground for the appeal 4 The motion that was listed for hearing on 10 September 2008 is dated 23 November 2007. That motion and submissions involved many and varied grounds of appeal. At the outset of the hearing Mr Bar-Mordecai indicated that he wanted only to pursue a limited ground of appeal, Counsel for the Attorney General agreed to that course of action provided that Mr Bar-Mordecai consented to the earlier notice of motion being dismissed and that he pay the Attorney General's costs. Ultimately, the new notice of motion and draft ground of appeal were filed at noon on 10 September 2008. The notice of motion was filed 23 November 2007 was dismissed with an order that the defendant pay the plaintiff's costs. 5 An AVO was granted and it is for five years duration from 23 October 2007. This AVO order expires on 23 October 2012. The notice of motion filed 10 September 2008 seeks that leave be granted to Mr Bar-Mordecai to file an appeal with the District Court of New South Wales. The only ground of appeal is that he says the Magistrate erred in law by failing to give judicial reasoning for such a prolonged period. 6 In the Local Court "AB", the daughter of Mr Bar-Mordecai, sought an AVO on behalf of herself, her husband and their children. The children are Mr Bar-Mordecai's grandchildren. I have referred to the daughter as "AB" because children are involved and their names should not be published. 7 On 23 October 2007, the Magistrate Madgwick made the following orders. "TERMS OF FINAL ORDER TO THE DEFENDANT: The Court has made an Apprehended Violence Order against you in the following terms: This Order is in force for a period of FIVE (5) YEARS. MANDATORY ORDERS: 1.a. The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship. 1.b. The defendant must not engage in conduct that intimidates the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship. 1.c. The defendant must not stalk the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship. ADDITIONAL ORDERS: 7. The defendant must not approach or contact the protected person(s) by any means whatsoever, except through the defendant's legal representative. 9. The defendant must not approach the school or other premises at which the protected person(s) may from time to time attend for the purposes of education or child care or other specified premises." (Ex B)