Attorney General for the State of New South Wales v Bar-Mordecai [2010] NSWSC 542

New South Wales Supreme Court

CITATION : Attorney General for the State of New South Wales v Bar-Mordecai [2010] NSWSC 542

HEARING DATE(S) : 5 March 2010

JUDGMENT DATE : 26 May 2010

JUDGMENT OF : Fullerton J

DECISION : 1. The notice of motion dated 22 February 2010 is dismissed. 2. Mr Bar-Mordecai to pay the costs of the motion.

CATCHWORDS : PROCEDURE - vexatious litigant - notice of motion seeking leave to file amended statement of claim in District Court proceedings

LEGISLATION CITED : Vexatious Proceedings Act 2008

CASES CITED : Attorney General for the State of New South Wales v Bar-Mordecai [2009] NSWSC 396 Attorney General of New South Wales v Bar-Mordecai (No 3) [2009] NSWSC 1242

PARTIES : Attorney General for the State of New South Wales Michael Bar-Mordecai

FILE NUMBER(S) : SC 2004/180898

COUNSEL : K Oliver In person

SOLICITORS : New South Wales Crown Solicitor In person

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

FULLERTON J

26 MAY 2010

2004/180898 ATTORNEY GENERAL FOR THE STATE OF NEW SOUTH WALES v MICHAEL BAR-MORDECAI

JUDGMENT 1 HER HONOUR: On 25 February 2005 this Court declared Mr Bar-Mordecai a vexatious litigant. 2 On 19 November 2009 Smart AJ granted Mr Bar-Mordecai leave to file a statement of claim in the District Court against the State of New South Wales for wrongful arrest, false imprisonment and assault. Leave was granted in accordance with a proposed amended statement of claim subject to nominated paragraphs being struck out as irrelevant and surplus to the causes of action pleaded, his Honour having concluded that it was sufficient for Mr Bar-Mordecai to prove the fact of his arrest and imprisonment, and that thereafter the onus of establishing a lawful arrest and lawful imprisonment rested on the State of New South Wales as the defendant. The paragraphs to be struck out were listed in a table set out in paragraph 7 of his Honour's judgment (see Attorney General of New South Wales v Bar-Mordecai (No 3) [2009] NSWSC 1242 – "the November judgment"). 3 I note that the proceedings were originally instituted by leave granted on 18 May 2009 (see Attorney General for the State of New South Wales v Bar-Mordecai [2009] NSWSC 396 – "the May judgment") at which time his Honour refused leave to institute proceedings for a second or further cause of action for unlawful imprisonment and refused leave to institute proceedings seeking damages for malicious prosecution. Accordingly, his Honour refused leave at that time to file the statement of claim in the form proposed and directed that Mr Bar-Mordecai serve and deliver to the Court a draft pleading in accordance with his published reasons. It was this document that was the subject of his Honour's further consideration in the November judgment before leave was granted to file the proceedings in the District Court. 4 On 30 November 2009 a statement of claim was filed in the District Court in accordance with both the May and November judgments ("the District Court proceedings"). 5 By letter dated 18 December 2009 Ms Alison Merridew, on behalf of the Crown Solicitor, advised Mr Bar-Mordecai that in her view the filed statement of claim was defective in that it failed to plead facts pertaining to each element of the unlawful arrest and unlawful detention, in particular it failed to plead the facts showing the illegality of the arrest and the basis upon which the detention was alleged to be unlawful. This would appear to be a position in direct conflict with his Honour's considered view in the November judgment. Mr Bar-Mordecai was further advised that in these circumstances the proceedings were liable to be struck out in accordance with Part 14 of the Uniform Civil Procedure Rules 2005. He was invited to amend the proceedings and to forward a draft of the proposed amended statement of claim to allow the defendant to consider whether it consented to the amendments. Ms Merridew apparently did not appreciate that leave was required under the Vexatious Proceedings Act 2008 for Mr Bar-Mordecai to file an amended statement of claim given his status as a vexatious litigant. 6 On 3 February 2010 Mr Bar-Mordecai filed a notice of motion in the District Court seeking leave to amend the statement of claim. The motion was returnable on 26 February 2010.