Bar-Mordecai - application [2012] NSWSC 707

Supreme Court New South Wales

Medium Neutral Citation: Bar-Mordecai - application [2012] NSWSC 707 Hearing dates: 31/05/2012 Decision date: 31 May 2012 Jurisdiction: Civil Before: Garling J Decision: Application dismissed Catchwords: PRACTICE AND PROCEDURE - application for leave to institute proceedings where vexatious proceedings order made in respect of applicant - Whether supporting affidavit compliant - Whether proceedings to be instituted vexatious or lack of prima facie ground - Proceedings vexatious Legislation Cited: Civil Procedure Act 2005 Supreme Court Act 1970 Vexatious Proceedings Act 2008 Cases Cited: House v the King [1936] HCA 90; 55 CLR 499 Category: Procedural and other rulings Parties: Michael Bar-Mordecai File Number(s): 2012/168958

EX TEMPORE Judgment 1This is an application by Mr Michael Bar-Mordecai by summons filed on 28 May 2012 in which Mr Bar-Mordecai seeks an order pursuant to s 16(1) of the Vexatious Proceedings Act 2008 that Mr Bar-Mordecai serve on each relevant person a copy of his application and an affidavit in order for the Court to then consider whether or not under s 16(3) of the Vexatious Proceedings Act the Court should grant leave to Mr Bar-Mordecai to institute proceedings. 2The orders that Mr Bar-Mordecai seeks to challenge in any such summons are those made by Hulme J on 23 April 2010. 3Mr Bar-Mordecai requires leave because of the provisions of the Vexatious Proceedings Act but he also requires leave of the Court of Appeal because he is seeking to appeal out of time and in respect of a costs order. The basis upon which Mr Bar-Mordecai seeks to argue that Hulme J's orders were incorrect is that those orders were predicated upon orders made by Johnson J on 31 March 2009, and which Mr Bar-Mordecai seeks to argue were erroneous in a number of respects. 4Mr Bar-Mordecai identifies the fact that Johnson J made erroneous factual findings in the proceedings before him; that he was in error in seeking to rely upon other proceedings which themselves had made erroneous findings; that the findings in the substance of the judgment of Johnson J were contrived; and that, accordingly, the substance of the matter before Johnson J was wrongly decided. The consequence of that so Mr Bar-Mordecai submits is that any order for costs was erroneous. 5As well, Mr Bar-Mordecai advanced an argument that the procedure followed by Johnson J in permitting the application before him to be heard on a contested basis rather than ex-parte basis was erroneous because it contravened the procedure set out in the Vexatious Proceedings Act. 6It seems to me that the procedure followed by Johnson J was a procedure that was not caught by the Vexatious Proceedings Act scheme. 7In [4] of Johnson J's judgment he noted that it was common ground that the applications before him fell to be determined by reference to the provisions of s 84 of the Supreme Court Act 1970 because the applications had been initiated prior to the commencement of the Vexatious Proceedings Act. His Honour in [6] and [7] noted the procedure to be followed under the Act but in [8] he then said this: "However, the 2008 statutory scheme does not apply to an application for leave under section 84 of the Supreme Court Act 1970. In this case, the notices of motion and other materials have been served upon the plaintiff, and counsel has appeared for the plaintiff at a contested hearing of the application in open court. The hearing of the leave application has proceeded before me over parts of two sitting days." 8I have examined the transitional provisions contained in the Vexatious Proceedings Act. Notwithstanding the initial submissions by Mr Bar-Mordecai on this topic, I am affirmatively satisfied there was no obligation on Johnson J to conduct proceedings in accordance with the statutory scheme set out in the Vexatious Proceedings Act. In fact his Honour was required by the legislation to deal with the application in accordance with s 84 of the Supreme Court Act, and I can see no error whatsoever in his Honour dealing with the matter in the way he did. 9The claim for leave to commence the proceedings in the Court of Appeal in so far as it is based upon what I might call an error of process by Johnson J must fail. 10However, Mr Bar-Mordecai submits, as I earlier said, that there are other errors in and about Johnson J's judgment which demonstrate that his findings were in error and, accordingly, an order for costs which was consequent upon those findings was in error. 11There are a number of matters that I need to remark upon with respect to that. Firstly, no application for leave as yet has been brought with respect to the judgment of Johnson J. By that I mean Mr Bar-Mordecai has not made any application to the Court for grant of leave to permit him to appeal against the judgment delivered by Johnson J. Certainly by the time Hulme J heard the matter before him in April 2010 there had been no proceedings seeking to challenge the judgment of Johnson J. 12Mr Bar-Mordecai properly informs me that the submissions with respect to the error in Johnson J's judgment, including the process error, were not put before Hulme J, and no submission was made to Hulme J that the judgment of Johnson J was in any way in error and that he should not act upon the basis of it. 13The consequence of this is that, as Hulme J said in [73] of his judgment with respect to Mr Bar-Mordecai, "he should comply with court orders as to costs". What Hulme J was confronted with was an unchallenged order for costs which had been made in respect of the proceedings before Johnson J. His Honour then had to consider whether it was appropriate in light of that fact to make the orders sought by the Attorney General which was an order that there be part payment of the costs and that various other proceedings be stayed until that payment of costs is made. 14It is necessary for me to be persuaded in an application such as this at a prima facie level that there is some obvious error in the judgment of Hulme J, or else I need to be persuaded that any summons for leave to appeal from the order of Hulme J would have reasonable prospects of success. 15An order under s 98(4)(d) of the Civil Procedure Act 2005, that Mr Bar-Mordecai pay a proportion of the costs, is a discretionary order of the court. This order is only liable to be set aside if the judgment giving rise to it is erroneous in the sense described by the High Court of Australia in House v the King [1936] HCA 90; 55 CLR 499. The argument put forward by Mr Bar-Mordecai in his submissions concentrates on what I have earlier described as the process error in Johnson J's judgment. It does not suggest any other discretionary error. 16I have read the decision of Hulme J which is before me. I can find nothing obvious in that decision, which suggests that an error of a kind necessary to have it set aside, has been identified. And for my part I can see no basis upon which a summons seeking leave to appeal against that order would, in the Court of Appeal, have any prospects of success. 17In those circumstances, I am not prepared to make the orders sought by Mr Bar-Mordecai in his summons filed 28 May 2012 and I decline to grant leave pursuant to the Vexatious Proceedings Act for him to institute proceedings by way of a summons for leave to appeal from the orders of Hulme J dated 23 April 2010. 18I dismiss the application.