Bar-Mordecai v Attorney General (NSW); Bar-Mordecai v State of New South Wales [2012] NSWCA 207

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Bar-Mordecai v Attorney General (NSW); Bar-Mordecai v State of New South Wales [2012] NSWCA 207 Hearing dates: 18 June 2012 Decision date: 09 July 2012 Before: Beazley JA at [1]; Basten JA at [3]; Sackville AJA at [65] Decision: In matter CA 2004/180898: (1) Grant the applicant leave to appeal in respect of the answers given to the questions identified by Davies J. (2) Allow the appeal and set aside the answers given. (3) Direct that the questions be answered as follows: Question: Whether on the proper construction of the Vexatious Proceedings Act 2008: (a) the [applicant] may, in the absence of any order of the Court requiring or authorising him to do so, lawfully serve and/or rely upon additional evidence in support of one or more of his pending leave applications; and if not (b) whether the Court may lawfully make an order requiring or authorising him to do so. Answer: In respect of both parts of the question - (i) the Vexatious Proceedings Act does not confer on the Court power to require the applicant, by order or otherwise, to serve evidence additional to the affidavit required by s 14(3) of the Act; (ii) the Vexatious Proceedings Act does not require that the applicant obtain leave to rely upon evidence in addition to the affidavit provided under s 14(3) at any hearing in respect of the application; (iii) the Vexatious Proceedings Act does not permit, and impliedly prohibits, the service by the applicant on any person of any evidential material relevant to his application prior to the Court ordering that the application and affidavit under s 14(3) be served, pursuant to s 16(1)(a); (iv) the Court may give such directions or make such orders as may properly be made in accordance with the Civil Procedure Act and the Uniform Civil Procedure Rules in respect of any hearing in respect of the application, including as to the manner and circumstances in which evidence may be proffered. (4) Order the respondent to pay the applicant's costs in this court as an unrepresented party. In matter CA 2009/338296: (1) Grant the applicant leave to appeal from order 4 made by Truss DCJ on 4 March 2011, dismissing the applicant's amended notice of motion filed 25 February 2011. (2) Allow the appeal and set aside the order. (3) Direct the District Court to consider the applicant's motion according to law. (4) Order the respondent to pay the applicant's costs in this court as an unrepresented party. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: COURTS AND TRIBUNALS - judgments and orders - construction of orders - whether appropriate to consider the statute conferring the power pursuant to which the order was made or judgment constituting the reasons for the order to resolve ambiguity or lack of clarity in order - whether order restrictive of the civil rights of an individual should be given full effect according to its terms but should not be read expansively