Bar-Mordecai Application re Vexatious Proceedings Act 2008 [2013] NSWSC 532

Supreme Court New South Wales

Medium Neutral Citation: Bar-Mordecai Application re Vexatious Proceedings Act 2008 [2013] NSWSC 532 Hearing dates: On the papers Decision date: 09 May 2013 Before: Fullerton J (In chambers) Decision: Summons dismissed Catchwords: PRACTICE AND PROCEDURE - application for leave to institute proceedings where vexatious proceedings order made in respect of applicant Legislation Cited: Health Practitioner Regulation National Law (NSW) Medical Practice Act 1992 Vexatious Proceedings Act 2008 Cases Cited: Bar-Mordecai v Attorney General of New South Wales [2012] NSWSC 453 Category: Procedural and other rulings Parties: Michael Bar-Mordecai File Number(s): 2013/107099

Judgment 1On 9 April 2013 Michael Bar-Mordecai filed a summons seeking various orders related to the conduct of proceedings he has instituted in the Medical Tribunal of New South Wales pursuant to leave granted by Beech-Jones J on 24 April 2012 under s 16 of the Vexatious Proceedings Act 2008 ("the Act") (Bar-Mordecai v Attorney General of New South Wales [2012] NSWSC 453). In the alternative, he seeks orders to enable this Court to assume the conduct of those proceedings and an order waiving the restrictions to which he is subject by reason of his status as a vexatious litigant. 2The summons was supported by an affidavit dated 8 April 2013 to which was annexed a lever arch volume of materials, including a list of the applications he has made for leave to institute or continue proceedings as required by s 14 of the Act and a detailed statement of what he contends are the facts material to the current application. He also relied upon an affidavit dated 12 April 2013. 3In accordance with s 15(1)(b) and/or s 15(1)(c) of the Act, the summons is dismissed and for the following reasons. 4The grant of leave permitting Mr Bar-Mordecai to file an application in the Medical Tribunal seeking reinstatement as a medical practitioner was in expressly confined terms. His Honour was satisfied that the jurisdiction conferred on the Tribunal by s 163C of the Health Practitioner Regulation National Law (NSW) ("the National Law") and the powers conferred on it by s 163B of the National Law, namely to inquire into whether an applicant for reinstatement is a fit and proper person to practice medicine as at the date of filing the application and has maintained competence (knowledge and skill) in medicine since deregistration, necessitated that the leave be in confined terms. In so doing, his Honour expressly rejected a number of additional grounds for reinstatement Mr Bar-Mordecai wished to pursue relating to the conduct of two judicial officers who have presided over Tribunals that have dealt with Mr Bar-Mordecai in the past. Without descending into the particulars of those allegations, Mr Bar-Mordecai alleged that each of the two judicial officers acted unlawfully and in breach of certain provisions of the Medical Practice Act 1992 (since repealed). His Honour considered both grounds as scandalous. He was also satisfied that the Tribunal had no jurisdiction to deal with either of the allegations in any event (see paragraphs 17-20 and 30-32 of his Honour's judgment). 5The first order sought by the summons seeks a grant of leave to permit Mr Bar-Mordecai to institute proceedings by lodging an application with the executive officer of the Medical Council to review what is referred to as "the unlawful decision of 6 September 2000 where the applicant's name was removed from the register". The second order sought in the summons seeks an order that this Court, by its own motion, set aside "the unlawful, non-Medical Tribunal judgments of 6 September 2000 and 18 March 2009" or, in the alternative, that leave be granted to permit Mr Bar-Mordecai to apply to the Court for orders to the same effect. It is clear beyond question that the challenge to both of these decisions concern the same two judicial officers and relate to the same allegations of misconduct that were considered by Beech-Jones J, and expressly rejected by him as permissible grounds, when leave was granted to Mr Bar-Mordecai to bring proceedings in the Tribunal for reinstatement. 6Quite apart from the fact that this Court does not have the jurisdiction to determine the question of Mr Bar-Mordecai's application for reinstatement, whether on its own motion or otherwise (and none is identified in the materials relied upon in support of the summons), the relief sought in the summons is a blatant attempt to re-litigate a matter resolved by an order of a Judge of this Division. For that reason alone it qualifies as a vexatious proceeding as defined in ss 6(a), 6(b) and 6(c) of the Act obliging me to refuse the application brought by summons in accordance with s 14(1)(b). 7I note in that connection that when the application for reinstatement came before the Medical Tribunal in October 2012, the proceedings were adjourned because the material filed by Mr Bar-Mordecai in support of the application exceeded the leave granted by Beech-Jones J in various respects, including alleged breaches of the Medical Practice Act by the same judicial members of the Tribunal and because of a further allegation that they also breached s 377 of the Crimes Act 1900. This necessitated the Tribunal setting a timetable for the filing of relevant evidence in order for the application for reinstatement to be considered. After successive directions hearings, on 21 February 2013 the Deputy Chairperson found that, in apparent continuing defiance of the orders of this Court and the Tribunal, Mr Bar-Mordecai continued to rely upon documents and other material offending the leave granted by this Court. In the result, no hearing date has been fixed for the hearing of the application for reinstatement nor can it be whilst ever Mr Bar-Mordecai persists in his determination to rely upon such material. No principled basis has been advanced for an order that this Court direct the Tribunal that Mr Bar-Mordecai be permitted to rely upon "the affidavits, submissions and USBs filed and served" in the proceedings before the Tribunal, particularly when I assume it is the very material which the Tribunal has refused to receive, it being beyond the leave granted by Beech-Jones J. 8Additional orders sought by summons, the effect of which would be to direct the Tribunal to deal with the application before it without directions and on an expedited basis; that the hearing be constituted by medical practitioners in the absence of a judicial officer; and that the Medical Council not be joined as a party or contradictor, were also dealt with and rejected by Beech Jones J. This further reinforces my view that the proceedings instituted by summons dated 9 April 2013 qualify as a vexatious proceedings as defined in ss 6(a), 6(b) and 6(c) of the Act, thereby invoking the mandatory operation of s 15 of the Act.