Supreme Court New South Wales Medium Neutral Citation: Application by Bar-Mordecai re Vexatious Proceedings Act 2008 [2013] NSWSC 914 Hearing dates: On the papers Decision date: 09 July 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: Supreme Court Act 1970 Uniform Civil Procedure Rules 2005 Vexatious Proceedings Act 2008 Cases Cited: Attorney-General for the State of New South Wales v Bar-Mordecai [2009] NSWSC 218 Bar-Mordecai v Hillston [2004] NSWCA 65 Category: Procedural and other rulings Parties: Michael Bar-Mordecai File Number(s): 2013/125547 Judgment 1FULLERTON J: On 23 April 2013 Michael Bar-Mordecai filed a summons seeking leave to file a statement of claim for various orders related to proceedings instituted by the Health Care Complaints Commission ("the HCCC") as a consequence of which on 6 September 2000 the Medical Tribunal of New South Wales ("the Tribunal") determined that he should be deregistered as a medical practitioner and that any application for a review of that order not be made until after the expiration of seven years from the date of judgment. The order for deregistration was based in part upon a complaint that he was guilty of professional misconduct and/or unsatisfactory professional conduct by engaging in improper or unethical conduct relating to the practice of medicine by both treating a patient (since deceased) with whom he had a personal and sexual relationship and undertaking a course of conduct to obtain financial benefits from her including, inter alia, the destruction or suppression of her will and the signing of her death certificate in circumstances where he considered himself to be a potential beneficiary under her will. 2The challenge Mr Bar-Mordecai seeks to advance in the statement of claim is based upon an allegation that the Tribunal's judgment was procured by the operation of fraud in that the HCCC relied upon lay witnesses they knew to be dishonest and then called them to give deliberately false evidence denying the existence of a de facto relationship between Mr Bar-Mordecai and his patient and, for that reason, the Tribunal's judgment should be set aside 3The summons was supported by a 54 page affidavit dated 22 April 2013 which included a list of the applications Mr Bar-Mordecai has made for leave to institute or continue proceedings as required by s 14 of the Vexatious Proceedings Act 2008 ("the Act") and a detailed statement of what he contends are the facts material to the current application. He also annexed a copy of the decision under challenge and a draft statement of claim of 57 pages which repeats much of what is deposed to in his affidavit. 4In accordance with s 15(1)(b) and/or s 15(1)(c) of the Act, the summons is dismissed and for the following reasons. 5Quite apart from the draft statement of claim being in a form that fails to comply with the bare requisites of a pleading under the Uniform Civil Procedure Rules 2005, and for that reason alone it qualifies as a vexatious proceeding as defined in s 6(c) of the Act obliging me to refuse the application brought by summons in accordance with s 14(1)(b), I am also satisfied that the proceedings qualify as a vexatious proceeding as defined in s 6(a) of the Act as an abuse of process also obliging me to refuse the application brought by summons in accordance with s 14(1)(b). 6The relief sought in the statement of claim is a thinly disguised attempt to re-litigate a matter resolved by the Court of Appeal in 2004 in Bar-Mordecai v Hillston [2004] NSWCA 65 (namely whether a de facto relationship existed between Mr Bar-Mordecai and the deceased) and no less than eight separate judgments of Windeyer J where leave to prosecute various of the lay witnesses who allegedly gave false evidence concerning the existence of the de facto relationship for fraud were dismissed. I note that the allegation fundamental to the statement of claim was also the subject of proceedings before Johnson J where his Honour refused Mr Bar-Mordecai leave to bring proceedings as a vexatious litigant under s 84(4) of the Supreme Court Act 1970 (Attorney-General for the State of New South Wales v Bar-Mordecai [2009] NSWSC 218). ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 July 2013