Application by Bar-Mordecai [2013] NSWSC 1048

Supreme Court New South Wales

Medium Neutral Citation: Application by Bar-Mordecai [2013] NSWSC 1048 Hearing dates: 22/7/13 Decision date: 22 July 2013 Jurisdiction: Common Law Before: Campbell J Decision: Application rejected Catchwords: PRACTICE & PROCEDURE - notice of motion - Uniform Civil Procedure Rules 2005 (NSW) r 36.16 - application to set aside a judgment refusing leave to institute proceedings where vexatious proceedings order made in respect of applicant Legislation Cited: Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Vexatious Proceedings Act 2008 (NSW) Cases Cited: Application by Bar-Mordecai [2013] NSWSC 914 Bar-Mordecai v Attorney General (NSW) [2012] NSWCA 207 Bar-Mordecai v Hillston [2004] NSWCA 65 Nominal Defendant v Manning (2000) 50 NSWLR 139 Category: Procedural and other rulings Parties: M. Bar-Mordecai (applicant) Representation: Counsel: In person (applicant) Solicitors: In person (applicant) File Number(s): 2013/125547

EX TEMPORE Judgment 1CAMPBELL J: Mr Bar-Mordecai seeks a direction from me to the Registrar that a notice of motion he has handed up, which I will have marked MFI 1, should be accepted for filing in accordance with the principle discussed by the Court of Appeal in Bar-Mordecai v Attorney General (NSW) [2012] NSWCA 207, per Basten JA (Beazley JA, as her Honour then was, and Sackville AJ agreeing). 2Mr Bar-Mordecai is subject to an order originally made by Acting Justice Patten on 25 February 2005 which has the legal effect that he requires leave of the Court to institute proceedings in accordance with the provisions of s14 Vexatious Proceedings Act 2008 (NSW). 3Mr Bar-Mordecai made such an application in accordance with the established procedure for leave to file a statement of claim against the Health Care Complaints Commission and others relating to a case he wishes to run that the 2000 determination of the Medical Tribunal of New South Wales was procured by fraud. The application was referred to Fullerton J who dealt with the matter in chambers, again, in accordance with the established procedure. Her Honour's judgment is reported as Application by Bar-Mordecai [2013] NSWSC 914. Her Honour refused Mr Bar-Mordecai's application for reasons summarised at [6] of her judgment. Her Honour held that the proceedings were an attempt to re-litigate a matter previously resolved by the Court of Appeal in Bar-Mordecai v Hillston [2004] NSWCA 65. Her Honour's decision was given on 9 July 2013. And the time for "challenging" it pursuant to r 36.16 Uniform Civil Procedure Rules 2005 (NSW) according to Mr Bar-Mordecai's calculation expires tomorrow. 4It is settled law that an application refusing leave to commence proceedings is an interlocutory, not final, judgment of the Court. And there is authority of the Court of Appeal provided by Nominal Defendant v Manning (2000) 50 NSWLR 139 to the effect that the decision in such matters may be revisited in a subsequent fresh application, at least so long as the further application itself does not constitute an abuse of process. Strictly then, the operation of r 36.16 may not arise. 5In Bar-Mordecai v Attorney-General, Basten JA at [39] - [40], after having reviewed pertinent authorities in relation to orders under what was then s84 of the Supreme Court Act 1970 (NSW), said: [39] The reasoning adopted by Patten AJ is consistent with the view that the institution of proceedings, which his order prohibited absent leave, extended to the initiation of any proceeding in any court, any form of application which sought to reopen, review or appeal from an existing determination, but not to a routine interlocutory order in extant proceedings. [40] An order restrictive of the civil rights of an individual may properly be given full effect according to its terms, but should not be read so expansively as to impose restrictions which are neither expressed nor necessarily implied by the terms of the order. On its proper construction, the order made by Patten AJ did not extend to requiring leave in order to obtain an order for discovery in properly instituted proceedings in a court. (Emphasis added). 6Mr Bar-Mordecai accepts that he is bound by the provisions of the Vexatious Proceedings Act regulating the institution of proceedings by him, other than in respect of what Basten JA referred to as an application for "a routine interlocutory order in extant proceedings". 7The proceedings determined by Fullerton J are not extant proceedings. They were proceedings for leave to institute proceedings and her Honour's refusal of the application means that there is no extant proceeding in respect of which a routine interlocutory order may be sought. 8Moreover in my judgment an application to set aside such an order, which must proceed on the basis of settled principles established by the decision of the High Court in Autodesk Inc v Dyason (No. 2) [1993] HCA 6; 176 CLR 300, does not fall into the category of a routine interlocutory application such as an order for discovery in properly instituted proceedings in a court. 9For these reasons I reject Mr Bar-Mordecai's application.