Supreme Court New South Wales Medium Neutral Citation: Application of Michael Bar-Mordecai [2013] NSWSC 1253 Hearing dates: On the papers Decision date: 05 September 2013 Jurisdiction: Common Law Before: Garling J Decision: The application for leave to commence proceedings pursuant to s 14 of the Vexatious Proceedings Act 2008, contained in the Summons filed 29 July 2013, is dismissed Catchwords: PROCEDURE - Vexatious Proceedings Act 2008 - Application for leave to institute proceedings - Ordinary Procedure - Whether proceedings to be instituted vexatious or lack prima facie ground - Proceedings vexatious - No matter of general principle Legislation Cited: Supreme Court Act 1970 Vexatious Proceedings Act 2008 Cases Cited: Application by Michael Bar-Mordecai [2012] NSWSC 501; Attorney-General v Bar-Mordecai [2005] NSWSC 142 Category: Principal judgment Parties: Michael Bar-Mordecai (A) Representation: Counsel: In person (A) File Number(s): 2013/229679 Judgment - Application under Vexatious Proceedings Act 2008 The Application 1On 29 July 2013, Michael Bar-Mordecai, filed a Summons in which he claims the following relief: "1. An Order that the Court grant leave to the Plaintiff to extend the timer of filing in order to file his Statement of Claim in spite of the statute of limitation o six years, on an intentional tort of assault, i.e. extend from 6 years to 15 years. 2. An order that the Plaintiff be granted leave to file a Statement of Claim for the intentional tort of assault perpetrated in late mid 1998 by His Honour Justice Clifford Roy Einstein, a retired judge of the Supreme Court, as the Plaintiff seeks leave on the grounds that he five years out of time. 3. Costs." (sic) 2In support of that Summons, Mr Bar-Mordecai has filed two affidavits, each dated 29 July 2013. 3Although Mr Bar-Mordecai has not filed any submissions in these proceedings, I have had regard to submissions made in other applications in which reference has been made to these proceedings. Vexatious Litigant 4The applicant, Mr Bar-Mordecai is a vexatious litigant. 5On 24 February 2005, Patten AJ made an order pursuant to s 84(1) of the Supreme Court Act 1970, with respect to Mr Bar-Mordecai, in the following terms: "1. That Michael Jacob Bar-Mordecai shall not, without leave of this Court institute proceedings in any Court. 2. That any legal proceedings instituted by Michael Jacob Bar-Mordecai, in any Court before the date of this order, shall not be continued by him without leave of this Court." There were other consequential orders: Attorney-General v Bar-Mordecai [2005] NSWSC 142. 6On 1 December 2008, the Vexatious Proceedings Act 2008 (the "VP Act"), commenced. Orders pursuant to s 84 of the Supreme Court Act, which were in existence at that time, are now taken to be, and to have effect as if the orders are, a vexatious proceedings order made under s 8 of the VP Act. 7As a result, the VP Act applies to Mr Bar-Mordecai, which means that should he wish to institute any proceedings, then he must only do so consequent upon a grant of leave by this Court, in accordance with the legislative scheme set out in the VP Act. 8I have previously expressed my conclusions as to that legislative scheme, and the way in which applications under the VP Act are to be dealt with. There is no need for me to repeat those conclusions here. They can be found in the Application by Michael Bar-Mordecai [2012] NSWSC 501 at [9]-[20]. 9As those conclusions show, the first step to be considered by the Court is whether to grant leave pursuant to s 16(1) of the VP Act to serve the summons and affidavits on the "relevant persons". 10In considering the application by Mr Bar-Mordecai for leave to commence proceedings under the VP Act, it is open to, and appropriate for, the Court, at this stage, when considering whether to make orders under s 16(1) of the VP Act, to consider whether having regard to the provisions of s 15 of the VP Act, the Summons for leave to commence proceedings must be dismissed. Discernment 11I am satisfied that Mr Bar-Mordecai's application for leave to institute proceedings must be dismissed pursuant to s 15 of the VP Act. 12My reasons for this conclusion include, but are not limited to, those which follow, which are more than sufficient as a basis for the order. 13First, the cause of action which Mr Bar-Mordecai seeks to propound is one for damages based upon an allegation that he was assaulted by Justice Einstein in the course of proceedings in Court. The conduct set out in the proposed pleading, which consists of both words and gestures, even if it were proved as pleaded, is not capable of constituting the tort of assault and therefore, cannot be a proper basis for a claim for damages. 14Secondly, the proposed defendant is the State of NSW. There is no basis in law, and none is identified in the proposed pleading, or submissions, for a finding that the State of NSW is vicariously liable for the conduct of a Judge of the Supreme Court which occurs in the course of that judicial officer conducting a case, as the pleadings here allege. 15Thirdly, the alleged assault occurred on 6 June 1998. The limitation period for any cause of action of the kind which it is sought to plead, has long expired. There is no basis disclosed in the material upon which a Court could grant an extension of time for the commencement of the proceedings. Letter of 28 August 2013 16On 28 August 2013, Mr Bar-Mordecai sent a letter to the Court indicating that he wished to "... withdraw the ... matter on the basis of legal advice prior to a judgment in chambers having been made." 17Rule 12.1 of the Uniform Civil Procedure Rules 2005 requires that the where a party wishes to discontinue any proceedings which have been commenced, then the proper manner of doing so is to file a Notice of Discontinuance in the appropriate form. Such discontinuance, to be effective, requires either the consent of all active parties, or else the leave of the Court. 18No Notice of Discontinuance has been filed, nor has the leave of the Court been sought. The letter of 28 August 2013 does not constitute such a Notice. 19In those circumstances, it is appropriate for the Court to proceed to finally determine the application made by Mr Bar-Mordecai by the filing of the Summons in this matter. Orders 20The application for leave to commence proceedings pursuant to s 14 of the Vexatious Proceedings Act 2008, contained in the Summons filed 29 July 2013, is dismissed. ********** 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: 05 September 2013