Supreme Court New South Wales Medium Neutral Citation: Application of Michael Bar-Mordecai [2013] NSWSC 1265 Hearing dates: On the papers Decision date: 05 September 2013 Jurisdiction: Common Law Before: Garling J Decision: (1) Application for leave to commence proceedings pursuant to s 14 of the Vexatious Proceedings Act 2008, contained in Order 2 of the Summons filed 8 August 2013, is dismissed. (2) The Summons filed 8 August 2013 is otherwise dismissed. Catchwords: PROCEDURE - Vexatious Proceedings Act 2008 - Application for leave to institute proceedings - Ordinary Procedure - No prima facie basis disclosed - No matter of general principle Legislation Cited: Health Practitioner Regulation National Law (NSW) No.68a Supreme Court Act 1970 Uniform Civil Procedure Rules 2005 Vexatious Proceedings Act 2008 Cases Cited: Application by Michael Bar-Mordecai [2012] NSWSC 501 Attorney-General v Bar-Mordecai [2005] NSWSC 142 Bar-Mordecai - Application re Vexatious Proceedings Act 2008 [2013] NSWSC 532 Bar-Mordecai v Attorney-General of NSW [2012] NSWSC 453 Bar-Mordecai v Health Care Complaints Commission [2002] NSWCA 192 Category: Principal judgment Parties: Michael Bar-Mordecai (A) Representation: In person (A) File Number(s): 2013/240727 Judgment - Application under Vexatious Proceedings Act 2008 The Application 1On 8 August 2013, Michael Bar-Mordecai, filed a Summons in which he claims the following relief: "1. Order that the Supreme Court register the Applicant as of right, and without an inquiry, on the grounds that he was unlawfully deregistered; or in the alternative, 2. An order that the Plaintiff be granted leave pursuant to the Vexatious Proceedings Act 2008 [VPA] to institute proceedings by way of lodging an application for review with the Executive Officer of the Medical Council being an application for review in the Medical Tribunal of NSW under s 163A of the Health Practitioner Regulation National Law (NSW) for the review of the unlawful non-tribunal decision of Cooper DCJ of 6 September 2000, where the Applicant's name was removed from the register by the unlawful orders of a lay judicial member of the Medical Tribunal, who surreptitiously and clandestinely usurped the decision making function of the two expert Medical Tribunal members. 3. An order that the final hearing be adjudicated and heard by a newly constituted Medical Tribunal of NSW, with an impartial judicial officer or no judicial officer having regard to the history of the matter and the plague of judicial corruption inherent in the Medical Tribunal of NSW, as identified by Elkaim DCJ of the Medical Tribunal of NSW with his orders dated 21.2.2013. 4. An order that the Medical Council of NSW not be joined as a party/contradictor in the Medical Tribunal litigation in terms of having relied on expert medical witnesses to advocate and give false and unfounded expert opinion evidence to mislead the Medical Tribunal of NSW. 5. Costs." 2This is not the first application by Mr Bar-Mordecai with respect to his desire to commence proceedings against the Medical Council of NSW, or else one of its principal officers. There have been a number of previous applications. 3In support of the Summons, Mr Bar-Mordecai has filed an affidavit sworn 7 August 2013 of 36 pages, accompanied by a folder of annexures. 4In addition, on 8 August 2013, Mr Bar-Mordecai filed lengthy and comprehensive submissions. Vexatious Litigant 5The applicant, Mr Bar-Mordecai is a vexatious litigant. 6On 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. 7On 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. 8As 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. 9I 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]. 10As 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". 11In 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. Previous Proceedings 12On 6 September 2000, the Medical Tribunal of New South Wales ordered that Mr Bar-Mordecai be deregistered as a medical practitioner. It prohibited him from making an application for a review of that order for a period of seven years. It ordered him to pay the costs of the Complainant, which was the Health Care Complaints Commission of NSW. 13For many reasons, Mr Bar-Mordecai does not accept and challenges the legitimacy of, and the correctness of, this judgment. Amongst the many reasons are: * the judgment was not a legitimate one because, notwithstanding that it was signed by all members of the Tribunal, that it was in truth, only the judgment of the Deputy Chairperson, Cooper DCJ; * the evidence of expert and lay witnesses was fraudulent. This evidence was one basis upon which the Tribunal acted, hence the Tribunal's judgment is fraudulent; and * the Tribunal's findings of fact and reasoning were flawed with the result that the conclusions reached by the Tribunal, and its orders were erroneous; 14On 28 May 2002, the Court of Appeal dismissed an appeal against the orders of the Medical Tribunal of NSW: Bar-Mordecai v Health Care Complaints Commission [2002] NSWCA 192. An application for leave to appeal to the High Court of Australia was made in 2007 and it was dismissed in August 2008. 15Since that time, Mr Bar-Mordecai in many different ways has attempted to challenge, and have set aside, the orders made by the Medical Tribunal in September 2000. So far as appears from the affidavit and the annexures which have been filed in support of the present application, there have been at least 10 attempts, and perhaps more. 16In July 2006, Mr Bar-Mordecai applied to the Medical Tribunal of NSW to be re-registered. This application was dismissed on 15 December 2006. 17In September 2007, Mr Bar-Mordecai again applied to the Medical Tribunal of NSW to be re-registered. This application was dismissed on 18 March 2009. The Tribunal ordered that Mr Bar-Mordecai not apply for a review of his deregistered status for a further period of three years. The Tribunal's reasons are reported in [2009] NSWMT 1. 18Mr Bar-Mordecai, again, does not accept, and challenges the legitimacy of, and the correctness of, this Tribunal judgment. 19On 24 April 2012, Beech-Jones J for the reasons which he delivered, granted leave to Mr Bar-Mordecai, to institute proceedings in the Medical Tribunal to seek a review of the order for his de-registration: Bar-Mordecai v Attorney-General of NSW [2012] NSWSC 453. The grant of leave was subject to conditions, which amongst other things, restricted the relief which he could seek, and the grounds upon which the proceedings could be brought in the Tribunal. 20Although, Mr Bar-Mordecai does not accept the correctness of that part of the decision of Beech-Jones J, in which his Honour imposed the various conditions, he has commenced proceedings in the Medical Tribunal seeking a review of the order for his deregistration. Those proceedings have not yet been finally determined. 21On 9 April 2013, Mr Bar-Mordecai filed a Summons which, in effect, sought leave to commence proceedings in the Medical Tribunal to challenge the order for his deregistration, including on grounds that Beech-Jones J had specifically disallowed and without the conditions and restrictions which Beech-Jones J had imposed. Fullerton J dismissed the proceedings. Her Honour's reasons are in Bar-Mordecai - Application re Vexatious Proceedings Act 2008 [2013] NSWSC 532. 22Her Honour was satisfied that the proceedings before her, were an attempt by Mr Bar-Mordecai to re-litigate the issues which had been determined by Beech-Jones J, and further, sought orders which the Supreme Court could not make. Her Honour was satisfied that the proceedings for which leave was sought would be, if instituted, vexatious proceedings within the meaning of the VP Act. 23Mr Bar-Mordecai submits, amongst other things, that Fullerton J's dismissal of his application was: "... punitive, misconstrued, and condemned the Plaintiff to remain a parasite on Centrelink instead of being a productive medical practitioner, because he chooses to confront and expose judicial conspiracy and corruption in the public interest." Proposed Application 24Mr Bar-Mordecai has included in the evidence filed in this application, a proposed draft of the Application which he wishes to make to the Medical Tribunal, and for which he seeks leave under the VP Act. It is plain from that document that the application is being made pursuant to s 163A of the Health Practitioner Regulation National Law (NSW) No.86a. The application seeks an order that Mr Bar-Mordecai's name be entered onto the Medical Register. 25The proposed application seeks from the Medical Tribunal the same orders, and pursuant to the same legislative provisions, as the applications which were placed before, and considered by Beech-Jones J and Fullerton J. Mr Bar-Mordecai's submissions 26The submissions filed by Mr Bar-Mordecai on this application make it plain that what he seeks to do in the course of any hearing in the Medical Tribunal, if leave to proceed with the Application is granted, is to seek to challenge the lawfulness, and appropriateness of the previous decisions of the Medical Tribunal of 6 September 2000, and 18 March 2009. 27Such an approach is impermissible: s 163C (NSW) No.86a. Further, such an approach was rejected by both Beech-Jones J, and Fullerton J Discernment 28I am satisfied that the application for leave to institute proceedings by way of an application to the Medical Tribunal for a Review pursuant to s 163A of (NSW) No.86a must be dismissed pursuant to s 15 of the VP Act. 29My reasons for this conclusion include, but are not limited to, those which follow, which are more than sufficient as a basis for the order: 30First, the material provided to the Court on this application, discloses that the principal basis which is to be argued as justifying the Medical Tribunal in making orders for re-registration, namely the lawfulness, and appropriateness of the previous decisions of the Medical Tribunal of 6 September 2000, and 18 March 2009 is not permitted by the legislation, and doomed to fail. 31Secondly, s 14(6) of the VP Act does not permit of any appeal from a decision of this Court disposing of an application for leave to institute proceedings under the VP Act. Having regard to the reasons for judgment of Beech-Jones J, and Fullerton J, I am satisfied, as a matter of substance and effect, that this application is an attempt to appeal against their decisions. 32Thirdly, there is no evidence or other material provided with the application which addresses the present fitness to practice of Mr Bar-Mordecai, which is an essential pre-condition to the Medical Tribunal granting the orders sought in the proposed application. Hence there has been a failure to comply with s 14(3)(b) of the VP Act, and the Court, for that reason alone, is obliged to dismiss the application: s 15(1)(a) of the VP Act. 33Fourthly, it is not open to this Court, and it has no power, to make orders 1, 3 and 4 of the Summons. Accordingly, in so far as the Summons includes those claims for relief, it is an abuse of process, and ought be summarily dismissed: r 13.4(1) Uniform Civil Procedure Rules 2005. Orders 34I make the following orders: (1)The application for leave to commence proceedings pursuant to s 14 of the Vexatious Proceedings Act 2008, contained in Order 2 of the Summons filed 8 August 2013, is dismissed. (2)The Summons filed 8 August 2013 is otherwise 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