Application by Bar-Mordecai [2016] NSWSC 1728

Supreme Court New South Wales

Medium Neutral Citation: Application by Bar-Mordecai [2016] NSWSC 1728 Hearing dates: On the Papers Date of orders: 06 December 2016 Decision date: 06 December 2016 Jurisdiction: Common Law Before: Wilson J Decision: Application dismissed. Catchwords: PROCEDURE – vexatious litigant – Vexatious Proceedings Act 2008 (NSW) – vexatious litigant seeks leave to appeal against NCAT orders – failure to disclose viable grounds of appeal – matters of personal abuse advanced – proceedings vexatious – no prima facie case disclosed Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil and Procedural Rules 2005 (NSW) Vexatious Proceedings Act 2008 (NSW) Cases Cited: Attorney General v Bar-Mordecai [2005] NSWSC 142 Bar-Mordecai v Medical Council of NSW (No 2) [2015] NSWCATOD 58 Category: Principal judgment Parties: Michael Bar-Mordecai (Applicant) File Number(s): 2016/309518 Publication restriction: None.

Judgment 1. On 1 April 2015 the NSW Civil and Administrative Tribunal ("NCAT") ruled upon an application by Michael Bar-Mordecai seeking his re-instatement as a Medical Practitioner: Bar-Mordecai v Medical Council of NSW (No 2) [2015] NSWCATOD 58. NCAT made a number of orders, the first four of which are the subject of the present claim. Those orders are as follows: "1. The application of the Applicant for a reinstatement order is refused and dismissed. 2. Order 1 must not be reviewed until after the expiration of 3 years from this date. 3. The Applicant must pay the costs of the Respondent of and incidental to these proceedings since the application was filed, such costs to be as agreed or as assessed. 4. As the Applicant informed the Tribunal at the hearing that if his application was refused he would consider committing suicide, the Registrar is requested to notify the Applicant's General Practitioner and the Acute Care Team for the Eastern Suburbs Mental Health Services and inform them of these orders and this request." 1. Mr Bar-Mordecai wishes to appeal against the NCAT orders pursuant to s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) (the "CAT Act"), but cannot do so without the leave of this Court. That is so because he is a vexatious litigant, having been made subject to relevant orders by Patten AJ on 25 February 2005: Attorney General v Bar-Mordecai [2005] NSWSC 142. Patten AJ's orders prohibit the applicant from instituting proceedings in any court without the leave of the Supreme Court. 2. Applications for leave by vexatious litigants are governed by the Vexatious Proceedings Act 2008 (NSW) ("the VP Act"). 3. Section 14 of the VP Act relevantly provides: "14 Application for leave to institute proceedings (1) This section applies to a person (the applicant) who is: (a) subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or [...] (2) The applicant may apply to an appropriate authorised court for leave to institute proceedings that the order would otherwise prohibit the person from instituting. (3) The applicant must file an affidavit with the application that: (a) lists all occasions on which the applicant has applied for leave: (i) under this section, or (ii) before the commencement of this section-as required by an order under section 70 of the Land and Environment Court Act 1979 or section 84 of the Supreme Court Act 1970, and (b) lists all other proceedings the applicant has instituted in Australia, including proceedings instituted before the commencement of this section, and (c) discloses all facts material to the application, whether supporting or adverse to the application, that are known to the applicant. (4) The applicant must not serve a copy of the application or affidavit on any person unless: (a) an order is made under section 16 (1) (a), and (b) the copy is served in accordance with the order. (5) An appropriate authorised court may dispose of the application by: (a) dismissing the application under section 15, or (b) granting the application under section 16. (6) Despite any other Act or law, the applicant may not appeal from a decision disposing of the application." 1. By summons filed in the Registry of the Court on 17 October 2016 the applicant seeks "leave to file a Notice of Appeal in the Court of Appeal of the Supreme Court against the four Orders dated 1.4.2015 and the Reasons for Decision of the NCAT in Bar-Mordecai v Medical Council of NSW wrongly dated 1 April 2015 and published on 2.7.2015". 2. Provided in support of the application are some ten folders of closely typed submissions and other documentary material, in part in duplicate. 3. The question of whether or not the application for leave should be granted is governed in part by the provisions of s 15 of the VP Act, which provides: "15 Dismissing application for leave (1) An appropriate authorised court must dismiss an application made under section 14 for leave to institute proceedings if it considers: (a) the affidavit required by section 14 (3) does not substantially comply with that subsection, or (b) the proceedings are vexatious proceedings, or (c) there is no prima facie ground for the proceedings." 1. If leave is proposed to be granted, s 16 applies, requiring that notice must be given to certain persons. Section 16 provides: "16 Granting application for leave (1) Before an appropriate authorised court grants an application made under section 14 for leave to institute proceedings, it must: (a) order that the applicant serve each relevant person with a copy of the application and affidavit and a notice that the person is entitled to appear and be heard on the application, and (b) give the applicant and each relevant person an opportunity to be heard at the hearing of the application. (2) At the hearing of the application, the court may receive as evidence any record of evidence given, or affidavit filed, in any proceedings in any Australian court or tribunal in which the applicant is, or at any time was, involved either as a party or as a person acting in concert with a party. (3) The court may grant leave to institute proceedings subject to the conditions that the court considers appropriate. (4) However, the court may grant leave only if it is satisfied that: (a) the proceedings are not vexatious proceedings, and (b) there are one or more prima facie grounds for the proceedings. (5) In this section: "relevant person", in relation to the applicant for leave to institute proceedings, means each of the following persons: (a) the person against or in relation to whom the applicant proposes to institute the proceedings, (b) the Attorney General […]" 1. The procedure thus is that a vexatious litigant must apply to the Court for leave to institute proceedings, by making an application which complies with s 14(3) of the VP Act. Section 15 requires the Court to dismiss the application in the three situations set out in s 15(1). If an application is not dismissed the Court must make orders pursuant to s 16 of the Act for the applicant to serve each relevant person with a copy of the application, and the other documents referred to in the section. There is then a further hearing. After hearing from the applicant and the relevant persons the Court may grant leave only if satisfied of the matters in s 15(4), and must dismiss them after that hearing if any of the matters in s 15(1) apply.