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. Section 15 Considerations 1. The first of the s 15 considerations is that set out in s 15(1)(a), and relates to compliance with requirements as to documents. The applicant is obliged to file an affidavit which does three things: lists all applications for leave previously filed by the applicant; lists all other proceedings the applicant has instituted in Australia; and which discloses all facts material to the application that are known to the applicant, whether those facts support the application or otherwise. 2. There are many affidavits of the applicant filed in support of his application but, despite the large volume of material, it is difficult to identify an affidavit which complies with s 14(3) of the VP Act. A number of affidavits accompany the summons, being an affidavit of 11 July 2016, filed on 17 October 2016; an affidavit of 27 July 2016, filed on 28 July 2016; an affidavit of 7 October 2016, which bears no date of filing; an affidavit of 12 October 2016, which similarly has no date of filing endorsed upon it; an affidavit of 13 October 2016, also without filing date; and a further affidavit of 14 October 2016, without filing date. None of those affidavits list all previous applications for lease or all proceedings instituted in Australia. Whilst the content makes reference to events relating to the matters determined by NCAT, it is difficult to conclude that all material facts are disclosed since there is, for example, no statement of the proposed grounds of appeal the applicant seeks to advance. 3. The only affidavit of the applicant that appears to make some partial attempt to address the s 14(3) requirements is an affidavit of 30 November 2015, evidently prepared for another, earlier, application for leave to this Court, which was filed in support of the present application on 17 October 2016. Whilst [15] of that affidavit contains a list of occasions on which the applicant has sought the leave of the Court to commence proceedings, it is plainly dated and incomplete. It does not refer to any such application after 2013, even though – by reference to the Court's database of published judgments – there have clearly been later applications. 4. Further, although [18] – [90] of the affidavit purport to be a disclosure of all material facts known to the applicant, it is difficult to extract from it any comprehensible information as to the question of law raised by the NCAT decision that the applicant seeks to appeal against. Whilst there is much personal abuse directed to various judicial officers, including the Presiding Member who heard the applicant's matter before NCAT, there is little by way of information as to proposed grounds of appeal. 5. The question is whether the affidavits as filed substantially comply with s 14(3), for the purposes of s 15(1)(a). Although I have reservations that the affidavit evidence does represent compliance with s 14(3), little would be served in rejecting the application on that basis, other than to invite a fresh application with an affidavit that meets the requirements, presumably also accompanied by many folders of documentary evidence, which would have to be considered. 6. Having regard to that, I am prepared to conclude that the applicant has substantially complied with s 14(3), and turn to the next consideration. 7. The second s 15 consideration involves a determination as to whether the proceedings are vexatious: s 15(1)(b). Proceedings will be vexatious if they fall within the definition set out in s 6 of the VP Act. Section 6 provides: "6 Meaning of "vexatious proceedings" In this Act, vexatious proceedings includes: (a) proceedings that are an abuse of the process of a court or tribunal, and (b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and (c) proceedings instituted or pursued without reasonable ground, and (d) proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose." 1. The proposed appeal is said by the applicant to be brought pursuant to s 83 of the CAT Act. Section 83 provides: "83 Appeals against appealable decisions (1) A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings." 1. Section 48 of the Supreme Court Act 1970 (NSW) is also relevant. It provides for the assignment of certain matters to the Court of Appeal, relevantly, an appeal from a "specified tribunal": s 48(1)(a)(vii); s 48(2). 2. Section 84(2) of the CAT Act requires appeals to be made within such time and in such manner as required by the Supreme Court. The relevant time for an application for leave to appeal to the Court of Appeal is 28 days after the "material date": r 51.10 of the Uniform Civil and Procedural Rules 2005 (NSW). The material date here is 1 April 2015, that being the date on which the impugned decision of the NCAT was published. 3. Two issues arise for immediate determination relevant to the question of vexatious proceedings: identification of the question of law in relation to which the applicant seeks leave to institute an application for leave to appeal; and the question of leave that applies to an application filed outside the time limits applying to such an application. 4. The latter is most readily dealt with, as the application for leave to appeal that the applicant seeks leave to commence is well out of time, and there is no satisfactory explanation advanced for the delay. The applicant refers in his affidavit of 27 July 2016 to suffering a "severe bout of depression and not coping for several months" after the decision, but it is not clear how that prevented him from taking more timely action (Affidavit of Michael Bar-Mordecai dated 27 July 2016, at [4]) . His reference in the same affidavit to the need to "overcome [his] own inertia" suggests that the delay may not be wholly or even principally attributable to illness (Affidavit of Michael Bar-Mordecai dated 27 July 2016, at [10]). 5. On the material filed, it seems likely that the long and largely unexplained delay would tell against a grant of leave to bring the appeal. Even if the lack of timeliness did not pose a hurdle to the applicant, the availability of arguable grounds of appeal (the second issue) does. 6. The question of law which the applicant seeks to agitate is not revealed in the Summons of 17 October 2016; it is necessary to look elsewhere for information as to the proposed grounds. As noted above, whilst there is a great deal in the affidavit evidence that is critical of NCAT, that criticism is by way of abuse of individuals, rather than by pointing to purported errors of law. 7. It is necessary to go to a document filed by the applicant on 28 July 2016 entitled "The Powers, Grounds, and Submissions for Leave to Appeal" in an attempt to discern what it is the applicant seeks to challenge. 8. That document, dated 18 July 2017, runs to some 250 pages. As with the affidavit evidence, much of its contents amount to no more than personal abuse of judicial officers and other persons. In it the applicant refers to numerous issues, some going back many years, and including other judicial proceedings which appear to be wholly irrelevant to the present matter. 9. Although the applicant referred in the document to "52 grounds" upon which the NCAT decision should be "struck out", much of what is set out in the document amounts to no more than unpleasant vitriol directed at the Presiding Member of the NCAT Panel, and other judicial officers who have had some involvement over time with other applications or proceedings initiated by the applicant. 10. The applicant seeks to decry the decision of NCAT by directing calumny towards the Members, without identifying any viable ground of appeal. He refers to individuals as imbecilic, senile, decrepit, "exhibiting persecutory delusions", suffering delusions of grandeur or an antisocial personality disorder, being cognitively impaired or "frankly incompetent". The applicant accuses NCAT Members (and other judicial officers) of dishonesty, perverting the course of justice, being "fraudsters", committing specified criminal offences, or acting corruptly. None of that delineates a viable case on appeal. 11. The application for leave is framed in such a way that it should be concluded to be vexatious; that is, it has been conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose: s 15(1)(b) of the VP Act. 12. Nor is the third consideration in s 15 met, in that the material does not disclose a proper basis for an appeal such that it is possible to conclude there is a prima facie basis for the proceedings: s 15(1)(c) of the VP Act. 13. There may be some legitimate complaint about the decision made by NCAT in the documentary material filed in support of the summons but, if so, it is lost in the outpouring of offensive abuse that occupies the 250 pages submitted by the applicant. I do not see it as the role of this Court to endeavour to extract from the volumes of vitriol submitted any legitimate complaint that may be hidden within the pages of abuse. 14. The applicant has not articulated any proper basis for an appeal; there is nothing obviously wrong in the NCAT decision as I read it, and no readily identifiable error in the judgment. 15. I conclude that there is no prima facie basis for the proposed application for leave to appeal: s 15(1)(c) of the VP Act. 16. Accordingly, I am unable to detect any legitimate basis for judicial review of the NCAT decision. ORDERS 1. I have concluded that the proposed proceedings are vexatious proceedings as defined by s 6 of the VP Act, and there is no prima facie basis for them. The application must be dismissed pursuant to s 15 of the VP Act. ********** 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: 06 December 2016