Application by Bar-Mordecai [2019] NSWSC 810

Supreme Court New South Wales

Medium Neutral Citation: Application by Bar-Mordecai [2019] NSWSC 810 Hearing dates: On the Papers Date of orders: 28 June 2019 Decision date: 28 June 2019 Jurisdiction: Common Law Before: Walton J Decision: Leave granted to discontinue the summons filed 19 March 2019 in matter number 2019/86784. Catchwords: PROCEDURE – vexatious litigant – Vexatious Proceedings Act 2008 (NSW) – application for leave to appeal – leave to file notice of discontinuance – leave granted Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Vexatious Proceedings Act 2008 (NSW) Cases Cited: Attorney General for NSW v Bar-Mordecai [2019] NSWSC 13 Attorney General v Bar-Mordecai [2005] NSWSC 142 Hunter Quarries Pty Ltd v Morrison (No 4) [2016] NSWIC 4 Category: Principal judgment Parties: Michael Bar-Mordecai (Applicant) File Number(s): 2019/86784

Judgment 1. HIS HONOUR: Mr Michael Bar-Mordecai ("the applicant") is a vexatious litigant, having been made subject in 2005 to an order of this Court prohibiting him from instituting proceedings in any court, without the leave of the Court: Attorney General v Bar-Mordecai [2005] NSWSC 142. On 2 November 2018, that order was varied by Fagan J such that the applicant was prohibited from instituting proceedings "in New South Wales" without the leave of the Court: Attorney General for NSW v Bar-Mordecai [2019] NSWSC 13. The order has effect as a vexatious proceedings order pursuant to s 8(7) of the Vexatious Proceedings Act 2008 (NSW) ("the Act"). 2. On 19 March 2019, in matter number 2019/86784, the applicant filed a summons seeking leave in accordance with s 14(2) of the Act to institute proceedings by filing a Notice of Appeal in the Court of Appeal against orders ("the orders") made by the Guardianship Division of the NSW Civil and Administrative Tribunal ("NCAT") constituted of J Connelly, Senior Member (Legal), J McAuliffe, Senior Member (Professional) and Dr M Spencer, General Member (Community) on 24 January 2019 ("the proceedings"). 3. Section 14 of the Act is in the following terms: 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 (b) acting in concert with another person who is subject to an order referred to in paragraph (a). (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. 1. Section 15 of the Act outlines the circumstances in which an application for leave to institute proceedings must be dismissed, as follows: 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. (2) The application may be dismissed: (a) even if an oral hearing is not held, or (b) even if the applicant does not appear at any hearing of the application. 1. Section 16 of the Act outlines the power of the Court to grant an application for leave, as follows: 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. (4A) A grant of leave to institute proceedings made under this section includes leave to make interlocutory applications, and other procedural applications, in connection with or incidental to those proceedings, unless the grant of leave specifies otherwise. (4B) However, a grant of leave to institute proceedings does not include leave to make the following applications (unless the grant of leave specifically extends to such applications): (a) an application to join a new party to the proceedings, (b) an application to introduce into the pleadings for the proceedings a substantially new cause of action based on facts different from those already pleaded, (c) an application to remove the proceedings from one court or tribunal to another. (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, (c) the Solicitor General, (d) the appropriate registrar for the authorised court that made the vexatious proceedings order concerned if the registrar applied for the order in relation to the applicant, (e) any person referred to in section 8 (4)(d) or (e): (i) who applied for a vexatious proceedings order in relation to the applicant, and (ii) who the appropriate authorised court dealing with the application considers should be served, (f) any person: (i) who made an application in relation to the applicant under section 70 of the Land and Environment Court Act 1979 or section 84 of the Supreme Court Act 1970 before the commencement of this section, and (ii) who the appropriate authorised court dealing with the application considers should be served. 1. The orders were in the following terms: FINANCIAL MANAGEMENT 1. The estate of Seemah Morris is subject to management under the NSW Trustee and Guardian Act 2009. 2. The management of the estate of Seemah Morris is committed to the NSW Trustee and Guardian. 3. This order be reviewed by the Tribunal within 2 months. GUARDIANSHIP The guardianship order for Seemah Morris made on 16 October 2018 has been reviewed. The order now is as follows: 1. The Public Guardian is appointed as the guardian. 2. This is a continuing guardianship order for a period of 2 months from 24 January 2019. 3. This is a limited guardianship order giving the guardian custody of Seemah Morris to the extent necessary to carry out the functions below. FUNCTIONS: 4. The guardian has the following functions: a) Access To decide what access Seemah Morris has to others and the conditions of access. b) Accommodation To decide where Seemah Morris may reside. c) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to: i) take Seemah Morris to a place approved by the guardian. ii) keep her at that place. iii) return her to that place should she leave it. d) Services To make decisions about services to be provided to Seemah Morris. e) Legal services To make decisions for Seemah Morris in relation to access to legal services. CONDITIONS: 5. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring Seemah Morris to an understanding of the issues and to obtain and consider their views before making significant decisions. 1. Prior to the Court determining the application for leave for the filing of the notice of appeal in accordance with ss 15 and 16 of the Act respectively, on 30 May 2019, the applicant filed a document entitled "Notice of Discontinuance matter no. 2019/86784" ("the Notice"). 2. While the Notice was not in the proper form of a notice of discontinuance as dictated by r 12.1 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), it is appropriate in the circumstances to waive strict compliance with the rule. The applicant was self-represented and the Notice was largely in the correct form. 3. By the Notice, the applicant sought, inter alia, the following: … to discontinue the proceedings in Bar-Mordecai ex parte matter no. 2019/86784 for leave to file a Notice of Appeal to the Court of Appeal in the matter of Seemah Morris. 1. The applicant thus sought to discontinue the summons filed 19 March 2019. 2. Rule 12.1 of the UCPR, inter alia, confers power to discontinue proceedings in the following terms: 12.1 Discontinuance of proceedings (1) The plaintiff in any proceedings may, by filing a notice of discontinuance, discontinue the proceedings, either as to all claims for relief or as to all claims for relief so far as they concern a particular defendant: (a) with the consent of each other active party in the proceedings, or (b) with the leave of the court. 1. The discontinuance of the application for leave under s 14(2) of the Act plainly falls within the scope of r 12.1. The term "proceedings" is not defined under the UCPR but is used in a broad way in the UCPR. The scope of the term proceedings, when used in such a broad sense, was relevantly discussed by the Industrial Court of NSW in Hunter Quarries Pty Ltd v Morrison (No 4) [2016] NSWIC 4 (at [69]-[73]) as follows: [69] The term "proceedings" generally may be ambiguous. It may mean an action or cause of action in totality or it may mean a step in the proceedings. "The ordinary or natural meaning or meanings of the word 'proceedings' standing by itself, without any adjectival description, are so general and imprecise that the dictionary definitions do not carry the matter any further": Quazi v Quazi [1979] 3 All ER 424 at 429 per Ormrod J. [70] The term has been taken to mean the totality of a cause of action, but, nowadays, is more commonly used in a less technical sense. In the context of the English rules of court, the United Kingdom Court of Appeal said: "The wording of [the rules of court] confirms me in the view that 'proceedings' means the day-to-day steps in the action, since that provides that proceedings can cure themselves of irregularity by delay, in the sense that the other party cannot rely on an irregularity unless making complaint within reasonable time": Smalley v Robey & Company Ltd [1962] 1 Q.B. 577. [71] In other words, the United Kingdom Court of Appeal held, in that context, that a proceeding was the step in an action, rather than the action (or, in that case, the writ) itself. Earlier cases are to different effect, but in a different context: see Pryor v City Officers Company (1883) 10 Q.B.D 504 in the context of the Judicature Act 1873. [72] In Australia, the High Court has had occasion to look at the term "proceeding" in the context of the Service and Execution of Process Act 1992 (Cth), during which Isaacs and Gavan Duffy JJ said: "A 'proceeding' used broadly, as it is used in s 16 of the Federal Service and Execution of Process Act, is merely some method permitted by law for moving a Court or judicial officer to some authorised act, or some act of the Court or judicial officer": Cheney v Spooner [1929] HCA 12; (1929) 41 CLR 532 at 536, 537. [73] See also Krextile Holdings Pty Ltd v Widdows; Re Bruch Fabrics Proprietary Limited [1974] VR 689 at 693, per Gillard J. 1. The term "any proceedings" in r 12.1 of the UCPR is therefore to be construed broadly as to encompass the present application to discontinue. The application to discontinue the summons is clearly a step in the process commenced by the summons, as distinct from the summons itself. 2. Having found that the application falls within the scope of r 12.1 of the UCPR, I further note that there are sufficient reasons for the Court to grant leave to discontinue under r 12.1(1)(b) of the UCPR. The applicant is the only active party in the proceedings and, as mentioned above, is self-represented. I do not consider that the summons, or at least a significant part of it, attracts the operation of s 15 of the Act. 3. I therefore grant leave to the applicant under r 12.1(1)(b) of the UCPR to discontinue the summons filed 19 March 2019. 4. By the Notice, the applicant also sought an order for "the returning of the filing fee to the applicant, Michael Bar-Mordecai post haste". It was not entirely clear which filing fee the applicant wished to be returned. Nevertheless, it is not appropriate for this Court to determine whether such a step should be taken. Rather, any application should be directed to the Court Registry.