Application by Michael Bar-Mordecai [2016] NSWSC 1518

Supreme Court of NSW|2016-10-10|Before: Wilson J

Judgment

Michael Bar-Mordecai 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. The order has effect as a vexatious proceedings order pursuant to s 8(7) of the Vexatious Proceedings Act 2008 (NSW).
On 23 August 2016 Mr Bar-Mordecai filed a summons seeking leave to file a Notice of Appeal in the District Court of New South Wales against the purported severity of a sentence imposed upon him in the Local Court of New South Wales on 28 July 2016 for an offence of Contravene Apprehended Violence Order. The applicant's submissions in support of his application were also received.
Pursuant to s 16(1) of the Vexatious Proceedings Act, the Court made orders in Chambers on 12 September 2016 requiring the applicant to notify relevant persons of his summons, and directing relevant persons to make any submission concerning the application within a specified period.
The relevant persons for the purposes of the application were Constable Quinn of Waverly Police Station, the Director of Public Prosecutions of New South Wales, The Attorney-General of New South Wales and the Solicitor-General of New South Wales.
Submissions were received from the Attorney General for New South Wales.

Consideration

The Vexatious Proceedings Act empowers the Court to grant leave to institute proceedings subject to the conditions that the Court considers appropriate: s 16(3). Section 16(4) of that Act requires: "16 Granting application for leave […] (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."
The first question is whether the proposed application to the District Court is not vexatious; the second whether there are prima facie grounds for the proceedings.
To some extent the first question is answered by the second, in that, if there appear to be grounds for the proceedings, they would not ordinarily be vexatious.
An application for leave to appeal to the District Court against sentence imposed in the Local Court, pursuant to s 13(1)(a) of the CAR Act, may be made by a person who could have filed an appeal against sentence pursuant to s 11, but for the expiry of the 28 day time limit. The applicant is such a person.
In determining an application for leave to appeal against sentence, the District Court is not restricted in those matters that may be considered. Section 16 of the CAR Act provides only that leave must not be granted unless it is in the interests of justice to do so: "16 Determination of applications for leave to appeal (1) The District Court may determine an application for leave to appeal by dismissing the application or by granting leave to appeal. (2) Leave to appeal must not be granted in relation to an application under section 13 unless the District Court is satisfied that it is in the interests of justice that leave be granted."
Typically, in determining an application for leave, the court may have regard to two features, being the question of delay and any explanation for it, and the question of merit.
The delay that will apply to any application for leave to appeal filed by Mr Bar-Mordecai will not be extraordinary, and the court hearing his application could well consider that it is adequately explained, because of the restrictions that apply to him as a vexatious litigant.
Even had the applicant filed his application to this Court for leave to institute an appeal to the District Court rather earlier than three days prior to the expiration of the 28 day period provided by s 11 of the CAR Act, it is unlikely that his application could have been dealt with in time to permit the applicant to institute an appeal as of right pursuant to s 11. The process mandated by s 16(1) of the Vexatious Proceedings Act is such that it would be almost impossible to determine an application for leave to institute proceedings with sufficient expedition as to allow the applicant to meet the 28 day time frame for an appeal as of right.
In that sense, the failure of the applicant to bring his appeal in time is not attributable to any fault of his and, insofar as delay and an explanation for delay is relevant to the question of leave in the District Court, the applicant has available what may be considered as a reasonable explanation for his failure to bring an appeal within time.
The other consideration that may be material to the question of the grant of leave to the applicant by the District Court is merit.
In that regard, it is important to note that appeals against sentence to the District Court do not proceed upon the basis of an obligation to establish specific error by the sentencing magistrate. Section 17 of the CAR Act provides for an appeal against sentence to be by way of rehearing of the evidence, and permits fresh evidence to be led. Accordingly, the burden on an appellant against sentence to the District Court is not an onerous one. Merit must be considered in that context.
In his draft Notice of Appeal to the District Court the applicant sets out 8 proposed grounds of appeal, including a ground referring to the "trivial" nature of the breach of the apprehended violence order, it being one that "did not mandate any order other than the dismissal of the litigation" (proposed ground 1). The applicant also seeks to rely upon the fact that he has never been convicted of an offence of violence (proposed ground 7). In his affidavit in support the applicant also refers to the fact that he spent one day in custody after being charged with the offence, a matter he considers was overlooked by the sentencing magistrate.
The prospects of success for any appeal that proceeds before the District Court is not something that can (or should) be assessed by this Court, but what can be said is that an appeal reliant upon the matters referred to in [25] is not wholly devoid of merit.
If the issue of delay in bringing proceedings in the District Court is capable of being adequately explained, and the proposed appeal is not wholly without merit, it would be open to the District Court to grant the applicant leave to appeal against sentence.
Since the applicant arguably has some prospects of being granted leave to appeal in the District Court, it cannot be concluded that his motivation in seeking to institute an appeal is such as to render the proceedings vexatious within the meaning of s 6 of the Vexatious Proceedings Act.
Those conclusions militate in favour of a grant of leave to the applicant to institute proceedings in the District Court to seek the leave of that Court to appeal against the sentence imposed upon him. It remains only to consider the proposed grounds of appeal, and determine whether the applicant should be permitted to seek the leave of the District Court to advance them.

Proposed Grounds of Appeal

The appellant seeks to advance 8 grounds of appeal against the sentence imposed by the sentencing magistrate: "Ground 1: The breach of s 14(1) of the Crimes (Domestic and Personal Violence) Act was a trivial breach pursuant to the authorities that did not mandate any order other than the dismissal of the litigation. Ground 2: There were no bona fide grounds or submissions advanced by the Applicant [NSW Police] for the 12 months good behaviour bond from 28.7.2016 to 28.7.2017. Ground 3: The Local Court [Stapleton LCM] erred and abused process in Ordering/placing a 12 month bond on the Defendant with no conditions. Ground 4: There was actual bias and abuse of process displayed by the Magistrate Stapleton in: a) Making an arbitrary order for dismissal of the Defendant's trivial breach of the AVO on 22.5.2016 without giving reasons in support of the Order made against the Defendant in breach of s 14(6) of the Crimes (Domestic and Personal Violence) Act 2007 on 28.7.2016, wherein the Court determined not to impose a sentence of imprisonment on the Defendant, but Stapleton LCM failed to give her reasons for not doing so; (b) Making an arbitrary order for a 12 months good behaviour bond from 28.7.2016 to 28.7.2017 without giving reasons in support of the Order made against the Defendant; (c) Because the breach of the AVO was trivial, it did not mandate an arbitrary order for a 12 months good behaviour bond from 28.7.2016 to 28.7.2017. Ground 5: Magistrate Stapleton LCM made no positive or negative findings on the Defendant in her judgment dated 28.7.2016 to make any orders against the Defendant. Ground 6: Magistrate Stapleton LCM made no positive or negative findings on the Constable of NSW Police who had breached the Court Order and not served the Police Brief by 30 June 2016. Ground 7: The Defendant has never committed any act of violence constituting an offence against a person. Ground 8: The Defendant was obliged to contravene the Court Order not to approach the school that his granddaughter attended, as the reason for the breach was his granddaughter's health (eyesight) had to be urgently addressed, otherwise there was a possibility that she could have suffered blindness."

Ground 1

I have already referred to the proposed ground 1 in a general way. A ground in these terms opens the exercise of the sentencing discretion in that it raises a broad contention that the penalty imposed was excessive having regard to the purportedly trivial nature of the breach. It would also allow the applicant to argue that his offence does not warrant his being made subject to a good behaviour bond, with all the possible consequences should there be a breach of the bond.
In her submissions the Attorney called into question the prospects of success of an appeal on this ground, but properly and fairly conceded that it is not so wholly devoid of prospects as to constitute an abuse of process, or be deemed 'vexatious' within the meaning of section 6 of the Vexatious Proceedings Act. The Attorney does not oppose a grant of leave to the applicant to seek leave to advance the proposed ground 1, and I propose to grant that leave.

Ground 2

The bona fides or otherwise of submissions made by the prosecutor on sentence in the Local Court are entirely irrelevant to the determination of the proceedings the applicant seeks leave to institute. The Attorney, in her submissions, goes so far as to argue that such a ground would be vexatious within the meaning of s 6(b) of the Vexatious Proceedings Act.
The Attorney points to evidence adduced by the applicant in paragraphs [29], [50] - [51] and [54] - [69] of his affidavit which raise a prospect that the proposed appeal ground 2 may be no more than a vehicle for agitating perceived grievances against various police officers. Such matters would be of no relevance in the determination of any appeal, should leave be granted. I accept the Attorney's submission that proposed ground 2 likely constitutes a vexatious proceeding as articulated in ss 6(a), 6(b) and/or s 6(d).
Leave should not be granted to the applicant to seek leave to advance this ground.

Ground 3

The applicant's assertion that the sentencing magistrate perpetrated an 'abuse of process' is not a ground of appeal known to the law and, in any event, it raises no issue that cannot be agitated in any appeal that the applicant may be granted leave to make on other proposed grounds.
An appeal on this ground would be a vexatious proceeding within the meaning of s 6(a) and/or s 6(c) of the Vexatious Proceedings Act and leave to seek to advance such a ground is refused.

Ground 4

This ground also raises abuse of process, together with an assertion of actual bias on the part of the sentencing magistrate. There is no evidence to substantiate the applicant's assertions in this regard and, without evidence, it should be rejected. The Court could not be satisfied on the material before it that an appeal on the grounds of actual bias was not a vexatious proceeding within the meaning of s 6(c) of the Vexatious Proceedings Act.
The sub-grounds can be considered separately to the principle ground at 4. Whilst sub-ground (c) does no more than repeat matters already set out in proposed ground 1, sub-grounds (a) and (b) raise what might be broadly categorised as legal error. Whether assertions of legal error might be made out at the hearing of any appeal cannot be considered by this Court in the absence of the transcript of the Local Court proceedings, or of her Honour's remarks on sentence. It canot be concluded, however, that sub-grounds (a) and (b) are necessarily vexatious and, arguably, the applicant should be permitted to seek to advance them.
In practice, such grounds add little if anything to an appeal from the Local Court, since any appeal will be heard by way of a rehearing of the evidence.
However, the power of the District Court is adequate to ensure that no appeal on this ground will go forward if, when the transcript is obtained, the ground is found to be without merit.
Section 62(2) of the CAR Act provides for that court to amend any application for leave to appeal and any notice of appeal lodged pursuant to s 14(3) of the CAR Act "if it is satisfied that the notice or application is capable of amendment and ought to be amended." The power to amend either document is expressed by s 62(2) of the CAR Act to be exercisable by the District Court when hearing either "an appeal or application for leave to appeal" and s 16(4) of the CAR Act makes clear that the District Court may hear and determine an application for leave to appeal separately from, and prior to, any appeal for which leave is granted.
The District Court's discretion to amend a notice of appeal is in broad terms, and has been broadly construed. It will be open to the District Court, prior to making any grant of leave to appeal, to strike out grounds of appeal that it considers vexatious or otherwise lacking in merit: s 62(2) CAR Act.
It is therefore appropriate to grant the applicant leave to apply to the District Court for leave to appeal on an amended form of Ground 4 from which the words "actual bias and abuse of process displayed" have been deleted from the chapeau, and the words "legal error demonstrated" inserted in their place.

Ground 5

The applicant submits that the sentencing magistrate made no positive or negative findings in her judgment so as to make any orders against him.
The Attorney submits that this ground, in substance, is the same complaint agitated in sub-grounds (a) and (b) of ground 4 and concedes that the Court should, subject to certain conditions, grant the applicant leave to apply to the District Court for leave to appeal on this ground.
Although the ground arguably adds nothing to the proposed appeal, and may be otiose, in view of the Attorney's concession I am prepared to grant leave to Mr Bar-Mordecai to seek to advance this ground.

Ground 6

This ground asserts that the sentencing magistrate failed to make findings in relation to a constable of the NSW Police who had allegedly breached a court order to serve the police brief by a specified date.
The Attorney submits, and I accept, that the failure or otherwise of police to comply with brief service orders is of no consequence to the determination of a sentence appeal. For this reason, an appeal on ground 6 would be a vexatious proceeding within the meaning of s 6(c) of the Vexatious Proceedings Act, and I refuse the applicant leave to apply to the District Court for leave to appeal on Ground 6.

Ground 7

I have referred in a general way already to this proposed ground, in noting that the applicant's criminal antecedents are a feature of relevance to the question of penalty. Accordingly, and for the reasons noted against proposed ground 1, the applicant should have leave to apply to the District Court for leave to appeal on ground 7.

Ground 8

The proposed ground 8 proffers an explanation by the applicant for his breach of the AVO. The applicant asserts that he was "obliged" to breach the order of the Court requiring him to stay away from the school his grandchildren attend, as his grand-daughter's eyesight could have been irreparably damaged if the issue was not "urgently addressed".
The Attorney submits that, insofar as ground 8 raises the question of whether the applicant truly believed that his conduct in breach of the AVO was necessary, it raises a matter going to mitigation of the breach, and thus of relevance in any appeal against sentence.
To the extent, however, that this ground seeks to agitate the question of whether his grand-daughter's health was in fact endangered in the manner alleged by the applicant it raises an issue that is irrelevant to any sentence appeal, but which may be capable of being exploited for the purpose of issuing issue subpoenas to one or more persons, potentially including protected persons, to give evidence and/or produce documents concerning the health of the applicant's grand-daughter at particular times.
In her submissions, the Attorney has expressed concern that any appeal proceedings that the applicant is given leave to institute should not be allowed to be used by him as a vehicle to harass or annoy any protected person, or, indeed, to harass or annoy any person at all: s 6(d) of the Vexatious Proceedings Act.
Proceedings conducted so as to achieve the wrongful purpose of causing harassment or annoyance are vexatious: Viavattene v Attorney General (NSW) [2015] NSWCA 44, at [15], [21].
In Bar-Mordecai v Attorney-General of NSW (No.2) [2013] NSWSC 1538, Garling J dealt with the Attorney's concern by imposing conditions of leave that limited the permissible grounds of appeal and that also imposed a requirement of "further leave of [the Supreme] Court, first had and obtained" to make any application to the District Court for leave to give or adduce fresh evidence at the hearing of the appeal: Bar-Mordecai v Attorney-General of NSW (No.2), at [66]-[67], [71].
In the present case, the applicant seeks leave to commence an appeal against sentence only. Consequently, if the District Court grants the applicant leave to appeal, the applicant will require no further leave of the District Court in order to adduce fresh evidence: s 17 of the Car Act.
The Attorney referred the Court to various paragraphs of the applicant's supporting affidavit (such as paragraphs [39], [40], [41]) which exemplify recent attempts by the applicant to obtain information to which he is not entitled concerning the health of protected persons, and attempts on his part to interfere in the parenting of protected persons, notwithstanding the prohibitions in the AVO that he is guilty of breaching.
Material in the supporting affidavit also suggests (in paragraphs [37], [38], [40]) that the applicant may continue to regard the conduct of a protected person as matters properly to be agitated in relation to the proposed appeal.
It is clearly necessary to impose some restraint upon the applicant in the conduct of the proposed proceedings before the District Court to ensure that they cannot be used as a means of harassing one or more protected persons, or of seeking to obtain access to information by subpoena to which the applicant would not otherwise be entitled.
For those leave to seek to appeal on the proposed ground 8 should be refused.

ORDER

Accordingly, I make the following orders: 1. Pursuant to s 16(3) of the Vexatious Proceedings Act 2008 (NSW), the Court grants leave to the applicant to institute proceedings by lodging, in accordance with s 14(3) of the Crimes (Appeal and Review) Act 2001 (NSW) a written application to the District Court pursuant to s 13(1)(a) of the Crimes (Appeal and Review) Act for leave to appeal out of time against the orders made by Stapleton LCM at Waverley Local Court on 28 July 2016 in Local Court proceedings 2016/00163398. 2. The grant of leave in Order (1) is subject to the following conditions: 1. The grounds of appeal in the written notice of appeal that is lodged with the written application for leave to appeal in accordance with s 14(3) of the Crimes (Appeal and Review) Act are to be limited to the grounds that are stated in the draft notice of appeal, that is Annexure W to the Affidavit of Michael Bar-Mordecai affirmed in these proceedings on 9 August 2016, amended as follows: 1. By deleting in their entirety the grounds in that documents that are numbers (2), (3), (6) and (8); and 2. By deleting from the opening chapeau of the ground in that document numbered (4) the words "actual bias and abuse of process displayed" and inserting in their place the words "legal error demonstrated." 1. The applicant is to provide to the Court, prior to instituting proceedings pursuant to the leave granted in this order, an undertaking in writing that he will not, either in the proceedings instituted pursuant to the leave granted pursuant to this order, or in any appeal that the District Court may, pursuant to those proceedings, grant him leave to make, make any application to the District Court to issue to any person any subpoena to give evidence or to produce documents, without further leave of this Court first had and obtained. 1. No order as to costs.

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: 27 October 2016

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