Application of Bar-Mordecai [2014] NSWSC 1202

P Ginters (second interested party) Solicitors: Self-represented (plaintiff) Crown Solicitor's Office (first interested party) File Number(s): 2013/270999

Judgment Introduction 1On 25 February 2005 an order was made in this Court under s 84(1) of the Supreme Court Act 1970 (NSW) that the plaintiff could not institute proceedings in any court without leave of this Court. Subsequently, the Vexatious Proceedings Act 2008 (NSW) (the Act) came into effect, the transitional provisions of which provide that applications for leave to commence proceedings are now to be made pursuant to that Act. On 6 September 2000 the Medical Tribunal of New South Wales ordered that he be deregistered as a medical practitioner. The plaintiff's summons seeks leave to make an application for a review of that order under Div 8 of Part 8 of the Health Practitioner Regulation National Law (NSW) (the Law), s 163C which permits the Medical Tribunal of New South Wales (now the New South Wales Civil and Administrative Tribunal) "to determine the appropriateness, at the time of the review, of the [deregistration order]". Such an application falls within the definition of "proceedings" for the purposes of the Act: s 4. Under s 16(4) of the Act leave may be granted to institute the proposed proceedings if the Court is satisfied that it is not a "vexatious proceeding" and there are one or more prima facie grounds for it, the onus in respect of both matters resting upon the plaintiff. 2The plaintiff, at the hearing, sought to amend the summons by adding a list of further orders he wished to obtain. For the reasons made clear in the transcript, I refused to give leave to amend. Conditional leave is not opposed 3It is conceded by the Attorney General (and, I think, by the Medical Council) that, having regard to the nature of the proposed proceeding and the time that has elapsed since the last review in 2009, there is a prima facie ground for the proposed proceeding within the meaning of s 16(4)(b) of the Act. There is no concession, however, that the proposed proceeding is not a vexatious proceeding, as I understand it, because of one of the grounds proposed to be relied on by the plaintiff as set out in a draft application attached to his affidavit in support of the summons. 4Neither the Attorney General nor the Medical Council oppose the grant of leave to institute the proposed proceedings providing it is subject to certain conditions, including (in the former's case) a payment of the Attorney General's costs in accordance with the orders of this Court made on 24 April 2012. Those orders were made in an application seeking a similar leave as the present, which was heard by Beech-Jones J (Bar-Mordecai v Attorney General of New South Wales [2012] NSWSC 453). The grounds of the proposed application at that time included that the plaintiff "is a fit and proper person to practice medicine at the date of filing this application"; and the plaintiff "has maintained his competence (knowledge and skill) in medicine" and the order sought on the review was that the plaintiff's be entered in the Medical Register without interim or long-term conditions. As here, no objection was taken in principle to the application on those grounds. However, the plaintiff also sought other orders from the Court and leave to agitate further grounds in the review. For various reasons which do not presently call for comment, Beech-Jones J made the following orders - (1) I grant leave to the Plaintiff to lodge with the executive officer of the Medical Council an application for review in the Medical Tribunal of New South Wales under s 163A of the Health Practitioner Regulation National Law for the review of the decision of 6 September 2000 that his name be removed from the register of medical practitioners on condition that: (a) The only grounds of the application be those that are identified in 5(a) and 5(e) of the proposed application, that is, annexure A to the Plaintiff's affidavit affirmed on 19 March 2012 and filed in these proceedings (the proposed application). (b) The relief sought be that identified in 7(b) of the proposed application. (c) The application not specify any other ground or any other form of relief. (d) The application not include the matters in paragraphs 6, 8 and 9 of the proposed application. (2) Plaintiff to pay a third of the Attorney General of New South Wales' and Medical Council of New South Wales' costs of today. 5On 10 May and 21 June 2012 the Tribunal gave directions as to the filing of material to be relied on by the plaintiff and the Medical Council. However, the plaintiff sought to rely on material, including scandalous attacks on members of the judiciary, going well outside the grant of leave. The review eventually returned to the Tribunal for hearing on 25 March 2013 pursuant to directions made by his Honour Judge Colefax SC who had directed that the application should be listed for hearing for the plaintiff to show cause why it should not be struck out as an abuse of process. On that date, his Honour, after (rightly, with respect) rejecting an application that he should disqualify himself from further involvement in the proceedings, concluded that the contumelious conduct of the plaintiff in filing material which was patently inconsistent with and in breach of the conditions on which leave was granted by this Court warranted dismissal of his application as an abuse of process of the Tribunal. His Honour also ordered that no further application or document be accepted by the Tribunal for filing without a further order being made by the Supreme Court. Hence, as I apprehend it, the present summons. Conditional leave should be granted 6In his affidavit supporting the present summons, sworn 6 September 2013, the plaintiff supplied, as is appropriate, a list of the occasions upon which he had applied for leave and other proceedings in various courts. In another section of his affidavit he sets out what is described as "general background history" in which he attacks various individuals including judges of this Court. Further scandalous attacks are contained in a part of his affidavit called "other matters". It is not necessary to set out these matters. It is sufficient to say that they demonstrate that the plaintiff finds it difficult, if not impossible, to refrain from introducing matters which have no proper basis into making an application which he is, prima facie, otherwise entitled to make. This continuing approach is reflected by the grounds of the proposed application under s 163A of the Law which, amongst other (unexceptional) grounds contains the following - "[6(b)(ix)] [The applicant has] determined that the several findings of Murrell DCJ and Cooper DCJ as both lay persons in medicine were bogus, with an intent not to set aside the Tribunal judgments on an application for re-registration, but to press with his understanding of medicine as a professional rather than rely on what a lay person has purportedly wrongly, erroneously and wilfully found in breach of s 154(2) of the MPA [presumably the Medical Practice Act 1992 (NSW)]". 7It is submitted by the Medical Council that, to the extent that this ground refers to "bogus" findings of Murrell SC DCJ (Re Mr Bar-Mordecai [2009] NSWMT 1) and Cooper DCJ (In Re Dr Michael Jacob Bar-Mordecai and the Medical Practice Act, Medical Tribunal of New South Wales, 6 September 2000) that were "wrongly, erroneously and wilfully made" it posits scandalous allegations against judicial officers and/or seeks impermissibly to call into question previous findings made by the Tribunal. Accordingly, it is submitted that the Court should impose on the grant of leave the condition that the application for review when lodged with the Medical Council should not include ground 6(b)(ix) and otherwise be limited to the grounds and claims for relief set out in the proposed application. The need for imposing this condition is demonstrated by the plaintiff's conduct in the proceedings in the Tribunal undertaken pursuant to the grant of leave by Beech-Jones J, in which he abused that grant of leave by persistently seeking to rely upon materials which patently transgressed the Court's conditional grant of leave. 8The plaintiff submitted that all he wished to do in pursuing the grounds set out in his proposed application was to argue that Judge Cooper and Judge Murrell SC (as she then was) were mistaken and, in effect, did not wish to suggest any scandalous matter. This is an improvement on his previous approach but falls foul of s 163C(2) of the Law which prohibits a re-examination of the original decision to deregister or any findings made in connection with making that decision. It appeared that, when this was pointed out, the plaintiff accepted this was so. 9The Medical Council also sought a further condition to be imposed on any grant of leave that the plaintiff not file evidence or make submissions that are scandalous, render the review application an abuse of the process of the Tribunal, result in the application being pursued without reasonable grounds or would result in the application being conducted in a way so as to harass or annoy, cause delay or detriment or achieve another wrongful purpose. In the alternative, it was submitted that this condition could require an undertaking being given to the Court that the plaintiff would not file evidence or make submissions to one or more of those effects or, by way of a further alternative, that the Medical Council should have liberty to apply to the Court for an order revoking the grant of leave if the plaintiff filed evidence or made submissions of the specified kind or otherwise transgressed the ambit of the Court's conditional grant of leave. 10Whilst I think it is clear that the first condition ought to be imposed, I am not disposed to impose the second condition in any of its suggested forms. It seems to me that the first condition necessarily prevents the plaintiff from expanding the grounds beyond those specified in his proposed application. Furthermore, the Tribunal is well able to determine questions of relevance, so that any material which is not relevant to the specified grounds would be excluded by it in the ordinary course. Prior payment of previous costs orders 11On 24 April 2012 as I have mentioned above, Beech-Jones J heard and determined the plaintiff's previous leave application, granting leave on terms that were, in substance, the conditions that had been proposed by the Attorney General and the Medical Council. It is obvious that, had the plaintiff consented to the proposed conditions, the costs of preparation for the application would have been significantly reduced and the time taken for the hearing much shorter. Accordingly, Beech-Jones J ordered the plaintiff to pay one third of the costs of the Attorney General and the Medical Council. On 19 June 2012 the Crown Solicitor sought payment from the plaintiff of the Attorney General's costs in the sum of $1,144.27. It is evident that the present application seeks substantially the same relief as that sought by the plaintiff in the earlier application. UCPR r 12.10 provides that where, as a result of the dismissal of proceedings, a party is liable to pay the costs of another party in relation to those proceedings and the latter party commences further proceedings of the same or substantially the same kind, the Court may stay the further proceedings until the costs of the dismissed proceedings are paid. It is conceded by the Attorney General that this rule does not apply because the plaintiff's liability to pay the costs incurred did not arise from the dismissal of his previous application. However, it is contended, the fact that leave was granted subject to conditions (contrary to the position of the plaintiff) should lead the Court to exercise its inherent jurisdiction to stay the grant of relief since the costs of the earlier concluded proceedings for the same or substantially the same relief have not been paid. 12It has been said that this inherent jurisdiction involves the exercise of "a discretion to prevent vexatious proceedings or otherwise to control abuse of process": Phillip Morris Limited v Attorney General (Vic) (2006) 14 VR 538 at [149] per Ormiston JA (Eames JA agreeing at [155]). It is submitted that, this being an exercise of the Court's inherent jurisdiction, is equally applicable to applications for leave under the Act as to any application invoking the jurisdiction of the Court. It is especially appropriate here given that plaintiff by his own misconduct squandered, as it were, the leave which he previously obtained. 13Were the plaintiff impecunious this might be a ground for refusing to exercise the inherent jurisdiction. However, there is no evidence before me of impecuniosity aside from the assertions to this effect by the plaintiff from the bar table. I have concluded, however, that given the character of the proceedings, which involve a significant restriction on the ordinary rights of the citizen to seek legal redress in the Courts, I should not make payment of costs a condition of the plaintiff seeking to review his deregistered status. Of course, there is nothing to prevent the Attorney General from proceeding in the ordinary way to enforce the costs order made by Beech-Jones J. 14The plaintiff is seeking the indulgence of the Court to, in effect, resume his application for review before the Tribunal where, because of his own persistent contumelious conduct the leave previously granted by this Court was rendered ineffectual. The need for the present application was therefore entirely of his own making in a particular sense as distinct from arising generally from the original order of Patten AJ. That raises the question whether he should pay all or part of the costs of and incidental to the present application. I will leave this question to be determined on written submissions. Conclusion 15The Court makes the following orders - (1) Leave is granted to the plaintiff to institute proceedings by lodging with the Executive Officer of the Medical Council an application for review by the New South Wales Civil and Administrative Tribunal pursuant to s 163A of the Health Practitioner Regulation National Law (NSW) of the Tribunal's order of 6 September 2000 that the plaintiff's name be removed from the Register of Practitioners. (2) The leave granted in order (1) is subject to the following condition - The proceedings are to be instituted by lodging an application for review limited to the following grounds - (a) The applicant is a fit and proper person to practice medicine at the date of filing this application. (b) The applicant has - (i) Maintained his knowledge and skills in medicine by having studied daily over 20,000 medical illnesses; (ii) Relearned the Mims; (iii) Attended his brother's surgery for reskilling training in procedural medicine; (iv) Authored a 700 page textbook of medicine in 2011, yet to be published; (v) Developed a computerized medical information system to assist a medical practitioner in the diagnosis of diseases; (vi) Addressed the issues of emotional insight into each former ethical transgression so as not to reoffend; (vii) Regularly physically exercised daily to keep his mind and body alert; (viii) Attended discussions with his brother about various medical issues; (ix) Having participated in self-educational activities over the last 9 years on a daily basis, relevant to the discipline of General Practice, by which he has further developed and maintained his competence and performance; (x) Observed and kept up to date with the laws and codes which affect the discipline of general practice; and (xi) Created, maintained and updated a medical database of more than 2.06 gigabytes with 24,000 Files, 3,244 directories and subdirectories as at 6.9.2013 such that the medical information system can assist a GP in the practice of Medicine by providing a differential diagnosis, treatment protocols, and information on specific disease entities. (3) The parties are to file and serve within 10 days of the date hereof written submissions on the question of costs.