Attorney-General for the State of New South Wales v Bar-Mordecai

Attorney-General for the State of New South Wales v Bar-Mordecai - [2009] NSWSC 218 - NSWSC 2009 case summary — Zoe

[16]

The Statutory Regime for Leave Applications 4 It was common ground that these applications fall to be determined by reference to the provisions of s.84 Supreme Court Act 1970, which was repealed on 1 December 2008. On that day, the Vexatious Proceedings Act 2008 commenced. The present applications for leave were commenced in October 2008. Accordingly, they are applications made under the repealed s.84 Supreme Court Act 1970 which were pending immediately before the commencement of the Vexatious Proceedings Act 2008 on 1 December 2008, and they may be continued and dealt with under the provisions of s.84 as if that provision had not been repealed: cl.3(1), Schedule 1, Vexatious Proceedings Act 2008. 5 Where the Court has made an order under s.84(1) or (2) against any person, the Court shall not give that person leave to institute or continue any proceedings unless the Court is satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings: s.84(4) Supreme Court Act 1970. The onus lies upon the Defendant to satisfy the Court that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings: Attorney-General for the State of New South Wales v Spautz [2001] NSWSC 66 at [21]. 6 According to the agreement in principle speech (Legislative Assembly, 26 June 2008, Hansard, page 9459), the Vexatious Proceedings Act 2008 is designed to expand the powers of the Courts to control vexatious litigants and is based upon model legislation approved by the Standing Committee of Attorneys-General. Both Queensland and the Northern Territory have introduced legislation consistent with the model Bill. The new procedure under the Vexatious Proceedings Act 2008 involves a two-stage process where a vexatious litigant makes application for leave to institute proceedings. Firstly, it is necessary for an applicant to comply with s.14 of the Act, with the Court empowered to dismiss the application under s.15 without the application being served or a contested hearing taking place. The equivalent provisions of the Vexatious Proceedings Act 2005 (Qld) were considered in Re Freeman [2008] QSC 200, where Martin J dismissed an application for leave at the first stage, without directing service of the application. 7 It seems clear from s.15(2), that an ex-parte hearing of the application at the first stage will take place in open court. However, given the structure of the provisions in ss.14-16, it might be expected that a brief oral hearing is envisaged, at which the only questions to be determined are whether the application ought be dismissed or, alternatively, whether more detailed argument ought occur following service of the application on affected persons, in the form of a contested hearing in open court under s.16(1) of the Act. 8 However, the 2008 statutory scheme does not apply to an application for leave under s.84 Supreme Court Act 1970. In this case, the Notices of Motion, and other materials, have been served upon the Plaintiff and counsel has appeared for the Plaintiff at a contested hearing of the application in open court. The hearing of the leave applications proceeded before me over parts of two sitting days.

[17]

Controlling Vexatious Litigants 9 Freedom of access to the Courts by citizens is a fundamental principle: Williams v Spautz [1991-1992] 174 CLR 509 at 519; Ramsey v Skyring (1999) 164 ALR 378 at 389 [51]; Clark v State of New South Wales (2006) 66 NSWLR 640 at 655-565 [63]. The making of an order under s.84 effects a significant curtailment of a citizen's rights: Attorney-General for the State of New South Wales v Bhattacharya [2003] NSWSC 1150 at [14]. An order under s.84 has been described as an extreme remedy: Attorney-General for the State of New South Wales v Wentworth (1988) 14 NSWLR 481 at 484; Ramsey v Skyring at 389 [51]. 10 However, provisions such as s.84 (and the Vexatious Proceedings Act 2008) give effect to an important countervailing policy. The provision is designed to protect the Court's own processes against unwarranted usurpation of its time and resources and to avoid loss caused to those who face actions which lack substance: Jones v Skyring (1992) 66 ALJR 810 at 814. Linked with that objective is the need to protect the community, including citizens who wish their disputes to be resolved in an orderly and expeditious manner, against disruption of the court system flowing from the repeated institution of groundless proceedings: Ramsey v Skyring at 389 [52]. 11 An order under s.84 has been made against the Defendant. The Court has determined that the statutory restriction upon his ability to institute and continue proceedings ought apply. There is no injustice if a vexatious litigant is required to establish, on any subsequent occasion he wishes to litigate, that the proposed litigation is not just more of the same: Lohe v Mansukhani [2007] QSC 69 at [51]. 12 In Bhamjee v Forsdick (No. 2) [2004] 1 WLR 88; [2003] EWCA Civ 1113 at 90-91 [3], Lord Phillips of Worth Matravers MR (in delivering the judgment of the Court of Appeal) observed that the "courts are facing very serious contemporary problems created by the activities of litigants … who are bombarding them with applications which have no merit at all". This statement has been applied by the Court of Appeal, where it was said that the Courts of this State face similar problems: Wentworth v Graham (2003) 57 NSWLR 741 at 742 [3]-[4]. 13 The Court's overriding objective in civil proceedings is to facilitate the just, quick and cheap resolution of the real issues in dispute: s.56 Civil Procedure Act 2005. The Court must have regard to the dictates of justice (s.58), and factors including the efficient disposal of the business of the Court, the efficient use of available judicial and administrative resources and the timely disposal of all proceedings in the Court, at a cost affordable to the respective parties (s.57). In Bhamjee v Forsdick (No. 2), the Master of the Rolls observed at 93 [15] that similar objectives under the Civil Procedure Rules (UK) were undermined by the activities of vexatious litigants: "The court, therefore, has power to take appropriate action whenever it sees that its functions as a court of justice are being abused. The advent of the Civil Procedure Rules makes the nature of those functions more transparent. A court's overriding objective is to deal with cases justly. This means, among other things, dealing with cases expeditiously and allotting to them an appropriate share of its resources (while taking into account the need to allot resources to other cases). This objective is thwarted and the process of the court abused if litigants bombard the court with hopeless applications. They thereby divert the court's resources from dealing with meritorious disputes, delay the handling of those disputes, and waste skilled and scarce resources on matters totally devoid of any merit."

[18]

These comments have been applied by Australian Courts applying the model legislation now reflected in the Vexatious Proceedings Act 2008 : National Australia Bank Limited v Freeman [2006] QSC 86 at [26]. The provisions of the Civil Procedure Act 2005 are pertinent when the Court considers applications for leave under s.84(4) Supreme Court Act 1970 or ss.14-16 Vexatious Proceedings Act 2008 . 14 Vexatious proceedings are damaging to the public interest: Bhamjee v Forsdick (No. 2) at 92 [9]. The distraction of the Courts so as to deal with vexatious proceedings is damaging to the right of citizens generally to have access to the Courts. 15 A further aspect should be noted. In Ramsey v Skyring, Sackville J observed at 392 [67]: "The cost to the court system and the community of litigants who refuse to accept that a point has been decided authoritatively against them, or who are otherwise determined to pursue hopeless courses in the courts, can be very high. Such litigants are often immune to costs orders and exempt from paying the court fees which other litigants must meet. The present case illustrates the amount of time and the extent of the resources required to address the obstinacy of a single litigant." 16 The Master of the Rolls made a similar point in Bhamjee v Forsdick (No. 2) at 91 [3], in noting that many vexatious litigants "have no fees disincentive because they automatically qualify for fees exemption" and that they "are often without the means to pay any costs order made against them". 17 The protections applicable to advocates and litigants concerning statements made in open court are an important feature, which bolsters the rights of citizens to have access to the courts and the ability of the courts to administer justice. 18 Where a litigant is declared vexatious and is made the subject of an order under s.84, the ability of that litigant to bring proceedings is restricted. It is open to the litigant to make application for leave to initiate or continue proceedings. It is important, however, that the leave application itself is not used as an opportunity to engage in protracted litigation or to abuse the privilege applicable to citizens who bring proceedings before the Court. The making of an application for leave ought not become an occasion for further abuse of process itself by the making of scandalous and vexatious statements and allegations in written and oral submissions advanced in open court, purportedly in support of the application for leave. As with leave applications generally, an application for leave to institute proceedings ought be presented succinctly and in a focused way. I will return to this topic later in this judgment.

[21]

As their Honours observed at 18 [38], this is no new phenomenon. 27 With respect to the impeachment of judgments for fraud, the appropriate course involves the institution of a separate proceeding: DJL v The Central Authority [2000] 201 CLR 226 at 245 [37]. 28 Each of the Defendant's proposed proceedings seeks to impugn earlier judgments on the basis that they were obtained by fraud. The Defendant alleges that certain witnesses knowingly gave false evidence for material gain (whether because they had been bribed to do so or because they stood to gain from any judgment in their favour or otherwise). 29 As the Court must consider on the present applications whether there are prima facie grounds for the proposed proceedings, it is appropriate to refer to the principles applicable where application is made to set aside a judgment for fraud: Wentworth v Rogers (No. 5) (1986) 6 NSWLR 534 at 538-539; Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 at 700. 30 In Wentworth v Rogers (No. 5) at 538-539, Kirby P (Hope and Samuels JJA agreeing) identified the following six principles as being applicable to this class of claim. 31 Firstly, the essence of the action is fraud and particulars of the fraud must be exactly given and the allegations must be established by the strict proof which such a charge requires. 32 Secondly, it must be shown by the party asserting that a judgment was procured by fraud, that there has been a new discovery of something material, in the sense that fresh facts have been found which, by themselves or in combination with previously known facts, would provide a reason for setting aside the judgment. There is a public interest in finality of litigation. Parties ought not, by proceeding to impugn a judgment, to be permitted to re-litigate matters which were the subject of the earlier proceedings which gave rise to the judgment. In particular, they should not be permitted, if they move on nothing more than the evidence upon which they have previously failed. 33 Thirdly, mere suspicion of fraud, raised by fresh facts later discovered, will not be sufficient to secure relief. The claimant must establish that the new facts are so evidenced and so material that it is reasonably probable that the action will succeed. This rule is founded squarely in the public interest in finality of public litigation and in upholding judgments duly entered at the termination of proceedings in the courts. 34 Fourthly, although perjury by the successful party or a witness or witnesses may, if later discovered, warrant the setting aside of a judgment on the ground that it was procured by fraud, and although there may be exceptional cases where such proof of perjury could suffice, without more, to warrant relief of this kind, the mere allegation, or even the proof, of perjury will not normally be sufficient to attract such drastic and exceptional relief as the setting aside of a judgment. In hard-fought litigation, it is not at all uncommon for there to be a conflict of testimony which has to be resolved by a judge or jury. In many cases of contradictory evidence, one party may be mistaken. He or she may even be deceiving the Court. The unsuccessful party in the litigation will often consider that failure in the litigation has been procured by false evidence on the part of the opponent and the witnesses called by the opponent. If every case in which such an opinion was held gave rise to proceedings of this kind, the Courts would be even more burdened with the review of first-instance decisions than they are. For this reason, and in defence of finality of judgments, a more stringent requirement than alleged perjury alone is required. 35 Fifthly, it must be shown by admissible evidence that the successful party was responsible for the fraud which taints the judgment under challenge. The evidence in support of the charge ought to be extrinsic. It is not sufficient to show that an agent of the successful party was convicted of giving perjured evidence in the former proceeding, the result of which it is sought to impeach. It must be shown that the agent, in so acting, was in concert with the party who derived the benefit of the judgment. 36 Sixthly, the burden of establishing the components necessary to warrant the drastic step of setting aside a judgment, allegedly affected by fraud or other relevant taint, lies on the party impugning the judgment. It is for that party to establish the fraud and to do so clearly.

[22]

The Defendant's Principal Contentions 37 Put shortly, the Defendant submits that leave ought be granted to institute proceedings for the following reasons. 38 Firstly, he contends that the question whether he was in a de facto relationship at relevant times with the late Eveline Hillston was critical to the determination of each of the judgments adverse to him reached by Einstein J, Bryson J and the Medical Tribunal. 39 Secondly, there have been separate decisions of the Court of Appeal on appeal from the judgments of Einstein J and Bryson J, which have reached different conclusions concerning the existence of a de facto relationship between the Defendant and Ms Hillston. The Defendant submits that these different judgments of the Court of Appeal are a critical part of his application for leave. 40 Thirdly, the Defendant submits that a number of persons gave perjured evidence before Einstein J, Bryson J and/or the Medical Tribunal with respect to the existence of a de facto relationship between Ms Hillston and himself. The Defendant submits that such perjured evidence can be detected by an examination of the evidence of the specified witnesses in contrast with evidence of other witnesses, including himself. The Defendant does not submit that any witness, whom he alleges has committed perjury, has recanted or withdrawn evidence previously given or admitted the giving of perjured evidence. 41 Fourthly, the Defendant submits that several of these persons who gave perjured evidence perpetrated a fraud in that judgments were given in their favour, and adverse to the Defendant, with respect to property and legal costs. Others, the Defendant contends, were bribed or otherwise influenced to give perjured evidence. 42 Fifthly, the Defendant submits that the judgments given by Einstein J, Bryson J and the Medical Tribunal adverse to him were procured by fraud by way of the alleged perjured evidence of the witnesses. 43 Sixthly, the Defendant submits that he has exhausted his remedies with respect to these judgments by appeals all the way to the High Court of Australia. 44 Seventhly, the Defendant submits that he has never framed any of his earlier claims as proceedings seeking the setting aside of judgments on the ground that they had been procured by fraud. He submits that the proposed proceedings are of a type never brought by him before. 45 Ms Ward, counsel for the Plaintiff, submits that the Defendant's applications fall very far short of constituting a prima facie case that judgments were procured by fraud. She submits that the Defendant points, in substance, to factual disputes as between witnesses in different proceedings, thereafter seeking to ascribe the label of perjured evidence to those who gave evidence contrary to the interests of the Defendant. Ms Ward points as well to statements in various decisions of the Court of Appeal which place in their proper context, findings made concerning the alleged de facto relationship. The Plaintiff submits that the applications for leave should be dismissed.

[24]

Appeal from the Decision of Einstein J 48 An appeal from the decision of Einstein J was dismissed by the Court of Appeal in Bar-Mordecai v Rotman [2000] NSWCA 123 (Sheller, Stein and Giles JJA). The Court referred to Einstein J's finding that the relationship between the Defendant and Ms Hillston was not a de facto relationship (at [92]-[93]). The Court observed that Einstein J then turned to the revocation of will issue, recording that once it was answered, it made the de facto issue irrelevant (at [94]). 49 With respect to the findings of Einstein J adverse to the Defendant on the revocation issue, the Court concluded at [132]: "In our opinion, Einstein J's findings were well and truly open to his Honour. Indeed, we think that no other findings would be reasonably open to his Honour. The appellant's evidence was incredible, riddled with critical inconsistencies and lacking in corroboration. It was just not believable." 50 The Court of Appeal concluded on the revocation issue at [140]: "The ultimate finding of Einstein J was that the will was not destroyed by the deceased in the presence of the appellant, or ever by her whilst she lived, but stood as her last testamentary instrument at her date of death. We agree. The evidence pointed inexorably to this conclusion." 51 The Court of Appeal then turned (at [141]) to the de facto relationship issue noting that, although the findings as to revocation would dispose of the appeal, the de facto relationship issue was an alternative basis for Einstein J's decision and should not be passed over. After recounting the evidence touching upon the de facto relationship issue, the Court of Appeal concluded at [170]-[176] that the finding of the trial Judge that a de facto relationship had not been established was open to his Honour. The Court concluded at [175]-[176]: "Einstein J had to evaluate the evidence of a number of witnesses, some of potential weight and some of little moment, and many of them conflicting in different ways; he had to do so against facts established beyond controversy or not reasonably open to challenge, and with regard to the probabilities; and he had the advantage of seeing and hearing the witnesses for such assistance as he found in his task. This was a classic exercise in finding primary facts and arriving at conclusions as to secondary facts. In our opinion, his Honour was fully entitled to find that the appellant's evidence going to the existence of a de facto relationship was false, that his case for such a relationship should not be accepted, and that, particularly in the light of the position of influence assumed by the appellant over the deceased, there was not a de facto relationship between the appellant and the deceased within the meaning of the Act. Grounds for overturning that finding have not been established.

[60]

Determination of Applications for Leave 62 These are not applications for leave to institute proceedings in an area which is entirely unrelated to the proceedings which gave rise to the vexatious litigant order. Rather, the present applications involve the same persons and proceedings which resulted in that order. For that reason, it was relevant to set out, in some detail, the above extracts from the judgments of the Court of Appeal. For that same reason, it is relevant to say more concerning findings in earlier proceedings brought by the Defendant, to assist an assessment whether he has made out a basis for leave under s.84(4) of the Act. 63 I have considered the submissions made with respect to the applications for leave, and the evidence to which my attention was drawn during the course of submissions. The Defendant tendered four lever-arch folders of material on the applications for leave, together with other documents provided with detailed written submissions. 64 The Defendant furnished four Draft Statements of Claim in support of his applications. One Draft Statement of Claim (MFI1) related to the Probate judgment of Einstein J and another related to the Medical Tribunal judgment (MFI2). Two Draft Statements of Claim (MFI3 and MFI4) related to the Equity judgment of Bryson J. These four proposed proceedings fall broadly under the umbrella of the three Notices of Motion filed by the Defendant in October 2008, referred to at [1] above. 65 The Draft Statement of Claim (MFI1) is 58 pages in length. It comprises a wide range of allegations against a large number of people who were parties, witnesses or legal representatives for parties opposed to the Defendant. It nominates 16 persons as proposed Defendants in those proceedings. 66 The Draft Statement of Claim (MFI2) is 47 pages in length. Like MFI1, it contains a wide range of allegations against a large number of people. It nominates the Health Care Complaints Commission as the proposed Defendant. 67 The Draft Statement of Claim (MFI3) is 41 pages in length. Like MFI1 and MFI2, it contains a wide range of allegations against a large number of people. It nominates Allan Hillston as the proposed Defendant. 68 The Draft Statement of Claim (MFI4) is 42 pages in length. Like MFI1, MFI2 and MFI3, it contains a wide range of allegations against many people. It nominates Allan Hillston as the proposed Defendant. 69 I am entirely unpersuaded that any basis for leave has been demonstrated by the Defendant. I accept the submissions of the Plaintiff with respect to the applications (see [45] above). 70 The evidence falls far short of demonstrating prima facie grounds for the proposed proceedings in accordance with each of six factors set out at [31] to [36] above. 71 The Draft Statements of Claim (MFI1-4) relied upon by the Defendant do not assist him on this application. The assertion that perjury has been committed is not enough. Whatever may be the subjective view of the Defendant, no objective foundation has been demonstrated so as to constitute a prima facie case in support of proceedings to set aside judgments in accordance with the relevant principles. 72 The Defendant is re-agitating challenges to witnesses' credibility which have been rejected in past proceedings, nearly all of which were foundational to the s.84 order made against him by Patten AJ on 25 February 2005. 73 The observations of Mason P in the 2005 Court of Appeal judgment (at [61] above) are pertinent, with respect to both the existence of a prima facie case of procuring judgment by fraud and the question whether the present applications constitutes an abuse of process, both issues being relevant on the application for leave under s.84(4) of the Act. 74 As the judgment of Patten AJ makes clear, the Defendant has brought a variety of unsuccessful proceedings which contend, in different ways, that witnesses have perjured themselves in earlier proceedings - see, for example, Patten AJ's judgment at [33]-[36] (William Widoger), [39]-[42] (Allan Hillston), [51]-[54] (Leviu Rotman), [55]-[56] (Jane Hillston), [57]-[59] (Alexander Hillston) and [60] (Peter Rowston). He has brought vexatious proceedings against judicial officers and Tribunal members who have determined proceedings adversely to him (Patten AJ's judgment at [61]-[66], [91]-[93]). He has brought vexatious proceedings against lawyers who appeared in proceedings determined adversely to him (Patten AJ's judgment at [43]-[50]). The observations of members of the High Court in D'Orta-Ekenaike v Victoria Legal Aid at [26] above are especially pertinent to the Defendant. 75 The Defendant has demonstrated, once again, a propensity to build submissions of impropriety on a tenuous basis. It seems clear that he is advancing arguments with respect to witnesses which have previously been made and rejected in various Courts and in the Medical Tribunal. Although he contends that a new case is being advanced based upon the alleged procuring of judgments by fraud, the Defendant seeks to re-visit issues, witnesses and parties from earlier proceedings on no fresh basis. In truth, this is a variation on a well-worn theme advanced by him. Using the words of the Court of Appeal of Western Australia in Bride v Commonwealth Bank of Australia (No. 2) [2007] WASCA 225 at [97], the "same complaints have been formulated and reformulated time and again [by the Defendant] without regard to adverse conclusions reached by various Courts". 76 I have referred to statements by the Court of Appeal, in various judgments, concerning the Defendant's propensity to launch attacks upon litigants, witnesses and judicial officers in the midst of his litigation (see [53], [56], [59] and [61] above). This propensity has demonstrated itself, once again, on the present applications. From time to time, the Defendant made comments in his written and oral submissions attacking judicial officers and attempting to make statements which did not relate to his leave applications. The Defendant was reminded by the Court, on more than one occasion, of his responsibilities in addressing the Court on these applications. The observations of the Court of Appeal in Wentworth v Graham at 744-745 [23]-[24] are pertinent, concerning the challenges for the administration of justice where scurrilous and baseless allegations are made concerning judicial officers. The fact that the Defendant resorts to such attacks in his submissions undermines his claim that the proposed proceedings are not an abuse of process.

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