32 The Tribunal then turned to consider, under the heading 'Understanding of Doctor/Patient Boundaries', the question of whether Mr Bar-Mordecai had demonstrated that he now had an understanding and acceptance of the rule that it is improper for a doctor to treat his or her de factor partner, at [22] to [36]. That was the consideration upon which the Tribunal's refusal of Mr Bar-Mordecai's application turned.
33 The proceedings taken by Mr Bar-Mordecai before the Medical Tribunal in 2007 involved an application for re-registration which he was entitled to make, given the terms on which he was deregistered by the Medical Tribunal in 2000, which precluded him from seeking re-registration until 2007. What arose for consideration in the review proceedings under
s 94A(1), was the appropriateness of the order made in the 2000 judgment, at the time of the 2008/09 review.
34 It followed from s 94A(2) that Mr Bar-Mordecai was also entitled to ask the Medical Tribunal to review the decision to make the 2000 deregistration order, or any findings made in connection with the making of that decision, if he was able to produce 'significant fresh evidence' not previously available for consideration.
35 That Mr Bar-Mordecai believed that a decision of the Court of Appeal in 2004, which had concluded that he had a de facto relationship with A, which he had been unable to convince the Medical Tribunal in 2000 had existed, was significant, fresh and previously unavailable evidence, does not seem surprising. Whether he was correct in that opinion, is a different matter, but the making of that review application, it seems to me, does not involve any re-litigation of matters already dealt with, as the Attorney General argued.
36 The Medical Tribunal had never before had occasion to consider the Court of Appeal's 2004 decision, nor the basis upon which it was reached. Section 94A permitted Mr Bar-Mordecai to raise that issue before the Tribunal and once raised, the Tribunal was obliged to determine it.
37 In these proceedings, Mr Bar-Mordecai does not seek to appeal the Tribunal's conclusion, but seeks to rely upon it, to establish the bias about which he wishes to complain. That is also not a matter which has previously been litigated.
38 The Attorney General accepted that while there was no right of appeal from the Tribunal's judgment under the statutory scheme established by the Medical Practice Act, a party to such review proceedings was entitled to bring an appeal with respect to a point of law, during the course of an inquiry being conducted by the Tribunal, with leave (see s 89(2)).
39 It must follow, in my view, that the application made by Mr Bar-Mordecai under s 94A in relation to the Medical Tribunal's 2000 decision cannot have been an abuse of process. He was entitled to seek such a review, if he could establish that significant, fresh and previously unavailable evidence not previously considered, existed. He was unable to convince Murrell J that it did. Not having been granted leave to appeal that decision during the course of the inquiry, Mr Bar-Mordecai accepted he had no right to appeal either the merit of the decision, nor even the question of law determined by Murrell J.
40 Nevertheless, he seeks to establish bias, having regard to this, as well as other aspects of the Tribunal's judgment. I will return to consider this further in the context of s15(1)(c), but, in my view, the mere fact that Mr Bar-Mordecai has the view that there was bias in the Medical Tribunal proceedings cannot, at this stage of these proceedings, lead to the conclusion that this application is an abuse of process.
41 Mr Bar-Mordecai is a pensioner who wishes to resume his former profession as a medical practitioner, having been precluded from doing so since 2000, as the result of the Medical Tribunal's 2000 order. He was unsuccessful in his 2007 application for re-registration, given the conclusions reached by the Tribunal in 2009 that he lacked the necessary good character, for such an order to be made. He is plainly dissatisfied with the Tribunal's decision, for various reasons which he has sought to explain. He accepts that under the statutory scheme, he has no general right to appeal the merits of the Tribunal's decision, but seeks to pursue such rights which do exist, including those granted by s 69 of the Supreme Court Act 1970. That section provides:
69 Proceedings in lieu of writs
(1) Where formerly:
(a) the Court had jurisdiction to grant any relief or remedy or do any other thing by way of writ, whether of prohibition, mandamus, certiorari or of any other description, or
(b) in any proceedings in the Court for any relief or remedy any writ might have issued out of the Court for the purpose of the commencement or conduct of the proceedings, or otherwise in relation to the proceedings, whether the writ might have issued pursuant to any rule or order of the Court or of course,
then, after the commencement of this Act:
(c) the Court shall continue to have jurisdiction to grant that relief or remedy or to do that thing; but
(d) shall not issue any such writ, and
(e) shall grant that relief or remedy or do that thing by way of judgment or order under this Act and the rules, and
(f) proceedings for that relief or remedy or for the doing of that thing shall be in accordance with this Act and the rules.
(2) Subject to the rules, this section does not apply to:
(a) the writ of habeas corpus ad subjiciendum,
(b) any writ of execution for the enforcement of a judgment or order of the Court, or
(c) any writ in aid of any such writ of execution.
(3) It is declared that the jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings.
(4) For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination.
(5) Subsections (3) and (4) do not affect the operation of any legislative provision to the extent to which the provision is, according to common law principles and disregarding those subsections, effective to prevent the Court from exercising its powers to quash or otherwise review a decision.
42 Dissatisfaction with the Tribunal's decision and a desire to challenge it on available grounds, even in the case of a person such as Mr Bar-Mordecai, who has been declared a vexatious litigant, cannot, it seems to me, of itself be a basis for concluding that this application is an abuse of process.
43 Such a declaration is not intended to deprive a person declared to be a vexatious litigant of all of his or her rights to pursue any and all legal proceedings before a court to which the declaration applies. It rather imposes a leave requirement, it must be accepted, in quite onerous terms, before such rights may be exercised in future. The fact that Mr Bar-Mordecai seeks to pursue what rights he may have in relation to his failure to achieve re-registration as a medical practitioner, cannot of itself be an abuse of process.
44 Leave is sought to appeal to the Court of Appeal in relation to a decision upon which depends Mr Bar-Mordecai's right to resume the practice of a profession which he had engaged in for some 25 years before his deregistration. That is not a decision in respect of which Mr Bar-Mordecai has ever brought any other proceedings. I can see no general basis upon which it might be concluded that a desire to pursue the right to resume medical practice, involves an abuse of process in any general way, even if his application rests on allegations of bias. Such complaints certainly appear to have been raised by other litigants before the Tribunal (as to which see, for example Lindsay v Health Care Complaints Commission (No 1) [2009] NSWCA 97 at [9]).
45 Undoubtedly, it is a fact that Mr Bar-Mordecai has made a significant number of earlier complaints about alleged bias in other proceedings. That does not mean that bias, whether apprehended or actual, could never arise in another case. In my view, in the circumstances here before the Court, the mere fact that Mr Bar-Mordecai has unsuccessfully alleged bias in other proceedings, is not a proper basis for concluding that this application involves an abuse of process.
46 No other of the Attorney General's submissions were directed to the matters dealt with in the definition of 'vexatious proceedings'. On the material, I am satisfied that the proceedings which Mr Bar-Mordecai seeks to bring are not vexatious, as defined, even though this is another occasion upon which Mr Bar-Mordecai seeks to show bias in those determining an application he has made.