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

LEGISLATION CITED : Vexatious Proceedings Act 2008

CASES CITED : Attorney General for the State of New South Wales v Bar-Mordecai [2009] NSWSC 396 Attorney General of New South Wales v Bar-Mordecai (No 3) [2009] NSWSC 1242

PARTIES : Attorney General for the State of New South Wales Michael Bar-Mordecai

COUNSEL : K Oliver In person

SOLICITORS : New South Wales Crown Solicitor In person

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

2004/180898 ATTORNEY GENERAL FOR THE STATE OF NEW SOUTH WALES v MICHAEL BAR-MORDECAI

JUDGMENT 1 HER HONOUR: On 25 February 2005 this Court declared Mr Bar-Mordecai a vexatious litigant. 2 On 19 November 2009 Smart AJ granted Mr Bar-Mordecai leave to file a statement of claim in the District Court against the State of New South Wales for wrongful arrest, false imprisonment and assault. Leave was granted in accordance with a proposed amended statement of claim subject to nominated paragraphs being struck out as irrelevant and surplus to the causes of action pleaded, his Honour having concluded that it was sufficient for Mr Bar-Mordecai to prove the fact of his arrest and imprisonment, and that thereafter the onus of establishing a lawful arrest and lawful imprisonment rested on the State of New South Wales as the defendant. The paragraphs to be struck out were listed in a table set out in paragraph 7 of his Honour's judgment (see Attorney General of New South Wales v Bar-Mordecai (No 3) [2009] NSWSC 1242 - "the November judgment"). 3 I note that the proceedings were originally instituted by leave granted on 18 May 2009 (see Attorney General for the State of New South Wales v Bar-Mordecai [2009] NSWSC 396 - "the May judgment") at which time his Honour refused leave to institute proceedings for a second or further cause of action for unlawful imprisonment and refused leave to institute proceedings seeking damages for malicious prosecution. Accordingly, his Honour refused leave at that time to file the statement of claim in the form proposed and directed that Mr Bar-Mordecai serve and deliver to the Court a draft pleading in accordance with his published reasons. It was this document that was the subject of his Honour's further consideration in the November judgment before leave was granted to file the proceedings in the District Court. 4 On 30 November 2009 a statement of claim was filed in the District Court in accordance with both the May and November judgments ("the District Court proceedings"). 5 By letter dated 18 December 2009 Ms Alison Merridew, on behalf of the Crown Solicitor, advised Mr Bar-Mordecai that in her view the filed statement of claim was defective in that it failed to plead facts pertaining to each element of the unlawful arrest and unlawful detention, in particular it failed to plead the facts showing the illegality of the arrest and the basis upon which the detention was alleged to be unlawful. This would appear to be a position in direct conflict with his Honour's considered view in the November judgment. Mr Bar-Mordecai was further advised that in these circumstances the proceedings were liable to be struck out in accordance with Part 14 of the Uniform Civil Procedure Rules 2005. He was invited to amend the proceedings and to forward a draft of the proposed amended statement of claim to allow the defendant to consider whether it consented to the amendments. Ms Merridew apparently did not appreciate that leave was required under the Vexatious Proceedings Act 2008 for Mr Bar-Mordecai to file an amended statement of claim given his status as a vexatious litigant. 6 On 3 February 2010 Mr Bar-Mordecai filed a notice of motion in the District Court seeking leave to amend the statement of claim. The motion was returnable on 26 February 2010.

7 On 5 February 2010 Registrar Bradford granted leave for Mr Bar-Mordecai to file a notice of motion in this Court seeking leave to file a further amended statement of claim in the District Court proceedings.

8 By letter dated 8 February 2010 Ms Merridew acknowledged receipt of the notice of motion filed in the District Court. However, in this correspondence she expressly countermanded her attitude to the adequacy of the pleadings as detailed in the earlier correspondence. In particular, she advised Mr Bar-Mordecai that the defects identified in that letter would not be pressed and that the filed statement of claim was adequate to enable the proceedings to be defended without amendment. 9 On 22 February 2010 a notice of motion was filed in this Court seeking an order that leave be granted to file an amended statement of claim in the District Court proceedings. The primary ground advanced in support of leave being granted being that the filed proceedings are defective (and the result of error on the part of Smart AJ), with the defects that Ms Merridew identified in her letter of 18 December 2009. In addition, Mr Bar-Mordecai contends that what he describes as further and better particulars of the claim should be allowed by amendment and, finally, that he should be granted leave to plead malicious prosecution as a fresh cause of action - a cause of action which I have noted was expressly rejected by his Honour in the May judgment. Although leave to include a second cause of action for unlawful imprisonment is not expressly sought in the notice of motion, the proposed amended statement of claim does include at paragraphs 23-30, what is described as a "second wrongful detention or imprisonment". Again, as I have noted, this cause of action was also the subject of an express refusal of leave by Smart AJ in the May judgment. 10 Evidence was filed in support of the motion in accordance with the requirements in s 14 of the Vexatious Proceedings Act. Annexed to Mr Bar-Mordecai's affidavit of 16 February 2010 is a copy of the statement of claim filed in the District Court proceedings and the draft amended statement of claim the subject of the application.

11 On 26 February 2010 Registrar Bradford directed that the notice of motion be referred to a Judge of this Court initially for determination in accordance with the procedure in s 15 of the Vexatious Proceedings Act. That section provides that an application for leave under s 14 of the Act must be dismissed if one or more of the following requirements are not met: (a) the affidavit required by s 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. 12 The applicant for leave has the burden of establishing those matters to the Court's satisfaction. Mr Bar-Mordecai submitted that he has discharged that onus thereby entitling him to have the question of leave determined in a separate hearing. I will deal with each of the requirements of s 15 in turn, although in this case there is a considerable overlap between them.

13 The affidavit required by s 14(3) of the Act must list of all of the occasions on which the applicant has applied for leave; all the proceedings the applicant has instituted in Australia, including proceedings instituted before the commencement of this section; and a disclosure of all facts material to the application that are known to the applicant, whether supporting or adverse to the application. I am satisfied that the first two preconditions are satisfied. However, at the time of swearing the affidavit of 16 February 2010, I am also satisfied that Mr Bar-Mordecai failed to disclose all facts material to the application in that he failed to refer to the letter received from the Crown Solicitor dated 8 February 2010 wherein the defendant's attitude to the adequacy of the particulars in the filed statement of claim was expressly reversed. The letter was tendered in evidence before me, but only after counsel for the Attorney General drew it to my attention. There can be no doubt that the Crown Solicitor's revised attitude was material to the application given that the primary ground advanced by Mr Bar-Mordecai for leave to amend the statement of claim is that the proceedings are defective, a view he formed based solely on that letter since he was otherwise bound by the orders made by Smart AJ in the November judgment. This would be sufficient to justify the application being dismissed under s 15 of the Act. However, since I am also satisfied that there are additional reasons for dismissing the application it is appropriate that I refer to them.

14 Vexatious proceedings are defined in the Act to include proceedings that are an abuse of process, proceedings instituted or conducted to harass, annoy, to cause delay or detriment or for any other wrongful purpose, or proceedings instituted or pursued without reasonable grounds. In circumstances where the proceedings to amend the statement of claim were initiated in response to the Crown Solicitor's correspondence of 18 December 2009, I am satisfied that they are not vexatious in the sense of being instituted to delay, harass or annoy or to cause detriment. I am satisfied, however, that after being notified of the Crown Solicitor's revised attitude to the adequacy of the pleading, the application was pursued by Mr Bar-Mordecai without reasonable grounds or, to put it another way, he has failed to persuade me that there is a prima facie ground for the amendments that are sought. 15 While the title of the proceedings and the type of claim in both documents is identical, namely a claim for compensation and damages for the intentional torts of wrongful arrest, false imprisonment and assault, there is considerable divergence between the two documents in other respects, in particular in the statement of background facts, and the particulars relied upon in support of the claim for damages for the causes of action pleaded. In addition, there is elaboration of the heads of damage and the particulars of the injury or loss claimed. In so far as the particulars of wrongful arrest are concerned, the elaboration of the particulars in the way proposed are in direct conflict with the view taken by Smart AJ in the November judgment as to the requirements for a properly pleaded cause of action of that kind. This hearing is not constituted to review the correctness of his Honour's findings. For this reason I am satisfied that there are no reasonable grounds for seeking an amendment of those particulars and, to that extent, I am satisfied the proceedings are vexatious proceedings as prescribed under s 15(1)(b) of the Act. 16 In so far as the elaborated particulars in support of the remaining causes of action are concerned, I am not satisfied that there is any justification for their inclusion by amendment. In my view they are either irrelevant or amount to mere surplusage. 17 In addition, the statement of background facts in the draft amended statement of claim includes a paragraph where its is contended that a named police officer under instruction from the defendant arrested Mr Bar-Mordecai, and obtained his photograph and fingerprints for an ulterior motive and that "a case for hearing against him" was prepared on the same basis. While no specific claim for malicious prosecution is made in the draft amended statement of claim (whether in the title of the proceedings or in the body of the claim), leave is sought to allow for its inclusion after leave to institute proceedings for precisely the same cause of action was expressly refused by Smart AJ in the May judgment. There is nothing in the materials before me which would warrant this Court reconsidering that issue. Similarly, there is nothing in the materials before me which would warrant this Court reconsidering, much less reversing, the decision by Smart AJ to refuse leave for Mr Bar-Mordecai to institute proceedings on the further cause of action for unlawful imprisonment. I am satisfied that the amendments directed to including both causes of action are, in these circumstances, vexatious proceedings.

18 In the result the application for leave to institute proceedings in the District Court by the filing of an amended statement of claim is dismissed. 19 After the hearing Mr Bar-Mordecai forwarded additional submissions supporting his application for leave to file the amended statement of claim. Those submissions sought to invoke the power to amend as provided for in s 64(1)(a) of the Civil Procedure Act 2005. Reliance upon this power in the proceedings constituted before me to determine whether or not to dismiss the application in accordance with the express power in s 15 of the Vexatious Proceedings Act is misplaced. 18 The orders I make are as follows:

1. The notice of motion dated 22 February 2010 is dismissed.
2. Mr Bar-Mordecai to pay the costs of the motion. **********

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