Attorney General in and for the State of NSW v Bar-Mordecai

EX TEMPORE Judgment 1The principal judgment in this matter was given on 27 February 2013 (see Attorney General in and for the State of NSW v Bar-Mordecai [2013] NSWSC 129). I then concluded, for reasons which were published, that the application which Mr Bar-Mordecai sought to pursue under s 14 of the Vexatious Proceedings Act 2007 had to be refused under s 15(1)(b). I then also observed at [143] that: "The usual order is that costs should follow the event. Unless the parties approach to be heard on the question of costs within seven days, the Court's order will be that the application for leave is refused with Mr Bar-Mordecai to pay the other parties' costs as agreed or assessed." 2The parties were not agreed as to the appropriate costs order, with the result that on Friday 2 August the matter is listed for further hearing as to costs. 3By notice of motion filed by Dr XY on 28 June 2013 orders are sought under s 98(4)(c) of the Civil Procedure Act 2005 for a fixed sum of costs in an amount of some $76,165.50 or, in the alternative, a sum which to the Court seems fair and reasonable. That motion was supported by an affidavit sworn by Mr Tsaousidis, Dr XY's solicitor. The Attorney General has sought various costs orders as to different parts of the proceedings by way of a notice of motion filed on 26 June 2013. That motion was supported by an affidavit sworn by Mr Cantrill, a solicitor employed in the office of the Crown Solicitor. 4By letter of 19 July 2013, Mr Bar-Mordecai requested the adjournment of the hearing for a period of three months, in circumstances where he complained that he had been refused a copy of the transcript of the proceedings by the Registrar. 5When the matter was listed for directions today, Mr Bar-Mordecai filed in Court, without objection, a notice of motion supported by an affidavit sworn on 29 July 2013. Thereby he sought orders, firstly, that the Court re-open the matter; secondly, that the matter be adjourned for three months; and, thirdly, that the Court accept, "the fifth medical report that will comply with all the court rules and will be commenced on 28 August 2013 by a psychiatrist versed in medical negligence", as well as an order that "the parties be served with the defendant's letter of instruction by 16 August 2013". Those orders were opposed by the other parties. 6Mr Bar-Mordecai's submissions were put both in writing and orally. He complains that not being in possession of the transcript of the proceedings has meant that he is not in a position to prepare his submissions on costs. He argued that there was no urgency in bringing the matter to finality, as it had been before the Court since 25 October 2010, when he first brought his application and in the intervening period, there had been a successful appeal determined in his favour. He also submitted that Dr XY's solicitor had not filed and served a copy of its legal costs to date. 7Both in his submissions and in his affidavit Mr Bar-Mordecai outlined in detail other proceedings in which he says he is involved and which are taking his time. They include the instigation of criminal and civil proceedings against the former Justice Bryson, which he alleges occurred in 2002; proceedings against Blanch J, which concern an assault which he alleges to have been perpetrated by his Honour in 2007. Mr Bar-Mordecai also there refers to other urgent and pressing criminal prosecutions against various judicial officers of the Supreme Court and the Medical Tribunal of New South Wales. He refers to eight other applications for leave under the Vexatious Proceedings Act which he has brought to the Court. In his submissions he has indicated that two of those applications are listed before another Judge of this Court tomorrow. 8Mr Bar-Mordecai also referred to having received advice from the HCCC, as a result of which he has approached a psychiatrist, Dr Samuell, who he says is versed in medical negligence and from whom he proposes to seek a report, which he wishes to have the opportunity to rely on, in these proceedings. Mr Bar-Mordecai also relied on the outcome of complaints which he expects to have dealt with, involving Dr XY and another doctor. Annexed to his affidavit are various documents, including letters written to the Prothonotary in relation to other applications and a letter written to Garling J in relation to a number of applications which Mr Bar-Mordecai wishes to pursue. 9Having heard Mr Bar-Mordecai, and assuming in the circumstances that the Court has jurisdiction to grant his re-opening application, about which there appears to be considerable doubt in the circumstances which have arisen, on the Attorney General's submissions, in my view, justice would not permit the exercise of any discretion which the Court has, to order the re-opening which Mr Bar-Mordecai seeks. 10On the day that the matter was listed for judgment, I dealt with an earlier application which Mr Bar-Mordecai made in which he sought an order from the Court directing a practising psychiatrist in the Sydney area to provide him a report which he wished to rely on in these proceedings. That application was refused for reasons given that day (see Attorney General in and for the State of NSW v Bar-Mordecai [2013] NSWSC 153). Thereupon I gave judgment on the matters over which the parties had joined issue. 11What Mr Bar-Mordecai now seeks, his application having failed, is an opportunity in these proceedings to relitigate his application on the basis of further expert evidence which he has not as yet obtained. Those circumstances are such that clearly no discretion to re-open these proceedings could be exercised in his favour. It seems to me that this conclusion is reinforced when the nature of the statutory scheme under which this application was made, is considered. 12The proper operation of the Vexatious Proceedings Act was considered by the Court of Appeal in Bar-Mordecai v Attorney General (NSW); Bar-Mordecai v State of New South Wales [2012] NSWCA 207. One of the things there discussed as to the operation of the legislation is that an applicant refused the leave which Mr Bar-Mordecai has sought in these proceedings can, in appropriate circumstances, bring a fresh application for leave. 13It seems to me that if Mr Bar-Mordecai ever gets into a situation where there is an expert who is prepared to produce a report supportive of the claim which he wishes to advance, then the appropriate course is to make a fresh application, if one be available to him. The appropriate course is not, judgment in this case already having been given on the matters over which the parties have joined issue, to adjourn the proceedings in the hope that at some future point, such a report might emerge, so that Mr Bar-Mordecai could then re-agitate the case which he has thus far failed to establish in these proceedings. 14In the result his application for re-opening must fail. 15The next question is whether the hearing of the other parties' motions as to costs should be adjourned for a further period of three months. Today is the first occasion on which there has been any suggestion forthcoming from Mr Bar-Mordecai, as to any inadequacy in the evidence on which Dr XY seeks to rely. No notice of any difficulty in that regard has been given and no particulars have been sought. That there is further information which Mr Bar-Mordecai now seeks, it seems to me in the circumstances, is not a proper basis for adjourning the hearing. Given the nature of what lies in issue between the parties, if the evidence on which Dr XY relies is not a proper basis for the costs order which he seeks being made in his favour then, of course, his application will fail. 16As to the difficulty with the transcript, what in reality Mr Bar-Mordecai is seeking is a review of the Registrar's decision, it seems, to refuse to waive the fee involved in obtaining a copy of the transcript. Mr Bar-Mordecai's affidavit discloses neither when that application was made and refused by the Registrar, nor the material on which he relied before the Registrar to support his claim for a waiver of the fee, or why it was refused. In the circumstances, it is difficult to see that the Registrar has erred in the conclusion which he came to. The onus lies on Mr Bar-Mordecai to establish that. It has not been met. 17Trying to be practical about the matters lying between the parties and what needs to be done by way of preparation for the hearing on Friday, what I propose to do is give Mr Bar-Mordecai access to the transcript of the two days of the hearing from the Court file. He can exercise that access on approach, but I am not satisfied that the circumstances are such that a proper basis for a further adjournment of the hearing on Friday has not been established. 18For those reasons, the orders sought in the motion are refused, but, as I say, Mr Bar-Mordecai is given liberty to approach to obtain access to the transcript of the proceedings.