Attorney -General of NSW v Bar -Mordecai

Submissions on the separate question 19The Plaintiff does not submit that the words "an affidavit" in s 14(3) confines an applicant to a single affidavit in support of the application for leave. The Plaintiff accepts that s 8(b) Interpretation Act 1987 would permit more than one at this stage. The question in issue is whether an applicant can be permitted to rely on affidavits not put forward at the time of the initial application for leave but which are sought to be relied upon when the application for leave is determined under s 16(3) with the relevant persons present. 20The Plaintiff submits that 2 things within the words of the sections, in particular, point to the conclusion that no further evidence can be relied upon by an applicant beyond the affidavit filed with the application and considered under s 14. First, the Plaintiff points to s 14(3)(c) which requires the affidavit to disclose "all facts material to the application that are known to the applicant". Secondly, the Plaintiff points to s 15(1)(a) that requires dismissal of an application if that affidavit does not substantially comply with s 14(3)(c). 21The Plaintiff submits further that the legislature has provided a procedure in ss 14 -16 VPA in an exhaustive fashion which does not permit the case management and inherent powers of the Court. The Plaintiff draws attention in this regard to s 4(5) Civil Procedure Act 2005 which provides: Subject to any such regulation, this Act does not limit the operation of any other Act with respect to the conduct of civil proceedings. The Plaintiff also draws attention to s 61 Civil Procedure Act which is concerned with directions as to practice and procedure. The Plaintiff also submits that the Act is there to impose some discipline on vexatious litigants, and that once a vexatious proceedings order is made against the person that person is held on a very tight leash. 22On the other hand, the Plaintiff accepts that the Defendant should not be prevented from relying on a further affidavit if relevant matters come to his or her knowledge after the time of the initial application envisaged by s 13. Further, the Plaintiff accepts that an applicant would be entitled to respond by affidavit to matters raised by a relevant person after that person had been served with the material pursuant to s 16(1)(a). 23The Plaintiff points to the maxim expressum facit cessare tacitum and to what Dixon J said in The King v Wallis ; ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529 at 530: But upon some matters the Act does speak with more particularity. If it confers a specific power with respect to a limited subject or specifies a manner of dealing with it or otherwise provides what the duty or authority of the arbitrator shall be, then upon ordinary principles of interpretation the provision in which that is done should be treated as the source of his authority over the matter, notwithstanding that otherwise the same or a wider power over the same matter might have been implied in or covered by the general authority given by s. 38. This accords with the general principles of interpretation embodied in the maxim expressum facit cessare tacitum and in the proposition that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course. 24The Plaintiff also draws attention to statements in such decisions as Browne v Commissioner for Railways (1935) 36 SR NSW 21 at 28 -29 and Hoban v Davey (1972) 1 NSWLR 59 at 67 suggesting that where no machinery is prescribed in an Act it would be open to a tribunal or court to prescribe such machinery. However, where the machinery is prescribed there is not room for it to be supplemented. 25The Defendant submits that s 14 does not contain words to the effect: the applicant might file only 1 affidavit in support of the application. He submits that the Court should not read words into s 14 which do not appear. He submits that traditionally courts have always had power over their own processes particularly concerning matters of practice and procedure. The Court would therefore, he submits, be cautious about reading in a limitation to its powers by a restrictive construction of ss 14 -16. 26He submits that no party would be prejudiced by the Court's permission for the further affidavits to be relied upon. This submission may most easily be disposed of at this stage. Any issue associated with prejudice could only arise if Pt 3 VPA permits the service of further affidavits. In that case the Court would have a discretion whether or not to permit reliance on further material. Questions of prejudice would arise at that time but not earlier.

Consideration 27In my opinion, ss 13 -16 VPA do not either by express words or necessary intendment prescribe a rigid regime from which no variation is possible, nor do they exclude the provisions of the Civil Procedure Act nor the inherent jurisdiction of the Court to manage and control its own procedures. My reasons for this follow. 28First, I acknowledge the force of the requirements in s 14(3)(c) when coupled with the obligation on the Court under s 15(1)(a). However, s 15(1)(a) provides some leeway in requiring only that the affidavit required by s 14(3) substantially comply with that sub -section. 29Secondly, the sections do not prescribe a rigid regime because s 16 leaves open the evidence that the Court might receive after the relevant person has been served. Section 16(2) enables the Court to receive the evidence referred to in that sub -section. Nothing in s 16 expressly permits the receipt of any other evidence. Given that the relevant person is entitled to appear and be heard on the application it would be surprising indeed if the relevant person was not permitted to adduce relevant evidence (other than evidence referred to sub -s (2)) that might touch upon the question of whether leave should be granted. The Court's usual procedures and practices must therefore be engaged in relation to the s 16 hearing when the relevant person is present. 30Thirdly, and associated with the matter just mentioned, it would be surprising indeed if the Applicant was not entitled to adduce evidence in reply to any evidence adduced by a relevant person. Indeed, the Plaintiff accepts that such evidence must be able to be adduced. That no express provision appears in s 16 in relation to such evidence in reply suggests that the Act intends to leave such matters of procedure to the Court's usual practices. 31Moreover, if evidence in reply can be filed there is a reasonable likelihood that that evidence will contain some facts material to the application. That may be because the facts were known to the applicant at the time he or she originally filed but did not think were material to the application until a particular matter was raised by the relevant person. Further, if evidence was appropriately given in reply it is likely to include or even consist of facts material to the application because facts which were not material would be unlikely to be relevant. 32Whilst it is certainly true that, if the Court took the view that the applicant had not disclosed facts material to the application in the initial affidavit without reasonable cause, it would be bound to dismiss the application under s 15(1)(a) there are likely to be cases when such facts were not disclosed for legitimate reasons, such as those that I have mentioned, namely, that until the matter was raised by the relevant person the fact was not realised as being material. 33Fourthly, if the VPA intended to exclude the provisions of the Civil Procedure Act 2005 and the Rules made thereunder, it could be reasonably be expected to have said so, particularly as the Act was only passed 3 years after the Civil Procedure Act . The words of s 4(5) of the Civil Procedure Act provide no answer because that sub -section, as r 1.6 UCPR makes clear, is to enable modifications of the Civil Procedure Act in particular Courts that operate subject to that Act and Rules where certain proceedings under various specified Acts are brought. In this regard, it is to be noted that r 1.6(b) does not include the VPA. 34However, s 4(5) Civil Procedure Act might be thought to be subject to the provisions of s 5(1) of that same Act. In the absence of some express statement in another Act that limited this Court's jurisdiction, nothing in the Civil Procedure Act limits this Court's jurisdiction. 35The maxim expressum facit cessare tacitum , as with the similar maxim expressio unius est exclusio alterius , is to be treated with care, and will often be a last resort when all other methods of construction fail. Dixon J in The King v Wallis was dealing with an Act which provided authority to, and duties on, the decision maker of a statutory body akin to a tribunal. The passage has little application in the present circumstances where this Court and two other named superior courts of record are authorised to deal with procedural requirements of an application to the Court where no rigid procedure is laid down for that purpose. 36Fifthly, it is difficult to see how the mischief the Act is intended to deal with could be furthered in circumstances where a Judge has already determined in the first instance that the affidavit already filed shows that, at least at that stage, the proceedings are not vexatious, nor can it be said that there is no prima facie grounds for bringing the proceedings: s 15(1)(b)(c). For that reason, I reject the Plaintiff's submission that the Defendant's approach would enable an applicant to file "a kind of 'holding summons' and only then going about collecting the evidence to support it". The Plaintiff accepts, in any event, that if an applicant is given leave to institute the proceedings after the s 16(2) hearing, that applicant will not be confined to the evidence produced at that hearing. Because the applicant must satisfy the Court in the first instance (that is, before service of the relevant person) that the proceedings are neither vexatious nor can it be said that there is no prima facie grounds for bringing them, there will be no "holding summons" with evidence to come later. 37Finally, ss 14-16 do not, for another reason, prescribe a rigid procedure suggesting an exclusion of the Civil Procedure Act and the inherent jurisdiction of the Court. The sections do not lay down how the application is to be commenced. The Court has, as I have indicated, designed its own procedures that provide for the filing of a Notice of Motion in the proceedings in which the Applicant was declared a vexatious litigant. Those procedures further determined that there would be no filing of the Motions for leave until a Judge had determined ex parte whether leave to file and serve them should be granted. The sections of the VPA are silent about those procedures. They might have been different. The Court might have determined that an application for leave was to be filed by a fresh summons in new proceedings. Further, the change in procedure about whether the Notice of Motion should be filed before consideration by the judge ex parte rather than afterwards highlights the lack of a strict procedural regimen. 38Although the Plaintiff pointed to the potential unfairness to a relevant person who comes to the s 16(2) hearing expecting all the applicant's evidence to be in the s 14(3) affidavit, the usual procedures and case management enable the Court to deal with the issue of further evidence which has to be met by the relevant person. The Court has it within its power to ensure there is no unfairness including by the making of appropriate costs orders and a requirement that they be paid forthwith failing which there will be a stay of proceedings: see Markisic v Commonwealth of Australia [2010] NSWSC 24 at [164] -[178], upheld Markisic v Commonwealth of Australia [2010] NSWCA 273 at [368]. 39It can be accepted that it would be a rare case where there would be a need to permit an applicant to adduce evidence (not in reply) that was not contained in the s 14(3) affidavit. However, the VPA does not deprive the Court of its inherent jurisdiction or of its powers under the Civil Procedure Act and Rules to deal with such a situation if and when it arises. 40Although, on the face of it, the view to which I have come appears to be inconsistent with what Adams J decided in his ex tempore judgement dated 4 November 2010, I do not think that this is so. Adams J was confronted, when acting as Duty Judge, with a Notice of Motion from the Defendant seeking leave to serve further affidavits. 41Adams J said that it was not necessary for him to consider whether only one affidavit could be filed in relation to each application. Instead, he rejected the application on the basis that it was inappropriate that it should not be made to the Judge who originally granted the leave to serve the Motion and Affidavit under s 16(1). To the extent that that reasoning suggests that it would be inappropriate for the judge conducting the s 16(2) hearing to consider the question of further affidavits, I respectfully disagree with it. It must be said, however, that Adams J did not have the benefit of the detailed arguments that were put to me, nor the leisure to consider those arguments and examine the legislative provisions. Inasmuch as Adams J did not have to determine whether only one affidavit could be filed, the view to which I have come is not inconsistent with his reasoning. 42Although, for the reasons I have given, the Court is not precluded from using its own case management powers and procedures when dealing with applications by vexatious litigants, I do not consider that an applicant under Pt 3 VPA is free to serve affidavits, other than the s 14(3) affidavit, without the leave of the Court. In that regard, I accept the submission of the Plaintiff (noted in para [21] above) that a person against whom a vexatious proceedings order has been made ought to be closely scrutinised in what they seek to do in relation to any proceedings they seek to bring. I have noted that it would be a rare case that such a person would be permitted to file a further affidavit, and there will be a heavy onus upon any applicant who seeks to do so. An applicant may not without the leave of the Court serve any further affidavit. Variation of Patten AJ's orders 43Patten AJ made these orders under s 84 of the Supreme Court Act . That section did not prescribe the form of order that ought to be made. Order (5) does not sit easily with the provisions in the VPA. 44Schedule 1 to the Act contains the Savings, Transitional and other provisions. Clause 4 provides: 4 Certain existing orders taken to be vexatious proceedings orders (1) This clause applies to any order (an existing order ) that: (a) was made under a repealed vexatious litigant provision, and (b) is in force immediately before the commencement of this Act, and (c) operates to prevent a person from instituting or continuing proceedings without the leave of the Supreme Court or the Land and Environment Court. (2) An existing order is taken to be (and to have effect as if it were) a vexatious proceedings order made under this Act by the Supreme Court or the Land and Environment Court (as the case may be), and may be varied, set aside or reinstated accordingly. 45The Schedule, accordingly, enables all orders made by Patten AJ to be varied so as to make them consonant with the provisions of the Act. To that end, the Plaintiff has by Notice of Motion sought to vary order (5) made by Patten AJ so that it reads: (5) That Michael Jacob Bar -Mordecai not serve on the Attorney General or the Crown Solicitor any application, or notice of any application or proposed application, for leave to institute or continue any proceedings, unless and until he shall have been ordered to do so pursuant to s 16(1)(a) of the Vexatious Proceedings Act 2008. 46Mr Bar -Mordecai supports the application to vary Patten AJ's order (5). It is not appropriate that the order remain in place when it is inconsistent with s 14(4)(a) of the VPA. In those circumstances I will vary the order as requested. 47The Plaintiff also seeks to add a further order to those made by Patten AJ in these terms: (6) Any application by Michael Bar -Mordecai for leave to institute or continue any proceedings in which he is, or is proposed to be, the plaintiff applicant or otherwise a moving party, should be filed in the form of a Summons returnable in the Common Law division, and shall not be filed in the form of a Notice of Motion in these present proceedings. 48Mr Bar -Mordecai consents to this order being made also. 49The application for this order arises because of a directive made by the Registrar on 26 November 2010 that applications for leave to commence proceedings under s 14, be commenced by Notice of Motion and be filed in the proceedings in which the applicant was declared a vexatious litigant. The form of the directive (containing more detail than I have set out) was also contained in a letter from the Registrar to Mr Bar -Mordecai. This directive also changed the procedure so that such Notices of Motion were dealt with after filing by a Judge in Chambers with no persons being present. 50Two other Judges in this division of the Court have expressed the view that the procedure of commencing the leave application by Notice of Motion in the proceedings brought by the Applicant where he was declared to be vexatious is not satisfactory. In Attorney General in and for the State of NSW v Bar -Mordecai [2010] NSWSC 323 RA Hulme J was considering a Notice of Motion by Mr Bar -Mordecai for leave to file a Statement of Claim for the purpose of obtaining orders setting aside a judgement of Einstein J and another judgement of Bryson J. He was also considering a Notice of Motion by the Attorney General that Mr Bar -Mordecai pay costs pursuant to an order made by Johnson J in relation to Notices of Motion that Mr Bar -Mordecai had brought to institute three new proceedings in the Court including proceedings to set aside the judgements of Einstein J and Bryson J. 51In answer to the Attorney General's Notice of Motion, Mr Bar -Mordecai drew attention to Pt 42 r 7 UCPR which provided that unless the Court otherwise ordered, costs in an interlocutory application and reserved costs were not payable until the conclusion of the proceedings. In commenting on that submission, His Honour said: [47] The present proceedings are accepted by the Attorney General to be interlocutory. They are brought within the proceedings entitled Attorney General for the State of New South Wales v Bar -Mordecai which were instituted in early 2004 ("the original proceedings"). Those proceedings comprised the application by the Attorney General for Mr Bar -Mordecai to be declared a vexatious litigant and culminated with Patten AJ making orders to that effect on 25 February 2005. There have since been the various applications by Mr Bar -Mordecai that I have referred to for leave to institute proceedings. Those applications have all been made by way of notice of motion filed in the original proceedings. As a result of this, Mr Bar -Mordecai contended that the original proceedings have not reached a conclusion and so, according to UCPR 42.7(2), the costs he has been ordered to pay by Johnson J, McCallum J, Harrison AsJ and Schmidt AJ have not become payable . [48] If this contention be correct, the result would be that the original proceedings will never come to a conclusion while ever there is the opportunity for the filing of further notices of motion within them. It seems to me that it has been erroneous for applications for leave to commence proceedings to be made by way of notice of motion in the original vexatious declaration proceedings. Those proceedings concluded upon entry of the judgment of Patten AJ . Motions are appropriate in cases where a party seeks to move the court to make interlocutory or procedural orders in pending proceedings. The original proceedings are not pending. The present proceedings should have been brought by way of summons ( UCPR 6.4(1)(h)). Be that as it may, the situation I am dealing with is whether Mr Bar -Mordecai should be ordered to pay costs pursuant to the order made by Johnson J on 31 March 2009. The order that I propose to make pursuant to s 98 Civil Procedure Act will meet the proviso in UCPR 42.7(2) of, " Unless the court orders otherwise ". (emphasis added) 52In Attorney General v Bar -Mordecai (unreported - Harrison J - 21 October 2010), Harrison J was considering the two Notices of Motion to which I referred earlier in para [3] above. In the course of that his Honour said this: Mr Bar -Mordecai filed in Court three notices of motion with supporting affidavit material. As I have indicated, each matter is intituled in the original vexatious litigant proceedings commenced by the Attorney General. Whether or not that is appropriate, Mr Bar -Mordecai informs me that in many previous applications made by him no complaints have been raised either by the Court or the Attorney General that such an approach is the correct one. For my part, it seems that the application for leave to institute fresh proceedings in each case, or at least one of the notices of motion for this, ought to have been commenced as a fresh proceeding and not, as it were, under the umbrella of the proceedings pursuant to which the vexatious orders were made. Be that as it may, I am content for present purposes, because it is largely academic to proceed to deal with Mr Bar -Mordecai's applications on his urging under the umbrella proceedings against the contingency that that is something to which the Attorney General in due course may wish to take objection. 53I agree with the remarks made by both RA Hulme J and Harrison J. In particular, as RA Hulme J said, the proceedings brought by the Attorney General to have Mr Bar -Mordecai declared a vexatious litigant concluded when Patten AJ made orders to that effect. The proceedings brought by the Attorney General are unconnected with any proceedings that Mr Bar -Mordecai may wish to bring except that the Attorney General's proceedings have established, by order, that Mr Bar -Mordecai is a vexatious litigant. In other words, those proceedings have established his status. Similarly, probate proceedings establish the right of an executor to litigate if necessary. Thereafter, proceedings brought by the executor are separate proceedings from those which establish his or her position as executor. 54In other cases where some leave or preliminary order is required from this Court before proceedings can be commenced such applications are invariably commenced by summons. Examples are applications for preliminary discovery (see in this regard r 6.4 (1)(b) UCPR), proceedings for leave under s 6 Law Reform (Miscellaneous Provisions) Act 1946, proceedings seeking an extension of time under Division 2A Limitation Act 1969 , proceedings to remove District Court proceedings into this Court. Indeed, as RA Hulme J pointed out, r 6.4 (1)(h) identifies that proceedings on an application under any Act (which includes the VPA) ought to be brought by summons. 55The appropriate course for persons in the position of Mr Bar -Mordecai is, therefore, that if they wish to commence proceedings they should file a summons in which they seek the leave that s 14(2) VPA envisages. Provided that the summons is not served before an order is made under s16(1)(a) the procedure for dealing with the summons is a matter for the Court to determine. At the present time, pursuant to the Registrar's directive, such a summons will be dealt with by a Judge in chambers without the attendance of any person. 56For these reasons it is appropriate to make order 2 as sought in the Attorney General's Notice of Motion of 3 November 2010. Conclusion 57On the Notice of Motion of the Attorney General of 3 November 2010 I make the following orders:

1. I vacate order (5) made by Patten AJ on 25 February 2005 and substitute the following order: ( 5) That Michael Jacob Bar -Mordecai not serve on the Attorney General or the Crown Solicitor any application, or notice of any application or proposed application, for leave to institute or continue any proceedings, unless and until he shall have been ordered to do so pursuant to s 16(1)(a) of the Vexatious Proceedings Act 2008.
2. In addition to the orders made by Patten AJ on 25 February 2005 as varied in the previous order, I make the following additional order: (6) Any application by Michael Bar -Mordecai for leave to institute or continue any proceedings in which he is, or is proposed to be, the plaintiff, applicant or otherwise a moving party, shall be filed in the form of a Summons returnable in the Common Law division, and shall not be filed in the form of a Notice of Motion in these present proceedings. 58On the Attorney General's Notice of Motion filed 9 February 2011, I answer the question of law asked as follows: (a) No. (b) Yes.

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