Attorney -General of NSW v Bar -Mordecai

Judgment 1On 25 February 2005 Patten AJ made these orders: (1) That Michael Jacob Bar -Mordecai shall not, without leave of this Court institute proceedings in any court. (2) That any legal proceedings instituted by Michael Jacob Bar -Mordecai, in any court before the date of this order, shall not be continued by him without leave of this court. ... (5) That Micheal Jacob Bar -Mordecai give not less than 3 days notice to Crown Solicitor of any application to institute proceedings for leave pursuant to orders 1 and 2 above: ( Attorney General (NSW) v Bar -Mordecai [2005] NSWSC 142). Those orders were made under s 84(1) Supreme Court Act 1970. Since that time, s 84 has been repealed and the Vexatious Proceedings Act 2008 (VPA) has been enacted. 2Mr Bar -Mordecai has filed 2 Notices of Motions asking for leave to commence 2 proceedings and a Notice of Motion asking for leave to take a step within proceedings that have already been commenced. The first of these was a Motion dated 25 October 2010 that came before RS Hulme J. The Notice of Motion sought leave to file a Statement of Claim in the Supreme Court against Dr XY for medical negligence. On that day RS Hulme J ordered pursuant to s 16(1)(a) of the VPA that Mr Bar -Mordecai serve the Attorney General, the Solicitor -General and Dr XY with a copy of the Notice of Motion and the Affidavit in Support and the Order of the Court. 3The Second and Third Notices of Motion were both filed on 2 November 2010. One of these sought leave to file a Notice of Motion seeking Discovery and a Trial by Jury in a matter in the District Court of New South Wales for compensation and damages against the State of New South Wales for intentional torts of unlawful arrest, assaults and wrongful incarceration. 4The other Notice of Motion asked for a grant of leave to file a Statement of Claim in the District Court of New South Wales seeking compensation and damages from the publisher of "the Telegraph" [i.e. the Daily Telegraph] and its employee, Ms Janet Fife -Yeomans for the intentional tort of libel. 5On 21 October 2010 Mr Bar -Mordecai had sought leave from Harrison J to file those two Notices of Motion and a third Motion which is irrelevant for present purposes. Harrison J said in relation to these 2 Notices of Motion that it did not appear that the proceedings were unarguably vexatious or that there were no prima facie grounds upon which to commence or continue them. Harrison J then ordered under s 16(1) that relevant persons be served with the Notices of Motion and supporting affidavits. 6Mr Bar -Mordecai duly served the persons concerned in respect of each of the 3 Notices of Motion. 7Part 3 of the VPA contains provisions dealing with the taking of proceedings by vexatious litigants. Those sections relevantly provide: 14 Application for leave to institute proceedings (1) This section applies to a person ( the applicant ) who is: (a) subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or (b) acting in concert with another person who is subject to an order referred to in paragraph (a). (2) The applicant may apply to an appropriate authorised court for leave to institute proceedings that the order would otherwise prohibit the person from instituting. (3) The applicant must file an affidavit with the application that: (a) lists all occasions on which the applicant has applied for leave: (i) under this section, or (ii) before the commencement of this section-as required by an order under section 70 of the Land and Environment Court Act 1979 or section 84 of the Supreme Court Act 1970, and (b) lists all other proceedings the applicant has instituted in Australia, including proceedings instituted before the commencement of this section, and (c) discloses all facts material to the application, whether supporting or adverse to the application, that are known to the applicant. (4) The applicant must not serve a copy of the application or affidavit on any person unless: (a) an order is made under section 16(1)(a), and (b) the copy is served in accordance with the order. (5) An appropriate authorised court may dispose of the application by: (a) dismissing the application under section 15, or (b) granting the application under section 16. (6) Despite any other Act or law, the applicant may not appeal from a decision disposing of the application. 15 Dismissing application for leave (1) An appropriate authorised court must dismiss an application made under section 14 for leave to institute proceedings if it considers: (a) the affidavit required by section 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. (2) The application may be dismissed even if the applicant does not appear at the hearing of the application. 16 Granting application for leave (1) Before an appropriate authorised court grants an application made under section 14 for leave to institute proceedings, it must: (a) order that the applicant serve each relevant person with a copy of the application and affidavit and a notice that the person is entitled to appear and be heard on the application, and (b) give the applicant and each relevant person an opportunity to be heard at the hearing of the application. (2) At the hearing of the application, the court may receive as evidence any record of evidence given, or affidavit filed, in any proceedings in any Australian court or tribunal in which the applicant is, or at any time was, involved either as a party or as a person acting in concert with a party. (3) The court may grant leave to institute proceedings subject to the conditions that the court considers appropriate. (4) However, the court may grant leave only if it is satisfied that: (a) the proceedings are not vexatious proceedings, and (b) there are one or more prima facie grounds for the proceedings. (5) In this section: relevant person , in relation to the applicant for leave to institute proceedings, means each of the following persons: (a) the person against or in relation to whom the applicant proposes to institute the proceedings, (b) the Attorney General, ... 8What came before me for hearing was said to be a Directions Hearing to determine if a person in the position of the Defendant could and should be given leave to serve and rely upon affidavits in support of the Notices of Motion the subject of the s 16(1) orders, being additional affidavits to those which were considered by the judge making the s 16(1) order. Put another way, the question is whether Pt 3 of the VPA permits reliance upon affidavits other than that referred to in s 14(3). 9This issue had already been sought to be raised by the Defendant who had applied to Adams J with a Notice of Motion dated 4 November 2010 which sought leave to file and serve some further affidavits in respect of each of the 3 matters the subject of s 16(1) orders. Adams J in a short judgment delivered on that day rejected the Defendant's application and said this: [4] An application for leave to institute proceedings is made under s 14 and requires the filing of an affidavit with the application that lists certain specified information. Mr Bar -Mordecai says that, in each case, the additional affidavits which he wishes to serve disclose material facts but material facts which are different to those contained in the original affidavits and which, on the face of it, form the basis for the orders. [5] It is not necessary for me to consider whether only one affidavit can be filed in relation to each application. It is plainly inappropriate in cases of this kind that another Judge should give leave to serve an affidavit in circumstances where that affidavit has not been the basis upon which the original order was made. [6] Accordingly, the notice of motion must be dismissed. 10The Plaintiff submitted that a question of law was raised by what the Defendant sought to do. That question of law was identified in the written submissions of the Plaintiff. I expressed the view that if a question of law was to be determined it would be better determined as a separate question in the proceedings rather than by general rulings or directions given in the course of a Directions Hearing in the way the matter had initially come before me. 11Bearing in mind that what was raised in the Plaintiff's submissions was an important point for the construction and operation of the Act, it seemed to me appropriate that there should be a final determination and a properly articulated separate question so that the parties would not be constrained from taking the matter elsewhere by reason that I had merely expressed some opinion on matters raised at a Directions Hearing. 12The Plaintiff sought, therefore, to file a Notice of Motion which asked that the Notices of Motion filed by the Defendant (to which I have already referred) be adjourned pending a determination of the following question of law: Whether, on the proper construction of the Vexatious Proceedings Act 2008: (a) The Defendant may, in the absence of any order of the Court requiring or authorising him to do so, lawfully serve and/or rely upon additional evidence in support of one or more of his pending leave applications; and if not (b) whether the Court may lawfully make an order requiring or authorising him to do so. 13The Defendant did not oppose that course, nor my determining the question of law at this stage in the proceedings. It should be noted, however, that the Defendant sought to add to the question of law the following: (c) that the court authorise Michael Bar -Mordecai to file further evidence prior to the hearing of the contested leave application. 14I declined to add that paragraph because it did not seem to me that it formed part of any question of law. Rather, it was a request for an exercise of the court's discretion in the event that I held that the Act enabled the Court to allow the filing of further affidavit evidence. The procedure envisaged by the Act 15It is important at this point to set out the procedure that Pt 3 VPA envisages. A vexatious litigant must apply to the Court for leave to institute proceedings. Under this Court's practice at the time of the Defendant's Notices of Motion the Notice of Motion was to be entitled in the proceedings which determined that the applicant was to be the subject of a vexatious proceedings order. I shall say something about this procedure later in the judgment. 16At the time of these Notices of Motion brought by the Defendant the initial consideration under s 14 was dealt with by a judge sitting in open Court, usually the duty judge. That judge gave leave or not, as the case may be, for the applicant to file and serve the Notice of Motion with the Affidavit and the notice that the relevant person is entitled to appear and be heard on the application (s 16(1)(a)). According to the subsequently issued directive from the Registrar this stage of any application is now considered by a judge in Chambers after filing the Notice of Motion. However it is done, the same approach set out below is to be followed. 17Section 15 requires the Court to dismiss the application in the 3 situations set out in sub -s (1). If an application is not dismissed the Court must order that the Applicant serve each relevant person with a copy of the application, and the other documents referred to above. 18There is then a further hearing where the relevant person may appear. After hearing from the applicant and the relevant persons the Court may grant leave only if satisfied of the matters in sub -s (4), and must dismiss them after that hearing if any of the matters in s 15(1) obtain.