- Attorney-General of NSW v Bar-Mordecai

Supreme Court of NSW|2011-12-20|Before: Adamson J, Patten AJ, Davies J

Introduction 1The plaintiff seeks leave by summons to file two statements of claim. This Court's leave is required before the plaintiff may institute proceedings in any court by reason of the orders set out below. 2On 25 February 2005 Patten AJ made the following 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 Michael 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. 3Those orders were made under s 84(1) Supreme Court Act 1970 (NSW). Since that time, s 84 has been repealed and the Vexatious Proceedings Act 2008 (NSW) ( VPA ) has been enacted. 4The Registrar made a directive in respect of the plaintiff on 26 November 2010, which relevantly directed that any applications by the plaintiff for leave to institute proceedings be dealt with after filing by a Judge in Chambers with no persons being present. 5On 3 March 2011 Davies J, on the application of the Attorney General of NSW, made the following orders ( Attorney-General of NSW v Bar-Mordecai [2011] NSWSC 100): "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." 6By reason of the Registrar's directive referred to above, this matter comes before me by way of chambers application.

The relevant statutory provisions in the VPA 7Section 14 of the VPA relevantly provides: " 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 ... (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." 8The question of whether or not the application for leave should be granted, is governed in part by the provisions of s 15, which provides: " 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 (2)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." 9If leave is proposed to be granted, s 16 applies and notice must be given to certain persons. Section 16 provides: " 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 ..." 10It follows from what I have set out above that the applicable procedure is as set out below. A vexatious litigant must apply to the Court for leave to institute proceedings. Section 15 requires the Court to dismiss the application in the three situations set out in s 15(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. There 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 s 15(4), and must dismiss them after that hearing if any of the matters in s 15(1) obtain. 11I turn then to the matters arising for consideration under s 15(1) of the Act.

Section 15(1)(a) - the requirements of s 14(3) 12I am satisfied that the affidavit on which the plaintiff relies to support his application for leave substantially complies with the requirements of s 14(3).

Section 15(1)(b) and (c) - are the proceedings vexatious and is there no prima facie ground for them? 13'Vexatious proceedings' are dealt with in s 6, which provides: " Meaning of 'vexatious proceedings' In this Act, vexatious proceedings includes: (a) proceedings that are an abuse of the process of a court or tribunal, and (b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and (c) proceedings instituted or pursued without reasonable ground, and (d) proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose."

The evidence in support of the application 14In order to come to a conclusion on this question, it is necessary to consider the material exhibited to the affidavit the plaintiff has sworn in support of his application, as well as the affidavit itself. The plaintiff relies on his affidavit affirmed on 28 January 2011 and the two volumes of documents that comprise the exhibits. The two proposed draft statements of claim are exhibited to his affidavit.

The proposed proceedings 15The defendant to the first draft statement of claim in respect of which leave is sought is the Health Care Complaints Commission ( HCCC ). The plaintiff seeks, in that statement of claim, to set aside the decision of the Medical Tribunal ( the Tribunal ) in In re Dr Bar-Mordecai and the Medical Practice Act 1992 dated 6 September 2000 to deregister him and to make a seven-year non-application order against him ( the Deregistration Decision ). 16The defendant to the second draft statement of claim in respect of which leave is sought is the Medical Council of New South Wales, formerly the Medical Board ( the Medical Council ). The plaintiff seeks, in that statement of claim, to set aside the decision of the Medical Tribunal in In re Dr Bar-Mordecai and the Medical Practice Act 1992 dated 18 March 2009 to refuse his application under s 92 of the Medical Practice Act 1992 (NSW) for reinstatement ( the Refusal of Reinstatement Decision ) on the grounds that it is alleged to have been procured by fraud.

Proposed proceedings against the Health Care Complaints Commission 17The first draft statement of claim is some 53 pages long. In it the plaintiff sets out, in 57 numbered paragraphs, many of which contain lengthy particulars, the basis on which he seeks to have the Deregistration Decision set aside. In the main, the plaintiff challenges findings of fact made by the Tribunal in making the Deregistration Decision by reference to evidence given in those proceedings which he alleges was false. 18The plaintiff appealed to the Court of Appeal against the Deregistration Decision. The Court of Appeal dismissed the appeal on the basis that the plaintiff had not identified any question of law: Bar-Mordecai v Health Care Complaints Commission [2002] NSWCA 192. The Court of Appeal found that its jurisdiction to intervene is limited by the Medical Practice Act 1992 (NSW) to matters involving a question of law. The plaintiff sought special leave to appeal to the High Court more than five years out of time. The High Court refused to grant an extension of time to apply for special leave on the basis that there was no prospect of success on any appeal: Bar-Mordecai v Health Care Complaints Commission [2008] HCASL 421 (31 July 2008). 19Essentially, the plaintiff in his first draft statement of claim seeks to relitigate the factual issues that he sought to raise before the Court of Appeal. Although the appeal to the Court of Appeal did not contain allegations of fraud, it nonetheless sought to challenge the evidence on which the plaintiff now seeks to rely to set aside the judgment. It is well established that an attempt to re-litigate matters that have already been finally determined amounts to an abuse of process and ought not be permitted. 20In the first draft statement of claim, the plaintiff makes allegations that various witnesses who gave evidence in the Deregistration hearing before the Tribunal gave fraudulent evidence. These allegations are made against a lay witness, Mr Allan Hillston, and two peer review witnesses, Dr Bunker and Dr Chung. 21The plaintiff also alleges that the HCCC itself was guilty of fraud in maintaining a false allegation that he and the late Eveline Hillston were not in a de facto relationship until close to the end of the Deregistration hearing. I do not consider there to be any evidence of fraud. The HCCC is an investigating body and it is entitled to rely on the evidence of witnesses in order to determine what allegations are properly made in disciplinary proceedings. Furthermore, as appears from the reasons for the Deregistration Decision, there had been a decision of the Probate Division of this Court which had determined that the plaintiff was not a de facto husband of the late Eveline Hillston. This alone, in my view, would have been sufficient for provide a proper foundation for the HCCC's allegation, even though, as the Tribunal noted, the decision of this Court as to a factual matter is not binding on the Tribunal. 22Although it was a significant matter for the plaintiff to establish that he was the late Eveline Hillston's de facto husband, it was not, on either the HCCC's case, or on the Tribunal's reasoning, exculpatory since he had provided medical treatment to her, and this was the gravamen of the professional misconduct alleged against him. Indeed the plaintiff's view that he was entitled to provide medical treatment to his de facto wife formed part of the basis of the Deregistration Decision. The lack of relevance of the determination whether the plaintiff was the late Eveline Hillston's de facto husband appears from the following passage from the Tribunal's reasons in the Deregistration Decision: "Unlike the proceedings in the Probate Division of the Supreme Court this Tribunal does not have to make a finding on whether the relationship between the Respondent and Eveline Hillston was a de facto relationship within the meaning of the Wills Probate and Administration Act. The issue for this Tribunal to determine is whether the Complainant has comfortably satisfied it on the balance of probabilities that the respondent treated her whilst at the same time having a personal and sexual relationship with her, and, whether in all the circumstances, this is improper or unethical conduct relating to the practice of medicine." 23The relevant portion of the Tribunal's reasons is set out below: "This Tribunal has no hesitation in accepting the evidence of Drs. Bunker and Chung and is comfortably satisfied on the balance of probabilities that, not only in the formation of the relationship with Eveline Hillston but also in continuing to treat her during the currency of that relationship, the Respondent was guilty of improper and unethical conduct relating to the practice of medicine. Accordingly, Particular 1 of Complaint 1 is found proved." 24I do not consider that the plaintiff has shown any proper basis for the allegations contained in his first draft statement of claim. 25In Attorney General of NSW v Wilson [2010] NSWSC 1008 at [13] Davies J cited Brogden v Attorney-General [2001] NZCA 208; [2001] NZAR 809 at [21] where it was said: "A litigant may be said to be persisting in litigating though the number of separate proceedings he or she brings is quite small if those proceedings clearly represent an attempt to re-litigate an issue already conclusively determined against that person, particularly if this is accompanied by extravagant or scandalous allegations which the litigant has no prospect of substantiating or justifying. The Court may also take into account the development of a pattern of behaviour involving a failure to accept an inability in law to further challenge decisions in respect of which the appeal process has been exhausted, or attacking a range of defendants drawn into the widening circle of litigation solely because of an association with a defendant against whom a prior proceeding has failed." 26The allegations of fraud made against various persons, including those who gave evidence against the plaintiff, which led to his deregistration by the Tribunal in 2000 appear to me to be the very sort of allegations which are described in the passage above as "extravagant or scandalous". The form and content of the draft statement of claim fits into a pattern of behaviour which involves "a failure to accept an inability in law to further challenge decisions in respect of which the appeal process has been exhausted". 27Further, the Deregistration Decision was made over eleven years ago and, in the interim, the plaintiff has applied under s 92 of the Medical Practice Act to the Tribunal for a review of the deregistration order made as part of the Deregistration Decision. This application was dismissed, as appears from the narrative above, and the Refusal of Reinstatement Decision was made. 28Section 94A of the Medical Practice Act 1992 provides as follows: "Inquiry into review application (1) A review under this Division is a review to determine the appropriateness, at the time of the review, of the order concerned. (2) The review is not to review the decision to make the order, or any findings made in connection with the making of that decision, unless significant fresh evidence is produced that was not previously available for consideration, and the appropriate review body is of the opinion that, in the circumstances of the case, the decision to make the order, or any finding on which the decision was based, should be reconsidered. (3) In addition to any other matter that the review may take into account, the review must take into account any complaint made or notified to the Board about the person, whether the complaint was made or notified before or after the making of the order that is the subject of the review and whether or not the complaint was referred under Division 3 of Part 4 or any other action was taken on the complaint." 29The plaintiff's application for review can be taken to be an acceptance of the validity of his deregistration and a challenge to its continued appropriateness as at the date of the review. As the narrative above demonstrates, the plaintiff was unsuccessful in his application for a review. The first draft statement of claim is yet another attempt to challenge the correctness of the Deregistration Decision. 30For these reasons, I consider that, if leave were granted to file it, the first draft statement of claim would constitute vexatious proceedings on the ground that they would be an abuse of process within the meaning of s 6(a) of the VPA. They would also be vexatious within s 6(c) since they are instituted without reasonable ground and within s 6(d) since commencement of such proceedings would cause some detriment in requiring the HCCC to defend itself against proceedings, which have no reasonable ground, and in respect of which the plaintiff has exhausted the avenues of legal rights available to him. 31Because I consider the proposed proceedings to be vexatious within the meaning of s 6 of the Act, I am obliged to dismiss the plaintiff's application under s 14 for leave to institute them. I also consider that they are brought without reasonable ground and I am also obliged to dismiss them on that basis. 32In any event, by reason of s 16(4) of the Act I may grant leave to the plaintiff to institute proceedings only if I am satisfied that the proceedings are not vexatious and there are one or more prima facie grounds for the proceedings. Accordingly, because of the view to which I have come set out above, I have no power to grant leave to the plaintiff to institute proceedings by filing the first draft statement of claim against the HCCC.

Proposed proceedings against the Medical Council 33The second draft statement of claim is some 11 pages long. In it the plaintiff sets out, in 11 numbered paragraphs, many of which contain lengthy particulars, the basis on which he seeks to have the Refusal of Reinstatement Decision set aside. 34In the main, the plaintiff challenges the evidence given before the Medical Tribunal in his application for review and in particular that given by two psychiatrists, Dr Phillips, to whom he was referred for assessment by the Medical Board's legal advisers, and Dr Roberts, who was his treating psychiatrist. The principal allegations against the Medical Board are that it colluded with the medical experts to have them give false evidence for monetary gain and that it made false submissions to the Tribunal regarding the plaintiff's lack of insight (which was germane to the question whether deregistration was still appropriate). 35There are also allegations that the Medical Board colluded with the Tribunal. In summary, the plaintiff makes several scandalous allegations, which include fraud, against two medical practitioners, the Medical Board and the Presiding Judge of the Tribunal. The particulars amount to mere assertions and do not, in substance, support such serious allegations. 36It appears that one of the plaintiff's grievances against Dr Phillips is that he modified his view about the plaintiff's fitness to practise once details of the sexual boundary violations which had led to his deregistration had been made clear by the Medical Board. It is not uncommon for an expert opinion to change substantially when the assumptions or history on which it is based are altered. This appears to have been what occurred with the evidence of Dr Phillips. However, the plaintiff, in his affidavit in support of the summons, disparages Dr Phillips for not eliciting sufficient information from the plaintiff himself to support his opinion. 37The plaintiff has tendered, in this application, the first report of Dr Phillips in support of his application for reinstatement, dated 21 October 2008. In this report, Dr Phillips opined that the plaintiff was not suffering from any recognisable psychiatric illness; that he doubted that the plaintiff would offend in a similar manner again (have sexual relations with a patient) if he were permitted to practise medicine again; and that there are neither intellectual nor technical reasons which would prevent his retraining in medicine. Dr Phillips subsequently received a letter from the Crown Solicitor's Office which asked him certain questions in light of assumptions which he was asked to make. He then wrote a further report dated 9 December 2008 in which he revised his earlier opinion in light of the assumptions provided. 38The plaintiff has also tendered extracts of the transcript of his cross-examination of Dr Phillips in the hearing before the Medical Board, including the following answer to his question whether Dr Phillips believed that he would re-offend: "Well I'd already stated in relation to two of your patients that I thought you had learnt a hard lesson and you probably would not re-offend, and I held that view fairly strongly. I don't think at this stage though I hold it as strongly as I did before. I've listened carefully in the court, or as carefully as I could, and it seems to me that whilst you have a sort of general understanding that doctors cannot under any conditions have a sexual relationship with a patient. I am not convinced that that is held truly and firmly by you, you seem to waver around the point to a degree." 39The following passage is also instructive: "Q. Yes, and do you think I've learnt the lesson or I have insight into various boundary violations in medicine and medical ethics, boundary violations? A. Well, that brings me back to the beginning, because I said my - having listened today and - and before Christmas, I'm not entirely convinced within myself that you have a properly firm and immovable understanding in relation to the - the ethics of the doctor-patient relationship and the boundaries that are so important in the ethical arrangements." 40That Dr Phillips had changed his opinion somewhat from that expressed in his reports appears from the following passage in his cross-examination by the plaintiff: "WITNESS: I found you persuasive, particularly in a one to one situation in the office and I found myself quite liking you. In that situation I have to say that, you appeared, on the face of things anyway, to try to provide me with comprehensive information and to do it properly and as I say, to state it in the report you were quite warm. I have my doubts since then, I think, and what I've heard in this court, this Tribunal on two occasions and also when I went into the various documents which I did after I saw you rather than before, I started to question whether in fact I had got it wrong." 41The plaintiff, in his affidavit in support of the summons makes a number of serious allegations against both the Medical Board and Dr Phillips, including the following, at [26]: "The Medical Board of NSW called Dr Phillips as an expert witness to give his false evidence at the Tribunal hearing to mislead the Tribunal." 42I cannot discern any substantial basis for the allegation from the evidence adduced by the plaintiff, which includes copies of the reports of Dr Phillips that were tendered in the Tribunal, parts of the transcript of evidence and submissions before the Tribunal. What appears from the limited extracts I have set out above, which are included by way of example only, is that Dr Phillips was concerned about the possibility of future transgression and that the Tribunal relied at least in part on those concerns, together with Dr Roberts' evidence and the Tribunal's own expert assessment. 43The plaintiff, as a litigant in person who is not a legal practitioner, is not bound by the ethical rules that govern members of the legal profession. Were he a legal practitioner, the making of such allegations without a proper basis could amount to professional misconduct. The following passage from the decision of the Court of Appeal in Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act v Tweed Byron Local Aboriginal Land Council (1990) 71 LGRA 201, at 203-204 is, however, apposite to the plaintiff because of the effect that the making of such statements can have: "It is a serious matter to allege fraud against a party in pleadings to which attach the privileges incidental to court proceedings. They may do great harm to a party before a word of evidence has been offered and submitted to the searching scrutiny of cross-examination or to rebuttal ... Professional discipline may follow if allegations of fraud are made [without proper basis] ... By such means, courts protect their process from the abuse, which would follow from the too ready assertion of fraud against a party, in circumstances where it could not be proved to the high standard required of such allegations ... Behind this principle lie many reasons of policy. One of them is stated above. It relates to the protection against the risk of abuse of court processes." 44The plaintiff's preparedness to make such allegations, without any apparent basis or particularity is relevant to whether the proceedings are vexatious within the meaning of s 6(d) of the VPA. 45Essentially, the plaintiff in his second draft statement of claim seeks to relitigate the factual issues that he sought to raise before the Tribunal, and challenge the Refusal of Reinstatement Decision by disparaging the Tribunal, the Medical Board and witnesses who appeared in the Tribunal. 46As with the first statement of claim, the second conforms to the pattern of behaviour referred to above in Wilson . 47I consider that, if leave were granted to file it, the second draft statement of claim would constitute vexatious proceedings on the ground that they would be an abuse of process within the meaning of s 6(a) of the VPA. They would also be vexatious within s 6(c) since they are instituted without reasonable ground and within s 6(d) since commencement of such proceedings would cause some detriment in requiring the Medical Board to defend itself against proceedings, which have no reasonable ground. Their conduct (which includes their institution) would also be so as to harass the medical practitioners against whom disparaging and scandalous allegations are made, the Medical Board and the Tribunal. 48Because I consider the proposed proceedings to be vexatious within the meaning of s 6 of the Act, I am obliged to dismiss the plaintiff's application under s 14 for leave to institute them. I also consider that they are brought without reasonable ground and I am also obliged to dismiss them on that basis. 49In any event, by reason of s 16(4) of the Act I may grant leave to the plaintiff to institute proceedings only if I am satisfied that the proceedings are not vexatious and there are one or more prima facie grounds for the proceedings. Accordingly, because of the view to which I have come set out above, I have no power to grant leave to the plaintiff to institute proceedings by filing the second draft statement of claim against the Medical Council. 50Accordingly, I order as follows: (1)Dismiss the plaintiff's summons.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 December 2011

Medical Practice Act 1992(NSW)

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