Attorney-General of NSW v Bar-Mordecai

Section 15(1)(a) - the requirements of s 14(3) 7I am satisfied that the affidavit on which Mr Bar-Mordecai relies to support his application for leave complies substantially with the requirements of s 14(3).

Section 15(1)(b) - are the proceedings vexatious? 8'Vexatious proceedings' are dealt with in s 6, which provides: "6 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." 9In order to come to a conclusion on this question, it is necessary to consider the judgment given by Davies J. His Honour was dealing with a motion brought by the Attorney-General, which raised questions as to the proper construction of the Act. The effect of his Honour's conclusions were that:

1. In the absence of any order of the Court requiring or authorising him to do so, Mr Bar-Mordecai may not lawfully serve and/or rely upon additional evidence in support of one or more of his pending leave applications
2. The Court may make an order requiring or authorising him to do so. 10These questions had arisen in a context where Mr Bar-Mordecai had been given leave to serve a number of applications for leave, in accordance with s 16(1) of the Act. He then sought to file further affidavits in support of his application for leave, in addition to the s 14(3) affidavits he had earlier filed. That was opposed by the Attorney-General. Davies J directed that the Attorney-General file a motion, specifying the question of construction of the Act which the Attorney-General wished to argue. 11Having heard the parties his Honour took the view that if an applicant is given leave to serve an application pursuant to s 16(1) of the Act, thereafter the Court is empowered to permit the applicant to adduce further evidence in support of the application, in relation to matters not already dealt with in the s 14(3) affidavit. Nevertheless, his Honour concluded that an applicant was not free to serve affidavits other than the s 14(3) affidavit, without leave of the Court. He accepted that an applicant in proceedings such as this ought to be closely scrutinised in what they seek to do in relation to any proceedings they seek to bring; that it would be a rare case where such leave would be given; and, that there will be a heavy onus on any applicant who seeks to do so (at [42]). 12Mr Bar-Mordecai takes issue with his Honour's construction of the Act. That being the case, it does not seem to me that these may be considered to be vexatious proceedings. As Davies J observed at [11], the questions which his Honour has determined raised 'an important point for the construction and operation of the Act'.

Section 15(1)(c) - is there a prima facie ground for the proceedings? 13While there may be a difficulty with the proposed form of the notice of appeal, given the provisions of s 101 of the Supreme Court Act 1970, that is a technical matter which may be rectified by an appropriate amendment to that document. Otherwise, I am of the view that there is a prima facie ground for the proceedings. 14His Honour concluded that the Act precludes an applicant from adducing further evidence in support of his application, once leave under s 16(1) has been granted, unless given leave to do so by the Court. That limitation is not one which appears in the Act. 15His Honour considered a number of circumstances where an applicant may not have included 'all facts material to the application' in the s 14(3) affidavit, as s 14(3)(c) requires. Evidence which replied to evidence adduced by a relevant person, after the applicant had served the application and supporting affidavit pursuant to s 16(1)(a), was one example given (see at [30]). Evidence while known but not appreciated as being relevant to the application when the s 14(3) affidavit was sworn, was another (at [32]). Matters not known to the applicant at the time the affidavit was sworn, but which later come to light, is another potential example; s 14(3)(c) only requiring disclosure of facts known at the time the affidavit is sworn. 16Mr Bar-Mordecai wishes to lead opinion evidence from an expert, to support his application for leave. He intends to argue that such evidence is not 'a fact' which he was obliged to disclose in his s 14(3) affidavit and that he does not require a court's prior leave to lead such evidence at the hearing of his application, because it is relevant to the determination of his leave application. He also intends to lead evidence of further applications which he has made since he swore his s 14(3) affidavit. 17Requiring a party to obtain the Court's prior leave to serve evidence on which they wish to rely, involves a departure from the usual right to lead relevant evidence in accordance with s 56 of the Evidence Act 1995. In the ordinary course any objection to the relevance of any evidence sought to be led, is determined at the hearing. That is a different matter to the question of what directions might be given in accordance with the provisions of the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005, prior to the hearing of the application, as to the filing and service of any evidence on which a party wishes to rely to advance their case. 18Davies J took the view that the Act permitted the Court to design its own procedures for applications for leave brought under the Act (see at [37]). It seems to me that whether any departure from the ordinary course in relation to the leading of evidence to support an application for leave was intended by the Act, is arguable. That being so, I can find no basis for concluding that there is no prima facie ground for the proceedings which Mr Bar-Mordecai seeks to bring, in relation to the proper construction of the Act.

Order 19For the reasons given, I order that Mr Bar-Mordecai serve each relevant person with a copy of his application and supporting affidavit and a notice that the person is entitled to appear and be heard on the application, together with a copy of this decision.

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: 07 April 2011