Attorney-General of NSW v Bar-Mordecai

Judgment 1By summons filed on 21 March 2011, Mr Bar-Mordecai seeks leave to institute proceedings by filing a notice of appeal in relation to a judgment given by Davies J on 3 March 2011 in Attorney-General of NSW v Bar-Mordecai [2011] NSWSC 100. In February 2005, Mr Bar-Mordecai was declared a vexatious litigant by order of Patten AJ. His application for leave must be considered in accordance with the provisions of the Vexatious Proceedings Act 2008 ('the Act'). 2The draft grounds of appeal allege that his Honour erred in his construction of the Act in concluding that Mr Bar-Mordecai 'may not in the absence 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'. Mr Bar-Mordecai wishes to lead opinion evidence from an expert in support of an application for leave to file a statement of claim in respect of alleged medical negligence. Such an opinion is not, on his approach, a 'fact' material to the application, which ought to have been disclosed in his s 14(3) affidavit. He also wishes to lead further evidence as to other litigation which has arisen since his s 14(3) affidavit was sworn, in order to meet what s 14(3)(a)(i) of the Act envisages. 3Mr Bar-Mordecai has filed an affidavit in support of his application which addresses matters dealt with in s 14 of the Act, which provides: "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." 4The matter is before me to determine whether Mr Bar-Mordecai should be granted leave to serve his application under s 16(1). The section provides: " 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, (c) the Solicitor General, (d) the appropriate registrar for the authorised court that made the vexatious proceedings order concerned if the registrar applied for the order in relation to the applicant, (e) any person referred to in section 8 (4) (d) or (e): (i) who applied for a vexatious proceedings order in relation to the applicant, and (ii) who the appropriate authorised court dealing with the application considers should be served, (f) any person: (i) who made an application in relation to the applicant under section 70 of the Land and Environment Court Act 1979 or section 84 of the Supreme Court Act 1970 before the commencement of this section, and (ii) who the appropriate authorised court dealing with the application considers should be served." 5The question of whether or not the application for leave should be granted, must be approached having in mind the provisions of s 15, which provides: 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." 6I turn then to the matters arising for consideration under s 15(1) of the Act.