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[2011] NSWSC 237
Supreme Court of NSW
2011-04-05
Schmidt J, Patten AJ
Original judgment source is linked above.
Judgment 1By summons filed on 25 March 2011 Mr Bar-Mordecai seeks leave to institute proceedings in the Local Court seeking to have set aside the judgment of Madgwick LCM given on 23 October 2007 in Schwarz v Bar-Mordecai (Local Court of NSW, 23 October 2007, unreported), as well as an apprehended violence order ('AVO') which her Honour then made against Mr Bar-Mordecai in favour of his daughter and her family. 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 statement of claim seeks that the judgement and the order be set aside on the ground of fraud pursuant to s 72(2)(c) and s 72(4) of the Crimes (Domestic and Personal Violence) Act 2007. Section 72 provides: "72 Application for variation or revocation of final apprehended violence orders (1) An application may, at any time, be made to a court for the variation or revocation of a final apprehended violence order or interim court order. (2) An application for variation or revocation may be made only by: (a) the protected person (whether or not the protected person made the application for the original order) or, if there is more than one protected person, by one or more of the protected persons, or (b) a police officer, or (c) the defendant. (3) Despite subsection (2), an application for variation or revocation of a final apprehended violence order or interim court order must be made by a police officer if the protected person or one of the protected persons under the order is a child at the time of the application. (4) The application must set out the grounds on which the application is made and, in the case of a variation, the nature of the variation sought. This subsection does not limit the powers of the court. (5) An application for revocation of a final apprehended violence order may be made by the defendant even though the order has expired. Subsection (3) does not apply to such an application. (6) A court may make an order under this Division revoking a final apprehended violence order even though that final order has expired if the court is satisfied that, were that final order still in force, it should be revoked. (7) In applying the provisions of this Division to an application for revocation of a final apprehended violence order that has expired, a reference to a protected person includes a reference to a person for whom the expired order was sought or made. (8) If an application is made by the defendant for revocation of a final apprehended violence order that has expired: (a) the Commissioner of Police is to be notified of the application, and (b) the court hearing the application must take into account (in addition to any other matters that it is required to take into account) the effect that revocation of the expired order may now have on the protected person, having regard to the grounds on which the expired order was made, and (c) the court may order that a further application for revocation of the expired order may not be made by the defendant except with the leave of the court." 3The order in question was made for a period of 5 years and so it remains in force. 4Given the basis on which the application for leave is pursued, it is pertinent to note that s 73 governs the determination of such applications. It provides: "73 Variation or revocation of final apprehended violence orders and interim court orders (1) The court may, if satisfied that in all the circumstances it is proper to do so, vary or revoke a final apprehended violence order or interim court order. (2) In particular, a final apprehended violence order or interim court order may be varied under this section in any one or more of the following ways: (a) by extending or reducing the period during which the order is to remain in force, (b) by amending or deleting any prohibitions or restrictions specified in the order, (c) by specifying additional prohibitions or restrictions in the order. (3) The court may decline to hear an application for variation or revocation of a final apprehended violence order or interim court order if the court is satisfied that there has been no change in the circumstances on which the making of the order was based and that the application is in the nature of an appeal against the order. (4) A final apprehended violence order or interim court order is not to be varied or revoked on the application of the defendant unless notice of the application has been served on each protected person to whom the order relates. (5) A final apprehended violence order or interim court order is not to be varied or revoked on the application of the applicant for the original order or protected person unless notice of the application has been served on the defendant. (6) Notice of an application must be served personally or in such other manner as the court hearing the application directs. (7) Despite subsection (5), the court may make an order extending the period during which the final apprehended violence order or interim court order is to remain in force without notice of the relevant application having been served on the defendant, if the applicant lodged the application before the day on which the apprehended violence order or interim court order is due to expire. (8) If an application for the extension of a final apprehended violence order or interim court order is made before the order expires, the order is taken to continue in force until the application is dealt with by the court. (9) Unless sooner revoked, an order extended under subsection (7) ceases to have effect 21 days after the order extending it is made or on an earlier date specified in the order extending it. However, further orders may be made from time to time under that subsection before the extended order ceases to have effect." 5The draft statement of claim refers to the applicant's daughter, Ms Schwarz and provides many details of her alleged relationships with Mr Bar-Mordecai, her husband and various family members. It also refers to her medical history; circumstances relating to her childhood; and, how allegations that she and her sister had been sexually assaulted in childhood by Mr Bar-Mordecai and her uncle were made at various times and in various circumstances. It refers in detail to Ms Schwarz's mother (Mr Bar-Mordecai's former wife), her husband, her uncle and circumstances relating to their lives and their interaction with Mr Bar-Mordecai and others. It alleges that Ms Schwarz conspired with her husband to make false allegations against Mr Bar-Mordecai and gave false evidence at the AVO hearing. It also states that she refused to permit Mr Bar-Mordecai and his parents to have access to her children. 6The draft statement of claim makes other serious allegations that the AVO matter was manipulated by the Attorney-General's office and by magistrates appointed to deal with Ms Schwarz's application. It refers to an unsuccessful application later made to the Family Court by Mr Bar-Mordecai in which he sought regular access to his grandchildren; to his arrest and prosecution for alleged breach of the AVO; and, to his unsuccessful application for re-registration as a medical practitioner. 7The basis on which review of the AVO is sought is the allegedly false evidence given by his daughter about Mr Bar-Mordecai at the hearing in October 2007. This is said to have been revealed by the contradictory and false evidence which she gave in the Family Court proceedings and by the evidence which he had given on oath, which had not been accepted. 8Mr Bar-Mordecai seek to establish that Ms Schwarz obtained the AVO 'by operation of fraud and deception in the Local Court at Waverley, in collusion with a depraved magistrate who perverted the course of justice to accede to orders' she had sought. 9Mr 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." 10The 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." 11The 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." 12I 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) 13I 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? 14'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." 15In order to come to a conclusion on this question, it is necessary to consider material annexed to the affidavit Mr Bar-Mordecai has sworn in support of his application, as well as the affidavit itself. 16There Mr Bar-Mordecai also gives a further account of matters dealt with extensively in his proposed statement of claim. He explains the basis of his belief that since 1998 there has been 'a well organised judicial conspiracy coupled with a police conspiracy' against him, which he infers 'has been orchestrated by the office of the Attorney-General'. He details the actions which he has since taken against numerous 'judicial scoundrels' in this Court and the International Criminal Court for damages and compensation, in respect of various complaints, including torture. Abuse of the AVO system is alleged, which is said to be exemplified by the conclusion reached by Madgwick LCM in 2007, that the AVO which his daughter sought should be made, with a term of 5 years; her Honour having accepted his daughter's false evidence and rejected his truthful evidence, which was found unconvincing. 17Mr Bar-Mordecai also complains that in October 2008, Harrison AsJ refused his application for leave to file an appeal as to the 5 year duration of the AVO (see Attorney-General of NSW v Bar-Mordecai [2008] NSWSC 1094). He criticises her Honour's conclusions on various bases. This decision had led him to make a complaint against her Honour to the International Criminal Court. 18Mr Bar-Mordecai explained the basis of his case that this application was not an abuse of process, given the ongoing conspiracy against him and the proceedings on foot in the International Criminal Court, which he considered might have an impact on his application. 19Annexed to the affidavit is evidence led in the Family Court proceedings, including affidavits sworn by Ms Schwarz, as well as transcript of those proceedings; correspondence sent to the Chief Justice about complaints which Mr Bar-Mordecai has about various judges of this Court and his views as to an alleged conspiracy against him; newspaper cuttings; transcript and evidence in the Local Court proceedings; affidavits filed in the proceedings before Harrison AsJ; Harrison AsJ's judgment of 20 October 2008; and correspondence to and from the New South Wales Medical Board and the NSW Police Force. 20The seriousness of the matters which Mr Bar-Mordecai raises may be accepted. So far as this application is concerned, however, what arises for consideration is his application for leave to pursue an application to have the 2007 judgment and order made against him set aside, for reasons which revolve around Madgwick LCM's acceptance of his daughter's evidence and the rejection of his own, at a hearing conducted in October 2007 and his views as to the existence of a conspiracy against him, of which her Honour's decision forms a part. 21These are matters which could have been raised when Mr Bar-Mordecai originally sought leave to institute an appeal from her Honour's decision. Initially, Mr Bar-Mordecai sought leave to bring an all grounds appeal, which Harrison AsJ observed 'involved many and varied grounds of appeal'. Harrison AsJ's decision confirms, as Mr Bar-Mordecai explained in his affidavit, that he decided to confine his appeal to a limited ground, a course to which the Attorney-General consented. Mr Bar-Mordecai filed another motion seeking that relief, with his earlier motion being dismissed and an order that he pay the costs of that motion being made against him. 22The limited application for leave to appeal which he then pursued failed. The Attorney-General's position in those proceedings was that there was no right of appeal in respect of the 5 year term of the AVO order, such an application had to be made under s 72 of the Crimes (Domestic and Personal Violence) Act and could not be brought under s 84, which provides: " 84 Review and appeal provisions concerning making etc of apprehended violence orders (1) An application may be made under Part 2 of the Crimes (Appeal and Review) Act 2001 by the defendant for the annulment of an apprehended violence order made by the Local Court or the Children's Court in the same way as an application may be made under that Part by a defendant for the annulment of a conviction arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986 . (1A) A person who applied to the Local Court or the Children's Court for an apprehended violence order may apply to the Court for the annulment of the dismissal of the application for the order by the Court, but only if the person was not in attendance before the Court when the application was dismissed. (1B) The Local Court or the Children's Court may grant an application for an annulment made under subsection (1A) if it is satisfied that, having regard to the circumstances of the case, there is just cause for doing so. If such an application is granted, the Court may deal with the application for the apprehended violence order as if the application for the order had not been dismissed. (2) An appeal may be made to the District Court: (a) by the defendant against the making of an apprehended violence order by the Local Court or the Children's Court, or (a1) by the applicant for an apprehended violence order (or, if the applicant was a police officer, either the applicant or the person for whose protection the order would have been made) against the dismissal of the application by the Local Court or the Children's Court, or (b) by the applicant for an order or a defendant against the awarding of costs under section 99 of this Act, or (c) by a party to an apprehended violence order against the variation or revocation of the order by the Local Court or the Children's Court, or (d) by a party to an apprehended violence order against a refusal by the Local Court or the Children's Court to vary or revoke the order. (3) An appeal under subsection (2): (a) may be made under Part 3 of the Crimes (Appeal and Review) Act 2001 in the same way as an application may be made under that Part by a defendant against a conviction arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986 , and (b) may be made only by leave of the District Court in the case of an appeal against the making of an apprehended violence order that was made with the consent of the defendant. (4) The Crimes (Appeal and Review) Act 2001 applies to an application or appeal arising under this section with such modifications as are made by or in accordance with the regulations under that Act. (5) For the purposes of this section and the Crimes (Appeal and Review) Act 2001 , an order made by a Registrar of a court is taken to have been made by the court. (5A) Part 6 (Interim court orders) applies to proceedings with respect to an appeal to the District Court under subsection (2) in the same way as it applies to an application to the Local Court or the Children's Court under Part 4 or 5. (5B) If the District Court allows an appeal made under this section against the refusal to annul an apprehended violence order and remits the matter to the Local Court or the Children's Court, the District Court must, unless the District Court is satisfied that it is not necessary to do so, make an interim court order under Part 6 as if an application for such an order had been duly made. (6) In this section, party to an apprehended violence order means: (a) the protected person (whether or not the applicant), but only if the protected person is of or above the age of 16 years, or (b) if the applicant was a police officer, that or any other police officer, or (c) the defendant." 23Leave to challenge the 5 year term of the AVO being granted to Mr Bar-Mordecai was then opposed by the Attorney-General, who relied, amongst other things, on the fact that he would then have the right to seek to have his daughter called to give further evidence. Mr Bar-Mordecai indicated that he did not intend to rely on fresh evidence, but for reasons which her Honour explained, she was not confident that Mr Bar-Mordecai would not use any grant of leave for such a purpose. 24Harrison AsJ was unable to reach the conclusion that Mr Bar-Mordecai had a prima facie case. She accepted that Mr Bar-Mordecai was aggrieved with Madgwick LCM's decision, which she noted he intended to redress through two legal avenues; the proposed appeal and by way of an application to the Family Court. Her Honour noted contradictory statements made during the course of the hearing by Mr Bar-Mordecai, as to his reasons for seeking to have the AVO set aside, and his insistence on referring to matters concerning his daughter, irrelevant to his leave application. Her Honour was not satisfied that the application was not an abuse of process, a consideration then arising under s 84(4) of the Supreme Court Act 1970 and so the application was dismissed. 25The other application by which Mr Bar-Mordecai sought to overcome the effect of the AVO made by Madgwick LCM, at least so far as access to his grandchildren was concerned, was the application made to the Family Court to grant him regular access. That application also failed, after a contested hearing in which Mr Bar-Mordecai and his daughter gave evidence. 26In all of the circumstances, I am of the view that it must be concluded that this fresh application is an abuse of process. It is apparent that by this fresh application Mr Bar-Mordecai seeks to overcome the effect of his past failures, by seeking to pursue an application to have the 2007 judgment set aside and the AVO revoked pursuant to s 72(2)(c) and s 72(4) of the Crimes (Domestic and Personal Violence) Act , on grounds which would have been available, had leave been granted in relation to the all grounds appeal, which Mr Bar-Mordecai initially sought to pursue. That application was, however, dismissed by consent, when he decided to pursue a more limited application. Mr Bar-Mordecai is bound by the course which he decided to take in 2007. 27That he seeks to agitate this application on grounds which assert the existence of a widespread, longstanding conspiracy against him, can take the matter no further. The fact that Mr Bar-Mordecai failed before Madgwick LCM and the Family Court, proceedings which depended on a determination of whether or not his evidence should be preferred over that given by other witnesses, is simply not a basis on which the existence of such a serious conspiracy could be found to exist. 28The matters which Mr Bar-Mordecai now seeks to raise under s 72 of the Crimes (Domestic and Personal Violence) Act , depend on the views which he has always held as to the error into which Madgwick LCM fell in 2007. That is not a proper basis for an application to be brought under s 72. He is not entitled to re-litigate the all grounds appeal application which has already been dealt with by the consent orders made by Harrison AsJ. This application also has the effect of traversing the leave which he sought and was refused by Harrison AsJ in relation to the 5 year term of the AVO. He is not entitled so to challenge that decision. 29Finally, I note that the examples which Mr Bar-Mordecai has given as to evidence given by his daughter before Madgwick LCM, which was accepted over the evidence which he gave about those matters, by way of comparison to evidence given in the Family Court proceedings, reinforces the conclusion that this application is an abuse of process.
Section 15(1)(c) - there is no prima facie ground for the proceedings 30I am also not able to come to the view that there is a prima facie ground for the proceedings. 31I have already referred to the relevant legislative schemes. At the heart of Mr Bar-Mordecai's complaint is that his evidence was rejected by Madgwick LCM as unconvincing and that the conflicting evidence which his daughter gave, which he regards to have been untruthful, was accepted. It is possible that an error was made, of course. That was a proper matter to have been raised by way of appeal in accordance with the provisions of s 84 of the Crimes (Domestic and Personal Violence) Act . Mr Bar-Mordecai sought leave to bring such an appeal in 2007, but abandoned that application, then consenting to his motion being dismissed. 32In so far as Mr Bar-Mordecai seeks to rely on allegedly contradictory and false evidence later given by his daughter in the Family Court proceedings, that can shed no light on any error into which Madgwick LCM fell, in preferring his daughter's evidence over his, in the proceedings which her Honour had to decide. Nor may it be overlooked that his daughter's evidence was also later preferred over that given by Mr Bar-Mordecai in the Family Court proceedings. Finally, as I have explained, I cannot see that what he identifies as supporting the allegations which he makes about the nature of the evidence which his daughter gave in the Local Court and Family Court proceedings, is capable of establishing what he now alleges is an available basis for review of Madgwick LCM's decision. That material is not capable of establishing the existence of the conspiracy about which he wishes to make complaint. 33It is unnecessary to refer further to the many other matters on which Mr Bar-Mordecai relies. They are in many respects irrelevant to the application which he wishes to bring under s 72, or incapable of establishing a basis for the review of the decision and AVO order which he now wishes to pursue in the Local Court. 34Finally, the provisions of s 73(3) may not be overlooked. It permits the Local Court to decline to hear an application for variation or revocation of a final apprehended violence order, if satisfied that there has been no change in the circumstances on which the making of the order was based and that the application is in the nature of an appeal against the order. 35Even if the leave sought could be granted, it seems to me on the material on which Mr Bar-Mordecai seeks to rely, that it would be properly open to the Local Court to reach such a conclusion, with the result that his application would not, in any event, be heard. 36In the circumstances, I am satisfied that there is no prima facie ground for the proceedings.
ORDER 37For the reasons given, I order that the application be dismissed.
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
Attorney-General of NSW
Bar-Mordecai