Attorney-General of NSW v Bar-Mordecai

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.