Attorney General v Bar-Mordecai

CASES CITED : Attorney General v Bar-Mordecai [2005] NSWSC 142 Attorney General v Bar-Mordecai [2010] NSWSC 323

PARTIES : Attorney General in and for the State of New South Wales (Plaintiff) Michael Bar-Mordecai (Defendant)

• 16 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

2004/180898 Attorney General v Michael Bar-Mordecai

JUDGMENT 1 HER HONOUR: On 25 February 2005, Mr Michael Bar-Mordecai was found to be a "vexatious litigant" within the meaning of s 84 of the Supreme Court Act 1970. On that date, on the application of the Attorney General, Patten AJ made orders prohibiting Mr Bar-Mordecai from instituting or continuing proceedings in any court without leave of this Court: Attorney General v Bar-Mordecai [2005] NSWSC 142 at [103], orders 1 and 2. 2 Patten AJ made the following further order (order 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to orders 1 and 2 above" (as written) 3 Since the making of those orders, s 84 of the Supreme Court Act has been repealed and replaced by the Vexatious Proceedings Act 2008. The process by which Mr Bar-Mordecai may apply for leave to institute proceedings is now governed by Part 3 of that Act (see Schedule 1 to the Act, clause 4(2)). 4 The new Act poses a difficulty for Mr Bar-Mordecai in that there is an inconsistency between s 14(4) of the Act and order 5 made by Patten AJ (set out above). The mechanism provided for in the Act for seeking leave to institute proceedings is to make an application under s 14(2) of the Act. However, whereas order 5 requires Mr Bar-Mordecai to give notice of any such application, s 14(4) expressly prohibits him from serving such an application unless an order is first made under s 16(1)(a) of the Act requiring such service. The inconsistency has apparently been identified by the Attorney General, who has filed an application seeking, inter alia, to have the orders of Patten AJ varied so as to be in accordance with the Act, but the problem remains in the meantime. 5 A separate difficulty faced by Mr Bar-Mordecai is the apparent paradox that order 1 made by Patten AJ precludes Mr Bar-Mordecai from filing any originating process in the Registry without first obtaining leave of the Court. On its face, that prohibition extends to the filing of an application for leave to institute proceedings (which might otherwise be permitted to be filed as apparently contemplated by s 14(2)). Material put before me by Mr Bar-Mordecai suggests that the orders against him have in fact been construed from time to time within the Registry of the Court as prohibiting the filing of such applications. 6 The difficulty is made acute by the fact that, under the rules of court, a party cannot take any step in proceedings (including any appearance in court), except by leave of the Court, unless he has filed an originating process: see rule 6.1 of the UCPR. In those circumstances, Mr Bar-Mordecai has taken the view, perhaps not unreasonably, that the process by which he is permitted or required to seek leave to institute proceedings in any court is to approach the Duty Judge in this Court with two applications in hand (without first seeking to file any document in the Registry). His practice is to begin the process by seeking leave from the Duty Judge to file a notice of motion to which, for convenience, I will refer as the initiating motion. By the initiating motion, Mr Bar-Mordecai seeks leave to file a second notice of motion articulating the substantive relief sought. For convenience, I will refer to the second kind of motion as the substantive motion. 7 It is not necessary for present purposes to determine whether the punctilious process adopted by Mr Bar-Mordecai is the only process by which he is able, in accordance with the present statutory regime and the orders of Patten AJ, to bring an application before the Court for leave to institute proceedings. It is enough to say that I am satisfied that the Court has jurisdiction to entertain Mr Bar-Mordecai's applications and that, in light of the peculiar combination of constraints that presently bind him, it is appropriate to exercise that jurisdiction. 8 Mr Bar-Mordecai has sought to bring two applications for leave before me as the Duty Judge in the Common Law Division this week. He submits that, in accordance with s 14(4) of the Vexatious Proceedings Act, the Court must hear his applications ex parte in the first instance. That appears to be the practical effect of that section, since it prohibits service of any application under s 14(2) for leave to institute proceedings unless the Court makes an order under s 16(1)(a) of the Act. I have accordingly proceeded on that basis.

The first application: notices of motion dated 26 November 2010 9 By his first application (which came before me on 30 November 2010), Mr Bar-Mordecai seeks leave to file an initiating motion dated 26 November 2010 seeking leave to file a substantive motion of the same date. 10 For the reasons already stated, I am satisfied that I should entertain the initiating motion. Leave should be granted to file that motion. 11 The initiating motion seeks leave to file a substantive motion seeking leave for trial by jury in various matters. Mr Bar-Mordecai characterised the substantive motion as an application under s 14(2) of the Vexatious Proceedings Act. As already noted, that section prescribes the mechanism by which a vexatious litigant may apply to the Court for leave to institute proceedings the institution of which would otherwise be prohibited by the relevant vexatious proceedings order. 12 There does not appear to be any requirement under the Vexatious Proceedings Act for an applicant to obtain leave to file an application under s 14(2). As I have endeavoured to explain, however, Mr Bar-Mordecai's position is complicated by the unqualified orders made by Patten AJ, which arguably impose a requirement for leave before any initiating process may be filed. 13 The substantive motion seeks the following orders:

"(1) An Order that the Court determine this application instanter on 26.11.2010 on the basis of urgency.

(2) An Order that leave be granted to the Defendant to file this Notice of Motion that is seeking leave to have a Trial by Jury in the leave application in Attorney General v Bar-Mordecai matter no. 2004/180898 for the fraud cases for which the Defendant paid $10,000 by way of costs to the Plaintiff by order of Hulme J on 23 April 2010.

(3) An Order that leave be granted to the Defendant to have a trial by jury for the main hearing in leave to file four Statements of Claim in: a) Bar-Mordecai v Hillston formerly matters no. 1707/99 and 3039/02;

b) Hillston v Bar-Mordecai formerly matter no. 3240/98; c) Bar-Mordecai v Rotman and Hillston formerly matter no. 120009/94;

to set aside four judgments procured by the operation of fraud.

(4) An Order that leave be granted to the Defendant to have a trial by jury for the determination of a point of law on the issue of the construction of s 14 (2) of the Vexatious Proceedings Act 2008 wherein this matter has been listed for a hearing on 16.12.2010.

(5) Costs." 14 In order to determine whether Mr Bar-Mordecai should have leave to file the substantive motion, it is necessary to understand something of the background to the relief sought. The "leave application…for the fraud cases" referred to in order 2 is an application that was brought by Mr Bar-Mordecai by a second further amended notice of motion filed on 1 March 2010. By that motion, Mr Bar-Mordecai seeks leave to file statements of claim seeking orders setting aside the judgments of Einstein J of 4 September 1998 (matter 120009/94) and Bryson J of 28 February 2003 (matters 3240/98, 1707/99 and 3039/02). 15 On 23 April 2010, on the application of the Attorney General, RA Hulme J stayed the hearing of that motion until Mr Bar Mordecai paid $10,000 as a proportion of the Attorney's costs ordered in a previous proceeding: see Attorney General v Bar-Mordecai [2010] NSWSC 323. Hulme J granted liberty to Mr Bar-Mordecai to have his application restored to the list upon proof of payment of those costs. 16 Mr Bar-Mordecai informed me that he has now paid those costs and that he proposes shortly to restore that motion to the list in accordance with the liberty granted by Hulme J. If I have not misunderstood the position, what Mr Bar-Mordecai seeks to achieve by the relief sought in order 2 in the present application is "leave" to have that motion tried by jury. Separately, by order 3, he seeks to have the substantive proceedings also tried by jury in due course. 17 The relief sought by order 4 relates to the hearing of the notice of motion recently filed by the Attorney General (referred to at [4] of this judgment), which is listed for 16 December 2010. Mr Bar-Mordecai seeks also to have that motion tried by jury. 18 The application raises a number of conceptual difficulties, not least among which is the question whether it is one that falls within the scope of s 14(2) at all. The prohibition to which that section is addressed is against instituting proceedings (a concept explained in s 5 of the Act). An application for trial by jury is more properly characterised as an interlocutory application as to the method by which an action is to be tried. It does not, in my view, readily fall within the description of a step to "institute" proceedings in the sense explained in s 5. However, that analysis is complicated by the fact that the application relates, in part, to the method for hearing a discrete leave application which plainly does fall within s 14(2) (the motion stayed by Hulme J).

19 In any event, whether or not the application falls within the scope of s 14(2), the outcome is the same, since I consider that there is no prima facie ground for the relief sought. Accordingly, to the extent that the relief sought falls within s 14(2) I must dismiss the application in accordance with s 15(1) of the Act. To the extent that the relief sought does not fall within that section, I would dismiss the application in the exercise of my discretion. 20 The reasons for my conclusion that there is no prima facie ground for the relief sought can be stated briefly. Section 85 of the Supreme Court Act provides that proceedings in any division of the Court are to be tried without a jury unless the Court orders otherwise. In proceedings heard by a judge with a jury, the only questions that may properly be left to the jury are questions of fact, not questions of law or matters within the discretion of the Court. 21 The first question which Mr Bar-Mordecai seeks (by order 2 in the substantive motion) to have left to a jury is the question whether he should have leave to institute the proceedings described in his second further amended notice of motion filed on 1 March 2010. That question is intrinsically and exclusively a matter within the discretion of the Court and not one which could appropriately be determined by a jury, in my view. 22 As to order 3, the application is both unnecessary and premature. If the leave sought by Mr Bar-Mordecai's second further amended notice of motion filed on 1 March 2010 is granted, it will be open to him (without the need for leave) to make an application in those proceedings, in accordance with the applicable law, to have the actions tried by jury. Until such leave is granted, an application as to their method of hearing is premature. 23 Order 4 seeks an order that a jury determine the notice of motion that has been filed by the Attorney General. By that application, the Attorney General seeks to remove the inconsistency between order 5 of Patten AJ and s 14(4) of the Act to which I have already referred. The Attorney seeks, further, an order requiring Mr Bar-Mordecai to make applications such as the present application by separate summons rather than by notice of motion filed in the original vexatious litigant proceedings determined by Patten AJ. I note that it might be considered expedient, at the hearing of that application, to seek also to remove any uncertainty as to whether Mr Bar-Mordecai requires leave to file such a summons and, if so, the process by which he should seek such leave. 24 In any event, none of the issues raised by the Attorney General's notice of motion is an issue within the function of a jury as that function is understood at common law. 25 Accordingly, in my view, the substantive relief sought by Mr Bar-Mordecai in his applications dated 26 November 2010 must be refused.

The second application: notices of motion dated 29 November 2010 26 Mr Bar-Mordecai's second application (which came before me first in time, on 29 November 2010) seeks leave to file an initiating notice of motion for leave to file an application under s 14(2) for leave to institute proceedings against the State of New South Wales for unlawful assault and detention. The facts relied upon in support of the application arise out of the circumstances in which Mr Bar-Mordecai was removed from court by a number of Sheriff's officers and court security officers following the refusal of another Judge of the Court to entertain Mr Bar-Mordecai's first application. 27 The orders sought in the substantive motion in the second application are:

"(1) An Order that the Court determine this application instanter on 29.11.2010 on the basis of urgency, so that it may be consolidated and heard in the District Court on 14 March 2011 with another assault charge in Bar-Mordecai v State of NSW matter no 5730/09.

(2) An Order that leave be granted to the Defendant to file the Statement of Claim in Bar-Mordecai v State of NSW with regard to two assault charges.

(3) An Order that leave be granted to the Defendant to have a trial by jury for the determination of this matter.

(4) Costs." 28 The second application plainly falls within the scope of s 14(2). In light of the unqualified entitlement of a vexatious litigant to make an application to the Court under that section, I am satisfied that Mr Bar-Mordecai should have leave to file the initiating motion and, further, that he should have leave to file the substantive motion upon payment of the appropriate fee. 29 The Court's discretion to grant leave to Mr Bar-Mordecai to institute the proceedings he has foreshadowed is constrained by the terms of s 15(1) of the Vexatious Proceedings Act. That section provides: "(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." 30 As to the first requirement, I note that Mr Bar-Mordecai's application is supported by an affidavit that appears to address the matters listed in section 14(3). 31 As to the remaining matters, the facts relied upon in support of the application stated in Mr Bar-Mordecai's affidavit are as follows. On Wednesday, 24 November 2010, Mr Bar-Mordecai attended the Court in which the Duty Judge was sitting that week. He observed a number of legal representatives waiting in Court. The court officer presented Mr Bar-Mordecai with a form to complete, which he did. He then took a seat and waited for the Judge to come on to the bench. 32 At 9.55am, the Judge's tipstaff had a conversation with Mr Bar-Mordecai to the following effect:

"Tipstaff: Mr Bar-Mordecai where are the documents you wish to file in court?

Mr Bar-Mordecai: I have them right here in a bundle." 33 Apparently shortly after that conversation, three Sheriff's officers and two court security officers entered the Court and surrounded Mr Bar-Mordecai. He states that they threatened him with force and physical harm, but no content is given to that allegation in the affidavit. 34 Mr Bar-Mordecai states that the tipstaff took the documents to the Judge and returned shortly afterwards, when there was a conversation to the following effect: "Tipstaff: Mr Bar-Mordecai the judge has refused to adjudicate your matter. You can have these documents back. Would you leave the Court right now? Mr Bar-Mordecai: No, I will not leave this Court. I have a right to be heard in an ex parte matter such as this. I cannot obtain a referral from the registry because it is not in a duty registrar's power to authorise such a referral. [The Judge] is obliged to deal with my ex parte application pursuant to s 14(2) of the Vexatious Proceedings Act 2008. Tipstaff: Mr Bar-Mordecai you will have to leave [indicating to the security officers and the sheriff's officers that she required the defendant to be removed from the Court by force in view of his refusal to leave]." 35 Mr Bar-Mordecai states that he was then forcefully ejected or removed from the courtroom. 36 Mr Bar-Mordecai subsequently attended the Duty Registrar, escorted by a Sheriff's officer. Mr Bar-Mordecai states that the Duty Registrar refused to refer his matter to the Duty Judge to file the two notices of motion. 37 The following Friday, 26 November 2010, Mr Bar-Mordecai again presented himself in the Duty Judge's Court in order to file his two notices of motion. The Sheriff's officers and court security officers again attended the Court. Mr Bar-Mordecai states that, whilst he was seated at the bar table, the Judge's associate approached him and there was a conversation in the following terms: "Mr Bar-Mordecai: I seek to file these documents in Court in an ex parte hearing. Associate: [The Judge] has refused to see you. You tried to file your application with [another Judge] and he dismissed your application. Mr Bar-Mordecai: Yes he did, but after reading the documents in chambers for more than 30 minutes and then seeing me on an ex parte hearing on 5.11.2010. As you are aware of that fact then you must know that [the Judge] is obliged to see me. Associate: No, [the Judge] will not see you. Mr Bar-Mordecai: Oh, I did not notice the Sheriff's officers and the Law Courts Building security officers while you were talking to me. I must have been engrossed in the conversation and not heard them enter. Associate: Good bye. Mr Bar-Mordecai: Who called you guys to attend this Court today? Sheriff's officer: We were just passing bye (sic) and we thought we would step in. Mr Bar-Mordecai: I do not believe in coincidences. Who call (sic) you here? Sheriff's officer: Joel from the security desk on the main desk in the building. Mr Bar-Mordecai: And who called Joel on the 3 rd floor? Sheriff's officer: I think the Judge or the associate did that. Mr Bar-Mordecai: So why did you lie to me about just passing bye (sic)? Sheriff's officer: [No reply]. Mr Bar-Mordecai: So why are you here? Sheriff's officer: You will have to leave or we will have to throw you out forcefully. Mr Bar-Mordecai: I will leave. But this is quite unfair and the Judge does not know how to administrate the Vexatious Proceedings Act 2008 pursuant to s 14(2). Sheriff's officer: We have our instructions, you have to leave the premises." 38 Mr Bar-Mordecai's affidavit annexes a draft statement of claim pleading two causes of action in assault arising from the events of 24 November 2010 and, separately, the events of 26 November 2010. He also pleads a cause of action in wrongful detention arising from the allegation that a Sheriff's officer detained him and accompanied him to see the Duty Registrar before accompanying him to level 3, where he left the court building for the day. 39 The threshold task under s 15 is to assess whether those causes of action are "vexatious proceedings" within the meaning of the Act and whether there is any prima facie ground for the proceedings. 40 Vexatious proceedings are defined in s 6 of the Act as follows: 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.

41 Save as to the need to consider whether it is sought to institute the proceedings with reasonable ground, I do not think there is any basis for concluding that the proceedings are an abuse of the process of the Court or otherwise vexatious within that definition. On the contrary, I accept that the application is motivated by a genuine sense of grievance held by Mr Bar-Mordecai as to the surprising treatment he received in response to what he believed was an application properly brought before the Court. The critical consideration in the present application is whether the proposed proceedings are without reasonable ground (s 6(c)) or whether there is a prima facie ground for instituting the proceedings (s 15(1)(c)). 42 In assessing the grounds for the proposed proceedings, it is appropriate, in my view, to proceed on the assumption that the matters alleged by Mr Bar-Mordecai could be proved at a hearing of the proceedings. In proceeding on that basis, I make no determination one way or the other as to the truth of those allegations. 43 I confess that it is not entirely clear to me why, after the Judge refused to entertain Mr Bar-Mordecai's application, it was seen fit to ask him to leave the courtroom, if indeed that is what occurred. Even if his application was not to be heard, he was entitled to remain in Court as any member of the public is. The material put before me by Mr Bar-Mordecai does not disclose why a different view might have been formed on 24 November 2010. 44 It does not follow, however, that there is any basis for concluding that the Sheriff's officers and court security officers who attended the Court acted unlawfully in any way. The security of the Court is governed by the Court Security Act 2005. Section 6 of that Act provides that a person has a right to enter and remain in an area of court premises that is open to the public, subject to certain conditions which do not appear to be relevant in the present case. However, that right is expressly subject to the Court's inherent or implied jurisdiction to regulate its proceedings (see s 6(3) of the Act). It is also subject to the power of a judicial officer to order a particular person to leave the court premises under s 7 of the Act. 45 The case sought to be pleaded by Mr Bar-Mordecai is that, on each occasion complained of, the Sheriff's officers and court security officers were summoned by the Judge or the Judge's staff (see paragraphs 9 and 25 of the draft statement of claim). The Sheriff's officers and court security officers were plainly obliged, in those circumstances, to implement the decision of the Judge in the proper exercise of their functions under the Court Security Act. In doing so, it was lawful for them to use such force as was reasonably necessary: see s 17 of the Act. 46 The only basis on which Mr Bar-Mordecai alleges that his removal from the courtroom was unlawful and amounted to an assault is that the officers in question showed him no warrant or court order allowing them to take the course they took. However, s 17 of the Act makes it plain that no such instrument was required. On Mr Bar-Mordecai's own case, the officers in question were exercising their powers under the Court Security Act in aid of an order or request made of them by or on behalf of the Judge. 47 Accordingly, although the decision to have Mr Bar-Mordecai removed from the courtroom remains unexplained, I do not consider that the material put forward on the present application establishes a prima facie ground for prosecuting proceedings for assault or unlawful detention against the State of New South Wales on the strength of the acts of the Sheriff's officers and court security officers in aid of that decision. 48 Since I have reached that view, I am required by s 15(1) to dismiss the application. 49 The orders in respect of Mr Bar-Mordecai's applications dated 26 November 2010 are:

(1) That, upon payment of the prescribed fee for filing a notice of motion, Mr Bar-Mordecai have leave to file his initiating notice of motion dated 26 November 2010 seeking leave to file the substantive notice of motion for trial by jury in various matters;

(2) That leave to file the substantive notice of motion dated 26 November 2010 be refused. 50 The appropriate orders in respect of Mr Bar-Mordecai's applications dated 29 November 2010 are:

(1) That, Mr Bar-Mordecai have leave to file his initiating notice of motion dated 29 November 2010 seeking leave to file the substantive notice of motion for leave to commence proceedings against the State of New South Wales;

(2) That, upon payment of the prescribed fee for filing a notice of motion, Mr Bar-Mordecai have leave to file his substantive notice of motion dated 29 November 2010.

(3) That the leave sought in orders 2 and 3 of the substantive motion be refused. **********

08/12/2010 - The wrong Hulme J recorded initially - Paragraph(s) 15

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