Attorney-General (NSW) v Bar-Mordecai

Supreme Court of NSW|2011-05-16|Before: Schmidt J, Harrison J, Smart AJ

Judgment 1On 25 February 2005, this Court declared Mr Bar-Mordecai a vexatious litigant within the meaning of s 84 of the Supreme Court Act 1970. On 19 November 2009, Smart AJ granted Mr Bar-Mordecai leave to file a statement of claim in the District Court alleging against the State of New South Wales wrongful arrest, false imprisonment and assault. 2By summons filed on 25 March 2011, Mr Bar-Mordecai seeks leave under the Vexatious Proceedings Act 2008 ('the Act') to institute proceedings by filing a notice of appeal in the Court of Appeal in relation to orders made by Truss DCJ on 4 March 2011 in the District Court proceedings. Truss DCJ came to the view that Mr Bar-Mordecai required this Court's leave to bring a motion for discovery in the District Court proceedings. Mr Bar-Mordecai had not been granted such leave and accordingly, Truss DCJ dismissed his motion. Her Honour ordered: "1. Note: the plaintiff made an oral application to vacate the hearing date (is seeking leave to appeal from Judge Rolfe's decision of 18 February 2011). 2. Vacate hearing date of 14 March 2011. 3. Note: the plaintiff is now not pressing for a hearing with jury. 4. The Court dismisses the plaintiff's amended notice of motion (filed 25 February 2011) for discovery. 5. Stand over for directions on Wednesday, 8 June 2011 at 9:30am before the list judge. 6. Reserve costs of today." 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 supporting affidavit 5Mr Bar-Mordecai explained that he had originally approached this Court for leave to file a motion for discovery in the District Court proceedings, Judicial Registrar Smith having taken the view that he required such leave, before the District Court could receive his motion. He later withdrew that application and pressed his motion in the District Court where similar submissions were advanced by the defendant before Truss DCJ to those advanced befroe the Judicial Registrar . They were also wrongly accepted by her Honour, with the result that his motion for discovery was dismissed. 6The transcript of the hearing before Truss DCJ was provided after Mr Bar-Mordecai had filed his application and supporting affidavit, once it became available. It revealed that Mr Bar-Mordecai had made an oral application that the hearing listed to commence on 14 March, with an estimate of five to seven days, be vacated, in order that he could seek leave to appeal to the Supreme Court from a judgment of Rolfe DCJ , in relation to an application that he be given leave to amend his statement of claim. The adjournment application was granted by Truss DCJ . 7Mr Bar-Mordecai's motion of 21 February sought an order for discovery, an order for trial by jury, and an order that the presiding adjudicator be appointed by the International Criminal Court. The order sought in relation to trial by jury was not pressed and her Honour dismissed the application made in relation to the appointment of an adjudicator. Mr Bar-Mordecai does not complain about this decision. 8As to the discovery order sought, the defendant's position was that Mr Bar-Mordecai could not bring the motion, without first obtaining leave of this Court, even though the motion was concerned with interlocutory matters in proceedings already on foot in the District Court, as the result of leave to bring the proceedings, earlier granted by this Court. That view rested on the definition of 'proceedings' in s 4 of the Act. 9The defendant also relied on a judgment given by Harrison J on 21 October 2010 (see Attorney-General v Bar-Mordecai (Supreme Court of New South Wales, 21 October 2010, unreported), in which his Honour gave certain leave to Mr Bar-Mordecai in relation to other proceedings on foot in the District Court, as well as another application which Mr Bar-Mordecai had brought to this Court, which was before Davies J. That application concerned a motion seeking discovery of electronically stored police documents, hard copy documents and CCTV footage concerning events which occurred on 17 March 2008 in the holding area at Waverley Police Station. 10Mr Bar-Mordecai confirmed that the motion which he pressed before Truss DCJ was concerned with discovery of the same material as had been considered by Harrison J. While his Honour granted him the leave there sought, Mr Bar-Mordecai explained that in relation to Harrison J's decision, he had written to the Prothonotary of this Court, withdrawing his application, because he had come to the view that Harrison J did not have power to make the orders he had made. He also advised that he had withdrawn the application which had come before Davies J. 11Mr Bar-Mordecai's argument was that he only needed leave of the Supreme Court to commence proceedings. Once such leave was granted and proceedings were commenced in the District Court, he required no further leave of the Supreme Court to pursue the proceedings, even by way of interlocutory applications. He relied on a judgment of McCallum J in Attorney-General v Bar-Mordecai [2010] NSWSC 1410 [18] - [22], to support his submissions.

The draft notice of appeal 12The draft notice of appeal raises questions going to the operation of s 14 the Vexatious Proceedings Act , particularly in the light of the definition of 'proceedings' in s 4(b) and the definition of 'institute' in s 5 . These questions are sought to be pursued in circumstances where Mr Bar-Mordecai has been granted leave to bring the proceedings on foot in the District Court and having instituted those proceedings, has sought to make an interlocutory application to the District Court in relation to discovery. That application has been refused, because of the view taken as to the proper construction of the Act, namely that such an interlocutory application requires further leave of this Court.

The requirements of s 15 13The 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." 14I 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) 15I 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? 16'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." 17Section 127 grants parties to proceedings in the District Court the right to appeal interlocutory judgments and orders, with this Court's leave. Mr Bar-Mordecai relies on observations of McCallum J in Attorney General v Bar-Mordecai , where one of the matters with which her Honour was dealing was an application concerning a motion seeking leave for trial by jury. Her Honour said: "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 interloc u tory 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)." 18The basis for her Honour's observations is readily apparent. The process imposed by the Act would be a cumbersome one indeed, if a vexatious litigant, having been granted leave by this Court to institute proceedings , then had to approach this Court again to seek further leave in respect of all interlocutory steps which they wished to take in the proceedings. Seeking such leave under the Act is itself a two step process. If granted such leave by this Court, the interlocutory application would then go forward before the court or tribunal hearing the proceedings. That court or tribunal would then have to consider the application, at which stage it may be accepted or rejected. The time, expense and delay involved in such a process, for all parties, is potentially very considerable. Such a process seems entirely contrary to the evident purpose of the Act. 19It follows, it seems to me, that it may not be concluded that the construction question which Mr Bar-Mordecai here seeks to raise by way of appeal from Truss DCJ's decision, is one which falls within the definition of 'vexatious proceedings'. To the contrary, it appears to raise important questions as to the proper construction and operation of the Act.

Section 15(1)(c) - is there a prima facie ground for the proceedings? 20In the circumstances, I am unable to come to the view that there is no prima facie ground for the appeal which Mr Bar-Mordecai wishes to bring.

Order 21It follows that the order sought under s 16(1)(a) of the Act must be made. Accordingly, 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: 16 May 2011

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