Attorney-General v Bar-Mordecai

Supreme Court of NSW|2012-06-08|Before: Garling J, Beech-Jones J, Patten AJ, Davies J

Judgment 1Mr Bar-Mordecai, by a summons filed 21 May 2012, applies for an order in the following terms: "An order that the Plaintiff be granted leave [a 16(3) order pursuant to the VPA] to institute proceedings by way of filing a leave to appeal the Cost Order of Beech-Jones J dated 24.5.2012 in the Court of Appeal." (sic) 2In support of that application Mr Bar-Mordecai relied upon an affidavit sworn 21 May 2012. 3As contemplated by the Vexatious Proceedings Act 2008, this application was heard ex parte.

Factual background 4On 25 February 2005, an order, pursuant to s 84(1) of the Supreme Court Act 1970 was made by Patten AJ, with respect to Mr Bar-Mordecai, in the following terms: "1. That Michael Jacob Bar-Mordecai shall not, without leave of this Court, institute proceedings in any court. 2. That any legal proceedings instituted by Michael Jacob Bar-Mordecai, in any court before the date of this order, shall not be continued by him without leave of this Court." There were other consequential orders: Attorney-General v Bar-Mordecai [2005] NSWSC 142. 5On 1 December 2008, the Vexatious Proceedings Act 2008 ("the VP Act") commenced. Orders pursuant to s 84 of the Supreme Court Act which was in existence at that time, were taken to be, and to have effect as if the order was, a vexatious proceedings order made under s 8 of the VP Act. 6There is no dispute, by Mr Bar-Mordecai, that by reason of the order of Patten AJ of 25 February 2005, the VP Act applies to him. 7On 3 March 2011, Davies J varied Order 5 made by Patten AJ on 25 February 2005, and added a further order, but the principal order which gave rise to the application of the VP Act to Mr Bar-Mordecai was not in any way changed: Attorney-General v Bar-Mordecai [2011] NSWSC 100. 8Mr Bar-Mordecai is required, should he wish to institute any proceedings, to do so in accordance with the scheme set out in the VP Act.

The Legislation 9Section 14 of the VP Act applies where a person, such as Mr Bar-Mordecai, is subject to a vexatious proceedings order prohibiting him from instituted proceedings. That section is in the following relevant terms: "14 Application for leave to institute proceedings (1) ... (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 ... 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 s 16(1)(a), and (b) the copy is served in accordance with that order". 10The provisions of s 15 are also of relevance. They are: "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 s 14(3) does not substantially comply with that sub-section, 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." 11The terms of s 16 are also relevant. They are: "16 Granting application for leave (1) Before an appropriate authorised court grants an application made under s 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."

Ordinary procedure 12The ordinary procedure to be followed in the event that an application under s 14 is made for leave to commence proceedings, is for the applicant to commence those proceedings by a summons supported by the affidavit required by s 14(3) of the VP Act. The summons is a fresh proceeding and is not brought in the proceedings in which a vexatious proceedings order was made. 13The next step is that the Court needs to consider whether it ought make an order of the kind set out in s 16(1) of the VP Act, namely, whether the summons and the supporting affidavit, is of a kind and nature which gives rise to a need in the Court to hear from those parties potentially affected by the order, who may wish to make submissions. 14The consideration of whether or not an order under s 16(1) is to be made, is assisted by any submissions which the applicant may wish to make, and is determined ex parte. Ordinarily, any submissions by the applicant in support of the orders will be made in writing, and the application will be determined on the papers. It is a matter for the Court, whether in considering the making of these orders it will be assisted by, or else permit, time-limited oral submissions. 15If the Court, whilst considering an application for orders under s 16(1) of the VP Act, forms a view that any one or more of the bases set out in s 15(1) of the VP Act exist, then the application made for leave to institute proceedings must be dismissed. 16In that circumstance, it would not ordinarily make an order under s 16(1) of the VP Act notifying any other party to the proposed proceedings, nor would it be necessary to give any other party the opportunity to be heard as to whether or not the leave ought be granted. 17It is therefore open, and appropriate, for a Court when considering whether to make orders under s 16(1) of the VP Act, to consider whether having regard to the provisions of s 15 of the VP Act, an application must be dismissed. 18If the applicant successfully satisfies the hurdle of s 15, the Court must order that the applicant serve each relevant person as defined in s 16(5) with a copy of the summons and affidavit and a notice of their entitlement to be heard on the application: s 16(1). 19The Court must give the applicant and each relevant person an opportunity to be heard at the hearing of this application: s 16(1)(b). This may be in writing, orally, or both. 20Finally, after the hearing the court may grant leave if satisfied that the proceedings are not vexatious, and there are one or more prima facie grounds for the proceedings: s 16(4).

Bar-Mordecai v Attorney-General of New South Wales [2012] NSWSC 453 21The judgment of Beech-Jones J which gave rise to the order for costs was one dealing with an application pursuant to s 14 of the VP Act, by Mr Bar-Mordecai for leave to institute proceedings in the Medical Tribunal of NSW for a review of an earlier order of that Tribunal made on 6 September 2000, which removed Mr Bar-Mordecai from the Register of Medical Practitioners. 22As Beech-Jones J's judgment demonstrates, the Attorney-General and the Medical Council accepted that Mr Bar-Mordecai should be allowed to commence proceedings in the Medical Tribunal of NSW. But those parties sought the imposition by the Court of conditions upon that application pursuant to s 16(3) of the VP Act. Mr Bar-Mordecai opposed the imposition of those conditions. 23The judgment of Beech-Jones J, in large part, upheld the submissions of the Attorney-General and the Medical Council which had the effect, as his Honour's orders demonstrate, of limiting the grounds of the proceedings in the Medical Tribunal to those specified, which his Honour determined were the only appropriate grounds. 24His Honour then went on to make the costs order, which is the subject of proposed challenge. 25With respect to that order, his Honour's judgment contains the following reasons: "50. The Attorney General and the Council seek their costs of today's proceedings. The Attorney General sought his costs on an indemnity basis on and from 24 April 2012. I understand the basis for the application is that the matters that I have allowed the plaintiff to pursue with the Tribunal are the matters that it had indicated to the plaintiff it would consent to. 51. There is the difficulty that even if Mr Bar-Mordecai had agreed to modify his application to the Tribunal in the way they suggested, it still would have been necessary to bring the matter before me and have some debate, although the time taken and the cost of preparation would have been significantly reduced. Doing the best I can, the order I make is that the plaintiff pay a third of the Attorney General's and the Council's costs of today."

This application 26As the summons demonstrates, Mr Bar-Mordecai seeks leave to initiate proceedings in the Court of Appeal against the order made by Justice Beech-Jones on 24 April 2012, with respect to costs. The order made by Beech-Jones J was in these terms: "Plaintiff to pay a third of the Attorney General of New South Wales and Medical Council of New South Wales' costs of today." 27It is apparent from the terms of the affidavit of Mr Bar-Mordecai of 21 May 2012, that the basis of his challenge to the order made by Beech-Jones J is as follows: "21. The Supreme Court justice, namely, Beech-Jones exhibited judicial non-compliance with the dictum 'costs follow an event' where there was no extenuating circumstances to depart from awarding the Applicant all his costs, and caused the Deponent substantive unfairness in awarding part costs to the Opponents as a punitive measure, that resulted in the Applicant suffering Cruel Treatment and Torture as a direct consequence, wherein the Attorney-General's legal representative Mr James Emmett of Counsel and Ms Donna Ward of Counsel representing the Medical Council of NSW overbore the will of the trial judge, to obtain the outcome the Defendants [Attorney General/Medical Council of NSW] dictated with a third of the costs for attending a hearing on 24.4.2012 and making repetitive and unwarranted submissions to squelch the proper administration of justice and set the stage for further judicial impropriety. 22. The Applicant filed his application with the Medical Tribunal of NSW on 19.3.2012. ... 23. The judicial corruptor, Beech-Jones J hacked the original five page application for re-registration to one page deleting the antecedent judicial corruption that had plagued the Applicant in the Medical Tribunal of NSW since the original corruption of Blanch CJ. By his actions, Beech-Jones became another judicial conspirator in attempting to pervert the course of justice in two protective jurisdictions and not keep the four newly constituted Medical Tribunal members fully informed of the circumstances to be able to grant the Applicant his medical registration out of right, instead of having to again be exposed to the sham of a medical investigation by virtue of the inherent corruption of that institution. ..." (Emphasis in original)

Submissions 28The written submissions, upon which Mr Bar-Mordecai relied in support of his application, were handed up in Court. In relevant part, the submissions included these: "4. It is submitted that the applicant accrued costs of the summons: paragraph 15 details the costs of the Summons with an account for the costs for $926; As the applicant was the successful party in being granted leave to institute the proceedings by Beech-Jones J, hence all the Applicant's costs should be paid by the Respondents pursuant to the dictum 'costs follow an event'. ... 8. It is submitted that the Respondents had to appear at the hearing - such that their presence at the hearing and the costs entailed would not attract costs. 9. It is submitted that Beech-Jones J exhibited judicial non-compliance with the dictum 'costs follow an event' where there was no extenuating circumstances to depart from awarding the applicant all his costs, and caused the Deponent substantive unfairness in awarding part costs to the Opponents as a punitive measure. ... 12. It was a travesty of justice to award one third of the respondent's costs contrary to the dictum 'costs follow an event' where the applicant was successful."

Costs 29Section 98 of the Civil Procedure Act 2005 provides that, subject to the rules of court, costs are in the discretion of the court and the court has full power to determine by whom, to whom and to what extent costs are to be paid, and upon what basis costs are to be paid. 30Rule 42.1 of the Uniform Civil Procedure Rules 2005 is in the following terms: "Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs." 31It is beyond argument that the making of an order for costs by a Judge is a wholly discretionary decision. 32If any error is to be demonstrated sufficient to cause a court on appeal to intervene, then it must be an error of a kind described by the High Court of Australia in House v The King [1936] HCA 40; (1936) 55 CLR 499.

Discernment 33The affidavit and submissions of Mr Bar-Mordecai in support of arguments he would advance if granted leave to appeal, appear to be based upon the proposition that Beech-Jones J did not have any discretion to make an order for costs other than an order for costs in favour of Mr Bar-Mordecai. Further, Mr Bar-Mordecai's submissions (paragraph 9) seem to advance an argument that his Honour was in error because he was required to find the existence of "extenuating circumstances" and that his part award of costs against Mr Bar-Mordecai was "a punitive measure". 34There is simply no basis in the material before this Court which would support the proposition: (a)that Beech-Jones J made an error in the exercise of his discretion of a kind to which House v The King refers; or (b)that the application of the proper legal test requires the existence of "extenuating circumstances" before Beech-Jones J was entitled to make a costs order of the kind which he did; or (c)that Beech-Jones J's costs order was made as a punitive measure against Mr Bar-Mordecai. 35None of the material before me, advanced either in writing or orally in submissions by Mr Bar-Mordecai, suggests that he has a prima facie case of a kind sufficient to enable a grant of leave to appeal by the Court of Appeal. 36In those circumstances, because Mr Bar-Mordecai does not have a prima facie ground for the proceeding, having regard to the terms of s 15 of the VP Act, I am obliged to dismiss this application. 37Whether or not the terms of s 15 of the VP Act oblige me to dismiss this application, I would not otherwise have granted leave because: (a)Mr Bar-Mordecai has not disclosed that he has any prospect whatsoever of succeeding in obtaining a grant of leave to appeal from the Court of Appeal; (b)the judgment of Beech-Jones J, if I may say with respect, is on its face an entirely rational exercise of his Honour's judicial discretion in making an order for costs in respect of submissions that were pressed before him which were clearly hopeless; (c)such arguments as Mr Bar-Mordecai wishes to advance are based on a wholly incorrect articulation of the law with respect to costs. 38An additional issue arises, which is the proper construction of s 14(6) of the VP Act. 39That section is in the following form: "Despite any other Act or law, the applicant may not appeal from a decision disposing of the application." It directs itself to application under s 14(2) of the VP Act for leave to institute proceedings. 40Beech-Jones J's judgment dealt with an application brought by Mr Bar-Mordecai pursuant to s 14(2) of the VP Act. It was as a consequence of that application that his Honour made the orders which he did. Those orders disposed of the application, including the order for costs. 41In my view, the provisions of s 14(6) of the VP Act do not permit Mr Bar-Mordecai, who was the applicant before Beech-Jones J, to appeal from Beech-Jones J's decision, which is what the application for leave to appeal to the Court of Appeal would entail. 42Were I otherwise satisfied of the requirements of s 15 and s 16 of the VP Act, I would not have granted leave because of those provisions.

Orders 43I dismiss the application of Mr Bar-Mordecai made by summons filed 21 May 2012.

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: 08 June 2012

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