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[2013] NSWSC 1286
Supreme Court of NSW
2013-09-12
Garling J, Dr J, Patten AJ
Original judgment source is linked above.
Judgment - Application under Vexatious Proceedings Act 2008
The Application 1On 19 December 2012, Michael Bar-Mordecai filed a Summons in which he claimed the following relief: "1. An order that the plaintiff be granted leave to file a Statement of Claim against Dr [XY] and Dr J Phillips to set aside a judgment of the Medical Tribunal of NSW dated 18 March 2009, that was procured by the operation of fraud of the two expert witnesses. 2. Costs." 2This is not the first application by Mr Bar-Mordecai with respect to his desire to commence proceedings against Dr XY. In a previous application, which related to a potential claim for medical negligence, the Court ordered that the proposed defendant be referred to as Dr XY. Consistently with those orders, it is appropriate that in this application, the proposed defendant is again referred to as Dr XY. 3On 18 April 2013, Mr Bar-Mordecai filed an Amended Summons in which he claims the following relief: "1. An order that the plaintiff be granted leave to file a statement of claim against the NSW Medical Board aka Medical Council of NSW pursuant to the VPA, to set aside the Tribunal judgment dated 18 March 2009 in Bar-Mordecai v NSW Medical Board 40015/07 that was procured by the NSW Medical Board by the operation of fraud of its expert witnesses, it called to give evidence in collusion with the false submissions of the NSW Medical Board. 2. An order that the Supreme Court dispense with or waive the severe restrictions in s14 and the conditions in s16(3) of the VPA. 3. An order that the court make no orders as to the admissibility of evidence or curtail any submissions. 4. Costs." (sic) 4In support of both the original Summons, and the Amended Summons, Mr Bar-Mordecai has filed nine affidavits and two sets of written submissions. 5The first affidavit, dated 19 December 2012, is accompanied by annexures which comprise a lever arch folder. 6The other affidavits are dated variously 24 December 2012, 18 April 2013, 19 June 2013, 5 July 2013, 22 July 2013, 25 July 2013, 5 August 2013 and 9 September 2013. 7The final affidavit annexed to it the third version of the proposed Statement of Claim which sets out the basis for the proceedings which Mr Bar-Mordecai seeks leave to commence. In this judgment, I have proceeded on the assumption that Mr Bar-Mordecai is content to rely only on this final version to outline the case he wishes to commence. 8Two sets of written submissions by Mr Bar-Mordecai in support of his application were filed on 24 December 2012 and 22 July 2013. 9Although each Summons seeks orders in different terms with respect to the proposed proceedings, the substance of the proposed proceeding is that two specialist medical practitioners, psychiatrists, who gave evidence before the Medical Tribunal of NSW, in the hearing which resulted in the Tribunal's judgment of 18 March 2009, each gave fraudulent evidence and, accordingly, the final judgment of the Medical Tribunal ought be set aside as having been procured by that fraud.
Vexatious Litigant 10The applicant, Mr Bar-Mordecai is a vexatious litigant. 11On 24 February 2005, Patten AJ made an order pursuant to s 84(1) of the Supreme Court Act 1970, 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. 12On 1 December 2008, the Vexatious Proceedings Act 2008 (the "VP Act"), commenced. Orders pursuant to s 84 of the Supreme Court Act, which were in existence at that time, are now taken to be, and to have effect as if the orders are, a vexatious proceedings order made under s 8 of the VP Act. 13As a result, the VP Act applies to Mr Bar-Mordecai, which means that should he wish to institute any proceedings, then he must only do so consequent upon a grant of leave by this Court in accordance with the legislative scheme set out in the VP Act. 14I have previously expressed my conclusions as to that legislative scheme, and the way in which applications under the VP Act are to be dealt with. There is no need for me to repeat those conclusions here. They can be found in the Application by Michael Bar-Mordecai [2012] NSWSC 501 at [9]-[20]. 15As those conclusions show, the first step to be considered by the Court is whether to grant leave pursuant to s 16(1) of the VP Act to serve the Summons and affidavits on the "relevant persons". 16In considering the application by Mr Bar-Mordecai for leave to commence proceedings under the VP Act, it is open to, and appropriate for, the Court, at this stage, 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, the Summons for leave to commence proceedings must be dismissed.
Proposed Claim 17With his affidavit, which was filed on 9 September 2013, Mr Bar-Mordecai has included a proposed Statement of Claim, which he has described as a "Draft Second Further Amended Statement of Claim" in which he sets out the basis of the action for which he seeks leave to proceed. 18The proposed Statement of Claim nominates the Medical Council of NSW as the defendant, and includes the following allegations: (a)"The Medical Tribunal of NSW refused to reregister the Plaintiff as a medical practitioner on 18.3.2009. It was misled by the false evidence ... by two expert medical witnesses called by the NSW Medical Board. ..."; (b)"The medical Tribunal was misled by the false evidence of the two psychiatrists, and on that basis, refused to reregister the Plaintiff such that the 2009 Tribunal judgment ought to be set aside, as it was procured by the operation of fraud of the two medical witnesses."; (c)Of Dr Phillips, it is alleged that "... he was precluded from giving bona fide opinion evidence for the Tribunal to rely on his evidence ..."; (d)"Dr Phillips contrived his evidence i.e. gave unchallenged false evidence on the issue of the Plaintiff's level of insight ... "; (e)Of Dr Phillips the plaintiff alleges that he was incompetent in his assessment of the plaintiff; that he fraudulently demanded money from the NSW Medical Board; that his evidence was tainted because he was present when both Dr XY, and Mr Bar-Mordecai gave their evidence and that he was guilty of '... knowingly misleading the Tribunal for monetary gain with false evidence to benefit his client, the NSW Medical Board" The particulars of the allegedly fraudulent evidence do not support such allegations; (f)In dealing with Dr XY, who was the plaintiff's treating psychiatrist for a period of over nine years, during the period of the plaintiff's deregistration, Mr BarMordecai asserts that he took "money from the NSW Medical Board for giving knowingly false ingenuous inexperienced medical evidence with regard to an assessment of the Plaintiff's level of ... insight; and that Dr XY engaged in "knowingly misleading the Tribunal for monetary gain"; (g)Of Dr XY's September 2006 report, it is alleged that it was " ... a concocted report with unfounded opinion evidence in support of the Plaintiff ..."; (h)The defendant in bad faith relied on the false evidence of both Dr Phillips and Dr XY, and knew or ought to have known that the evidence was false. 19Leaving aside some formal deficiencies in the proposed Statement of Claim, it is apparent that on its face, the proposed pleading is one which, if filed, would be struck out under r 14.28 of the Uniform Civil Procedure Rules (2005) ('UCPR') because it discloses no reasonable case, and having regard to the contents of it, would be regarded as having a tendency to cause prejudice, embarrassment or delay in the proceedings, because, at least, it is expressed in terms which would result in the conclusion that the contents of it would be an abuse of the process of the Court.
Discernment 20I am satisfied that the application for leave to institute proceeding against the Medical Council of NSW to set aside the decision of the Medical Tribunal of 18 April 2009, on the basis of the fraud of two expert witnesses must be dismissed pursuant to s 15 of the VP Act. 21My reasons for this conclusion are those which follow. I regard these reasons as being more than sufficient as a basis for the order. 22First, as I have remarked, the proposed Statement of Claim is not a proper pleading, and would, if filed, be liable to be struck out pursuant to r 14.28 of the UCPR. 23Secondly, the evidence filed, voluminous though it is, does not satisfy me, that Mr Bar-Mordecai has any prima facie grounds for alleging that the evidence of the two expert witnesses was fraudulent, and that the judgment of the Medical Tribunal ought be set aside on that basis. 24Thirdly, having regard to the time which has elapsed since the decision of the Medical Tribunal was delivered, namely, about four and a half years, and to the fact that proceedings are presently on foot in the Medical Tribunal of NSW in which Mr Bar-Mordecai is seeking an order which would permit his re-registration; and having regard to the numerous attempts, which Mr Bar-Mordecai has unsuccessfully made to commence proceedings against Dr XY, and other proposed defendants with respect to similar allegations of fraud of the expert witnesses in the Medical Tribunal proceedings which resulted in the 2009 judgment, I have concluded that these proceedings would, if instituted, be instituted for such a purpose that would constitute them as vexatious proceedings under the VP Act.
Order 25I make the following order: (1)The application for leave to commence proceedings pursuant to s 14 of the Vexatious Proceedings Act 2008, contained in the Summons dated 19 December 2012, and the Amended Summons dated 18 April 2013, is 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: 16 September 2013
Attorney-General
Bar-Mordecai