Attorney General v Bar-Mordecai

Supreme Court of NSW|2015-10-30|Before: Campbell J, Patten AJ, Garling J

Solicitors: Crown Solicitor for NSW (Defendant) File Number(s): 2013/337763

Judgment

In February 2005 Patten AJ made an order that Mr Bar-Mordecai shall not, without the leave of this Court, institute proceedings in any court: Attorney General v Bar-Mordecai [2005] NSWSC 142. Pursuant to this order Mr Bar-Mordecai is seeking leave by application made under s 14 Vexatious Proceedings Act 2008 (NSW) (VP Act) to institute an application for leave to appeal to the District Court of NSW to set aside the orders of Milledge M made on 25 June 2013 extending the period of an existing apprehended violence order against him.
The summons commencing these proceedings was originally filed by Mr Bar-Mordecai as long ago as 8th November 2013. The delay in bringing these proceedings on for hearing, it appears, is the result of an "administrative error" by the Court in managing this file. So much is outlined in a letter of explanation by the Registrar to Mr Bar-Mordecai dated 31 March 2015. The delay was in no way due to Mr Bar-Mordecai, and was uncovered only as a result of his inquiries about the (lack of) progress of the matter. I here record the Court's apology for this very unsatisfactory state of affairs previously conveyed to Mr Bar-Mordecai by the Registrar.
When the mistake was discovered, the file was referred to Garling J who, on 25 June 2015, under s16 VP Act, ordered Mr Bar-Mordecai to serve the summons, his affidavit of the same date and his submissions upon the Attorney General of NSW, "TS" and Senior Constable Tom Sands. The latter two parties being relevant persons within the meaning of s 16 (5) VP Act. The matter then came before me for hearing on 30th October 2015.

Relevant background

In his affidavit of 24 September 2015 Mr Bar-Mordecai outlines in great detail his family history, in particular his relationship with his former wife and his now estranged eldest daughter "TS". "TS" along with her partner and four children are the persons protected by the AVO the subject of this leave application. It is unnecessary for me to repeat these background facts. They are not central any of the issues I have to decide and are relevant, if at all, as background facts only. Many of them are contrary to findings of fact made by the learned magistrate.
The history of this litigation in this Court and the Local Court was also the subject of detailed analysis by Mr Bar-Mordecai in both oral and written submissions. I do not propose to canvass in any great detail those matters, as it is unnecessary for the issue which I need to resolve. The orders made by the Local Court granting and extending the AVO are, with respect, succinctly summarised by Garling J in his judgment of 27 September 2013: Bar-Mordecai v Attorney General of NSW (No 2) [2013] NSWSC 1538 at [6] - [20]; and I need only re-state them briefly.
On 23 October 2007 Madgwick M made an apprehended domestic violence order against Mr Bar-Mordecai for a period of five years. As I have said, the protected persons were identified as "TS", her partner and their four children, that is, Mr Bar-Mordecai's four grandchildren. Mr Bar-Mordecai was refused leave by this Court under then then current s 84(4) Supreme Court Act 1970 NSW to appeal to the District Court from this order: see Attorney General of NSW v Bar-Mordecai [2008] NSWSC 1094 per Harrison AsJ. (See also [2011] NSWSC 234, by Schmidt J.)
On 25 June 2013 Milledge M extended the AVO for a further period of 10 years. Mr Bar-Mordecai this time was successful in obtaining leave from this Court to appeal to the District Court from the orders of Milledge M. I will return to this decision of Garling J shortly.
Following Garling J's orders, on 16 September 2013 Mr Bar-Mordecai filed his appeal in the District Court. He says that he "inadvertently added some extra grounds to his application" in contravention of the conditions of leave imposed by Garling J (see [9] - [10] below). In response to his application, on 24 October 2013 the Attorney General applied to the District Court for a Declaration under s 13(4)(a) VP Act that the appeal had been instituted in contravention of the VP Act and consequently was taken to have been dismissed: s 13(3). On 14 November 2013 the District Court made the order sought by the Attorney General, by and with the consent of Mr Bar-Mordecai.
Mr Bar-Mordecai must have realised his "mistake" because in the meantime, and whist his appeal was still on foot in the District Court, he again applied to this Court by motion on notice filed on 31st October 2013 seeking an order that the Court vary order 2(b) made by Garling J's. That order is as follows: (2) Such grant of leave is subject to the following conditions: ……… (b) the appeal is to be instituted by the filing of an originating process which limits the grounds of the appeal to those grounds set out in the draft Notice of Appeal which is Exhibit A in these proceedings. I interpolate that, as Mr Oliver of Counsel, who appears for the Attorney General, submits, the leave granted was in substance leave to institute an application for leave to appeal, the time for bringing an appeal as of right having expired on 25th July 2013: see [23]-[25] below.
His motion was dismissed by Barr AJ on 7 November 2013. With great promptitude following this reversal, on 8 November 2013, Mr Bar-Mordecai filed a notice of discontinuance in the District Court in respect of his appeal in that Court and on the same day filed the summons in this Court which now form the subject of these proceedings. All of this occurred as I have said, prior to Mr Bar-Mordecai consenting to the orders sought by the Attorney General in the District Court on 14 November. As s13(2) imposes a statutory stay of proceedings commenced contrary to s 16 VP Act, the notice of discontinuance was ineffective, and the consent orders operated to confirm the deemed dismissal of the appeal by s 13(3) VP Act.

The decision of Garling J

In September 2013 Garling J heard substantially the same application that Mr Bar-Mordecai's has brought before me, that is, leave to institute an application for leave to appeal to the District Court from the orders of Milledge M. At the conclusion of the hearing on 13th September 2013 his Honour granted Mr Bar-Mordecai the leave he sought pursuant to s 16(3) VP Act, reserving his reasons. This grant of leave however was subject to a number of conditions which I now set out in full: (a) the appeal is to be instituted within 14 days from the date of these orders, being 13 September 2013; (b) the appeal is to be instituted by the filing of an originating process which limits the grounds of the appeal to those grounds set out in the draft Notice of Appeal which is Exhibit A in these proceedings; (c) Mr Bar-Mordecai is not, without the further leave of this Court, first had and obtained, to make any application to the District Court for leave, pursuant to s 18(2) of the Crimes (Appeal and Review) Act 2001, to give, or adduce fresh evidence on the hearing of the appeal.
His Honour accepted that Mr Bar-Mordecai had a legitimate concern over the extension of the AVO against him and that that concern was his principal purpose in appealing from the orders of Milledge M. He was also satisfied that the appeal to be conducted in the District Court was not vexatious proceedings as they were to be conducted by way of rehearing by reference only to the evidence taken in the Local Court. His Honour records that Mr Bar-Mordecai indicated in the course of cross-examination that this was to be so and he "would conduct the [District Court] proceedings without seeking leave to adduce any further evidence…or to give any further evidence himself" (at [35]). It is obvious from the conditions imposed by Garling J on his grant of leave that he considered both of these factors significant to the decision the proposed appeal was not vexatious.

The parties' submissions

Mr Bar-Mordecai's submissions can be summarised by reference to his three principal contentions: 1. The Court has the power to grant leave to file an application for leave to appeal in the District Court notwithstanding any time restrictions or limitations imposed by statute; 2. The proceedings before Milledge M were in the nature of civil proceedings. The Court's criminal jurisdiction and the statutes informing it do not govern its civil jurisdiction. This would be contrary to the proper administration of justice; and 3. The orders of Milledge M are a "travesty of justice"
In reply, the Attorney General says that Mr Bar-Mordecai's application must be dismissed because: first, the proposed appeal has no prospects of success in that it is statute barred; and second, in any event, even if the appeal were not time barred the court could not be satisfied that the conduct of the proceedings would not be vexatious.
Before dealing with Mr Bar-Mordecai's submissions I want to address two further points. The first is the issue of service on the second and third interested parties as ordered by Garling J on 25 June 2015. Neither "TS" nor SC Sands appeared when the matter was called and neither party has filed an appearance. Mr Oliver informed me that his instructing solicitor was informed that "TS" does not propose to appear. They have not however received any instructions on behalf of the police. Mr Bar-Mordecai gave evidence that he personally served the Waverley Police Station and Mr Sutton, solicitor for "TS", on 25 June 2015, the same date as Garling J's orders. In these circumstances I am satisfied that the second and third interested persons have been served in accordance with the directions made, have had adequate notice of the hearing date, and do not wish to be heard in relation to Mr Bar-Mordecai's current application.
The second point, and one that I raised with the parties during the course of the hearing, concerns the operation of s 13 VP Act. The first question I had was whether or not instituting proceedings which did not comply with conditions imposed by the grant of leave meant that the proceedings were instituted without leave. And the second was what is the effect of a dismissal under s 13? Given that both parties proceeded in the District Court on the basis that the filing of grounds of appeal in excess of those permitted by Garling J meant that the proceedings had been instituted, in legal effect, without leave, and that on that basis the District Court was asked to make consent orders, I am of the view it is unnecessary for me to look any further into the operation of s 13. Both parties accept that s 13 was engaged and I will proceed on that basis.

The power of the court to extend time

The broad argument put forward by Mr Bar-Mordecai is that this Court has a general power to extend time for leave to appeal notwithstanding any time restrictions or limitations imposed by statute. The more narrow point he makes is that the judgment of Garling J published on 27th September 2013 granting leave to file the application for leave of appeal in the District Court was granted more than three months after the orders of Milledge M, putting his Honour's grant of leave outside the statutory time limit for leave to appeal. This he says creates a precedent in that the Court has already extended time after the expiration of the statutory time limit once and can do so again here. He also points out that his leave application should not be set aside due to the administrative error of the court resulting in the delay in bringing his application to hearing.
Dealing with this last point first, the Attorney General at outset accepts that the proper course to follow in this case, is to deal with Mr Bar-Mordecai's application as though it was being dealt with in a timely manner after the summons had been filed. Given the circumstances set out at [2] above, such a concession is indeed appropriate. Mr Bar-Mordecai's application therefore has proceeded before me as if it had come on in a timely fashion. That is to say I am approaching the matter as if it was being dealt with soon after 8th November 2013.
Appeals by their very nature are creatures of statute. As Dixon J (as the Chief Justice then was) aptly stated in Grierson v The King [1938] HCA 45; 60 CLR 431, "[an] appeal is not a common law remedy, and proceedings at law are only subject to that remedy by statute" (at 436). There is no right therefore at common law which exists independently to give this Court or indeed any court a general appellate jurisdiction from decisions of lower courts. I put to one side the Court's original, supervisory jurisdiction not sought to be invoked here. Rights of appeal and a court's appellate jurisdiction must be sourced to express, statutory provisions.
There is no doubt that Milledge M was exercising power under s 73 Crimes (Domestic and Personal Violence) Act 2007 (NSW) (CDPV Act) to vary the existing AVO made by Madgwick M by extending the period during which the order is to remain in force. Section 84(2)(c) provides that an appeal may be made to the District Court, inter alia, "by a party to an [AVO] against the variation…of the order by the Local Court". It is this section therefore which confers any right Mr Bar-Mordecai may have to appeal from the orders of Milledge M. Section 84(3)(a) provides that an appeal under ss (2): may be made under Part 3 of the Crimes (Appeal and Review) Act 2001 in the same way as an application may be made under that Part by a defendant against a conviction arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986
And s 84(4): The Crimes (Appeal and Review) Act 2001 applies to an application or appeal arising under this section with such modifications as are made by or in accordance with the regulations under that Act. No regulations have been made under the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act).
As the language makes clear, the right of appeal created and conferred by s 84 operates by incorporating some provisions of CAR Act in CDPV Act. The effect of ss 84(3)(a) and 84(4) is that procedurally an appeal from an AVO variation made by the Local Court is treated like an appeal against conviction under Pt 3 CAR Act. The appeal court is empowered to deal with an AVO variation appeal "in the same way as" an appeal against conviction made under Pt 3 CAR Act.
Part 3 of the CAR Act is concerned with appeals from the Local Court to the District Court in criminal matters. Within Pt 3, Division 1 deals with appeals by defendants in criminal cases, and Subdivision 1 contains the machinery for the making of appeals. It is under this subdivision that s 11, dealing with appeals as of right, is found. So we see here again it is the statute which confers the right of appeal from the Local Court to the District Court in these matters; and a different statute, CDPV Act, creates a right of appeal "against" an AVO variation, and does so by incorporating the provisions of Part 3 CAR Act. However it is CDPV Act which speaks to appeals from orders made under it, not the CAR Act per se.
Section 11(2)(a) CAR Act provides that an appeal under it must be made "within 28 days after sentence is imposed". The Attorney General says that "28 days after sentence is imposed" in these circumstances means "28 days after the final determination of the AVO [variation] order" or in other words "time does not start to run at all until the event that is equivalent to sentence" (41.35T). What this means then is that the time for bringing an appeal as of right in respect of an AVO variation is 28 days from the date when the variation order is pronounced.
I accept this argument. Appeals are creatures of statue, in this case the CDPV Act incorporating Pt 3 of the CAR Act. This means that Mr Bar-Mordecai (subject to leave being granted by this Court under the VP Act,) as of right had 28 days to appeal from 25th June 2013, the date when the variation orders. Consequently, this right expired on 24 July 2013. When Mr Bar-Mordecai filed his appeal in the District Court (with this Court's leave under s 16 VP Act) on 16 September 2013, time to appeal as of right had by then expired. Time, however, may be extended under s 13 CAR Act: 13 Late applications for leave to appeal (1) An appeal to the District Court may be made: (a) by any person by whom an appeal could be made under section 11, but for section 11(2), … but only by leave of the District Court. (2) An application for leave to appeal must be made within 3 months after the relevant conviction or sentence is made or imposed, or the relevant application under section 4 is refused, as the case may require.
This section gives the District Court power to extend the time for bringing an appeal by the grant of leave to appeal but only if the application for leave is made within 3 months after conviction or sentence. The need for strict compliance with the time limit arises from the emphatic language of must be made. Section 13 then effectively operates as a statutory bar which precludes the District Court from exercising the discretionary power to extend the time for the filing of an application for leave beyond the 3 months allowed. I emphasise it is the District Court which has this limited power to extend time to appeal by a grant of leave, not this Court.
The time for Mr Bar-Mordecai to make an application to the District Court under s 13 for leave to appeal out of time expired on 26 September 2013. This summons seeking leave under the VP Act to institute proceedings was not filed in this Court until 8 November 2013. It follows then that, regardless of the delay in his matter coming on for hearing in this Court, for which Mr Bar-Mordecai is in no way responsible, his application for leave to appeal in the District Court is statute barred by s 13 CAR Act, and contrary to his submission this Court has no statutory power to extend time. Even had his application been heard on the day it was filed the same result would have pertained.
It is important to stress that this Court has no general power to extend time fixed by statute. Like all courts this Court is bound to apply the law made by Parliament. Times fixed by Parliament must be enforced unless the statute itself confers power to extend time. Moreover that Garling J's reasons where published after time to apply for leave to appeal had expired creates no precedent. His Honour's orders were pronounced, and acted upon by Mr Bar-Mordecai, within the time fixed by s 13 CAR Act as incorporated by s 84 CDPV Act.
Given this conclusion it is unnecessary to address the detailed argument of learned counsel relating to the apparent limitations on the District Court dispositive powers on determination of an appeal under s 84 CDPV Act: See 36.5-40.5T. Those questions are better resolved when they central to the resolution of a case.

Criminal jurisdiction?

The crux of Mr Bar-Mordecai's argument here is that the Local Court's criminal jurisdiction does not apply in relation to an AVO as this order is dealt with in that Court's civil jurisdiction. This submission can be disposed of by simply saying that, as I have already recounted a number of times above, rights to appeal must be founded in statute. In the case of an appeal from an AVO variation, s 84 of the CDPV Act dictates that this process is to follow the same pathway as an appeal in the summary criminal jurisdiction of the Court. This is not as Mr Bar-Mordecai contends an application of the courts criminal jurisdiction; rather it is simply the pathway which Parliament has provided for an AVO appeal. In Providing that right of appeal, It is CDPV Act, not CAR Act, that speaks.

Travesty of justice

Mr Bar-Mordecai's final submission is that to let the orders of Milledge M stand would be a "travesty of justice" and an abuse of court process. He argues the orders were made on the false premise of sexual abuse and fears he may be put at risk of criminal sanction if he was alleged to have breached them. He also argues that having an AVO against him may adversely affect his chances of getting back on the medical register. Whilst I do have some sympathy in this regard for Mr Bar-Mordecai it is not necessary for me to address these arguments given my findings above. His application is simply statute barred and the merits of the proposed appeal are unfortunately irrelevant.

Application of the Vexatious Proceedings Act

Turning now to the VP Act, there has been no suggestion by either party that Mr Bar-Mordecai has failed to comply with the requirements of s 14. Subsection (5) authorises me to dispose of the application by either dismissing it (s 15) or granting it (s 16). I set out the relevant parts of the legislation: 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: … (b) the proceedings are vexatious proceedings, or (c) there is no prima facie ground for the proceedings. 16 Granting application for leave … (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.
"Vexatious proceedings" is defined under the Act in s 6 and 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.
The Attorney General relies on para (a) and in the alternative para (d) to assert that Mr Bar-Mordecai's proposed appeal would be vexatious because given the time bar it has no prospects of success. She says that proceedings that are doomed to fail are an abuse of process. I agree. Mr Bar-Mordecai's application for leave to appeal from the variation order fails at the first hurdle for reasons I have already expressed above. The CAR Act imposes a statutory time bar which this Court or indeed any court is not empowered to extend. It follows from this that I am not satisfied that the proceedings are not vexatious proceedings under s 16(4) and I must, under s 15, dismiss Mr Bar-Mordecai's application for leave as I consider the proposed proceedings would be vexatious proceedings.
Whether or not the proceedings are vexatious under s 6(d) does not arise for my consideration. On this point, the Attorney General relied predominately on Mr Bar-Mordecai's previous conduct in contravening, in his words, the "unnecessary and burdensome" (19.50T) conditions imposed by Garling J and unsuccessfully seeking to have those conditions set varied by Barr AJ. I acknowledge the submission of the Attorney General that case law at first instance tends to establish that the test under para (d) is an objective one such that if the manner in which the proceedings are conducted is vexatious and/or harassing in effect, the intention, or motive, for that conduct is not relevant: see for example; Pascoe v Liprini [2011] NSWSC 1484 at [10]; Attorney General of NSW v Wilson [2010] NSWSC 1008 at [16]; Attorney General for the State of New South Wales v Mahmoud [2015] NSWSC 899 at [30]. I note that this interpretation has been questioned recently by Basten JA in Vivavattene v Attorney General (NSW) [2015] NSWCA 44 at [13] - [23] (the other members of the Court, Beazley P and Leeming JA, did not consider it necessary to comment on the question in this case). Likewise, it is unnecessary in this case to determine the correct construction of s 6(d) and I will say no more about it, except that the concluding words of the paragraph "achieve another wrongful purpose" suggest intention is relevant.

Costs

The Attorney General applies for a lump sum costs order to be fixed by the Court. She also applies for costs on an indemnity basis from 12 August 2015. She relies on [7] - [9] of the Affidavit of Mr Bar-Mordecai dated 19 August 2015 deposing that Mr Bar-Mordecai had received a letter from the Crown Solicitor's Office dated 11 August 2015, setting out its argument in detail and putting him on notice that the Attorney General will seek a costs order on an indemnity basis if he does not withdraw his application. In reply, Mr Bar-Mordecai argues that costs should follow the event.
Beech-Jones J found in Bob v Wombat Securities Pty Ltd & Anors (No 2) [2013] NSWSC 863 that a very short relatively straightforward case is a category in which the court may award a lump sum costs order. This is, as his Honour says is "particularly so where there is doubt about the payer's financial capacity" (at [6]). On one level, Mr Bar-Mordecai's application is relatively straightforward; however in saying this, it does involve an arcane area of the law, dealing with the legal right of appeal created by s 84 CDPV Act. Furthermore, no evidence has been put before me either way concerning Mr Bar-Mordecai's financial capacity or indeed an estimate as to the Attorney General's costs of appearing on the summons. I have no reason to suppose Mr Bar-Mordecai is in straightened circumstances. In any event, any further hearing on the question of costs, involving questions of quantum and reasonableness, is to my mind the tail wagging the dog. I am not in a position to make a well informed estimate as to the reasonable costs incurred by the Attorney General and I decline to make a lump sum order.
Turning to the question of indemnity costs. As I have said the Attorney General relies on the letter from the Crown Solicitor's Office dated 11 August 2015. The letter sets out in detail the legal reasons why Mr Bar-Mordecai's claim is statute barred and puts him on notice that a costs order on an indemnity basis will be sought if he does not withdraw his application. I decline to make such an order for three reasons; first the letter does not reflect the type of letter as outlined in Calderbank v Calderbank [1975] 3 All ER 333; secondly, the letter does not contain any indication of an offer of compromise, it merely requests that Mr Bar-Mordecai withdraws his application and accept defeat; and finally, there is no offer by the Attorney General, say, to waive costs or grant some other concession if he complies.

Orders

I make the following orders: 1. Under s 15(1)(b) Vexatious Proceedings Act 2008 (NSW) dismiss the application of Mr Bar-Mordecai seeking leave to file an application for leave to appeal to the District Court from the orders of the Local Court made on 25 June 2013; 2. Mr Bar-Mordecai to pay the Attorney General's costs of and incidental to the proceedings on the ordinary basis forthwith after they have been agreed or assessed

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: 13 November 2015

At a glance

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Judgment (12 paragraphs)

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