Bar-Mordecai v Attorney General of New South Wales

EX TEMPORE Judgment 1Before me is an application brought pursuant to s 14(2) of the Vexatious Proceedings Act 2008 for leave to institute proceedings by making an application to the Medical Tribunal of New South Wales (the "Tribunal"). 2The plaintiff seeks leave to apply to the Tribunal for review of a decision made on 6 September 2000 to remove him from the register of medical practitioners. 3In circumstances that I will explain, the Attorney General and the Medical Council of New South Wales (the "Council") have been heard on the application. They accept that the plaintiff should be allowed to file his application but seek the imposition of conditions upon that application pursuant to s 16(3) of the Vexatious Proceedings Act. The plaintiff opposes the imposition of those conditions.

Background 4On 6 September 2000 the Tribunal ordered that the plaintiff be deregistered as a medical practitioner and that an application for review of the Tribunal's orders not be made until after the expiration of seven years from the date of the decision. An appeal to the Court of Appeal from that decision was dismissed in 2002 (Bar-Mordecai v Health Care Complaints Commission [2002] NSWCA 192). 5On 12 December 2006 the Tribunal dismissed an application that had been made to review the 2000 orders. On 18 March 2009 the Tribunal dismissed an application for review of the Tribunal's 2000 orders. The Tribunal ordered that there be no review for three years. 6Now that those three years have expired the plaintiff has filed proceedings in the Tribunal, the subject of this application for leave. 7In the mean time, on 25 February 2005 Patten AJ made orders under s 84(1) of the Supreme Court Act 1970 that the plaintiff not institute proceedings in any Court without leave of the Supreme Court (Attorney General v Bar-Mordecai [2005] NSWSC 142). 8After the Vexatious Proceedings Act came into force that order was taken to be, and have effect as if it were, a "vexatious proceedings order" made under the Vexatious Proceedings Act (see cl 4 sch 1). 9On 3 March 2011 Davies J varied aspects of the orders made by Patten AJ but the effect of Patten AJ's order, which became a vexatious proceedings order, was not altered (Attorney General v Bar-Mordecai [2011] NSWSC 100). 10It follows that by the operation of s 13(1) of the Vexatious Proceedings Act the plaintiff is prevented from instituting "proceedings" of the kind to which the order relates without leave under s 16. 11The definition of "proceedings" is set out in s 4 of the Act. It includes: "any cause, matter, action, suit, proceedings, trial, complaint or inquiry of any kind within the jurisdiction of any court or tribunal". 12It was common ground that the effect of the orders that had been made by Patten AJ and the operation of the Vexatious Proceedings Act was that, in the absence of leave being granted, the plaintiff could not make his application to the Tribunal. 13Sections 14 to 16 of the Vexatious Proceedings Act relevantly provide: Part 3 Particular consequences of vexatious proceedings orders ... 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. 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. 16 Granting application for leave (1) Before an appropriate authorised court grants an application made under section 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. (5) In this section: relevant person, in relation to the applicant for leave to institute proceedings, means each of the following persons: (a) the person against or in relation to whom the applicant proposes to institute the proceedings, (b) the Attorney General, (c) the Solicitor General, (d) the appropriate registrar for the authorised court that made the vexatious proceedings order concerned if the registrar applied for the order in relation to the applicant, (e) any person referred to in section 8 (4) (d) or (e): (i) who applied for a vexatious proceedings order in relation to the applicant, and (ii) who the appropriate authorised court dealing with the application considers should be served, (f) any person: (i) who made an application in relation to the applicant under section 70 of the Land and Environment Court Act 1979 or section 84 of the Supreme Court Act 1970 before the commencement of this section, and (ii) who the appropriate authorised court dealing with the application considers should be served. 14On 19 March 2012 the plaintiff filed the summons in these proceedings which sought leave to apply to the Tribunal for further review of the orders made by the Tribunal in 2000. 15The summons came before McCallum J on 3 April 2012. Her Honour concluded that the plaintiff had substantially complied with the requirements of s 14(3) of the Vexatious Proceedings Act (s 15(1)(a)). Her Honour did not conclude that the proceedings were either "vexatious" or that there was "no prima facie ground" for them within the meaning of ss 15(1)(b) and (c) of the Vexatious Proceedings Act. Accordingly, her Honour directed the documents filed by the plaintiff be served on the Council, the Attorney General and the Solicitor General. 16This led to the matter being listed before me. As I have said, I heard submissions from the Council and the Attorney General.