Bar-Mordecai v Health Care Complaints Commission

Legislation 7This application for leave is to be considered in accordance with the provisions of the VP Act. 8The summons is an application for leave to institute proceedings pursuant to s 14 of that Act. Section 14(5) provides: "an appropriate authorised court may dispose of the application by: (a) dismissing the application under s 15, or (b) granting the application under s 16." 9Section 15 of the VP Act provides: "1. An appropriate authorised court must dismiss an application made under s 14 for leave to institute proceedings if it considers: (a) the affidavit required by s 14(3) does not substantially comply with that section, or (b) the proceedings are vexatious proceedings, or (c) there is no prima facie ground for the proceedings."

Procedure to be followed 10As I said in Application of Michael Bar-Mordecai [2012] NSWSC 501, it is open at the stage of considering whether leave should be granted under s 16 of the VP Act, for this Court to proceed to consider whether to grant such leave on the papers, and without any oral hearing. 11Such an approach requires the applicant to be given an opportunity to set out all of the submissions upon which he or she intends to rely in support of the grant of leave. In circumstances where this process might operate unfairly to an applicant, then the Court can proceed by hearing the application orally. 12Here I directed that such submissions be made in writing. I did so, because I took the view that Mr Bar-Mordecai was an educated person, who was experienced in matters before the Supreme Court, including representing himself, and was entirely capable of putting all submissions upon which he proposed to rely, in writing. 13Having read and considered those submissions, I am satisfied that in this matter this is a fair way to proceed. In addition, I concluded that it was appropriate to follow this procedure because it best accords with the objects and purposes articulated in the Civil Procedure Act 2005 and Uniform Civil Procedure Rules 2005. I am satisfied that this is the most appropriate procedure because it is just, quick and cheap. It permits a just determination of the summons consistently with the efficient disposal of the business of the Court, and realises an efficient use of judicial resources. It is in the interest of justice to proceed in this way in this case.

Decision of Chief Justice Blanch of the District Court 14The applicant wishes to commence proceedings against Blanch CJ personally for his Honour's decision of 2 September 1998, by which his Honour authorised the Health Care Complaints Commission to prosecute Mr Bar-Mordecai out of time. 15The grounds which Mr Bar-Mordecai nominates are: "1. Conspiracy of Blanch CJ with HCCC ... and Cooper DCJ to pervert the course of justice with respect to Dr Bar-Mordecai; 2. Breaching by Blanch CJ of s 48 of the Medical Practice Act 1992 by authorising the unlawful prosecution by the HCCC of Dr Bar-Mordecai three years after complaints had been lodged with the HCCC; 3. Blanch CJ making orders against Dr Bar-Mordecai not consistent with a protective jurisdiction; 4. Blanch CJ's decision was irrational and unreasonable to a standard required to constitute jurisdictional error such that a basis upon which relief under s 69 of the Supreme Court Act is advanced." 16The decision of Blanch CJ to which reference is made, was one which apparently permitted the commencement of proceedings by the HCCC against the applicant. No judgment or decision has actually been provided to this Court on this application. 17Those proceedings were concluded with a judgment of the Medical Tribunal which was constituted by Cooper DCJ, Drs Woodford and Richards, and Ms M Brophy on 6 September 2000. 18An appeal against that decision was dismissed by the Court of Appeal (Beazley and Meagher JJA, Pearlman AJA) on 28 May 2002: Bar-Mordecai v Health Care Complaints Commission [2002] NSWCA 192. 19The grounds advanced are not capable of supporting any proceeding against Blanch CJ. Having regard to the history of the proceedings in the Medical Tribunal and the Court of Appeal, any proceedings against Blanch CJ would, I am satisfied, be instituted to harass or annoy Blanch CJ. 20Since such proceedings would be vexatious proceedings within the meaning of the VP Act and since there is no prima facie ground for the proceedings, leave ought not be granted. 21Except for Ground 4, the conduct of Blanch CJ for which Mr Bar-Mordecai seeks to sue him, was conduct carried out wholly in his capacity as a judge exercising judicial duties. As such, the well entrenched principle of judicial immunity from suit would be applicable. It provides a complete immunity from suit: Fingleton v R [2005] HCA 34 (2005); (2005) 227 CLR 166 per Gleeson CJ at [36]-[39], McHugh, Gummow and Heydon JJ agreeing. 22This means that the suit contemplated by Mr Bar-Mordecai, and for which leave is sought, cannot succeed. 23I refuse leave to bring these proceedings.

Decision of Cooper DCJ 24Cooper DCJ was the Chairman of the Medical Tribunal which, on 6 September 2000, delivered a decision which made the following orders: (i)that Dr Bar-Mordecai be deregistered; (ii)that an application for review of these orders may not be made until after the expiration of seven years from the date of this judgment; (iii)that Dr Bar-Mordecai pay the costs of the Health Care Complaints Commission. 25An appeal was brought against that decision to the Court of Appeal, which on 28 May 2002, dismissed the appeal: Bar-Mordecai v Health Care Complaints Commission [2002] NSWCA 192. 26The applicant seeks to proceed against Cooper DCJ on the following grounds: "(i) Conspiracy of Cooper DCJ with the HCCC [Mr Swain of the HCCC, also breaching s48 of the MPA] Blanch CJ, Einstein J, Sheller JA, Stein JA and Giles JA to pervert the course of justice; (ii) Cooper DCJ having been in judicial breach of s48 of the MPA by allowing the unlawful prosecution of the HCCC to proceed under his adjudication; (iii) Cooper DCJ having been in judicial breach of s154(2) of the MPA by authoring the judgment to the exclusion of the other three members from the decision making process on their evidence, and having each sign off on the judgment without even reading/editing it; (iv) Making punitive orders on the basis of his contrived lay person's findings [in a Medical Tribunal] and conflicting findings not consistent with a protective jurisdiction and contrary to the evidence and the NSQ Medical Board Policy; (v) Cooper DCJ judgment on multiple issues was irrational and unreasonable, to the standard required to constitute jurisdictional error, such that a basis upon which relief under s69 of the Supreme Court Act is advanced." 27The affidavit provides no evidence whatsoever which supports any of the grounds contended for. There is no basis for an allegation of conspiracy by Cooper DCJ with the HCCC, and the other Judges named. 28Section 48 of the Medical Practice Act 1992, which as since been repealed, does not impose an obligation upon a Judge, the breach of which means that the proceedings are unlawful. There is no legal basis for any proposed cause of action which relies upon s 48 of the Medical Practice Act. 29There is no factual basis for the assertions about the judgment. The allegation that the orders are punitive and not protective, and that the judgment was irrational and unreasonable, are allegations which are properly found to be part of any appeal. They were either pursued or they were not at that time by Mr Bar-Mordecai. In light of the fact that the appeal has been heard and disposed of, there is no reason to allow Mr Bar-Mordecai to further agitate matters which have been finalised. 30Any proceedings against Cooper DCJ would be vexatious. There is no prima facie ground to support the proceedings. 31Except for proceedings under s 697 of the Supreme Court Act, where those proceedings are properly brought, Cooper DCJ is also entitled to the benefit of judicial immunity to which I have earlier made reference. 32Leave to commence these proceedings ought be refused.

Decision of Murrell DCJ 33On 18 March 2009, Murrell DCJ was the Deputy Chairperson of a Medical Tribunal constituted by herself, Drs Anderson and Toh, and Ms Collier. The Medical Tribunal considered an application by Mr Bar-Mordecai for a review of the deregistration order made by the Medical Tribunal in 2000 to which I have referred in [24] above. The Tribunal dismissed the application and ordered that there be no application for a review for a further three years. 34On 19 June 2009, Schmidt AJ, sitting in the Common Law Division of this Court, refused leave to the applicant to commence proceedings designed to set aside the judgment of the Tribunal, together with an earlier interlocutory judgment, and for orders under s 69 of the Supreme Court Act to have the Tribunal "redetermine the issue in accordance with the law". 35The grounds upon which Dr Bar-Mordecai seeks to proceed against Murrell DCJ are as follows: "(i) Conspiracy of Murrell DCJ with Cooper DCJ and Blanch CJ to pervert the course of justice; (ii) Murrell DCJ having been in judicial breach of s94A of the MPA by refusing to accept the new evidence of the de facto issue under her adjudication as found by Schmidt J so as for the Applicant to rely on the NSW Medical Board policy document; (iii) Murrell DCJ having been in judicial breach of s154(2) of the MPA by authoring the judgment to the exclusion of the other three members from the decision making process; (iv) Making punitive orders on the basis of her contrived lay person's findings [not a clinical psychologist or a psychiatrist] not consistent with a protective jurisdiction, and acceptance of the Medical Board bogus submissions coupled with reliance of the Board's false expert witness evidence, to the exclusion of the NSW Medical Board Policy; (v) Making expert clinical psychologist findings on 'insight' into the Applicant's treatment of his de facto wife [allowed by NSW Medical Board Policy] as a lay person in clinical psychology, without any formal objective protocol with which to assess the Applicant from the bench; (vi) Murrell DCJ judgment on multiple issues was irrational and unreasonable, to the standard required to constitute jurisdictional error, such that a basis upon which relief under s69 of the Supreme Court Act is advanced." 36There was no factual basis for the grounds asserted provided to me. As well, having regard to the fact that leave has already been sought and refused by Schmidt AJ (as her Honour then was), I am satisfied that any further proceedings would amount to vexatious proceedings within the meaning of the VP Act. 37Since the proceedings would be vexatious and no reasonable ground is advanced to support the proceedings, leave ought not be granted. As well, Murrell DCJ is entitled to judicial immunity from suit, at least to the extent that her conduct on an individual judge is said to give rise to damages. 38Leave to commence these proceedings ought be refused.

Decision of the Court of Appeal 39As is apparent from [18], on 28 May 2002, Beazley JA, Meagher JA and Pearlman AJA comprised the Court of Appeal which heard and determined the appeal by Mr Bar-Mordecai against the initial Medical Tribunal decision in 2000 which led to his de-registration as a medical practitioner. 40The applicant seeks to bring proceedings against the three Judges who comprised the Court of Appeal, although two of them - Justice Meagher and Justice Pearlman - are now dead. The basis upon which the applicant seeks to do so is as follows: "... in order to set the judgment aside in Bar-Mordecai v HCCC matter no. CA 40793/00 on the grounds of conspiracy with the HCCC, Blanch CJ, and Cooper DCJ to pervert the course of justice, as manifested by a systematically accepting contrived findings of the trial judge Cooper DCJ contrary to the evidence, refusing to accept and abide by NSW Medical Board Policy on the treatment of relatives with findings contrary to that policy, refusing to accept that the trial judge contrived findings to give contradictory findings on the morphine issue, accepting uncorroborated evidence from the bar table, making perverse personal findings from the bench, and making orders not consistent with a protective jurisdiction; Like Cooper DCJ judgment, the Court of Appeal lead judgment of Beazley JA on multiple issues was irrational and unreasonable, to the standard required to constitute jurisdictional error, such that a basis upon which relief under s69 of the Supreme Court Act is advanced." 41After the Court of Appeal delivered its decision on 28 May 2002, Mr Bar-Mordecai made application to the High Court of Australia for special leave to appeal from the judgment of the Court of Appeal. In the course of that application for special leave, many but not all of the grounds to which reference has just been made, were raised. The High Court refused to grant special leave. 42Section 69 of the Supreme Court Act is not an available basis to attack a final judgment of the Court of Appeal, which was clearly seized with jurisdiction to hear and dispose of the appeal. The only course open was to seek special leave to appeal to the High Court of Australia. This course has been engaged in and completed. 43There is no prima facie factual basis in the material provided to me for the proceedings against the members of the Court of Appeal. There is no reasonable ground to suggest that these proceedings have any prospect of success. 44Each of the members of the Court of Appeal are entitled to judicial immunity from proceedings, with respect to allegations of conspiracy to pervert the course of justice. 45I would refuse to grant leave to commence these proceedings.

Decision of Schmidt AJ 46On 19 June 2009, Schmidt AJ refused to grant leave to Mr Bar-Mordecai to bring proceedings against Murrell DCJ. The applicant wishes to challenge that decision upon the following grounds: "(i) Conspiring with Murrell DCJ, Blanch CJ, and Cooper DCJ to pervert the course of justice to uphold a tainted judgment; (ii) Making findings e.g. breach of s94A by Murrell DCJ, and refusing the Applicant leave to appeal Murrell DCJ's judgment on the grounds of bias; (iii) Wrongly accepting that Murrell DCJ could, as a lay person in psychology, assess the Applicant's insight from the bench on her gut feeling rather than an objective assessment of an expert in clinical psychology; (iv) Accepting that the Medical Board of NSW was at liberty to present expert witnesses to depose false evidence on the basis of the Applicant's insight which neither medical expert assessed and which Murrell DCJ wrongly accepted; (v) Making orders not consistent with protective jurisdictions Medical Practice Act 1992 and Vexatious Proceedings Act 2008; (v) Breaching by Schmidt J of s16(1)(a) of the Vexatious Proceedings Act 2008 and by authorising and adjudicating the unlawful contested hearing; (vi) Schmidt J's judgment on multiple issues was irrational and unreasonable, to the standard required to constitute jurisdictional error, such that a basis upon which relief under s69 of the Supreme Court Act is advanced." 47The evidence provided does not support any of the Grounds. There is no prima facie ground for such a proceeding. Nothing approaching jurisdictional error is established. 48Any proceeding would in substance amount to an appeal against Schmidt AJ's refusal to grant leave and hence would be prohibited by s 14(6) of the VP Act. 49There is no basis upon which such a proceeding could be commenced. Schmidt AJ, like the other judges included in this application, is entitled to judicial immunity from suit, from the allegations of personal wrongdoing. 50I refuse leave to commence proceedings against Schmidt AJ.

Balance of Application 51The balance of the application seeks to obtain damages from the Health Care Complaints Commission and the Medical Board of NSW with respect to the complaint filed in the Medical Tribunal by the HCCC and the role played by the Medical Board of NSW in the conduct of that litigation. 52It is sufficient to say that neither the affidavit nor the submissions provide any basis for such a proceeding. Leave to commence those proceedings ought be refused.

Summary 53For the reasons discussed, I refuse to grant Mr Bar-Mordecai leave to proceed in respect of any of the actions which have been the subject of his application. 54The summons 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: 17 August 2012