Bar-Mordecai v Medical Council of NSW

submissions in these proceedings is prohibited. 2. Disclosure, broadcast or publication of the name or other identifying information in relation to the child or grandchild of the applicant is prohibited. 3. Disclosure, broadcast or publication of the name or other identifying information of any former patient of the applicant is prohibited.

INTRODUCTION:

1. On 6 September 2000, the Medical Tribunal of NSW ordered that the applicant be de-registered and that an application for review of that order could not be made until after the expiration of 7 years from the date of judgement.
2. It also ordered the respondent (the applicant in these proceedings) to pay the costs of the complainant.
3. An application by the application doctor for a reinstatement order.
4. The application was opposed by the Medical Council.

THE EVIDENCE

1. Much of the evidence that was originally sought to be relied upon by Mr Bar-Mordecai was either withdrawn or struck out as irrelevant.
2. There was a particular problem that the applicant sought to rely upon extensive material that had no relevance to the issues of his fitness to be reinstated.
3. Most of the material in his statement of 168 pages dated 12 January 2015 was, at first glance, irrelevant to those issues.
4. The material in evidence was as follows: 8.1 The application filed 12 September 2014; 8.2 The applicant's statement of 12 January 2015. 8.3 Document titled "Medical Board of Australia - Recency of Practice Registration - Standard" 8.4 Document titled "Medical Board of Australia - Information on Returning to Practice" dated 13 April 2011. 8.5 Form provided by Medical Board of Australia entitled "Plan for Professional Development and re-entry to practice" 8.6 Document from AHPRA recording complaints made in period in 1998 - January 2009 in respect to the applicant. 8.7 Medical Board of Australia document entitled "Good Medical Practice: A Code of Conduct for doctors in Australia" dated March 2014. 8.8 Exhibit R2 article "The Key to creating patient trust", "Extravagant Hospitability" by Toni Gitles and Harriet Cavanah Dart. 8.9 Exhibit R3 - document written by the applicant title "The Battered Litigant Syndrome". 8.10 Exhibit A1 - 2 volumes comprising draft text book prepared by applicant. 8.11 Affidavit of Elias Mordecai sworn 29 January 2015. 8.12 Affidavit of Ruby Mordecai sworn 28 January 2015. 8.13 Affidavit of Paul Miron sworn 12 February 2015. 8.14 Affidavit of Cynthia Deutsch sworn 12 February 2015. 8.15 Affidavit of Paula Carew sworn 26 February 2015. 8.16 Affidavit of the applicant sworn 11 March 2015. 8.17 Affidavit of Isaac Mordecai sworn 16 March 2015. 8.18 Affidavit of Julia Zho sworn 17 March 2015. 8.19 Reasons of The NSW Medical Tribunal regarding disqualification of the applicant dated 6 September 2000. 8.20 Judgment of the Supreme Court of NSW (Patten AJ) dated 25 February 2005 in proceedings Attorney General v Bar Mordecai [2005] NSWSC 142 8.21 Reasons of the NSW Medical Tribunal in application of the applicant for reinstatement dated 12 December 2006. 8.22 Reasons of the NSW Medical Tribunal dated 18 March 2009 refusing further application by the applicant for reinstatement. 8.23 Decision of the Full Court of the Family Court of Australia of 1 June 2010 in Bennet v Swallow (2010) FamCAFC 100 on appeal from the decision of a single judge summarily dismissing an application by Mr Bar-Mordecai and his parents for access to the children of his daughter. Appeal dismissed. 8.24 Decision of Garling J in the Supreme Court of NSW on 17 August 2012 hearing application by the applicant for leave to commence proceedings by way of 1 appeal and then proceedings against 7 judges personally (2 deceased). (Application of Bar-Mordecai [2012] NSWSC 942) 8.25 Decision of Schmidt J in the Supreme Court of NSW on 27 February 2013 on application of the applicant for leave to bring pleadings in negligence against a psychiatrist he had consulted [2013] NSWSC 120 8.26 Decision of the Medical Tribunal of NSW in Michael Bar-Mordecai v the Medical Council of NSW [2013] NSWMT 5 (3 April 2013). 8.27 Decision of Garling J in the Supreme Court of NSW in application of Michael Bar-Mordecai [2013] NSWSC 1265 (5 September 2013) refusing leave to commence proceedings for review in the Medical Tribunal of the 2000 decision cancelling his registration. 8.28 Decision of Garling J in the Supreme Court of NSW dated 5 September 2013 in application of Michael Bar-Mordecai [2013] NSW SC 1250, being a decision refusing leave to commence proceedings pursuant to Section 14 of the Vexatious Proceedings Act 2008 (1 of 2 applications). 8.29 Decision of Schmidt J in Attorney General for NSW v Bar-Mordecai [2013] NSWSC 1307. 8.30 Decision of Garling J in the Supreme Court of NSW dated 12 September 2013 in Application of Michael Bar-Mordecai [2013] NSWSC 1286 - refusal of application for leave to commence proceedings against 2 psychiatrists. 8.31 Decision of Garling in the Supreme Court of NSW dated 11 April 2014 in Application of Michael Bar-Mordecai [2014] NSW SC 414 - refusal of application for leave to commence proceedings against a psychiatrist for medical negligence. 8.32 Judgement in Mankiewicz v Swallow [2014] FamCA 579. 8.33 Decision of Adams J in the Supreme Court of NSW in Application of Michael Bar-Mordecai [2014] NSWSC 1202 dated 1 September 2014 granting the application f the applicant to apply to the Civil & Administrative Tribunal for a review of the decision to remove him from the Register of Practitioners and restoration of his registration. 8.34 Decision of the NSW Civil & Administrative Tribunal in Bar-Mordecai v Medical Council of NSW [2014] NSWCATOD 142 (dated 28 November 2014). 8.35 Decision of the NSW Civil & Administration Tribunal in Bar-Mordecai v Medical Council of NSW [2014] NSW CA TOD 158 (dated 8 December 2014).

RELEVANT FINDINGS OF THE MEDICAL TRIBUNAL IN RE DR MICHAEL JACOB BAR-MORDECAI AND THE MEDICAL PRACTICE ACT [2000] NSWMT 6 September 2000

1. The Tribunal found the following complaints proved:

Complaint 1 - respondent was guilty of professional misconduct and that he: 1.1 Between August 1983 and about 25 June 1994 the practitioner treated Patient A whilst at the same time having a personal and sexual relationship with that Patient. 1.2 Between August 1983 and about 25 June 1994, while treating Patient A, obtained financial advantages from the Patient (he testified at the hearing that he received over $1 million in cash, property and benefits from Patient A). 1.3 Between August 1983 and about June 1994 the practitioner, while treating Patient A, undertook a course of conduct to obtain financial benefits from his Patient on her death, including: 1. Destroyed or suppressed the 1989 will of Patient A. 2. Took videos and photographs of Patient A during her life. 3. Acquired financial interest in and with and from Patient A. 1.4 On or about June 1994 the practitioner administered 30 milligrams of morphine to Patient A (Patient A became unconscious 4 minutes after the injection and died 6 minutes after the injection). 1.5 On or about 25 June 1995 the practitioner inappropriately signed a medical certificate of cause of death for Patient A in circumstances where the practitioner: - was treating the Patient; and - considered himself to be a potential beneficiary from the estate of Patient A; and - was at that time engaged in a personal relationship with the Patient. (He testified that as at 25 June 1994 he was treating Patient A, he considered himself to be a potential beneficiary from her estate, and he was her defacto husband.) 1.6 The practitioner lied on oath in written or oral testimony in proceedings in the Supreme Court of NSW 12009 of 1994. (He falsely alleged that Patient A had died without leaving a will and that he had been her defacto spouse, and therefore entitled to the totality of her estate, as she left no issue. The Medical Tribunal was satisfied of this ground from evidence that he gave at the hearing before the Tribunal.) 1.7 The practitioner failed to keep a drug register in June 1994 for drugs of addiction contrary to Regulation 58 of the Regulations to the Poisons Act 1966 (the applicant conceded that he did not comply with Regulation 58 and said that he generated a drug register on his computer. When it was put to him that that was not as required in the Poisons Act, he said "…that is my drug register. Whether it is in the Poisons Act or not, it is my drug register that is what I use and that is what I tender here as evidence…". He was asked whether he considered himself obliged to keep a drug register as that term is used in the Poisons Act, and said "…no I didn't". then the following exchange occurred: Question: "Do you consider yourself obliged to comply with the letter of the Law?" Answer: "No, Mr Joseph, I do not. I think if we have technology and the Law has not caught up with that technology, then the technology should be accepted". He conceded that at times he altered his "drug register", but the fact of such alteration was not recorded in his "drug register".

Complaint 2: 2.1 In about 1995 the practitioner, whilst treating Patient B, in a consultation disclosed to the husband of Patient B (Patient C) confidential information provided to the practitioner by Patient B. 2.2 In about 1995 the practitioner in consultation gave inappropriate advice to Patient C concerning his relationship with Patient B (the findings were that the Patients were husband and wife. In the course of the consultations, the applicant advised the husband that "he should consider separation, document everything, get another girlfriend and that the practitioner could assist him to find someone suitable among the practitioner's own friends". The husband testified that when he was contemplating possible divorce the applicant advised him that it was no use continuing with the marriage because the wife "was angry at all men and it was not a personal matter". He suggested that the husband find a girlfriend. The applicant also offered to assist the husband in gaining custody of the Patients' children in any subsequent family law proceedings. He also offered to participate with him in a scheme to hide some of the husband's income for purposes of those proceedings. (In the hearing the applicant also stated that in NSW there is little or no patient confidentiality between medical practitioner and the patient.)

1. In the conclusions of the Tribunal the following findings were made: At the time of the commencement of this unfortunate history in 1983, the respondent was a young man of 36. He then committed the improper and unethical conduct of embarking upon a close and personal relationship with a lady who was then his patient. This is clearly professional misconduct within the meaning of the Medical Practice Act. If his behaviour after that date had been exemplary, the Tribunal may have been inclined to the view that the interest of the public did not warrant his deregistration. Unfortunately, his behaviour since 1983 has been far from exemplary. On almost every aspect on which his conduct was criticised he firmly maintained that he was correct and that everyone else was wrong. During the lifetime of (the patient) he continued accepting gifts of a substantial nature from her. But on or shortly after her death his greed got the better of him and he then set about destroying or suppressing her Will so that he could found a claim for the totality of her Estate. In the course of maintaining this claim he lied on oath in written and oral evidence to the Supreme Court. His conduct with two other female patients after the death of (the patient) demonstrates that he still lacks any understanding of the proper rules of conduct governing medical practice. His attitude to the use of morphine and his previous methods of use is not in accordance with any data available and is very much criticised by many of the clinical experts and by the pharmacologist Prof. Starmer. He continued selectively to quote part of Dr Moyhahan's report erroneously to support his view that his action of using morphine in this dosage in these particular circumstances was supported by him and by the Coroner. He was quite blind to the difficulties into which he was placed by his signing the medical certificate as to the cause of death of Eveline Hillston. He is not prepared to accept that as a registered Medical Practitioner he is required to do by the law in respect to the keeping of a drug register. Throughout the hearing before this Tribunal, whenever the question of the use of Schedule 8 drugs was raised, whether as to the dosage of morphine given in relation to a specific clinical situation, or the recording required by law regarding the use and documentation of Schedule 8 drugs, or the safe keeping of these drugs in a locked cupboard, the respondent showed an attitude of mind in which he regarded himself as having superior knowledge for which he could give no reference or support other than his own perceived experience in contrast with the expert evidence called. In relation to the allegations in Complaint 2, the Tribunal notes that the respondent remains dogmatic that his conduct was correct and that his views were unchanged after hearing the opinion of his peers. Of particular concern to the Tribunal are the serious defects in the character of the respondent demonstrated by: 1. His inability to distinguish the boundaries of the professional doctor / patient relationship with resulting transgressions thereof; 2. His repeated acts of sexual relationships with patients; 3. His avarice as demonstrated by his suppression or destruction of the Will of his late patient so that he could found a claim for the totality of her Estate; 4. His lack of integrity as demonstrated by his lies on oath in written and oral evidence to the Supreme Court. Dr Bar-Mordecai appears still to have no insight or remorse for his admitted transgressions and this is a matter of profound concern to the Tribunal.

FINDINGS IN ATTORNEY GENERAL V BAR MORDECAI [2005] NSW SC 142

1. The Attorney General sought orders under the Supreme Court Act for Mr Bar-Mordecai to be required to obtain leave of the Supreme Court before commencing any proceedings or continuing any proceeding he had already commenced. He relied upon 40 different proceedings instituted by Mr Bar-Mordecai.
2. Patten AJ relied upon part of the findings of Bryson J of the Supreme Court in relation to proceedings under the Family Provision Act which were head together by Bryson J on 47 hearing dates from 9 September 2002 to 29 November 2002. Bryson J in a 154 page judgment of 28 February 2003 stated: "In the Summons in proceedings 3039 of 2002 Mr Michael Bar-Mordecai claimed an order that the letters of administration granted to Mr Allan Hillston be revoked, that Mr Allan Hillston be removed as administrator and that Mr Michael Bar-Mordecai be appointed administrator. He filed a Statement of Claim in those proceedings; the Statement of Claim makes various claims for damages, costs and interest, on the basis of allegations which contain much material which is obviously extraneous; the Statement of Claim when taken as a whole cannot be understood, and it cannot be treated as a pleading of facts which support the claims in the Summons". "A great deal of time and attention was given during the hearing to issues relating to Mr Bar-Mordecai's credit. On many subjects he was shown by cross-examination, or even by comparison of evidence which he has given at different places, to be an unreliable witness. He has often given evidence which contradicts his evidence in other places or which introduces qualifications or supplementary explanations so far-reaching as to disavow evidence which he has given elsewhere. From time to time, when confronted with some adverse evidence, he produced new affidavits, with new explanations of conduct or events which he could well have produced earlier, if they were true. He did not produce the evidence of persons whom, in a complete and convincing presentation of his case, it would reasonably be expected that he would call. He left significant parts of the events with little or no explanation; his case was particularly unsatisfactory in not giving credible circumstantial explanations of the evolution of decisions of Mrs Eveline Hillston to make gifts, and his own participation in their evolution." "Mr Bar-Mordecai made many claims that he was under difficulties in presenting his evidence because he suffered memory loss as a result of an injury in a motor accident in January 1992; however he produced no medical evidence which confirmed the existence of any such memory loss, or explained how it might have arisen, although very often challenged by the plaintiff's counsel to produce such evidence. He described it as intermittent memory loss (t990126) and described his short term and long term memory defects. He very often explained himself in evidence by reference to his alleged memory loss. However on many occasions he gave evidence, or made statements during submissions which showed striking capacity for recollection (if indeed the recollections which he then apparently displayed were genuine). He professed to have remarkably detailed and complete recollections of many events, even in the distant past, and he produced such recollections on occasion with great speed, although on other occasions he professed to have extreme difficulty in calling to mind circumstances which may well have been quite important both at the time and since." "I do not accept that Mr Bar-Mordecai has any disability or condition, which has diminished his powers of recollection. In my finding he simulates memory loss when it is suitable to him to do so, and on the whole he has rather better powers of recollection than the average person, although he is not frank or sincere in what he claims to recollect, or not to recollect". "In my evaluation, Mr Michael Bar-Mordecai exhibited extremely unsatisfactory demeanour as a witness. As a witness he was markedly an opportunist. It was extremely difficult, on occasions, to bring him to address directly questions, which were important; however he did not have corresponding difficulty in bringing his mind and expression to bear on matters, which he perceived to be of assistance to his case. He often gave what were nominally answers which, in fact, were unresponsive, or instead of answering a question launched into what would perhaps, if the question had been answered, have been an excuse or explanation for an answer adverse to him. He often obtruded references to grievances, including altogether improbable grievances, into answers when the grievances had little or no relation to the matter in hand". "I do not believe that Mr Bar-Mordecai is in truth a person whom fate and malignity have exposed to an astonishing number of improbable circumstances, lies and hostilities. When he has given unsupported evidence of something which is improbable, my view is that I should not accept his evidence. In addressing allegations the evidence for which is solely or substantially evidence of Mr Bar-Mordecai alone I am unable to find facts on the basis that his evidence is in any way reliable. Written records made by him are also unreliable. It is no use attempting to weigh up degrees of probability and improbability and attempting to assess how much improbability is too much; his evidence is simply unreliable. I do not see any relevant limits to what he would be prepared to say, or to what he would be prepared to accuse somebody else of doing. He would say anything. Some things he has asserted seem like fantasies from the travels of Baron Munchausen. Perhaps some of these are true, but there is no way of concluding that they probably are true. I do not regard any of his evidence as reliable. It is not even appropriate to treat his evidence as reliable when it was or seemed to be adverse to his own interest, as he had no real perception of what his interest was, and sometimes strongly maintained positions adverse to his apparent interest. Except where his evidence accords with something which is otherwise well established, for example by admissions in pleadings or by contemporaneous records which can be regarded as having an objective source or by witnesses who can be treated as reliable, little of what he has himself stated in evidence can be acted on."

12 DECEMBER 2006 - JUDGMENT OF THE NSW MEDICAL TRIBUNAL IN RE MICHAEL BAR-MORDECAI [2006] NSWMT 10 (PROCEEDINGS BY MR BAR-MORDECAI FOR REVIEW OF THE DE-REGISTRATION DECISION AND RESTORATION OF HIS REGISTRATION).

1. The Tribunal concluded its decision by the following findings (45) The Tribunal accepts the contentions of the Board that: 1. Section 92(1) specifies the orders of an earlier Tribunal which may be reviewed by the newly constituted Tribunal, and an order that an application may not be made within a specified time is not one of them. Nor is an order for costs. 2. Section 94A provides a filter mechanism for reviews under S92 and does not itself create a separate right of review. 3. The proscription in S92(3)(a) (against bringing an application for review within the time specified) applies to all reviews of the orders and findings of an earlier Tribunal. 4. The Tribunal has no power to override the proscription against application within a specified period even where there is evidence of, or at least a prima facie indication of, some unfairness to a deregistered person. (46) In the view of the Tribunal the application of Mr Bar-Mordecai has been brought in contravention of s92(3)(a) of the Medical Practitioners Act and should be dismissed. It is not therefore strictly necessary to deal with the question of the additional prayers for relief in the application for review, although it is clear that the Tribunal has no power to make orders of the kind sought by Mr Bar-Mordecai in (c) to (g) and that would be a separate and additional basis (quite apart from their scandalous form) for striking out those prayers for relief. (47) Costs - The board seeks an order that Mr Bar-Mordecai pay its costs of the motion and the Tribunal accepts that, as the unsuccessful party, Mr Bar-Mordecai should pay the Board's costs of these proceedings.

18 MARCH 2009 - RE BAR-MORDECAI [2009] NSWMT 1 -DECISION OF MEDICAL TRIBUNAL ON APPLICATION FOR RESTORATION OF REGISTRATION

1. This panel was chaired by Judge HG Murrell SC with 2 professional members and 1 general member of the Tribunal. There are several relevant findings of the Tribunal in relation to Mr Bar-Mordecai's fitness to practice and they included:

Understanding of patient confidentiality: Mr Bar-Mordecai had been "dogmatic that his conduct was correct" in relation to the breaches of confidentiality dealt with by the 2000 Tribunal. Before this Tribunal he maintained that he had been "maliciously prosecuted in relation to that matter" but he accepted that he should not have disclosed confidentially patient information, but sought to minimise his misconduct by explaining that "the safety of 3 children was at risk". The Tribunal concluded "Mr Bar-Mordecai's understanding to the importance of patient confidentiality is superficial. It is an intellectual understanding that is not reinforced by an intuitive appreciation of the reasons for the rule.

Integrity: The Tribunal found "Mr Bar-Mordecai has not satisfied the very heavy onus of establishing that he is now a person of high integrity". The reasons included that although he conceded he lied in an affidavit to the Supreme Court, he claimed to have signed it "without understanding what he was saying". The panel did not accept that was so. The panel was concerned about his level of acceptance and remorse in relation the past dishonesty.

Other matters relating to good character The Tribunal made the following findings relevant to this aspect: 1. That when Justice Bryson was presiding over litigation to which he was a party, he told Dr Roberts, a psychiatrist, that he was contemplating an assault on the Judge as a means of gaining tactical advantage in the proceedings. Although he did not act upon the threat, and Dr Roberts opined that he wouldn't, the Tribunal was alarmed he had considered such conduct. 2. The Tribunal referred to the paper noted "Battered Litigant Syndrome" which Mr Bar-Mordecai had written, and in which he stated that a person suffering from the syndrome may contemplate maiming or killing a judicial officer, and also said that any such behaviour was a "cry for help" and the "battered litigant" should not be held responsible for the assault. 3. The Tribunal noted that Mr Bar-Mordecai conceded that the paper was based exclusively on his own experience as a "battered litigant'. 4. Dr Phillips testified that he was "worried" that the paper was "highly personalised" and was "without reference to the established medical, legal or sociological literature". 5. The Tribunal was also concerned that Mr Bar-Mordecai had been embroiled in litigation for a decade and "he is dissatisfied with every judicial officer whom he has encountered. He levels the most serious criticisms against Judge Cooper, whom he described as 'a thief' determined to rule against Mr Bar-Mordecai, whatever the merits of the case. He is convinced that the NSW Judicial System is riddled with corruption and meshed in conspiracy. He has complained to the International Criminal Court about most, if not all, judicial officers who have made findings against him….. the 'battered litigant syndrome' he calls for a legislation making "judicial batterers' accountable for their actions". The Tribunal concluded in relation to these aspects: "Suspicion, dislike or even hatred of the judiciary is not prima facie evidence in the lack of good character in rendering a person unfit for practice as a medical practitioner. However, respect for the rule of law does bear on the question of good character.

Mental state The Tribunal found in relation to this aspect: 1. "Dr Roberts said that Mr Bar-Mordecai does not have a mental illness or personality disorder. At times, he has suffered from an adjustment disorder with depression. Dr Roberts described a dogged personality that 'never lets go'. He said that Mr Bar-Mordecai was highly suspicious but not paranoid". 2. Dr Phillips agreed that Mr Bar-Mordecai does not have a psychiatric illness. He said that Mr Bar-Mordecai was strongly inclined towards obsessive/compulsive behaviour. Such personalities tend to make good doctors as they take time with patients and research their condition.

Competence The Tribunal noted that Mr Bar-Mordecai was still maintaining that the administration of a 30 mg dose of morphine to Patient A was appropriate. He described the finding of the 2000 Tribunal in relation to the dosage as a "bogus finding of fact" and a "wilful perversion of the course of justice". However, he did concede that he had come to appreciate that the prevailing view is otherwise. He told the Tribunal that if reinstated he would not administer a 30mg dose or morphine, but would dose in 5mg increments. The Tribunal noted that since 2000 Mr Bar-Mordecai had updated his medical knowledge by researching and creating a computerised information system based on symptoms, signs, and test results. Dr Philips had given evidence that the system was "very interesting" and "quite impressive", but noted that it had not yet been peer reviewed. Dr Roberts expressed a view that Mr Bar-Mordecai's theoretical knowledge is comparable to that of other general practitioners because of his many years of experience and research associated with his computerised information system. Dr Roberts, however, that Mr Bar-Mordecai would need some retraining and may benefit from general practitioner supervision. Dr Phillips said that if Mr Bar-Mordecai was reinstated, initially he should practise in a hospital environment where he could be closely supervised. The Tribunal noted that Mr Bar-Mordecai had not proposed any firm "return to practice plan". 1. It also noted that despite Mr Bar-Mordecai giving evidence that he had "significant interaction" with his brother, a general practitioner, where they discussed professional issues, and if his registration was restored that he may practice with his brother, the brother did not give any evidence and there was no evidence that he was willing to supervise.

1. The Tribunal also found: "It is 9 years since Mr Bar-Mordecai engaged in general practice. General practice involves clinical skills as well as intellectual knowledge. Any appropriate "return to practice plan" would include supervision. Mr Bar-Mordecai considers himself to be highly skilled and more knowledgeable than an average general practitioner. He considers hospital medicine to be irrelevant to general practice. The Tribunal doubts that he would accept - let alone embrace - supervision, either in a hospital environment or in a general practice environment."

Decision

1. The Tribunal concluded: 1. The Tribunal's decision does not turn on Mr Bar-Mordecai's competence, the absence of an appropriate "return to practice plan" or the Tribunal's reservations about whether any such plan could be implemented. 2. Rather, the Tribunal is not satisfied that Mr Bar-Mordecai is a person of good character within the meaning of the Act. Inter alia, a person lacks the good character to practice medicine if he or she lacks the capacity to intuitively recognise doctor / patient boundaries and appreciate the reasons for those boundaries. Only true insight can provide adequate public protection. At most, Mr Bar-Mordecai has an intellectual understanding of the boundaries and a desire to avoid transgression.
2. The Tribunal therefore dismissed the application and ordered that there be no review for 3 years.

DECISION OF THE SUPREME COURT OF 24 APRIL 2012 IN BAR-MORDECAI V ATTORNEY GENERAL OF NSW [2012] NSW SC 453

1. This was a decision of Justice "Beech-Jones" on the application of Mr Bar-Mordecai for leave to make an application for review of the decision of the Medical Council of 6 September 2000. The Attorney General and the Medical Council both were heard on the application and accepted that the plaintiff should be allowed to file his application, subject to conditions. Mr Bar-Mordecai opposed the conditions.
2. Justice Beech-Jones granted leave subject to various conditions as to the grounds that could be relied upon in the application and grounds that could not be relied upon. He ordered that Mr Bar-Mordecai pay one third of the costs of the Medical Council and the Attorney General of the day.

DECISION OF THE SUPREME COURT IN APPLICATION BY MICHAEL BAR-MORDECAI FOR LEAVE TO COMMENCE PROCEEDINGS [2012] NSW SC 942

1. These proceedings were an application for leave to commence proceedings against 7 Judges (2 deceased). The proposed proceedings also claimed damages from the Health Care Complaints Commission and the Medical Board of NSW.
2. The court held that the affidavit and submissions did not disclose any basis for such proceedings and refused leave.

DECISION OF MICHAEL BAR-MORDECAI V MEDICAL COUNCIL OF NSW [2013] NSW MT 5 - 3 APRIL 2013

1. This was the decision of Coalfax SC, DCJ in the Medical Tribunal. Mr Bar-Mordecai had filed an application for reinstatement as a medical practitioner pursuant to the leave granted by Justice Beech-Jones in April 2012.
2. The matter was listed for Mr Bar-Mordecai to show cause why his application should not be struck out as an abuse of process. The issue was whether the application complied with the conditions in the orders of Justice Beech-Jones.
3. Mr Bar-Mordecai filed in court a document foreshadowing an application that Judge Coalfax SC, who was to hear the matter, disqualify himself.
4. The Judge found that the grounds that Mr Bar-Mordecai sought to rely upon in seeking disqualification were that "…other judicial officers who have functioned as either chairperson or the deputy chairperson of this Tribunal have engaged in what he described as corrupt conduct", and a fair minded onlooker "would conclude that I, being a judicial colleague of those other judges, would be prepared to participate in some form of judicial conspiracy…".
5. Judge Coalfax said that had no dealings with Mr Bar-Mordecai of any kind before 25 March 2013 and his knowledge of the background to his application had been formed exclusively by reference to the Tribunal file. He refused the application for disqualification.
6. In relation to the show cause application, he found that on 4 separate occasions Mr Bar-Mordecai had filed material in the Tribunal which had been inconsistent with, and in breach of, the conditions of leave granted by the Supreme Court on 24 April 2012. He determined that because of the persistent breaches of that leave the continuation of the application would be an abuse of process. He ordered that the application be dismissed as an abuse of process of the Tribunal and also ordered that no further application or document be accepted by the Tribunal for filing, "…without a further order being made by the Supreme Court.."

SUPREME COURT DECISION OF BAR-MORDECAI APPLICATION REGARDING VEXATIOUS PROCEEDINGS ACT 2008 [2013] NSW SC 532 - 9 MAY 2013.

1. This was a decision of Fullerton J. Mr Bar-Mordecai had filed a summons on 9 April 2013 relating to the proceedings that he had instituted in the Medical Tribunal pursuant to leave granted by Beech-Jones J on 24 April 2012.
2. The summons sought a grant of leave to permit him to institute proceedings by lodging an application with the Medical Council in view "…the unlawful decision of 6 September 2000 where the applicant's name was removed from the register…". It also sought an order that the Supreme Court, by its own motion, set aside "…the unlawful, non-Medical Tribunal judgments of 6 September 2008 and March 2009" or in the alternative that leave be granted to permit Mr Bar-Mordecai to apply to the court for orders to the same effect.
3. It was held that these challenges to the 2 decisions concerned the same judicial officers and related to the same allegations of misconduct that were considered by Beech-Jones J and expressly rejected by him as permissible grounds for the application to be waived pursuant to the leave granted.
4. Fullerton J found that the seeking of the additional orders was outside the ambit of the leave granted, and dismissed the summons.

DECISION OF MAGISTRATE MILLEDGE ON 25 JUNE 2013 IN TS v MB

1. This was the hearing of an application by the daughter of Mr Bar-Mordecai and police on behalf of his grandchildren, who were born in 1997, 2000, 2004 and 2006. Mr Bar-Mordecai represented himself. The magistrate found that the daughter had "reported an historic sexual assault to police in 2007, and in 2008 she gave a very full and comprehensive statement setting out the physical and mental abuse that she alleges she suffered at the hands of her father, the defendant in these proceedings. Her account of her sexual torment is significant and the police took the reporting of that very seriously and they commenced to investigate the very serious allegations that she made against her father. Given her physical and mental state, [she] believed that she could not continue with the investigation knowing that it would result in court proceedings, and that she would, by necessity, be part of those court proceedings".
2. The original apprehended violence order had been made in 2007. At the beginning of the proceedings Mr Bar-Mordecai sought to have his daughter psychologically examined to have her assessed to ensure that she was mentally capable of giving evidence, and also to assess her state of mental capacity with regards to the purporting of the sexual abuse.
3. Mr Bar-Mordecai told the magistrate that his daughter suffers mental health issues. There was some other evidence that she was suffering from "serious and significant post traumatic stress disorder" and that the mental anguish that she suffered at the hands of her father will "…stay with her for the rest of her life".
4. Mr Bar-Mordecai admitted that his daughter should not be relied upon because she was suffering from "false memory syndrome" and that others had planted these types of thoughts and that she was severely influenced by others, particularly her mother and her mother had her own mental health problems.
5. The magistrate found that the daughter was "unable to look at him" and that she was very apprehensive about coming to court and tried to give her evidence via remote facility.
6. Mr Bar-Mordecai cross-examined his daughter at length. The magistrate found that "…he was certainly not kind to the witness. It was obvious to everybody that she had no time for her father, the defendant, that she believed that she had good reason not to have any dealings with her father. In fact, in her viva voce evidence, she reinformed what she had said in her statement".

DECISION ON 5 SEPTEMBER 2013 OF JUSTICE GARLING IN APPLICATION OF MICHAEL BAR-MORDECAI [2013] NSWSC 1265

1. This was an Application of Mr Bar-Mordecai. He sought that the Supreme Court "register the applicant as of right, and without an enquiry, on the grounds that he was unlawfully de-registered". In the alternative it sought an order for leave for him to lodge an application for review of the 2000 decision of the Medical Tribunal revoking his registration. He also sought an order that the hearing by the Medical Tribunal be by a "newly constituted Medical Tribunal be established, with an impartial judicial officer or no judicial officer having regard to the history of the matter and the plague of judicial corruption inherent in the Medical Tribunal of NSW, as identified by E Elkaim DCJ of the Medical Tribunal of NSW in his orders dated 21 February 2013".
2. He also sought "an order that the Medical Council of NSW not be joined as a party / contradictor in the Medical Tribunal litigation in terms of having relied on expert medical witnesses to advocate and give false evidence and unfounded expert opinion so as to mislead the Medical Tribunal of NSW".
3. In addition he sought an order of costs, although he did not indicate against whom the order was sought.
4. Justice Garling found that part of the application was in effect an appeal against decisions of Beech-Jones J and Fullerton J refusing leave, and that Section 14(6) of the Vexatious Proceedings Act prohibited any such appeal.
5. He found that the material provide to the Court in the application disclosed that the principal point of challenge to be argued as justifying re-registration was "lawlessness and inappropriateness of the previous decisions of the Medical Tribunal of 6 September 208 and March 2009 and that that was not permitted by legislation and domed to fail.
6. He also found that there was no evidence of other material provided with the application which addressed the present fitness to practice of Mr Bar-Mordecai "which is an essential pre-condition to the Medical Tribunal granting the orders sought and the proposed application". He held that there had therefore been a failure to comply with Section 14 (3)(b) of the Vexatious Proceedings Act and the court, for that reason alone, was obliged to dismiss the application.
7. He also indicated that it was not open to the court and it had no power to make orders 1, 3, and 4 sought in the summons, and that those applications were therefore an abuse of process and ought to be summarily dismissed.

DECISION OF JUSTICE GARLING IN APPLICATION OF MICHAEL BAR-MORDECAI [2013] NSWSC 1250 ON 5 SEPTEMBER 2013

1. This was a hearing of an application by Mr Bar-Mordecai for leave to commence proceedings against a psychiatrist for medical negligence. Garling J found that the draft statement of claim in evidence was "in substance and effect identical to that considered by Schmidt J" where Schmidt J on 27 February 2013 refused leave.
2. His Honour also held "..as well, so far as can be ascertained from a comparison of the judgment of Schmidt J and the materials placed before the court on this application, there is no new expert evidence provided by Mr Bar-Mordecai which would found a basis for the claims of medical negligence which he makes. At best, what is provided, but only as an annexure to an affidavit filed in these proceedings, is what Mr Bar-Mordecai himself described as 'a specimen report on the basis of Dr XY's medical negligence' of which he is the author".
3. His Honour found that Dr XY was a specialist psychiatrist and "Mr Bar-Mordecai has never professed such a speciality".
4. It was held that the contents of the "specimen report" did not address "the deficiencies identified by Schmidt J in her reasons". It was held that the material provided by Mr Bar-Mordecai did not disclose a prima facie basis sufficient to justify the commencement of proceedings.
5. In addition, the court was satisfied that "there is no additional evidence of any weight or substance let alone evidence which is capable of being admissible, provided with this application which would be able to support the proposed claim". It was held that the proposed proceedings were vexatious and that the statement of claim, if filed, would be likely to be struck out pursuant to Rule 14.28 of the UCPR, and accordingly it would have been futile to grant the leave sought. The leave was refused.

DECISION OF SCHMIDT J OF 12 SEPTEMBER 2013 IN ATTORNEY GENERAL IN NSW V BAR-MORDECAI [2013] NSWSC 1307

1. This was an application for costs on behalf of the Attorney General and the psychiatrist Mr Bar-Mordecai was seeking to have sued. The costs were in respect to the proceedings determined by Schmidt J on 27 February 2013. The outcome was that Mr Bar-Mordecai was ordered to pay costs of $17,491.70 of the Attorney General and $76,165.50 of the psychiatrist.

DECISION OF GARLING J OF 12 SEPTEMBER 2013 - APPLICATION OF MICHAEL V BAR-MORDECAI [2013] NSW SC 1286

1. This was a further application by Mr Bar-Mordecai. He was seeking to commence proceedings against the same psychiatrist and against another doctor. He filed the statement of claim on 19 December 2012 seeking those orders, but subsequently on 18 April 2013 filed an amended statement of claim and the order sought there was leave to file a statement of claim against the Medical Council of NSW "to set aside the Tribunal judgment of 18 March 2009 in Bar-Mordecai v NSW Medical Board that was procured by the NSW Medical Board by the operation of fraud of it's expert witnesses it called to give evidence in collusion with the false submissions of the NSW Medical Board".
2. Garling J held: "leaving 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 (….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 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".
3. His Honour also held that the evidence filed did not satisfy him that there was any prima facie grounds that the evidence of 2 medical expert witnesses was fraudulent, and that the judgment of the Medical Tribunal ought to be set aside on that basis.
4. He also took into account that it was four and a half years since the decision of the Medical Tribunal and some of the other litigation that Mr Bar-Mordecai had sought to commence and that the proposed proceedings would, if instituted, be instituted for such a purpose that would constitute them as vexatious proceedings.
5. The application was dismissed.

DECISION OF GARLING J OF 11 APRIL 2014 IN APPLICATION OF MICHAEL BAR-MORDECAI [2014] NSW SC 414

1. This was a further application by Mr Bar-Mordecai for leave to commence proceedings against the psychiatrist in respect of whom he had previously made applications. It was found that Mr Bar-Mordecai had accepted that the proceedings for which he sought leave would, if instituted, be instituted without reasonable grounds as used in S14(1)(c) of the Vexatious Proceedings Act. The court held "accordingly, he accepts that the proceedings would be vexatious proceedings and he is not entitled to succeed in his application".
2. In addition, it was held that the pleading included a claim for an alleged breach of duty of care by way of the psychiatrist's conduct as a witness giving evidence, both in writing and orally in Medical Tribunals on the question of whether the applicant's registration should be restored. It was held that such claim could not succeed because of the Common Law principal of immunity of a witness from suit.
3. The court concluded the whole of the claim in the application, in the form proposed, was bad in law and would, if filed, be an abuse of process. The application was refused and dismissed.

DECISION OF WATTS J OF THE FAMILY COURT OF AUSTRALIA IN MANKIEWICZ V SWALLOW [2014] FAM CA 579

1. This was a decision of the Family Court of Australia. The proceedings comprised an application by Mr Bar-Mordecai's parents for orders for the children of Mr Bar-Mordecai's daughter to spend time with his parents. The children were then aged 16, 14, 10 and 7 years old. The 3 youngest had not met them.
2. The parents of the children strenuously opposed the application. In the proceedings before this Tribunal Mr Bar-Mordecai said that he assisted his parents in those proceedings. He also said he prepared the affidavits they relied upon in the proceedings. At the time his father was 93 years of age and his mother was 90 years of age.
3. The application filed by the parents of Mr Bar-Mordecai sought for him to be appointed to represent his parents as a McKenzie Friend. When the matter came to Court there was no appearance of Mr Bar-Mordecai's father, but Mr Bar-Mordecai was in the court room. His mother withdrew her application that her son represent her as McKenzie Friend.
4. There have been previous proceedings in 2009 between Mr Bar-Mordecai and his parents against the parents of the children in which Mr Bar-Mordecai and his parents were seeking almost identical orders. Orders had been made in the 2009 proceedings that Mr Bar-Mordecai's application for contact with the children be summarily dismissed. The application of the great grandparents was also dismissed.
5. In 2009 proceedings Mr Bar-Mordecai had been held to be a vexatious litigant and an order made under Section 118(1)(c) of the Family Law Act that he must not, without leave of the court having jurisdiction under the Family Law Act 1975 institute any proceedings under that Act.
6. Watts J found in his decision of 25 July 2014 "…during the 2009 proceedings and currently, the children's parents vehemently oppose the children seeing their maternal grandfather and their maternal great grandparents. It was recorded in 2009, the maternal great grandfather is a veteran litigant who the Supreme Court of NSW knows as vexatious. The mother says that she was sexually abused by her father as a child. The maternal grandfather denies this saying that his daughter has a mental illness".
7. Watts J found that Mr Bar-Mordecai is a person who has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals, the maternal great grandparents were acting in concert with Mr Bar-Mordecai, and that the evidence offered in support of the application failed to provide any evidence of any change since the decision in 2009.

DECISION OF ADAMS J IN THE SUPREME COURT ON 1 SEPTEMBER 2014 IN APPLICATION OF BAR-MORDECAI [2014] NSWSC 1202

1. There was a further application for leave to commence proceedings in the NSW Civil & Administrative Tribunal or restoration of Mr Bar-Mordecai's registration.
2. The application was successful and Adams J made the following orders: 1. Leave is granted to the plaintiff to institute proceedings by lodging with the Executive Officer of the Medical Council an application for review by the New South Wales Civil and Administrative Tribunal pursuant to s 163A of the Health Practitioner Regulation National Law (NSW) of the Tribunal's order of 6 September 2000 that the plaintiffs name be removed from the Register of Practitioners. 2. The leave granted in order (1) is subject to the following condition
3. The proceedings are to be instituted by lodging an application for review limited to the following grounds 1. The applicant is a fit and proper person to practice medicine at the date of filing this application. 2. The applicant has 1. Maintained his knowledge and skills in medicine by having studied daily over 20,000 medical illnesses 2. Relearned the Mims; 3. Attended his brother's surgery for reskilling training in procedural medicine; 4. Authored a 700 page textbook of medicine in 2011, yet to be published; 5. Developed a computerized medical information system to assist a medical practitioner in the diagnosis of diseases; 6. Addressed the issues of emotional insight into each former ethical transgression so as not to reoffend; 7. Regularly physically exercised daily to keep his mind and body alert; 8. Attended discussions with his brother about various medical issues; 9. Having participated in self-educational activities over the last 9 years on a daily basis, relevant to the discipline of General Practice, by which he has further developed and maintained his competence and performance; 10. Observed and kept up to date with the laws and codes which affect the discipline of general practice; and 11. Created, maintained and updated a medical database of more than 2.06 gigabytes with 24,000 Files, 3,244 directories and subdirectories as at 6.9.2013 such that the medical information system can assist a GP in the practice of Medicine by providing a differential diagnosis, treatment protocols, and information on specific disease entities

DECISION OF NSW CIVIL & ADMINISTRATIVE TRIBUNAL OCCUPATIONAL DIVISION OF 28 NOVEMBER 2014 -BAR-MORDECAI V MEDICAL COUNCIL OF NSW [2014] NSW CATOD 142

1. This was a decision of Hon Acting Judge J Boland AM on the application of the Medical Council of NSW for leave to appear in relation to the application by Mr Bar-Mordecai for a review of the decision for his de-registration in 2000 and for an order that this registration be restored. Mr Bar-Mordecai opposed the application. He had commenced the proceedings without nominating a respondent to his application.
2. Judge Boland granted the application and also ordered: 1. "The Council may file such material as it believes would assist the Tribunal to determine the enquiry. 2. Such material is to be filed in accordance with any timetable prescribed by the Tribunal. 3. The matter is to be relisted on a date and time to be notified to the parties by the Registrar before the List Manager to consider any application under Section 44 of the Civil & Administrative Tribunal Act, and for further directions.

DECISION OF HON ACTING DISTRICT COURT JUDGE J BOLAND AM of 8 DECEMBER 2014 IN BAR-MORDECAI V MEDICAL COUNCIL OF NSW

1. This was a hearing of an application by Mr Bar-Mordecai that Hon Acting District Court Judge J Boland AM disqualify herself from further participation in the proceedings. Mr Bar-Mordecai argued in respect of the proceedings where the Medical Council was given leave to appear and file material: "..procedural fairness requires an impartial and judicial mind that has been lacking in Boland AM DCJ as reflected by the controlled findings against the applicant in Her Honour's judgement"
2. He then suggested that those proceedings were not conducted fairly and that the judge had, in some manner, asked him or born upon him to delete certain paragraphs in his material in support of the application which referred to Mr Gintirs, Barrister. That contention was rejected.
3. There were then various other grounds raised, all of which were found to have no merit. One of those grounds was that she had failed include in her reasons a finding that in proceedings in 2008 and 2009 in the Medical Tribunal, Her Honour, Judge Murrell "asked impermissible leading questions." Hon Acting District Court Judge J Boland held that Mr Bar-Mordecai did not demonstrate how that was relevant to the application being determined by her.
4. The application for the judge to disqualify herself was refused and dismissed.

INITIAL APPLICATIONS AT THE START OF THIS TRIBUNAL HEARING

1. When the hearing commenced on Monday 16 March 2015, Mr Bar-Mordecai sought that Acting DCJ G Mullane disqualify himself from sitting on the proceedings. The reasons offered were that Judge Mullane had previously been a judge of the Family Court of Australia at the same time as ADCJ J Boland, and they had conspired regarding the proceedings involving Mr Bar-Mordecai. There was no evidence of any conspiracy. That application was dismissed.
2. There was also an application by Mr Bar-Mordecai to disqualify the Tribunal member, Dr S Howle as he was his "employed" by the Medical Council and therefore has a conflict of interest. Dr Howle has at times been appointed as a delegate of the Medical Council. There was no evidence that he was employed by the Council and the application was refused and dismissed.
3. There was also an attempt by Mr Bar-Mordecai to have Dr S Mares disqualify herself from the panel as she was a psychiatrist and not a general practitioner as Mr Bar-Mordecai was. That application was also refused and dismissed. In this case the reason for the dismissal was that the requirement for Dr Mares' membership on the panel was she be a fellow medical practitioner; not necessarily a general practitioner.
4. There were also 5 other orders sought in the interim application filed by Mr Bar-Mordecai shortly before the hearing that were dealt with on the morning of the first day of the hearing. All 5 were refused and reasons given.
5. There was then an issue about 3 affidavits filed in Mr Bar-Mordecai's case. They were objected to and excluded from the evidence as they were irrelevant to the issues to be determined by the Tribunal.
6. There was also a history that Mr Bar-Mordecai had filed documents on a USB but had not filed paper copies for the Tribunal members or served papers copies on the Medical Council. He had not rectified this despite repeated orders that he do so by filing paper copies.
7. One USB that he had filed and for which he had not filed or served paper copies contained 600 pages. An order was made on the first day of the hearing that "if the applicant wishes to rely on any document filed with the Tribunal on USB, but not on paper copies, he must provide the Tribunal with the original and 4 paper copies by 10:00am tomorrow".

THE HEARING

1. The hearing continued for 5 days and concluded on 20 March 2015.
2. During the hearing, and before Mr Bar-Mordecai gave oral evidence and was cross examined, the presiding member spoke to him about problems as to the contents of his statements, particularly the material that was irrelevant in the issue before the Tribunal.
3. As a result of that discussion, Mr Bar-Mordecai obtained the help of a barrister overnight and the following day, referring to the 168 page statement by him dated 12 January 2015, informed the Tribunal of the parts of the document that he would not rely upon. The parts that he did not rely upon amounted to more than 70% of the material in the document. He also announced that he would not rely on an earlier affidavit of similar length.
4. An order was made, however, that the material relied upon would be treated as having been submissions made by him.
5. Pursuant to section 163 of the National Law this tribunal is the appropriate review body. The application by Mr Bar-Mordecai is made pursuant to his right to make the application under Section 163A(1)(b) of the National Law. Section 163B defines the powers the Tribunal has on determining the review. In the case of review, such as this one, of an order for deregistration, the Tribunal may, as Mr Bar-Mordacai seeks, make a reinstatement order, pursuant to which the National Board may decide to reregister him.
6. Section 163C provides that: 1. A review under this division is a review to determine the appropriateness at the time of the review of the order concerned. 2. The review is not to review the decision to make the order, or any findings made in connection with the making of that decision. 3. In addition to any other matter the review may take into account, the review must take into account any complaint made or notified to a Council or a National Board, or a former Board under a repealed Act, about the person, whether the complaint was made or notified before or after the making of the order that is the subject of the review and whether or not the complaint was referred under Subdivision 2 of the Division 3 or any other action was taken on the complaint.
7. The ultimate issue in a hearing such as this is "whether the Tribunal can conclude on the basis of all the evidence that an applicant is now a fit and proper person to be restored to the register" (Zaidi v Health Care Complaints Commission [1998] NSW SC33.

PREOCCUPATON / OBSESSION

1. Although the application which Mr Bar-Mordecai signed on 12 September 2014 recited clearly the conditions of his leave to commence these proceedings, throughout the proceedings his focus was not the application to review his fitness to practice. In his written statement of January 2015, most of the material that was withdrawn as irrelevant was material that was focussed on his obsessional preoccupation with injustices that he perceives have been done to him by the Medical Tribunal and the courts, and his perceptions of misconduct and conspiracy by many judicial officers, including a Chief Judge of the District Court, Judges of the Supreme Court, Judges of the District Court, a magistrate, a Judge of the Family Court, the Full Court of the Family Court, and various Tribunal members.
2. He did not offer evidence to substantiate his complaints about those people. His justification appears to be that each made a decision that was different or contrary to what he had sought.
3. During the hearing he was repeatedly reminded by the presiding member that the issue to be determined by the Tribunal was his fitness to practice and not complaints that he had against the judiciary and others in relation to other proceedings, or errors he alleged in the decisions in previous Tribunal decisions.
4. His withdrawal on legal advice of more than 70% of the material in his principal statement indicates the extent of irrelevant material and the strength of his obsession.
5. Throughout the hearing he appeared to have no ability to resist lapsing into the same preoccupation rather than focussing on the issues in the proceedings.
6. After he had informed the Tribunal members of the deletions to be made to his statement of January 2015, he subsequently made oral submissions and written submissions, both of which were focussed primarily on his complaints about decisions of the Courts and Tribunals and his allegations of errors and conspiracy.
7. He continued to argue that the decision of the Medical Tribunal in 2000 was erroneous in various respects, that the HCCC knowingly made false allegations in those proceedings, that it was not wrong for him to have administered the dose of morphine that was the subject of one of the complaints found proven by the 2000 Medical Tribunal hearing, and various other issues about decisions including the decision of the magistrate in the proceedings for extension of the apprehended violence order for protection of his daughter and her children.

RIGIDITY - DEALING WITH AMBIGUITIES

1. The skills of a medical practitioner include the ability to entertain and deal with alternatives in diagnostics, in treatment, and in other areas.
2. Throughout his evidence, Mr Bar-Mordecai demonstrated that he does not have such ability.
3. He has a rigidity of mind. It is demonstrated, for example, in his conclusion that the decision of the Tribunal in 2000 was unlawful because he heard it reported that it was written by Cooper DCJ and, although the 3 other members of the Medical Tribunal signed it, he believes they did not read it.
4. On his evidence there was no adequate reason for him to have dismissed the possibility that the 3 other members did read the reasons before they signed them. He rejected that possibility out of hand.
5. Even now, nearly 15 years after the Medical Tribunal found on expert evidence that his prescribing of 30mg of morphine was contrary to good practice, he still does not entertain even the possibility that it was.
6. Another example was that because 2 Supreme Court Judges who had in separate judgments about 1 month apart on the same evidence, refused his leave application, they had conspired. He rejected out of hand any possibility that both of them may have been correct on the evidence before them.
7. In the period since the decision in September 2000, Mr Bar-Mordecai has rigidly denied that he obtained financial advantages from Patient A. He did not accept the finding of the Medical Tribunal in 2000 that he did. His response, however, did not dispute the benefits that he had received from the patient. His response was to say that he had extended benefits to her that exceeded the financial advantage that he had obtained from her.
8. There is no evidence that he ever accepted that finding of the Medical Council in 2000 that he did obtain financial advantages from her until the 4th day of the hearing, when after some persistent questioning by the presiding member, where he continued to deny being guilty of receiving any financial advantage, eventually he said "…now that the Judge has pointed it out…" that he did receive a financial advantage. He then claimed that he felt remorse for that. He denied lying. He then said later when it was put to him that he had taken nearly 15 years to change that position, he said "…I considered it that I had to take into account what I gave her. Now I know that I was wrong…"

INSIGHT

1. The fact that although he has not practised medicine for more than 14 years, but has no ambivalence about his belief that he is "more competent to be medically registered and to practice medicine than his (sic) peers in general practice" demonstrates a serious lack of insight.
2. What was at stake in these proceedings for Mr Bar-Mordecai was whether the Tribunal would find him fit to practice medicine. Despite that, his focus in the proceedings was his obsession with perceived past injustices.
3. Although the Medical Board of Australia has published documents setting out the "Recency of Practice Registration Standard" and a document entitled "Information on Returning to Practice" and a form entitled "Plan for Professional Development and re-entry into Practice", Mr Bar-Mordecai did not complete a plan for return, for professional development or for re-entry into practice, and appeared to have no regard to the other documents provided as published by the Medical Board.
4. He had no real proposal for resuming practice and no Entry to Practice Plan. That was the same situation that the Tribunal noted in the 2009 hearing of his then application for review and reinstatement. He still did not recognise that such preparations might assist his application.
5. He gave oral evidence that perhaps he would work in his brother's practice. But he provided no evidence by his brother that he would agree to employ him, even if this were deemed to be an appropriate arrangement. This was a continuance of an inadequacy found by the Medical Tribunal in 2009 and one of the reasons it rejected his application then. But in these proceedings he still failed to address the issue.
6. In the period that he has been disqualified, he has prepared a text book of his extensive readings of medical periodicals. But he has not had any peer review of that document. He has also prepared a software program to assist medical practitioners in diagnosing and treating conditions. Again, he has not had any peer review of that document. That was the same situation that arose at the 2009 hearing of the Medical Tribunal. He does not recognise the need for endorsement of the textbook by anyone with expertise other than himself or for review by someone with more recent clinical expertise than his and with objectivity. He assumes his own expertise is sufficient, even though the Tribunal in 2009 expressly found that it wasn't.

RESPECT FOR LAW OR RULES

1. Because of the finding that he was a vexatious litigant, Justice Adams imposed conditions on him being able to bring the application for arestoration order. He recited those conditions in his application. But in all of his other documentation in these proceedings and in his appearances in the Tribunal, he has repeatedly breached the conditions of the grant of leave by focussing on matters outside the issues listed by Adams J in the orders granting leave. The leave was conditional upon him complying with those conditions, but he ignored it repeatedly.
2. Given his lack of success in previous proceedings, one would have expected that he would have exercised care to comply with the conditions of the grant of leave. But it appears that he was unable to do so as he was quite obsessed with the other issues.
3. In the Tribunal Mr Bar-Mordecai repeatedly failed to comply with directions. One example was for him to file and serve material where he subsequently filed a USB. There were subsequent orders on at least 2 occasions for him to rectify his failure to file and serve paper copies but he did not comply.
4. His history of vexatious applications in NSW courts and Tribunals also demonstrates an absence of reasonable respect for the Law and Rules.
5. He also made no real attempt to comply with the Medical Board of Australia requirements for resuming practice.
6. He still has a problem, which is detailed later, that he does not comply with professional rules for confidentiality of patient information.
7. He continues to deny the lawfulness of the 2000 decision of the Medical Tribunal and to believe that he should not be bound by it.
8. He also gave evidence in the proceedings that whilst disqualified he has "sewn up" a patient in his brother's surgery "because it was an emergency".

LOGIC

1. Mr Bar-Mordecai has repeatedly made vexatious applications that did not disclose any cause of action or were not supported by evidence.
2. His repeated conclusions of conspiracy and other misdeeds of judges and others is not supported by factual evidence or logical arguments.

MENTAL HEALTH / PSYCHIATRIC TREATMENT

1. In his oral evidence Mr Bar-Mordecai testified as to adverse effects he had experienced from the "battered litigant syndrome". He testified that he should be psychiatrically examined before being registered and he said such assessment should consider the anger he feels at the judicial conspiracies against him over many years. He said he would need "24/7" supervision if he were registered.
2. The history of his vexatious proceedings contributes to concerns about his mental state.
3. Since the 2000 hearing, Mr Bar-Mordecai had a period of ongoing consultations with a psychiatrist. Those consultations ended some years ago. He has made attempts to sue the psychiatrist for perceived inadequacies in the treatment.
4. In both his oral submissions and his written submissions, Mr Bar-Mordecai told the Tribunal that if his application was unsuccessful he would consider committing suicide.
5. The Tribunal is concerned that Mr Bar- Mordecai's persisting conviction that there has been a series of judicial and other conspiracies against him as well as his obsessional preoccupation and repeated behaviours including court actions intended to address the perceived conspiracies, might also indicate or constitute an aspect of psychiatric illness or impairment. In the absenceof independent psychiatric evidence it is not possible to make a finding on such issues.
6. Despite his own evidence of the need for him to have a psychiatric assessment before being registered, Mr Bar-Mordecai did not provide any psychiatric assessment or any recent psychiatric evidence.

ETHICS AND CONFIDENTIALITY

1. Mr Bar-Mordecai in oral evidence and in his submissions to the Tribunal presented as an unreliable witness. He was frequently evasive and he sometimes avoided questions, even when directed to answer them. His evidence at the hearing that he finally "saw the light" in relation to the allegation that he obtained a financial benefit from his patient, after 15 years of denying that, was just transparent invention.
2. There is a history of Mr Bar-Mordecai being found by courts and tribunals since the 2000 disqualification to have given false or unreliable evidence.
3. He admitted plagiarism of several pages of a published document, which he included in his statement as evidence.
4. In the course of his evidence he testified that he had accessed thousands of records of past and present patients of his brother from his brother's surgery for purposes of writing his text book or software program, without consulting any of the patients for permission.
5. He also gave his present partner access to material served on him in these proceedings. He further disclosed that he had shown his current partner correspondence initiating one of the subject complaints in the 2000 proceedings, thereby revealing to her the name of the patient.
6. At the hearing, Mr Bar-Mordecai did at times say that he now accepts that it is unethical for a doctor to have a sexual relationship with his patient. The tribunal, however, did not consider that evidence convincing. In any event he but was still disputing some of the findings of unethical conduct made against him by the Medical Tribunal in 2000.
7. The Tribunal was not satisfied that Mr Bar-Mordecai, if he resumes medical practice, would give proper recognition to the requirement for maintaining patient confidentiality and compliance with ethical standards.

EMPATHY

1. It is important for a medical general practitioner to be able to empathise with patients and demonstrate that, in order to obtain the trust and confidence of the patient.
2. The evidence before the Tribunal of Mr Bar-Mordecai's attitudes towards his daughter and his treatment of her in AVO matters in the Local Court does not show that he has any empathy for her. That is consistent with his lack of empathy for her and her husband in the Family Court proceedings by him on his own behalf and by his parents on his behalf, seeking contact with their children, which they strongly opposed.
3. Furthermore, there is that evidence and other oral evidence given in these proceedings regarding his attempts to obtain contact to his grandchildren. The circumstances of the children are that they have lived their whole lives with their mother and she has been alienated from him for close to 16 years. She complained to the police that he sexually abused her as a child. Her 3 youngest children have had no contact with him or his parents. He has been asking for 16 years for contact with the eldest child but has always been refused.
4. He said that he does not think it is intrusive to ask for an order that his daughter have a psychiatric examination. He said that he thought her reaction "wouldn't be totally adverse". He said that he didn't know what the 16 year old granddaughter's perception would be if she knew that he or his parents were making an application for contact with the grandchildren.
5. He was asked about whether there was an impact on his daughter and her husband when his father appealed the decision of the Family Court refusing contact with the children by his parents. He conceded that there was. When asked why they continued to appeal, knowing the consequences for his daughter and her husband, he said "because I think that every person is selfish and I want to see my grandchildren. To see your seed flower is very important. It had a very big input on my parents and me of not seeing them".
6. In that evidence and in other evidence about his comprehension of the effect on his 16 year old granddaughter of the contact litigation, he demonstrated that he had no real empathy or concern for the position or experience of that granddaughter and the other grandchildren.

CLINICAL COMPETENCE

1. It is more than 14 years since Mr Bar-Mordacai practised medicine. He has not provided the Tribunal with any assessment of his current clinical skills by someone with expertise in that area. In that period he has not undertaken any training to update or improve his clinical skills. He says his clinical skills are as good as, or better than, those of most of the general practitioners who have been continuously practising for the last 14 years. But he has no relevant or current expertise that would justify giving any weight to that opinion. On the evidence it appears to be conjecture only.
2. The Tribunal is not persuaded that MrBar-Morcadai has the level of clinical skills needed to safely practice as a general practitioner. The evidence does not establish any proposal by him to address that. Indeed he does not recognise he has any such need.

CONCLUSIONS

1. The Tribunal concluded that in on issues of obsession, intellect and mental health, integrity, empathy, character and clinical competence the Tribunal is not satisfied that Mr Bar-Morcedai is a fit and proper person to practice as a general practitioner. His registration should not be restored.
2. The order for de-registration remains appropriate and there should be no further review within 3 years.

COSTS

1. The Applicant has been wholly unsuccessful in his application. He has filed an enormous quantity of material he later did not rely upon. He sought to rely upon a large volume of irrelevant material. He breached orders for provision and service of paper copies. He raised numerous interlocutory applications at the hearing that were unsuccessful. By his conduct he caused the hearing to be about 3 days longer than it would otherwise have been. He should pay the costs of the Medical Council. The order is made in these reasons upon their release.

ORDERS

1. Accordingly, the orders made were: 1. The application of the Applicant for a reinstatement order is refused and dismissed. 2. Order 1 must not be reviewed until after the expiration of 3 years from this date. 3. The Applicant must pay the costs of the Respondent of and incidental to these proceedings since the application was filed, such costs to be as agreed or as assessed. 4. As the Applicant informed the Tribunal at the hearing that if his application was refused he would consider committing suicide, the Registrar is requested to notify the Applicant's General Practitioner and the Acute Care Team for the Eastern Suburbs Mental Health. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 02 July 2015