Bar-Mordecai v The Attorney-General - [2013] NSWSC 1908 - NSWSC 2013 case summary — Zoe

NSWNSWSC

Bar-Mordecai v The Attorney-General

[2013] NSWSC 1908

Supreme Court of NSW|2013-12-17|Before: Leeming JA

View original source

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2013-12-17

Before

Leeming JA

Catchwords

[2006] 2 All ER 993 Smith v Yusen Daly Smith International Pty Ltd (in liq) [2001] NSWCA 458
53 NSWLR 385 Category: Principal judgment Parties: Michael Bar-Mordecai (Applicant) File Number(s): 2013/321349

Source

Original judgment source is linked above.

Catchwords

[2006] 2 All ER 993 Smith v Yusen Daly Smith International Pty Ltd (in liq) [2001] NSWCA 45853 NSWLR 385 Category: Principal judgment Parties: Michael Bar-Mordecai (Applicant) File Number(s): 2013/321349

Judgment (21 paragraphs)

[1]

Judgment 1LEEMING JA: Mr Michael Bar-Mordecai's summons dated 24 October 2013 seeks leave to file a "Notice of Appeal" challenging what is described as "the judgment of Murrell DCJ dated 18.3.2009 in Bar-Mordecai v NSW Medical Board" (it will be necessary to return to the form of the document sought to be relied upon, and to the description of the decision Mr Bar-Mordecai wishes to challenge). Mr Bar-Mordecai's affidavit was filed without its exhibits. These were requested by the Registrar on 4 December 2013 and supplied shortly thereafter; they comprise two lever arch folders of documents. 2Mr Bar-Mordecai requires leave because on 25 February 2005 an order was made pursuant to s 84(1) of the Supreme Court Act 1970 relevantly in the following terms: "1. That Michael Jacob Bar-Mordecai shall not, without leave of this court, institute proceedings in any court." Section 84 was repealed by the Vexatious Proceedings Act 2008 (VP Act), but clause 4 of Schedule 1, which takes effect pursuant to s 20 of the VP Act, has the effect that the order continues to operate to prevent Mr Bar-Mordecai from instituting proceedings without leave (cl 4(1)(c)) and is taken to be, and to have effect as if it were, a vexatious proceedings order made under the VP Act (cl 4(2)).

[2]

[3]

Nature of this application 5Section 13 of the VP Act prevents Mr Bar-Mordecai from instituting proceedings without the leave of the Supreme Court granted under s 16. Section 14(2) authorises Mr Bar-Mordecai to apply to the Supreme Court for leave to institute his proposed proceedings, and s 14(3) requires him to file an affidavit listing all previous occasions on which he has applied for leave, listing all other proceedings he has instituted in Australia and which: "discloses all facts material to the application, whether supporting or adverse to the application, that are known to the applicant." 6Section 14(4) forbids Mr Bar-Mordecai from serving a copy of the application or affidavit on any person unless an order is made under s 16(1)(a) and it is served in accordance with that order. Section 14(5) empowers the Court to dispose of the application by (a) dismissing it under s 15 or (b) granting it under s 16. Section 14(6) provides that "despite any other act or law, the applicant may not appeal from a decision disposing of the application." 7Section 15 requires the Court to dismiss an application in certain circumstances. It is in these terms: "(1) An appropriate authorised court must dismiss an application made under section 14 for leave to institute proceedings if it considers: (a) the affidavit required by section 14(3) does not substantially comply with that subsection, or (b) the proceedings are vexatious proceedings, or (c) there is no prima facie ground for the proceedings. (2) The application may be dismissed even if the applicant does not appear at the hearing of the application." 8Further, leave may not be granted under s 16 until there has been service of the application upon "each relevant person" and they have been heard. Each "relevant person" includes not merely the proposed defendants, but also the Attorney General, the Solicitor General and (speaking broadly) the person who made the vexatious proceeding order which necessitated the seeking of leave. As described by Basten JA in Bar-Mordecai v The Attorney-General (NSW) [2012] NSWCA 207 at [16], the provisions may be understood as involving, though not necessarily imposing, a three-stage structure: Stage 1 - the applicant files application with affidavit (s 14(3)); Stage 2 - the court considers whether to dismiss the application under s 15 or make an order for service of the application and the affidavit on "each relevant person", under s 16(1)(a); Stage 3 - the court conducts a hearing under s 16(1)(b), and determines whether to dismiss or grant the application. 9Plainly enough, it is necessary first to determine whether the command in s 15 to dismiss the application applies before turning to the evaluative discretion to grant leave, or grant leave subject to conditions, under s 16. The balance of these reasons address that second stage of the process.

[4]

Need there be an oral hearing? 10The VP Act is not express on whether an oral hearing is required at the second stage of the process, which is necessarily ex parte. 11Textual indications point in both directions. On the one hand, s 16(1)(b) requires, as a precondition to the grant of leave, the Court to "give the applicant and each relevant person an opportunity to be heard at the hearing of the application", which may be contrasted with s 15. However, it may fairly be said that s 15(2) contemplates that the applicant has a right to appear at the hearing of his or her application. Those competing constructions were identified by Basten JA in Bar-Mordecai v The Attorney-General (NSW) at [53], without determining or (as I read his Honour's reasons) expressing a preference between them. In the same appeal, Sackville AJA said at [66]: "It would be curious if a court could dismiss a leave application on one or more of the grounds specified in s 15(1) of the VP Act, before any order is made under s 16(1)(a), only after affording the applicant a hearing. However, there is no need to address that question in this appeal and I prefer not to do so." Beazley JA shared Sackville AJA's concerns: at [2]. 12So far as I can see that question of construction has not subsequently been addressed. Instead, there has been a series of decisions refusing leave, including to Mr Bar-Mordecai himself, on the papers: see for example Application by Bar-Mordecai re Vexatious Proceedings Act 2008 [2013] NSWSC 914. In Application by Michael Bar-Mordecai [2012] NSWSC 501, Garling J (as it happens, after hearing from Mr Bar-Mordecai in person) stated at [14]: "Ordinarily, any submissions by the applicant in support of the orders will be made in writing, and the application will be determined on the papers. It is a matter for the Court, whether in the considering of the making of these orders it will be assisted by, or else permit, time-limited oral submissions." 13I respectfully agree with Garling J that there is no obligation to hear the applicant orally before dismissing his or her application pursuant to s 15, although it is open, in an appropriate case, for an opportunity for that to occur to be offered. That conclusion is supported by the statements by Beazley JA and Sackville AJA to which I have referred, by the practice of the Court after the VP Act was enacted, and most importantly by the statutory context. 14The obligation to dismiss an application arises if the Court considers there is no prima facie ground for the proceedings, or the proceedings are vexatious proceedings. Vexatious proceedings are defined in s 6 to include: "(a) proceedings that are an abuse of the process of a court or tribunal, and (b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and (c) proceedings instituted or pursued without reasonable ground, and (d) proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose." 15The Act imposes an obligation upon the applicant to disclose in an affidavit all facts material to the application. It follows that the Court, merely by reference to the papers, is apt to be well-placed to determine whether there is or is not a prima facie ground for the proceedings, or whether they are or are not vexatious. The applicant is in that way given a hearing, although not an oral one, and a determination in a manner which is procedurally fair (it being well established that procedural fairness does not require an oral hearing in every case: see for example the discussion by Sullivan J in a similar context in R (Ewing) v Department of Constitutional Affairs [2006] EWHC 504 (Admin); [2006] 2 All ER 993 at [27]-[36]). 16Further, it would be strange if an oral hearing were invariably required. The purpose of such a hearing would include giving the applicant an opportunity to explain, for example, whether and why the affidavit does not substantially comply with s 14(3). As Basten JA observed, that could lead to complexities unlikely to have been intended. Moreover, dismissing an application for leave because an affidavit does not substantially comply with s 14(3) would not stand in the way of a further application accompanied by a compliant affidavit. Finally, the premise of these provisions is that a Court has taken the extraordinary step of denying a person the ordinary right to commence litigation. That step will only have been taken if there has been a demonstrated history of abusing the processes of the Court. That being the inevitable background to, and context for, s 15, there is no good reason to require the Court in every case, even where it appears that the Court must dismiss the application, first to hear orally from the applicant.

[6]

Applicable legislation 21By its decision, the Medical Tribunal was exercising powers under the MP Act. Subsequently, the Health Practitioner Regulation National Law (NSW) has been adopted (by the Health Practitioner Regulation (Adoption of National Law) Act 2009). The National Law provides that the Medical Tribunal of NSW is established for the medical profession: s 165(1). The relevant transitional provision appears to be s 292, which applies if "under a corresponding prior Act of a participating jurisdiction, an adjudication body had, at the end of a proceeding before the adjudication body about a health practitioner's practice or conduct, ordered the health practitioner to do, or refrain from doing, something". That order appears, so far as I can see, to have remained in force immediately before the participation day. Accordingly, s 292(2) provides that "[f]rom the participation day, the order continues in force as if it had been made under this Law". It seems likely that the provisions of Division 8 of Part 8 of the National Law, relating to reviews, would now be relevant to any further review of the Tribunal's de-registration order. 22A question not free from difficulty is whether the statutory appeal created by s 162 of the National Law applies to the decision of the Tribunal Mr Bar-Mordecai challenges. It is not necessary for me, for the purposes of this application, to address that point. Section 162 relevantly authorises an appeal to the Supreme Court against certain decisions of the Tribunal "with respect to a point of law" or against "the exercise of a power by the Tribunal under Subdivision 6 of Division 3". In the latter case, the nature of the "appeal" is unstated. Appeals under s 162 must be made within 28 days, although it is open in a particular case for the Supreme Court to extend the time: s 162(3). Of course, the decision challenged by Mr Bar-Mordecai was made more than four and a half years ago. Mr Bar-Mordecai "concedes as to the lateness of his application", but provides no substantial explanation otherwise for his delay. He says instead that: "important matters of law will be canvassed on appeal, that a Court of Appeal determination will benefit the litigant medical community at large and the appellant in particular, and may set a precedent for setting aside judgments on the basis of negligent and contrived evidence being given by expert medical specialists that misled the Tribunal, and successive Tribunals to misadministrate justice in the Plaintiff's matter as proved by Elkaim DCJ" [sic]. 23The reason I express no concluded view about the applicable provisions under the National Law is that Mr Bar-Mordecai has squarely confined his proposed "appeal" to the (undoubted) supervisory jurisdiction of this Court pursuant to s 69 of the Supreme Court Act. Although one discretionary reason for refusing to exercise supervisory jurisdiction is the existence of an alternative remedy of an appeal (see Landsman v Director of Public Prosecutions [2013] NSWCA 369 at [33]), for the purposes of this application I put that consideration entirely to one side. 24Further, I have no reason to think that there has not been at least substantial compliance with the requirement that Mr Bar-Mordecai list previous occasions on which he has applied for leave. He has listed 43 applications for leave (in respect of most of which leave has been refused), in addition to 39 other proceedings also instituted by him prior to the commencement of the VP Act. Accordingly, I turn to the merits of this proposed application, to consider whether s 15(1)(b) or (c) requires it to be dismissed, or alternatively whether it should be served under s 16(1)(a).

[7]

The proposed notice of appeal - overview 25Under the supervisory jurisdiction which Mr Bar-Mordecai seeks leave to invoke, it remains necessary for him to articulate an available ground for judicial review of the 2009 Tribunal's decision. The following observations may be made immediately. 26First, the proposed notice of appeal is a much longer document than the decision of the Medical Tribunal (it is 30 pages; the Tribunal's reasons occupy 9 pages). There are 66 grounds, which are numbered 1-60, then grounds 1, 2 and 3. There are three grounds numbered 28 and two grounds numbered 59. Many of the grounds have sub-grounds. There is much repetition. Even the most superficial examination discloses that, at the very least, much is vexatious, and does not disclose a prima facie basis for challenge. 27Secondly, the proceedings which Mr Bar-Mordecai seeks leave to bring are discretionary, in respect of a decision made more than 4 years ago. Nothing is advanced by way of evidence to explain the delay (during which time Mr Bar-Mordecai has sought leave to commence literally dozens of proceedings). The entirety of his submissions in support of this Court exercising its supervisory jurisdiction, notwithstanding his delay, is reproduced above. 28Thirdly, I do not consider that it is the role of the Court under s 15 of the VP Act to consider whether any individual ground amongst a multitude, or indeed some combination of grounds, amounts to a prima facie ground. The VP Act requires a determination of the presence or absence of a prima facie ground for the proceedings, and whether the proceedings are vexatious proceedings, and contemplates a binary process at the threshold - either the application is dismissed in accordance with the command in s 15, and that is an end to the matter, or else the Court makes an order for service, and there is a hearing under s 16 to determine whether to dismiss or grant the application. 29I have read all of the proposed grounds of appeal, and I have reviewed the material supplied by Mr Bar-Mordecai in support of his application. (I confess I have not read every word of the transcript, which is some 426 pages. Nor have I read every page of handwritten notes in MBM 3 and MBM 11; it has not been necessary for me to do so to reach a clear view of the absence of merit in the proposed litigation). There is no proper basis to permit a "notice of appeal" to proceed. I say the following for the assistance of Mr Bar-Mordecai: if there were a viable basis to invoke this Court's supervisory jurisdiction in relation to the decision of the Medical Tribunal, the ground or grounds of review would most likely be able to be articulated in one or two pages. Given the nature of the challenge, those grounds would most likely amount to complaints which could fairly be characterised as errors of law on the face of the decision, or procedural unfairness or some legal defect going to the way in which the Tribunal went about its task. Further, even if the notice of appeal were a pleading (which it is not), it would be required to be "as brief as the nature of the case allows" (Uniform Civil Procedure Rules 2005, r 14.8). One of the ways in which the VP Act characterises a proceeding as a vexatious proceeding turns on the way it is conducted: "in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose"; s 6. The multiplicity of grounds of itself answers that description. 30In my view, that is sufficient to engage the obligation to dismiss the application. However, in part in case I am wrong about that, but principally so as to indicate to Mr Bar-Mordecai the nature of the task he faces, I address the grounds he has articulated. I do so reasonably concisely, because it is not necessary to my decision, and because I am dealing with a repetitive proposed notice of appeal of 30 pages.

[9]

Proposed grounds 5, 6, 7, 20, 38, 39, 51 and 52 32These overlapping proposed grounds allege error in that Murrell DCJ and Cooper DCJ were, in substance, the only decision-makers. This is put in a number of ways: "the four member Tribunal erred by allowing the Deputy Chairperson of the Tribunal to usurp the decision-making function of the four member Tribunal" (ground 5); "each of the other three Tribunal members erred in having signed the reasons for judgment ... there is evidence that the adoption was not genuine and that the action of the other Tribunal members was impermissible" (ground 6); and "the Tribunal erred in allowing Murrell DCJ to exclude the other Tribunal members from being decision-makers" (ground 7). Related to this is the claim that the Tribunal erred by using the heading prior to paragraph [8] of its reasons "The Task of the Review Tribunal", because, as Mr Bar-Mordecai would have it, "the task of the Review Tribunal was usurped by the (lay-non medical) judicial member of the Review Tribunal, and this was wrong in law and contrary to s 154(2) of the MP Act. The appellant apprehended bias (ground 39); I deal further with allegations of bias below. Likewise, Mr Bar-Mordecai alleges error by referring to the fact that the 2000 Medical Tribunal was chaired by Cooper DCJ: he alleges that that judgment was published by his Honour " to the exclusion of the other three decision-makers of the 2000 Tribunal" (ground 38). In ground 52, Mr Bar-Mordecai asserts that the "name of the four member Tribunal is flaunted recklessly in order to mandate authority, in circumstances that the four member Tribunal had nothing to do with the decision-making process of propounded oppressive findings in paragraph [61] of the findings. That Tribunal task was usurped by Murrell DCJ as the author and sole decision-maker..." (ground 52). 33A similar matter is alleged in proposed ground 20, that it was the "impermissible judgment" of Cooper DCJ in 2000, rather than the judgment of the Tribunal. 34All these proposed grounds are an abuse of process and do not satisfy the prima facie threshold in s 15(1)(c) of the VP Act. They are unsupported by evidence. Nothing advanced on behalf of Mr Bar-Mordecai causes me to doubt that the Tribunal did not perform its task in accordance with the legislation. Indeed, the proposed grounds are inconsistent with what appears on the face of the reasons, which expressly refer to divisions within the Tribunal: "30. The Tribunal is divided on the issue of whether Mr Bar-Mordecai now has an intellectual understanding and acceptance of the rule. ... 35. Those members of the Tribunal who believe that Mr Bar-Mordecai now has an intellectual understanding and acceptance of boundaries consider that nothing short of true insight is adequate. It is essential that a practitioner have true insight into doctor/patient boundaries in the sense that he or she can identify the boundaries and intuitively appreciate the damage that may result from boundary transgression. Because of the variety and complexity of boundary issues that may arise in practice, protection of the public requires that a practitioner have true insight into such issues. 36. All Tribunal members accept that Mr Bar-Mordecai "fears the big stick". Consequently, if he was reinstated, it is most unlikely that he would knowingly transgress boundaries. However, in the absence of true insight, the Tribunal is not satisfied that the public would be adequately protected against the possibility of transgression. ... 43. First, some Tribunal members consider that Mr Bar-Mordecai's belated "acceptance" of the rule that a practitioner should not treat his or her de facto partner was an opportunistic lie. For those members, the lie reflects adversely on his integrity." Likewise, the Tribunal's reasons in 2000 comprise 72 pages, and are signed by all four members of the Tribunal.

[19]

Remaining proposed grounds (41-50, 53-60 and 1 (2nd), 2 (2nd), 3 (2nd) 47These complain of factual matters, based on a claimed "judicial assault" by Justice Bryson (41, 42, 43b and 48) and Blanch CJ (43a), much of which is said to cause Mr Bar-Mordecai to apprehend bias. Bias is also said to be seen from the statement that "Mr Bar-Mordecai reluctantly conceded that the paper [on "battered litigant syndrome"] is based exclusively on his own experience" (grounds 44, 45 and 46 and 49). Ground 47 amounts to a claim of bias based upon Dr Phillips' concern about Mr Bar-Mordecai's reference to a possible assassination of a judicial officer for wilfully perverting the course of justice. Ground 50 complains that no action was taken against Dr Roberts. Ground 51 complains about the difference between "an adjustment disorder with depressed mood", which is said to be a "totally different condition" from "an adjustment disorder with depression". Whether that is or is not so, it is not judicially reviewable error of law. 48The later proposed grounds 52-60 become more discursive. Proposed ground 52 occupies a page and a half, although proposed grounds 53-60 are shorter. They refer to the Tribunal having "erred in law by accepting Dr Phillips' tainted evidence", "erred in law by making the following finding: 'Mr Bar-Mordecai's understanding of the importance of patient confidentiality is superficial'", erred in law by concluding that Mr Bar-Mordecai possessed obsessive traits, and erred in law by finding that "the Tribunal [was] concerned about Mr Bar-Mordecai's level of acceptance and remorse in relation to past dishonesty". 49Proposed ground 58 and the second proposed ground 59 allege that bias is disclosed because of the finding "For a decade, Mr Bar-Mordecai has been embroiled in litigation. He is dissatisfied with every judicial officer whom he has encountered". That is said to be an untrue and a sweeping statement, and not founded on evidence. Mr Bar-Mordecai submits it is an over-statement, but it is not one which in my opinion gives rise to a prima facie case for apprehended bias, especially when seen in context. The statement refers to matters which are not denied by Mr Bar-Mordecai, including describing Judge Cooper as a thief, that he is "convinced that the New South Wales judicial system is riddled with corruption and enmeshed in conspiracy" and that he has called for legislation making "judicial batterers" accountable for their actions. Those matters are reiterated in the second proposed ground 59, and in proposed ground 60. 50The first proposed ground 1 is introductory. The second (at p 27 of the draft "notice of appeal") asserts error of law in making a decision resting "on evidence which the Appellant had withdrawn at the hearing and which was thus not available for the Tribunal's consideration". It is unclear to what in particular Mr Bar-Mordecai is referring. In any event, in a tribunal which is not bound by the rules of evidence, it may well be that there is no judicially reviewable error in following that course, assuming favourably to Mr Bar-Mordecai that this is a fair description of what occurred many years ago. 51Proposed ground 2 (second occurring) points to evidence (a report of Dr Yolande Lucire dated 3 March 2011) post-dating the decision which is supportive of his case. There was no judicially reviewable error in the Tribunal proceeding on the basis that it did, contrary to evidence that was not before it. 52The last proposed ground is in these terms: For all the above grounds the Appellant apprehended bias and Murrell DCJ displayed actual bias against the Appellant, such that: a. Objectively, the Medical Tribunal on 21.2.2013 made protective orders against the judicial conspirator, Murrell DCJ to protect the Appellant [sic]; c [sic]. The Appeal ought to be upheld on the basis of the above grounds." 53For the reasons already given, I do not consider that there is a viable case based on bias or apprehended bias.

Bar-Mordecai v The Attorney-General

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (21 paragraphs)

Parties

Cases Cited (5)

Cited By (1)