The plaintiff was declared to be a vexatious litigant by Patten AJ on 25 February 2005: Attorney General v Bar-Mordecai [2004] NSWSC 1277. He is also the defendant in two proceedings brought against him by Jewish National Fund of Australia Ltd ("JNF"). The background to the present judgment is set out in my judgment in those proceedings: Jewish National Fund of Australia Ltd v Bar-Mordecai [2020] NSWSC 384.
Following delivery of that judgment, JNF indicated that it wished to proceed to have heard a notice of motion it had filed for summary judgment on 15 July 2019 in proceedings 2019/96140. In addition, it sought to have heard a notice of motion it had filed on 14 May 2020 for summary judgment in proceedings 2019/162728. A number of directions hearings was conducted by me, and on 27 July 2020 I fixed both motions for hearing on 16 September 2020.
The plaintiff has now applied by two summonses filed 24 July 2020, pursuant to s 14 of the Vexatious Proceedings Act 2008 (NSW), for leave to file notices of motion against JNF for what is described as a grant of a procedural application. In proceedings 2020/217314, the following orders are sought in the notice of motion:
1. An Order that the Supreme Court grant Michael Bar-Mordecai immediate leave to cross-examine the JNF's witnesses, namely, Mr Mahemoff, and Mr Moses, at the hearing of the JNF's Notice of Motion filed on 15.07.2019 to strike out Michael Bar-Mordecai's defence and for summary judgment.
2. Costs
In proceedings 2020/217322, the orders sought are these:
1. An Order that the Supreme Court grant Michael Bar-Mordecai immediate leave to cross-examine the JNF's witnesses, namely, Ms D Rutstein, Mr Moses, Mr White; at the hearing of the JNF's Notice of Motion filed on 17.07.2019 (sic) to strike out Michael Bar-Mordecai's defence and for summary judgment.
2. An Order that the Supreme Court grant Michael Bar-Mordecai immediate leave to issue Ms D. Rutstein a Notice to Produce her bank statement for the month of December 2018 from her Lawbiz Bank account, with an address of 8 Keysor Road Pagewood to confirm a date of the deposit of a cheque of $1,045.00 from the late Seemah Morris to Lawbiz, in order to confirm that Ms Rutstein is a liar.
3. Costs
It is not entirely clear which of the fresh summonses filed relates to which of the existing proceedings. However, the notice of motion that Mr Bar-Mordecai seeks leave to file within the proceedings 2020/217314 refers to JNF's notice of motion filed 15 July 2019. It may reasonably be supposed, therefore, that this summons and notice of motion concern proceedings 2019/96140 where such a motion has been filed by JNF.
However, in proceedings 2020/217322 the notice of motion which Mr Bar-Mordecai seeks leave to file refers to a motion by JNF for summary judgment of 17 July 2019. There is no such notice of motion. The indication, however, that Mr Bar-Mordecai's intended notice of motion concerns proceedings 2019/162728 is that two of the persons he seeks to cross-examine, Ms Rutstein and Mr White, have only filed affidavits in those proceedings and not in proceedings 2019/96140. Accordingly, I have related Mr Bar-Mordecai's proceedings 2020/217322 to JNF's proceedings 2019/162728, and I have related Mr Bar-Mordecai's proceedings 2020/217314 to JNF's proceedings 2019/96140.
In relation to the prayer in each of the intended notices of motion for leave to cross-examine JNF's witnesses, it is not necessary for Mr Bar-Mordecai to make application under the Vexatious Proceedings Act. I explained this to him at the directions hearing on 27 July 2020. If a party seeks to read affidavits at a hearing, the opposing party is ordinarily entitled to give notice for the deponents the party wishes to cross-examine to be present in Court for the purpose of that cross-examination: r 35.2 Uniform Civil Procedure Rules 2005 (NSW). That does not amount to taking a step in the proceedings which requires an application under the Vexatious Proceedings Act.
However, on an interlocutory application, the Court may not permit cross-examination of a deponent unless it is specifically satisfied that there is some need and utility in permitting the cross-examination. On an application for summary judgment, the Court is not concerned to ascertain the truth of a competing factual situation nor to make a determination of the credibility of witnesses. If such a determination is necessary, that might be an indication that summary judgment is not appropriate. The issue on a summary judgment application is whether any arguable defence is raised by the defendant in the pleaded defence: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.
It will ultimately be a matter for the judge hearing the notices of motion to decide whether Mr Bar-Mordecai should be permitted to cross-examine the witnesses or any of them. For present purposes, it is enough to note that Mr Bar-Mordecai is entitled to give notice under r 35.2 for the attendance of any deponent. He does not need leave under the Vexatious Proceedings Act to do so.
On the other hand, he does require leave under the Vexatious Proceedings Act to issue a Notice to Produce to Ms Rutstein because the issue of such a notice is the taking of a step within an interlocutory civil proceeding.
Section 15 of the Vexatious Proceedings Act provides:
15 Dismissing application for leave
(1) An appropriate authorised court must dismiss an application made under section 14 for leave to institute proceedings if it considers:
(a) the affidavit required by section 14 (3) does not substantially comply with that subsection, or
(b) the proceedings are vexatious proceedings, or
(c) there is no prima facie ground for the proceedings.
(2) The application may be dismissed:
(a) even if an oral hearing is not held, or
(b) even if the applicant does not appear at any hearing of the application.
Section 6 defines "vexatious proceedings" as follows:
6 Meaning of "vexatious proceedings"
In this Act, vexatious proceedings includes:
(a) proceedings that are an abuse of the process of a court or tribunal, and
(b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and
(c) proceedings instituted or pursued without reasonable ground, and
(d) proceedings that are conducted to achieve a wrongful purpose, or in a way that harasses, or causes unreasonable annoyance, delay or detriment, regardless of the subjective intention or motive of the person who instituted the proceedings.
The definition of "proceedings" in s 4 includes,
procedural applications, taken in connection with or incidental to civil proceedings
Accordingly, it must be determined if there is a prima facie ground for the issue of the Notice to Produce, or whether its issue falls within one of the paragraphs of s 6.
In an affidavit in support of the notice of motion Mr Bar-Mordecai seeks to justify the need for the Notice to Produce by asserting:
That Ms Rutstein is a dishonest solicitor who lied to different persons without any compunction.
Mr Bar-Mordecai then sets out a number of examples of what he claims were lies that Ms Rutstein told. The relevant one is found in paragraph 11(b)(v) which reads:
In her affidavit, that the late Seemah Morris and I came to collect the certificates of title, the prepared draft will that she wrongly dated 6.12.2018 and pay her on 10.12.2018, instead of us having come to her home on 5.12.2018 - that can be proved with the dates that the cheque was deposited prior to 10.12.2018.
The background to this is what is set out in Ms Rutstein's affidavit of 21 January 2020. Ms Rutstein had been Seemah Morris's solicitor from about July 2016 when she drafted Ms Morris's last will of 27 July 2016. Subsequently, after having few dealings with Ms Morris until about late October 2018, Ms Rutstein received two telephone voicemail messages from Ms Morris complaining that she was being kept in a "hospital". In fact, it was the Montefiore Home at Randwick. Ms Rutstein deposes that she subsequently had a number of meetings and conversations with Ms Morris about Ms Morris wanting the leave the home and subsequently to make various changes to her will.
Ms Rutstein then deposes as follows:
37. On about 9 December 2018, I received a typed-up letter, bearing Seemah's handwriting and signature, giving notice that my legal services were no longer required. That letter also contained a directive that I was not to visit her again at the Montefiore. Annexed and marked "D" is a copy of that letter.
38. On about 10 December 2018, I received a telephone call from Seemah. We had a conversation in words to the following effect:
Seemah: Did you get my letter?
Me: Yes I did.
Seemah: I want to collect the will that you have been working on.
Me: I can meet with you to give to you but it is not finished. I am not prepared to witness it for you.
Seemah: I will come and pick it up.
Me: I will have to invoice you for the work I have done for you up this point.
Seemah: Fine.
39. Later that day, I answered a knock on my home office door. It was the defendant, Michael Bar-Mordecai. That was the first time I had ever met, seen or spoke (sic) to him. I saw Seemah sitting in the passenger seat of a car that was parked on my drive way. Mr Bar-Mordecai and I had a conversation in words to the following effect:
Mr Bar-Mordecai: My name is Michael Bar-Mordecai. I've come to collect Seemah's document.
Me: I am not going to release the document to you. I will personally hand it to Seemah. I would prefer if you weren't around when I speak to her. Why don't you go for a walk.
Mr Bar-Mordecai: Fine.
40. As Mr Bar-Mordecai walked away from my door and past the drive way, I approached Seemah, who remained in the parked car. She looked too frail to be able to get out of the car unassisted. She stayed inside the car and we had a conversation in words to the following effect:
Seemah: Where is the draft will?
Me: I have it here. I also have my invoice for my work. You understand that it is not valid until it is witnessed. I haven't added any executors either at this stage.
Seemah: Give it to me and I will write a cheque. I have my cheque book with me. Michael is taking me to the cemetery to visit my relatives. It is the anniversary of their deaths. I am sick of being in that home. Michael has promised to get me out.
Me: Seemah, there is a process that needs to be followed before you can leave and the home is a good place for you.
Seemah: It is a prison for me.
Seemah then wrote a cheque to pay my tax invoice. I then handed her the draft will.
It seems clear that Mr Bar-Mordecai asserts that Ms Rutstein is wrong in thinking that she returned the draft will and had her fees paid on 10 December 2018. Mr Bar-Mordecai in fact asserts that she is lying in saying so and that the transaction took place on 5 December 2018.
This issue is not at all relevant to the issue to be determined on JNF's notice of motion seeking summary judgment for possession of unit 7/79 O'Donnell Street, North Bondi where Mr Bar-Mordecai is residing or has resided. Even if it is assumed in Mr Bar-Mordecai's favour that Ms Rutstein was deliberately providing the wrong date of the transaction, it is not relevant to the issue of whether Mr Bar-Mordecai has an arguable defence to the claim for possession. Even if Mr Bar-Mordecai demonstrated that the event took place on 5 December, that would say nothing about Ms Rutstein's honesty, and Mr Bar-Mordecai says that he wishes to have the bank statements to prove her a liar.
What Ms Rutstein said and did is only relevant to issues which Mr Bar-Mordecai sought to raise in proposed amendments to his defence and in a cross-claim. In my earlier judgment, I determined these issues against Mr Bar-Mordecai. Mr Bar-Mordecai then sought leave, under the Vexatious Proceedings Act, to file a summons in the Court of Appeal, seeking leave to appeal against my decision. That leave was refused by Ierace J on 24 June 2020: Application of Bar-Mordecai [2020] NSWSC 796.
In any event, as Mr Bar-Mordecai makes clear, the date on which the events occurred involving Ms Rutstein in December 2018 is ultimately only a matter which is said to impugn Ms Rutstein's credit. In those circumstances, s 102 of the Evidence Act 1995 (NSW) would appear to preclude the adducing of the evidence sought to be obtained in the Notice to Produce.
There is no prima facie ground to justify the notice to produce, and the application is without reasonable ground. In those circumstances, s 15 of the Vexatious Proceedings Act requires that the application be dismissed.
Accordingly, I make the following orders:
(1) In proceedings 2020/217314:
(a) Refuse leave to institute proceedings.
(b) Dismiss the summons.
(2) In proceedings 2020/217322:
(a) Refuse leave to institute proceedings.
(b) Dismiss the summons.
[2]
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Decision last updated: 11 September 2020
Parties
Applicant/Plaintiff:
Bar-Mordecai
Respondent/Defendant:
The Attorney-General for the State of New South Wales