HILLSTON v. BAR-MORDECAI [2002] NSWSC 975

COUNSEL : J. Whittle & B.J. Burke - Plaintiff M. Bar-Mordecai - Defendant in Person SOLICITORS : Shaw McDonald for plaintiff Defendant in Person CATCHWORDS : PRACTICE and PROCEDURE - interlocutory motions - restraint of repeated interlocutory motions - the defendant was restrained from making further interlocutory motions without leave of a Judge. LEGISLATION CITED : Supreme Court Act 1970; s.84 Lord Kinnard v. Field [1905] 2 Ch 306 Grepe v. Loam (1887) 37 ChD 168 Suir v. Newton (1886) 37 ChD 169 Commonwealth Trading Bank v. Inglis (1974) 131 CLR 311 Attorney General v. Wentworth (1998) 14 NSWLR 481 CASES CITED : Yeldham v. Rajski (1989) 18 NSWLR 48 Rajski v. Powell [1987] 11 NSWLR 522 Re JRL: Ex parte CJL (198) 161 CLR 342 at 352 Bainton v. Rajski (1992) 29 NSWLR 539 Carr v. Finance Corporation of Australia Ltd [No. 1] (1981) 147 CLR 246 Brimaud v. Honeysett Instant Print Pty Ltd (McLelland J 19 September 1988) DECISION : See para.18 - restrain defendant from filing Notices of Motion.

003240/98 - ALLAN DAVID JAMES HILLSTON V MICHAEL JACOB BAR-MORDECAI JUDGMENT 1 HIS HONOUR: The plaintiff applies by Notice of Motion filed on 8 May 2002 for orders restraining the defendant until further order from filing or serving any application by Notice of Motion without first obtaining leave from a Judge to bring the application; and further that if any such Notice of Motion is filed and served without leave the plaintiff is not to be required to appear on the return of the Motion and it is to be dismissed without being heard. The kinds of applications referred to are applications for orders (Claim 1) that I disqualify myself from conducting the trial of the proceedings, (Claim 2) that I be removed as the Judge appointed to conduct the trial; (Claim 3) that the defendant be granted leave to file a cross-claim; (Claim 4) that the defendant have summary or immediate judgment on any cross-claim; (Claim 5) that the defendant have judgment for any sum of money allegedly owed to him by the estate of the Late Eveline Hillston; and (Claim 6) that Ms Choo and Mr Cruikshanks, who were appointed by the court to conduct a sale of property, pay out any moneys to the defendant. 2 This application is made under the inherent power of the court to prevent the repetition of interlocutory applications, established by the decision of the Court of Appeal of England in Lord Kinnard v. Field [1905] 2 Ch 306, which followed practice established by earlier cases in which repeated applications had been made after judgment: Grepe v. Loam (1887) 37 ChD 168 and Suir v. Newton (1886) 37 ChD 169 (note). The order affirmed in Kinnard v. Field was in these terms (p308): This Court doth order that the defendant is not to be allowed without the leave of the judge in chambers to make any application under the summons for directions, or to issue any summons on matters of procedure, or to serve any notice of motion to discharge any order in chambers made on any such application as aforesaid, without such leave: And in case he shall, without such leave, serve notice of any such application or summons or notice of motion as aforesaid on the plaintiffs, they are not to attend unless the judge on the return thereof shall so direct; and, unless the judge shall think fit to give such directions, the application shall be dismissed without being heard: And it is ordered that the plaintiffs' costs of this application be borne by the defendant in any event. 3 In the judgment of the High Court of Australia in Commonwealth Trading Bank v. Inglis (1974) 131 CLR 311 the court (Barwick CJ and McTiernan J) considered this practice while deciding a case which did not relate to interlocutory proceedings. The defendant sought to restrain the plaintiff from commencing new proceedings without leave of the court; the High Court held that in the circumstances it did not have power to grant the particular application, but made observations at length on the history of proceedings relating to vexatious litigation and at 319 to 320 expressed the view of case law including Kinnard v. Field that "In our opinion, the cases to which we have referred provide authority for the proposition that there is an inherent power in the court to control the bringing of applications in the course of an action of which the court is seized for the purpose of preventing a party abusing the process of the court. When positive provisions directed to the same end have been made by statute or by rules of court, it may be necessary to consider whether the inherent power has been wholly or partly superseded." 4 In my opinion Kinnard v. Field and Commonwealth Bank v. Inglis are authority for the existence of inherent power in the Supreme Court of New South Wales to the same effect as the power exercised in Kinnard v. Field. This view accords with the opinion of Roden J in Attorney General v. Wentworth (1998) 14 NSWLR 481 at 492B. The reference in Commonwealth Bank v. Inglis to the need to consider the effect of positive provisions directed to the same end directs consideration to s.84 of the Supreme Court Act 1970, which relates to vexatious litigants. The provisions of s.84 are not relied on in this application. They relate to the institution of legal proceedings, and although judicial opinion has not produced an exhaustive statement of what is meant by references to instituting legal proceedings, almost all interlocutory applications are not included, although there may be exceptions, for example where a cross-claim is commenced. On what is meant by the institution of proceedings see Hunters Hill Municipal Council v. Pedler [1976] 1 NSWLR 478 at 488E to 489B. 5 Although the defendant (who appeared in person) did not make any submission relating to the interaction between s.84 and the inherent power, I have considered whether there is any such interaction, having regard the reference in Commonwealth Trading Bank v. Inglis to that possibility, and I am of the view that, although the orders sought extend to restraining making applications for leave to bring a cross-claim, and leave is now necessary, the order would not restrain instituting proceedings by filing a cross-claim but would control the earlier stage of applying for leave to do so, in a way which would make it possible to make the application if the leave of a Judge were first obtained; and s.84 does not deal with control of that kind. Further there is in my opinion no ground for regarding s.84 as intended to operate so as to limit or reduce the inherent power of the Supreme Court of New South Wales to deal with abuse of its process. The Supreme Court Act continues the court as formerly established (s.22) and provides in s.23 "The court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales." Unless grounds for an implication that a provision of the Act was intended to limit inherent jurisdiction were very clear I would not think that the Act should be understood to have been intended to do so. My conclusion is that the inherent power of the court extends to the orders sought with respect to leave to file cross-claims, as well as to the other orders sought, and is not wholly or partly superseded by s.84 of the Supreme Court Act. In Ebert v. Venvil [2000] Ch 484 at 493D the Court of Appeal of England reached a similar conclusion on the continued existence of the inherent power.. 6 The plaintiff's evidence in support of the application has dealt with what happened in a number of earlier interlocutory applications made by the defendant. Several of these, although variously expressed, were applications for me to disqualify myself, or for the court to remove me from hearing these proceedings. For many months I have heard a very long series of directions hearings with a view to making these proceedings ready for hearing, and I have made an appointment for the hearing to commence before me on 9 September 2002; I have set aside six weeks for the hearing. In a Notice of Motion of 5 October 2001 the defendant, among many other orders, asked for an order "8. That Bryson J, the procedural adjudicator in this matter, dismiss himself from the proceedings." After hearing this Notice of Motion I dealt with the applications made in it, including claim 8, in reasons which I gave on 10 October 2001, and dealt with claim 8 among other matters, in paras 23-34; I declined to disqualify myself from participating in the proceedings. By Notice of Motion of 4 March 2002 the defendant among other applications asked in claim 1 for: "(1) An order that Bryson J dismiss himself from these proceedings." I dismissed this application for reasons which I published on 15 March 2002. He again asked for "(3) An order that the Court remove Bryson J from matter No. 3240 of 1998 due to a conflict of interest" in his Notice of Motion of 15 April 2002 and that application was dismissed by Windeyer J who disposed of the application on 30 April 2002 for reasons then stated. His Honour's ruling was (para 16) "That is a matter which has already been considered by Bryson J and should not be considered by me." Mr Bar-Mordecai filed a Notice of Motion on 1 May 2002 seeking a number of orders including, in claim 6, an order that I dismiss myself. He raised this contention on an occasion when he made an application before me on or about 15 May, when I made no ruling, and again on the hearing of the Notice of Motion on 24 May 2002 when I again declined to disqualify myself. 7 The defendant has from time to time supported his applications by affidavits, which have not raised any substantial new matter which was not brought forward and considered in October 2001, except that he has referred to and relied on what he says are the effects of his having made a complaint or complaints against me to the Judicial Commission of New South Wales, and his having on 9 May brought proceedings 20205 of 2002 in the Common Law Division claiming damages against me. He has contended that these circumstances have the effect that I am subject to a conflict of interest which disqualifies me from hearing and determining the proceedings. 8 My view is that his complaints and litigation are not a substantially new turn of events, but a further emanations of his wish that I should disqualify myself from hearing the proceedings. I regard them as lacking in substance and as not truly affecting my interests at all. It is quite clear that I have incurred no liability to Mr Bar-Mordecai; see Yeldham v. Rajski (1989) 18 NSWLR 48, Rajski v. Powell [1987] 11 NSWLR 522. I am mindful that it is my duty to determine matters which come before me and also that it is my duty not to withdraw unless there are reasons which require me to withdraw. See Re JRL: Ex parte CJL (198) 161 CLR 342 at 352 per Mason J: "Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour. 9 See too Bainton v. Rajski (1992) 29 NSWLR 539 at 546 (Mahoney JA). I have no wish or concern about whether I should or should not hear the trial of these proceedings, or any other particular case in the Equity Division as it comes before me, but as a matter of duty I may not allow preferences of litigants for or against my hearing the proceedings to have any effect unless these are reasonable grounds for an apprehension of bias. From what he has told me, Mr Bar-Mordecai has brought many proceedings, against judicial officers and also against lawyers who have participated in proceedings against him. In the circumstances the facts that he has made complaints and brought proceedings against me, which sometimes might move judges to disqualify themselves, have no real weight with me, as I am conscious that my interests are not truly touched by his actions. Like other litigants the defendant is not in a position to control or influence, directly or indirectly, the composition of the court, by filing claims against particular judges or by any other means, and it is my duty to hear proceedings as they come before me. 10 The defendant has also made a number of applications raising questions, not identically formulated but plainly closely related, whether he should immediately receive funds from the estate of the Late Eveline Hillston, before the trial of the proceedings, and as a result of some immediate or summary decision of the court. Sometimes he has raised this question in the form of an application for leave to file a cross-claim: he has made several such applications. It seems that some question of this kind was debated before Cohen J several years ago, although not upon any formal application. I ruled on claim 6 of his Notice of Motion dated 5 October 2001 in my reasons of 10 October 2001; at that time the application was said to be an application for immediate access to the defendant's funds "… that he credited to his former de facto wife Eveline Hillston account being $150,000 with interest from 25.6.94. The debt to be made available to the defendant immediately, out of the funds from the sale of his former Eastbourne Avenue home." He raised the same claim and related claims in claims 4, 6 and 8 of his Notice of Motion of 11 October 2001, and on 26 October 2001 he filed in Court a Notice of Motion seeking repayment to him of mortgage instalments which he paid during Mrs Hillston's lifetime on property in which he claims he had an interest. I dealt with these applications and dismissed them on 26 October 2001. On 27 March 2002 he filed a Notice of Motion seeking among other things "3. That moneys owed to Michael Bar-Mordecai be paid by the estate of the late Eveline Hillston with settlement of accounts instanter" and this claim was considered and dismissed, for reasons then stated, by Barrett J on 8 April 2002. On 15 April 2002 he applied by Notice of Motion for leave to file a cross-claim, and for a summary hearing of the cross-claim; this claim was considered and dismissed by Windeyer J on 30 April 2002, for reasons then published. He made a similar application before me orally on 24 May 2002, and produced a form of cross-claim, which differed from that considered by Windeyer J, but was not in appropriate form to be filed, or treated as a cross-claim, or used in any fair procedure in which another litigant was to be called on to understand and answer a claim against him. The document was confused and incomprehensible, and contained passages which scandalised other persons and passages which could not have had any relation to the proposed cross-claim. 11 All the applications have been dismissed with costs except that Barrett J reserved costs of the application filed on 15 March 2002. The costs are unpaid. 12 Throughout all these applications the ground of the supposed claim against the estate has never been stated in a way which is clear or comprehensible or could be adjudicated on; there have been changes in the statements explaining the grounds and in particular the amount claimed has increased from time to time; overall the increase is very marked, but is not clear what the increase is, or what has led to it. There has never been and in the nature of his applications there could not have been any adverse ruling disposing of the supposed cross-claim; the merits (whatever they are) have never been examined. It has seemed and continues to seem to me that it is possible that if accounts were taken of dealings between Mr Bar-Mordecai and the late Mrs Hillston's estate relating to mortgaged property of which they were co-owners, he may be entitled to some credit; but the basic material from which it could be seen whether or not he is so entitled has never been placed before the court and there has never been an intelligible statement of the basis of his claim. None of the interlocutory applications relating to this claim has been the occasion for final adverse determination; nor is this decision. The question is whether he can continue to make to the court and to involve the plaintiff in applications which are not well formulated but are incomprehensible. 13 The difficulties confronting repeated interlocutory applications raising the same or much the same subject matter, notwithstanding that interlocutory decisions are not res judicatae, have often been recognised. I particularly refer to the observations of Gibbs CJ in Carr v. Finance Corporation of Australia Ltd [No. 1] (1981) 147 CLR 246 at 248 and to Brimaud v. Honeysett Instant Print Pty Ltd (McLelland J 19 September 1988) noted in Ritchie Supreme Court Procedure Vol.2 [13,047], a decision which has often been followed and has shaped the court's practice. The defendant's repeated and futile applications have imposed considerable burdens on the court's time, a resource which is available at public expense, and also on the plaintiff, of whom they have required repeated attendance by legal representatives, and the incurring of large obligations for costs which the defendant has not paid and which, according to repeated statements made by him to the court, he is not in a position to pay. The preparation of the proceedings for hearing and the directions required for that purpose have themselves been complex, and the considerable burden for the plaintiff so involved has been unnecessarily and unreasonably amplified. 14 The defendant contended in answer to the application that his cross-claim was not frivolous; he said to the effect that it was a cross-claim for $1.6m in today's money, and that it was a very serious application by a litigant in person in dire financial straits. He told me that he was under the burden of conducting in person 9 applications against judicial officers and 10 applications of contempt against other persons. He contended that the court had impeded him in various ways in having access to his money, that he has frankly set out all the material, that he is dire financial straits, that he is conducting 14 Supreme Court statements of claim and an appeal and that in these circumstances the cross-claim represents a reasonable application for his own moneys. He contended that the court has been interfering with his liberty and with his access to his moneys. 15 Although the court has a discretion, within narrow limits, to give guidance and assistance to litigants in person, I have formed the view that it is not appropriate to attempt to do so in the present case and in particular, that it is not possible for the court to take any part in settling or formulating the proposed cross-claim, in the absence of any material which could form a basis for understanding in a clear way what is put forward. 16 In the circumstances I am satisfied that there has been abuse of the process of the court in making these repeated applications, that the defendant's course of conduct shows that unless restrained these abuses may well continue, and that this is an appropriate case for the exercise by the court of its inherent power to control interlocutory applications. I regard the order made in Kinnard v. Field as an appropriate model, bearing in mind that the defendant ought not to be prevented from making a proper application and that I have been given indications which lead me to suppose, although by no means clearly, that there may be something for him to put forward in a cross-claim, if he should formulate it clearly. 17 A further matter which has inclined me towards imposing control on the defendant is that his affidavits, notices of motion and oral submissions have many times departed from dealing with facts relevant to the business in hand to make scandalous assertions about lawyers, witnesses and other persons, attributing to them perjury, contempt of court and other forms of wrong conduct. Applications and documents containing scandalous matter should not be placed on the court's file unless the scandalous matter truly is required by the business in hand. The point has been reached where control on the defendant's conduct of this kind should be imposed. 18 My order follows generally the order in Kinnard v. Field [1905] 2 Ch at 308 and is:

At a glance

Court

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Judgment (9 paragraphs)

Cases Cited (5)