Mr Michael Bar-Mordecai (the applicant) is currently subject to an order made by Fagan J on 2 November 2018, pursuant to the Vexatious Proceedings Act 2008 (NSW) ("the VPA").
That order is as follows:
Pursuant to s 9(1) of the Vexatious Proceedings Act 2008 (NSW) I vary order 1 made by Patten AJ on 25 February 2005 by removing the words "in any court" and adding the words "in New South Wales" so that the order as amended reads "That Michael Jacob Bar-Mordecai shall not, without leave of this Court, institute proceedings in New South Wales".
As can be seen, the order continued, and expanded upon, an order restricting the rights of the applicant as a litigant that had been made by an Acting Judge of this Court as long ago as in 2005.
Pursuant to Part 3 of the VPA, the applicant has made an application for leave to institute proceedings against a solicitor whose office is located in the eastern suburbs of Sydney ("the proposed defendant").
The relevant portions of the VPA are as follows:
14 Application for leave to institute proceedings
(1) This section applies to a person (the applicant) who is:
(a) subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or
(b) acting in concert with another person who is subject to an order referred to in paragraph (a).
(2) The applicant may apply to an appropriate authorised court for leave to institute proceedings that the order would otherwise prohibit the person from instituting.
(3) The applicant must file an affidavit with the application that:
(a) lists all occasions on which the applicant has applied for leave:
(i) under this section, or
(ii) before the commencement of this section - as required by an order under section 70 of the Land and Environment Court Act 1979 or section 84 of the Supreme Court Act 1970, and
(b) lists all other proceedings the applicant has instituted in Australia, including proceedings instituted before the commencement of this section, and
(c) discloses all facts material to the application, whether supporting or adverse to the application, that are known to the applicant.
(4) The applicant must not serve a copy of the application or affidavit on any person unless:
(a) an order is made under section 16 (1) (a), and
(b) the copy is served in accordance with the order.
(4A) An authorised court may decline to consider an application made under this section if the court is not satisfied that the application is materially different from an earlier application under this section that was dismissed under section 15 (1) (b) or (c).
(5) An appropriate authorised court may dispose of the application by:
(a) dismissing the application under section 15, or
(b) granting the application under section 16.
(6) Despite any other Act or law, the applicant may not appeal from a decision disposing of the application.
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.
The applicant has filed a folder of documents. They include a summons seeking the necessary leave pursuant to the VPA, and an affidavit of himself with a large number of annexures. Those annexures in turn include a draft statement of claim, some written submissions in support of leave (the applicant is unrepresented), correspondence between the applicant and the proposed defendant, and affidavits of a number of persons, including the proposed defendant.
He has also filed a further affidavit entitled "The Plaintiff's 14C Affidavit 1". That affidavit extends over 11 pages, and refers to over 30 proceedings in which the applicant has been a party, many of which are unsuccessful applications for leave pursuant to the VPA.
[2]
Background
To state my understanding very succinctly, the proposed claim of the plaintiff is as follows.
His elderly female cousin died in January 2019. Prior to her death, the applicant held a power of attorney from his cousin. She wished to transfer some real property to the applicant. The applicant engaged the proposed defendant to give effect to her desire, though whether that was assertedly done on his own behalf or as attorney for his cousin is not clear.
The proposed defendant was tasked by the applicant with attending on the cousin - who was then living in a dementia unit at a residential care facility in a suburb of Sydney - and having her complete a document of transfer of real property to the applicant. In the event, that did not take place; instead, the proposed defendant put a line through the portion of the document which spoke of the plaintiff as the transferee.
The ultimate result was that no real property was transferred to the applicant by his cousin before her death. Nor did it pass to the applicant pursuant to her will.
The foreshadowed claim of the plaintiff against the proposed defendant is that the latter acted negligently and in breach of contract, to the financial detriment of the applicant. The nub of the purported liability is the failure to effect the transfer, and indeed the crossing out of the reference to the applicant in the document. The nub of the quantum is the value of the real property that was never transferred to the applicant.
[3]
Determination
As can be seen from s 14 of the VPA, the plaintiff must file affidavit evidence with the following attributes. First, it must list all of the occasions upon which the applicant has applied for leave pursuant to the VPA or its predecessors. Secondly, it must list all other proceedings that the applicant has instituted in this country, at any time. Thirdly, it must disclose "all facts material to the application, whether supporting or adverse to the application, that are known to the applicant".
In the absence of any material to the contrary, and without being in a position to check independently the accuracy and completeness of the further affidavit, I proceed - for the sake of this preliminary ex parte stage only - on the basis that the first two statutory requirements have been fulfilled.
It is clear, however, that the third requirement - disclosure of all facts material to the application that are known to the applicant - has not been complied with. That is because the applicant has not provided a copy of the judgment of Davies J in Jewish National Fund of Australia Ltd v Bar-Mordecai [2020] NSWSC 384. Nor has he invited specific attention to that judgment itself in any other way. Nor has he made any submission whatsoever as to any legal or other consequences that that judgment may bear with regard to these proposed proceedings; in particular for the purposes of s 15(1)(b) and (c) of the VPA.
That judgment, delivered on 15 April 2020, is replete with references to previous efforts by the plaintiff to make a legally and factually similar if not identical claim in this Court against the proposed defendant: see [6], [13.8], [18], [19], [20.13], [21], [32], [34], [36], [57], [58]-[66], [114], [119], and [120]. Furthermore, the judgment is entirely adverse to the plaintiff with regard to the legal and factual findings of his Honour.
A subsequent judgment, Application of Bar-Mordecai [2020] NSWSC 796, delivered by Ierace J on 24 June 2020, is a refusal to grant leave pursuant to the VPA to institute an appeal against the judgment under discussion. It postdates the application before me, and accordingly in my opinion is not strictly captured by the requirements of s 14 of the VPA.
In my opinion, the fact of the delivery of the earlier judgment on 15 April 2020, the orders made pursuant to it, and the reasons therefor - dealing as the judgment does with a recent, prior, unsuccessful attempt by the plaintiff to obtain relief against the proposed defendant, arising from the same or substantially the same set of facts - certainly constitute facts material to the application. It is surely adverse to the application. And it is inconceivable that that judgment was not known to the applicant at the time of the filing of the application for leave, the summons of which was signed by him on 18 June 2020.
It is quite true that, in his second affidavit, the applicant made bald and generic reference to the litigation in which that judgment was delivered. He also referred in his written submissions to that litigation, and indeed filed an affidavit of the proposed defendant sworn for its purposes.
But in my opinion, that is by no means sufficient compliance with s 14(3)(c) of the VPA. It was incumbent upon the applicant to invite attention specifically to that judgment, and to provide it within affidavit evidence. And whether that failure to disclose material facts in support of an application pursuant to the VPA may perhaps have been as a result of ignorance of the law, dishonesty, oversight, negligence, a psychological impairment, or any other state of mind is, in my opinion, irrelevant: an essential statutory attribute of the application for leave is missing, for whatever reason. And as I have said, its omission has the important practical consequence that the applicant has made no submission whatsoever about what effect that judgment could or should have upon whether the leave sought should be granted.
[4]
Conclusion
For the preceding reasons, I make the following order:
1. Leave to institute proceedings refused.
[5]
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Decision last updated: 07 October 2020