Michael Bar-Mordecai v John Bryson; Michael Bar-Mordecai v Clifford Einstein; Michael Bar-Mordecai v Paul Stein & 2 ors; Michael Bar-Mordecai v Harvey Cooper & 3 ors.

Supreme Court of NSW|2002-09-06|Before: Dowd J, Bryson J, Einstein J, Sheller JA, Giles JA, Stein JA, Re Einstein J, John Bryson J, Clifford Einstein J, Paul Stein J, Charles Sheller J, Roger Giles J

CITATION : Michael Bar-Mordecai v John Bryson; Michael Bar-Mordecai v Clifford Einstein; Michael Bar-Mordecai v Paul Stein & 2 ors; Michael Bar-Mordecai v Harvey Cooper & 3 ors. [2002] NSWSC 815 FILE NUMBER(S) : SC 020205/02; 020209/02; 020229/02; 020231/02 HEARING DATE(S) : 20/08/02 JUDGMENT DATE : 6 September 2002

Michael Bar-Mordecai The Hon. Justice John Bryson The Hon. Justice Clifford Einstein The Hon. Justice Paul Stein PARTIES : The Hon. Mr Justice Charles Sheller The Hon. Justice Roger Giles His Honour Judge Harvey Cooper John Woodforde John Richards Moira Brophy JUDGMENT OF : Dowd J at 1

13 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

020205/02 Michael Bar-Mordecai v John Bryson 020209/02 Michael Bar-Mordecai v Clifford Einstein 020229/02 Michael Bar-Mordecai v Paul Stein & 2 ors 020231/02 Michael Bar-Mordecai v Harvey Cooper & 3 ors

JUDGMENT 1 HIS HONOUR: The plaintiff, who uses the title, "Dr." Michael Bar-Mordecai, commenced proceedings in this division of the court respectively against: Bryson J (proceedings 20205/2002); Einstein J (proceedings 20209/2002); Sheller JA, Giles JA and Stein JA (proceedings 20229/2002); and Cooper DCJ, John Woodforde, John Richards and Moira Brophy (proceedings 20231/2002). 2 Each of the judges of this Court and the Court of Appeal have been sued in their capacity as judicial officers in the proceedings brought in the Supreme Court by the plaintiff. The Judges of Appeal constituted the Court of Appeal in an appeal by the plaintiff from a decision of Einstein J. Subsequent application for special leave to appeal to the High Court from that decision of the Court of Appeal was also dismissed. 3 Judge Cooper and the other three persons were members of a Medical Tribunal and were sued following a decision affecting the plaintiff when sitting as a Medical Tribunal. That decision was the subject of an appeal which was dismissed by the Court of Appeal differently constituted from the proceedings above. 4 Each of the defendants above have sought orders dismissing, or permanently staying, proceedings commenced against them by the plaintiff.

5 Each of the Statements of Claim sought to be struck out, contain considerable portions of the evidence and argument in the respective proceedings referred to in the Statement of Claim. I will briefly set out the more cogent of the allegations made against each of the defendants. Re Einstein J 6 The proceedings by the plaintiff against Einstein J, alleged that Einstein J had sat in the Probate Division of the court and adjudicated proceedings in which the plaintiff appeared in person. Those proceedings, commencing in December 1997 and proceeded until September 1998, and inter alia concerned an alleged de facto relationship of the plaintiff with the late Eveline Hillston. During the course of the proceedings the plaintiff alleged that Einstein J had made findings which the plaintiff contended were not possible on the evidence. 7 The plaintiff also made allegations of a personal nature concerning the judge's personal life and that Einstein J had known the plaintiff many years before. The plaintiff alleged that as a result of the adjudication and findings of Einstein J that the plaintiff was depressed and had attempted suicide and that as a result of the judgment given by Einstein J in the proceedings the plaintiff's home and surgery were sold. 8 The plaintiff made numerous criticisms in the Statement of Claim concerning the conduct of Einstein J in the proceedings and alleged the Judge had made findings that were contrary to the facts and the plaintiff alleged that the plaintiff sustained physical and psychological injuries and that he had suffered aggravated depression and reduced life expectancy and had to undergo medical treatment as a result of the conduct of Einstein J. 9 In an affidavit, relied on by the plaintiff in the proceedings, the plaintiff made a series of detailed allegations against Einstein J in relation to his conduct on the Bench and the way in which he treated the plaintiff and because of that conduct that Einstein J could not rely on the doctrine of judicial immunity.

Re Bryson J 10 The plaintiff in his Statement of Claim against Bryson J alleged that Bryson J adjudicated proceedings concerning monies held in trust by the estate of Eveline Hillston. The plaintiff further alleged that subsequent to an attempted suicide by the plaintiff and the depression from which the plaintiff suffered that Bryson J had arranged with the legal representatives of the Hillston estate to have the suit listed in October 2001 in the plaintiff's absence and that the plaintiff on ascertaining this put on a number of motions seeking the return of monies from the estate of Eveline Hillston and seeking to dismiss Bryson J for perversion of the course of justice, bias and judicial incompetence. 11 The plaintiff alleged that in the conduct of the proceedings by the representatives of the estate, Bryson J had failed to insist on the attendance of the plaintiff. The plaintiff further said that a complaint was lodged against Bryson J with the Judicial Commission of New South Wales alleging judicial incompetence and that, on that basis, Bryson J was no longer able to adjudicate proceedings because of a conflict of interest and that Bryson J had refused to discharge himself from hearing the suit. 12 The plaintiff alleged a series of failures by Bryson J to properly conduct the proceedings concerning the sale of the plaintiff's property and failed to explore other avenues to resolve the matter, including allegations of witness perjury of which Bryson J was advised by the plaintiff on a number of occasions and that Bryson J had continued to make inappropriate orders and directions in the management of the proceedings and that as a result of the negligence and intransigence of Bryson J that the plaintiff had suffered physical and psychological injuries, disability and expense and thus claimed damages against Bryson J.

Re Stein JA, Sheller JA and Giles JA 13 The Statement of Claim alleged that the three defendants were the judges who heard the appeal from Einstein J of the probate proceedings referred to above. The plaintiff alleged that the judges of the Court of Appeal had made no effort to read the plaintiff's submissions and were negligent in the discharge of their duties which led to a perversion of the course of justice. 14 The plaintiff further alleged that the Court of Appeal was presented with extensive written submissions concerning the conduct of Einstein J in the Probate Court proceedings and the judges of the court failed to read and apprehend the submissions made to them and relied on uncorroborated inferences and assertions by the trial judge and that they relied on the trial judge's alleged bias and derogatory estimation of the plaintiff. The plaintiff listed a series of findings of Einstein J and made a series of assertions that the Judges of Appeal should have made findings contrary to that of Einstein J. 15 The plaintiff contended that the Judges of Appeal had failed to make findings themselves and that they had displayed judicial incompetence and negligence in following the findings of the trial judge and that the Court of Appeal should have set aside the findings of the trial judge and that the Judges of Appeal maliciously and wilfully made findings inconsistent with common sense and omitted evidence in their judgment. 16 The plaintiff further alleged that the judges of the Court of Appeal subjected the plaintiff, by their judgment, to public ridicule and humiliation with their findings and orders and the cost of the litigation. 17 The plaintiff further alleged that the Judges of Appeal were guilty of judicial incompetence, bias, fraud, contrivance and suppression of evidence and that the plaintiff, as a result, suffered physical and psychological damage and incurred expense and had disabilities inflicted on him and suffered economic loss.

Re Cooper DCJ, John Woodforde, John Richards and Moira Brophy 18 The Statement of Claim issued against each of these defendants contended that Cooper DCJ was a judicial officer of a Medical Tribunal of which the other defendants were members, before which the plaintiff appeared as a litigant in person in respect of proceedings brought by the HCCC (Health Care Complaints Commission). The plaintiff alleged that the defendants made findings against common sense and the weight of the evidence and omitted important evidence and that the defendants had made provision for the press to publish unsustainable, vilifiable allegations against the plaintiff and made findings contrary to the evidence presented before them. 19 The plaintiff alleged that the defendants were negligent in the discharge of their duty of care in making findings concerning the plaintiff's alleged de facto relationship with the deceased Eveline Hillston. 20 The plaintiff further set out a large part of the evidence before the Medical Tribunal and that the members of the Medical Tribunal had made findings inconsistent with the evidence and were negligent in the discharge of their duties, and that the judgment of the defendants was contrived and a denial of natural justice as a result of which the plaintiff suffered damage, injury, disabilities and out of pocket expenses as set out in the previous Statements of Claim.

The defendants' motions 21 Each of the judicial officers including Cooper DCJ sought to have each Statement of Claim struck out as it is submitted the Statements of Claim disclose no reasonable cause of action and have a tendency to cause prejudice or embarrassment and alternatively that the proceedings should be stayed as not disclosing a reasonable cause of action and are thus an abuse of process and that summary judgment be entered for the defendant. 22 By Notice of Motion John Woodforde, John Richards and Moira Brophy seek to have the Statement of Claim struck out as against each of them, it being submitted that the Statement of Claim discloses no reasonable cause of action and has a tendency to cause the defendants prejudice or embarrassment and is otherwise an abuse of the process of the Court.

The defendants' submissions 23 It is submitted on behalf of each of the judicial officers that the Statements of Claim against each of them show that they are being sued solely in respect of their judicial functions and, as such, each of the defendants is immune from suit and thus the proceedings should be struck out on that ground. It is submitted that there is no doubt about the existence of judicial immunity. 24 It is submitted on behalf of the non-judicial in the Medical Tribunal proceedings that as Cooper DCJ is a judicial officer and has statutory immunity under s151 of the Medical Practitioners Act 1938 that the other members of the Medical Tribunal, although not subject to statutory protection are subject to appeal rights and that it is an abuse of process to bring proceedings by way of negligence that would re-litigate the finding of the Medical Tribunal and the subsequent appeal to the Court of Appeal from that Tribunal's findings and as such the Statement of Claim should be struck out as an abuse of process.

The plaintiff's submissions 25 The plaintiff submitted that judicial immunity has not been the subject of a binding decision of the High Court of Australia and that it is for the benefit of the public that judges should no longer be able to exercise functions without fear of consequences, as judicial immunity is a nineteenth century concept and that the doctrine that members of the judiciary may be intimidated, where charges of malice or corruption are brought against them, is an affront to modern public attitudes on accountability and that, in any event, a judge lacking jurisdiction, such as Einstein J, where the plaintiff said he exceeded that jurisdiction, did not act in good faith and, therefore, has no judicial immunity. 26 The plaintiff further submits that there is no statutory immunity against the members of the Medical Tribunal and, as such, any impediment placed in the path of a negligence suit against the defendants is a denial of natural justice and that it is oppressive and a denial of natural justice that the Tribunal's findings of fact were not appellable and as such the plaintiff's proceedings by way of Statement of Claim is an appropriate avenue of litigation. 27 The plaintiff made a series of allegations of conspiracy against the various judicial officers and says that Bryson J has refused to dismiss himself from ongoing litigation notwithstanding that the plaintiff alleges is a conflict of interest by Bryson J. 28 The plaintiff in his written submissions conceded that each of the defendants being judicial officers are immune from prosecution but said that previous case law has been, over the centuries, to protect incompetent and corrupt judicial officers and that new precedents must be invoked where there has been a purposeful and malicious perversion of the course of justice and that judges who pervert the course of justice in bad faith should be held accountable for their misdemeanours and that the Australian community will not tolerate such conduct and that the defendants should be accountable under the law.

Analysis of the law 29 As can be seen from the pleadings, briefly referred to earlier in this judgment, each of the judicial defendants are being sued solely in respect of their judicial functions. 30 The existence of judicial principles were recently set out in a number of decisions of this court. I particularly refer, as submitted by the defendants, to the decision of Rajski v Powell (1987) 11 NSWLR 522 at 534-535 per Kirby P when he stated: Although these arguments were forcefully pressed upon the Court, there are a number of reasons why they cannot be accepted. The first is to be found in the history of the principle of judicial immunity. Although it has not been the subject of a binding holding of the High Court of Australia, a number of cases in that Court make it plain that the principle is accepted in this country to be as full and ample as it has been stated to be in England: see, eg, Gibbons v Duffell (1932) 47 CLR 520 at 524 and Cabassi . Indeed, it is a principle which appears to be fundamental to all the jurisdictions of the common law. As has been demonstrated, it is clearly accepted and repeatedly applied in England. It has been applied in New Zealand: see Nakhla . It is settled law in Canada: see, eg, Clendenning and Board of Police Commissioners for City of Belleville (1976) 75 DLR 3d 33; Morier v Rivard (1985) 23 DLR (4th) 1. It is also clearly established by many case in the United States of America both in Federal and State courts: see Corpus Juris Secundum , vol 48A, par 86. It is perhaps most clearly stated in that country in the words of Warren CJ in Pierson v Ray 386 US 547 at 553-554 (1967):

"… Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as this Court recognized when it adopted the doctrine, in Bradley v Fisher , 13 Wall 335 (1872). This immunity applies even when the judge s accused of acting maliciously and corruptly, and it is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear or consequences. ( Scott v Stansfield LR 3 Ex 220, 223 (1868), quoted in Bradley v Fisher at 350). It is a judge's duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation." 31 In that same case, I also set out the decisions of Priestley JA with whom Hope JA agreed at 538-539 as follows: The defendants' submission was simple. It said that the statement of claim made it quite clear that the proceedings were brought against Powell J for matters allegedly done by him as a judge hearing proceedings in the Supreme Court, that in carrying out the functions of a judge in hearing such proceedings he was immune from the claims made against him; and the Attorney-General both consequently and for completely independent reasons could have no liability to Dr Rajski either. The submissions of the defendants are supported by authorities stretching from the Year Books (see Floyd v Barker (1607) 12 Co Rep 23; 77 ER 1305) to the present day. The need for and recognition of judicial immunity have been upheld or acknowledged in the House of Lords (eg Miller v Hope (1824) 2 Sh CSc App 125, Everett v Griffiths [1921] 1 AC 631, the Privy Council (eg Maharaj v Attorney-General of Trinidad and Tobago (No. 2 ) [1979] AC 385) and the High Court of Australia (eg Gibbons v Duffell (1932) 47 CLR 520 at 524, 525 and 528 and Cabassi v Vila (1940) 64 CLR 130 at 139 and 140). The rule for which the defendants contend in the present case has in past decisions been stated very shortly. Typical is what was said by Aickin J in an unreported decision, Durack v Gassior (High Court of Australia, 13 April 1981): "…No action may be brought under our legal system against judges for acts done in the course of hearing or deciding cases which come before them." … The cases also show two very practical reasons why the rules concerning judicial immunity have for so long been a part of the law. They are to prevent the possibility of litigation being drawn out indefinitely by an unsuccessful party and to ensure that judges can decide issues before them without pressure being put on them by the litigants threatening that the decision of issues one way or the other will lead to the disappointed litigant seeking damages from the judge in further proceedings by that litigant against the judge personally. … In the case presently before the Court the complaints in the statement of claim are all directed to things allegedly said and done by Powell J while hearing proceedings in the Commercial List of the Common Law Division of this Court. I understand the particulars given in par 4 of the statement of claim to be particulars of Powell J's alleged abuse of power in the course of hearing those proceedings. The judicial immunity rule, applicable to such a case, which is based not on lack of jurisdiction but alleged abuse of it in my opinion means that Dr Rajski has shown no cause of action in his statement of claim against Powell J". 32 In Yeldham v Rajski (1989) 18 NSW LR 48, Kirby P said at 52: The notion that the claimant should be rendered liable to legal process by the opponent in respect of his performance of acts done within jurisdiction as a judge of the Supreme Court seems, on its face, a surprising one. It is a hallmark of our legal system, inherited from England, that at least judges of superior courts, in the performance of judicial functions, are immune from suit in respect of them. Such immunity is grounded in high public policy, designed to ensure that, in the performance of their judicial functions, such judges may act fearlessly and without the harassing concern that they will be made personally liable for the performance of their functions before another judge at the suit of a person disgruntled by the decision. 33 The doctrine of judicial immunity was also endorsed by Hope AJA and Priestley JA in those proceedings. 34 The Court of Appeal in Wentworth v Wentworth (2001) 52 NSWLR 602 applied and confirmed the two decisions referred to, as did Adams J in Bhagat v Young [2002] NSWSC at 331. See also Re East and Others; Ex Parte Nguyen (1998) 196 CLR at 354; and Rippon v Chilcotin 53 NSWLR 198. As against each of the judicial officers, including Cooper DCJ, I find that the doctrine of judicial immunity clearly applies and nothing has been put before me that would suggest that the doctrine doesn't or that it shouldn't. The Statements of Claim, therefore, disclose no cause of action.

The proceedings concerning the members of the Medical Tribunal 35 As set out above, the proceedings for the Medical Tribunal were the subject of an appeal to the Court of Appeal which was unsuccessful. The proceedings by way of Statement of Claim against the members, therefore, constitute a re-litigation of the issues determined by the Tribunal as well as the Court of Appeal in its decision in the appeal from the Tribunal's decision. 36 In Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 cited with approval (at 412-413) a passage from the judgment of French J in Sea Culture International Pty Limited v Scoles (1991) 32 FCR 275: "The possible varieties of abuse of process are only limited by human ingenuity and the categories are not closed. … An attempt to litigate in the court a dispute or issue which has been resolved in earlier litigation in this or another court or tribunal may also, according to the circumstances, constitute an abuse of process even if not attracting the doctrines of res judicata or issue estoppel. Underlying the power that courts have assumed to stay or dismiss proceedings for abuse of process is a policy of preventing waste of judicial resources and their use for purposes unrelated to the determination of genuine disputes. There is, in my opinion, another element to be considered and that is the necessity to maintain confidence in and respect for the authority of the courts." 37 I agree with the submission that the proceedings brought against the members of the Medical Tribunal are an attempt to re-litigate the issues, the subject of the Tribunal finding and the appeal from that finding and I consider those proceedings to be an abuse of process as a collateral attack on a decision otherwise than by way of appeal. 38 I have also considered Reichel v Bishop of Oxford (1889) 14 app Cas 665. Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 542 A-D applied that principle. See also Darker v Chief Constable of the West Midlands Police [2000] 3 WLR 747 at 761. The various allegations made in the Statement of Claim against members of the Medical Tribunal deal with a series of findings by that Tribunal and a series of fact allegations made by the plaintiff and each of them seeks to re-litigate issues already determined either before Einstein J or the Tribunal. 39 As I am of the view that the Statements of Claim in each of the proceedings disclose no reasonable cause of action and have a tendency to cause prejudice or embarrassment that the appropriate order pursuant to Pt 15 r 26 SCR that each of these Statements of Claim should be struck out. 40 In the light of the striking out of the Statements of Claim it seems to me the proper order, is that each of the suits be dismissed. 41 As the defendants have been successful in their applications I can see no basis for making an order other than that the plaintiff pays each of the defendant's costs. I see no basis for making any order that the costs be other than a conventional order for costs. No matter how unusual the plaintiff's view may be of the law, I consider that he believed in his entitlement to bring the proceedings. 42 I, therefore, make the following Orders:

That the Statements of Claim in each of the proceedings against: - Bryson J; - Einstein J; - Stein JA, Sheller J, Giles J; and - Cooper DCJ and John Woodforde, John Richards and Moira Brophy

be struck out and the suits dismissed. 2. That with respect to the Notices of Motion that the plaintiff pays the defendants' costs in respect of each Notice of Motion. 3. That the plaintiff pays each of the defendant's costs in each of the four proceedings. **********

Last Modified: 09/27/2002 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.

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