Bar-Mordecai v The Attorney-General for the State of New South Wales (No. 1)

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:

In proceedings 2020/217322, the orders sought are these:

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:

Section 6 defines “vexatious proceedings” as follows:

The definition of “proceedings” in s 4 includes,

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:

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:

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:

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: