Application by Bar-Mordecai

1. [1]

   HIS HONOUR: Mr Michael Bar-Mordecai (“the applicant”) is a vexatious litigant, having been made subject in 2005 to an order of this Court prohibiting him from instituting proceedings in any court, without the leave of the Court: Attorney General v Bar-Mordecai [2005] NSWSC 142. On 2 November 2018, that order was varied by Fagan J such that the applicant was prohibited from instituting proceedings “in New South Wales” without the leave of the Court: Attorney General for NSW v Bar-Mordecai [2019] NSWSC 13. The order has effect as a vexatious proceedings order pursuant to s 8(7) of the Vexatious Proceedings Act 2008 (NSW) (“the Act”).

2. [2]

   On 19 March 2019, in matter number 2019/86784, the applicant filed a summons seeking leave in accordance with s 14(2) of the Act to institute proceedings by filing a Notice of Appeal in the Court of Appeal against orders (“the orders”) made by the Guardianship Division of the NSW Civil and Administrative Tribunal (“NCAT”) constituted of J Connelly, Senior Member (Legal), J McAuliffe, Senior Member (Professional) and Dr M Spencer, General Member (Community) on 24 January 2019 (“the proceedings”).

3. [3]

   Section 14 of the Act is in the following terms:

4. [4]

   Section 15 of the Act outlines the circumstances in which an application for leave to institute proceedings must be dismissed, as follows:

5. [5]

   Section 16 of the Act outlines the power of the Court to grant an application for leave, as follows:

6. [6]

   The orders were in the following terms:

7. [7]

   Prior to the Court determining the application for leave for the filing of the notice of appeal in accordance with ss 15 and 16 of the Act respectively, on 30 May 2019, the applicant filed a document entitled “Notice of Discontinuance matter no. 2019/86784” (“the Notice”).

8. [8]

   While the Notice was not in the proper form of a notice of discontinuance as dictated by r 12.1 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), it is appropriate in the circumstances to waive strict compliance with the rule. The applicant was self-represented and the Notice was largely in the correct form.

9. [9]

   By the Notice, the applicant sought, inter alia, the following:

10. [10]

    The applicant thus sought to discontinue the summons filed 19 March 2019.

11. [11]

    Rule 12.1 of the UCPR, inter alia, confers power to discontinue proceedings in the following terms:

12. [12]

    The discontinuance of the application for leave under s 14(2) of the Act plainly falls within the scope of r 12.1. The term “proceedings” is not defined under the UCPR but is used in a broad way in the UCPR. The scope of the term proceedings, when used in such a broad sense, was relevantly discussed by the Industrial Court of NSW in Hunter Quarries Pty Ltd v Morrison (No 4) [2016] NSWIC 4 (at [69]-[73]) as follows:

13. [13]

    The term “any proceedings” in r 12.1 of the UCPR is therefore to be construed broadly as to encompass the present application to discontinue. The application to discontinue the summons is clearly a step in the process commenced by the summons, as distinct from the summons itself.

14. [14]

    Having found that the application falls within the scope of r 12.1 of the UCPR, I further note that there are sufficient reasons for the Court to grant leave to discontinue under r 12.1(1)(b) of the UCPR. The applicant is the only active party in the proceedings and, as mentioned above, is self-represented. I do not consider that the summons, or at least a significant part of it, attracts the operation of s 15 of the Act.

15. [15]

    I therefore grant leave to the applicant under r 12.1(1)(b) of the UCPR to discontinue the summons filed 19 March 2019.

16. [16]

    By the Notice, the applicant also sought an order for “the returning of the filing fee to the applicant, Michael Bar-Mordecai post haste”. It was not entirely clear which filing fee the applicant wished to be returned. Nevertheless, it is not appropriate for this Court to determine whether such a step should be taken. Rather, any application should be directed to the Court Registry.

Order

1. [17]

   Leave granted to discontinue the summons filed 19 March 2019 in matter number 2019/86784.