Bar-Mordecai v Health Care Complaints Commission

1. [1]

   HIS HONOUR: By his summons filed on 1 October 2024, Michael Bar-Mordecai seeks leave to file a statement of claim in the NSW Civil and Administrative Tribunal (NCAT).

2. [2]

   The statement of claim names five defendants:

   1. (1)

      The Health Care Complaints Commission (HCCC);

   2. (2)

      The Medical Council of NSW;

   3. (3)

      David Swain;

   4. (4)

      Frances Zaharias;

   5. (5)

      Nicole Lawless.

3. [3]

   The relief claimed includes punitive damages against the first defendant for failing to investigate a conspiracy and fraud allegedly perpetrated by the third defendant and others in what is described as the “Bar-Mordecai-Zaharias” matter.

4. [4]

   Also sought is an order that the decision of the Medical Tribunal of 6 September 2000 be set aside on the basis it was procured by a conspiracy and fraud of the HCCC.

5. [5]

   Mr Bar-Mordecai is currently subject to an order made by Fagan J on 2 November 2018, pursuant to the Vexatious Proceedings Act 2008. That order is as follows:

6. [6]

   Pursuant to s 14(2) of the Act, Mr Bar-Mordecai may apply to an appropriate authorised court for leave to institute proceedings that the order would otherwise prohibit him from instituting.

7. [7]

   Section 14(3) of the Act provides that Mr Bar-Mordecai must file an affidavit with the application. That sub-section is as follows:

8. [8]

   By s 15 of the Act, an appropriate authorised court must dismiss an application made under s 14 for leave to institute proceedings if it considers –

   1. (1)

      The affidavit required by s 14(3) does not substantially comply with that subsection, or

   2. (2)

      The proceedings are vexatious proceedings, or

   3. (3)

      There is no prima facie ground for the proceedings.

9. [9]

   Mr Bar-Mordecai has filed an affidavit purportedly in compliance with s 14 dated 1 October 2024. The affidavit lists 39 previous occasions when he has sought leave to commence proceedings pursuant to the Act. The affidavit sets out a number of applications made prior to the commencement of the Act and all other proceedings instituted by Mr Bar-Mordecai in Australia.

10. [10]

    In relation to the first category of proceedings in which Mr Bar-Mordecai sought leave to commence proceedings under the Act, the last of those matters in date order is the matter of Schwarz v Bar-Mordecai (2007/146343) in which Garling J granted leave on 13 September 2013: see Bar-Mordecai v Attorney-General of NSW [2013] NSWSC 1303.

11. [11]

    However, the affidavit fails to mention at least two more recent applications for leave:

    1. (1)

       Application of Bar-Mordecai [2020] NSWSC 1334 (Button J).

    2. (2)

       Application of Bar-Mordecai [2020] NSWSC 796 (Ierace J).

Decision

1. [12]

   In my opinion, Mr Bar-Mordecai’s application should be dismissed under s 15(1)(a) of the Act because he has failed to comply with the requirements of s 14(3) as there are at least two recent decisions of the Supreme Court which involve a refusal to grant leave which have not been included in the supporting affidavit. The affidavit therefore does not substantially comply with s 14(3).

Further Basis

1. [13]

   However, under s 15(1)(b), the Court must also dismiss the application if the proceedings are vexatious proceedings.

2. [14]

   I note that in Application of Michael Bar-Mordecai [2013] NSWSC 1265, Garling J said:

3. [15]

   Noting the relief sought in the current proposed statement of claim seeks yet again to agitate decisions made in the Medical Tribunal, I am of the view that such claims are clearly vexatious.

4. [16]

   For the reasons above, the application must be dismissed.