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[2020] NSWSC 1217

Bar-Mordecai v The Attorney-General for the State of New South Wales (No 2)

(1) In proceedings 2020/229578: (a) Refuse leave to institute proceedings. (b) Dismiss the summons. (2) In proceedings 2020/229550: (a) Refuse leave to institute proceedings. (b) Dismiss the summons.

Catchwords

CIVIL PROCEDURE – vexatious litigants – Vexatious Proceedings Act 2008 (NSW) – leave to institute proceedings – where defendant to possession proceedings issued summonses to amend defences in upcoming motions for summary judgment seeking possession against him – whether applications to amend are vexatious – where previous applications to amend refused - where applicant impliedly seeking to withdraw admissions he made at first instance – where amendments amount to challenges to judgment on earlier amendment applications – where leave refused to appeal against earlier judgment - where applications an abuse of process, instituted without reasonable ground and for a wrongful purpose – leave refused

Cases cited

  • Application of Bar-Mordecai[2020] NSWSC 796
  • Attorney General v Bar-Mordecai[2004] NSWSC 1277
  • Jewish National Fund of Australia Ltd v Bar-Mordecai[2020] NSWSC 384

Legislation cited

  • Vexatious Proceedings Act 2008 (NSW) § 4, 5, 6, 14, 15

Judgment

  1. [1]

    On 6 August 2020 Mr Bar-Mordecai filed two further summonses in relation to proceedings 2019/162728 and 2019/96140. These are two sets of proceedings brought by the Jewish National Fund of Australia (“JNF”) against Mr Bar-Mordecai seeking possession of units 5 and 7 at 79 O’Donnell Street, North Bondi. The background to the proceedings is set out in my judgment of 15 April 2020 in respect of applications by Mr Bar-Mordecai to amend his defences and file cross-claims in each of those proceedings: Jewish National Fund of Australia Ltd v Bar-Mordecai [2020] NSWSC 384.

  2. [2]

    Mr Bar-Mordecai was declared to be a vexatious litigant by Patten AJ on 25 February 2005: Attorney General v Bar-Mordecai [2004] NSWSC 1277. In each case, therefore, he needs leave pursuant to the Vexatious Proceedings Act 2008 (NSW) to bring any notice of motion within those possession proceedings. That is because of the provisions of ss 4, 5 and 6 of the Vexatious Proceedings Act.

  3. [3]

    In respect of proceedings 2019/96140 the proposed amended defence is as follows:

  4. [4]

    The proposed amended defence in relation to proceedings 2019/162728 is as follows:

  5. [5]

    Section 15 of the Vexatious Proceedings Act provides:

  6. [6]

    Section 6 of the Act defines “vexatious proceedings” as follows:

  7. [7]

    The affidavits and submissions prepared by Mr Bar-Mordecai in support of the present summonses were sworn and prepared in May 2020. In that way, they take no account of what has occurred in both sets of proceedings to enable the hearing of the notices of motion by JNF for summary judgment. For example, the submissions say that there have been no interlocutory hearings in the matter and that neither timetables nor hearings have been fixed. While true at the time, that is no longer the position. A number of direction hearings has been held, and motions by JNF have been fixed for hearing on 16 September 2020.

  8. [8]

    The proposed applications suffer from a number of other difficulties. First, the matters raised in the proposed amendments were issues that were canvassed in the earlier notices of motion by Mr Bar-Mordecai that I determined in my judgment of 15 April 2020. Secondly, it is apparent from the submissions in each of the proceedings that the applications to amend are a collateral attack on my judgment of 15 April 2020. For example, the submissions say that I incompetently, without power to do so, and contrary to s 14 of the Vexatious Proceedings Act determined the earlier notices of motion. Subsequent to my judgment, Mr Bar-Mordecai filed two further summonses seeking leave to appeal against my judgment. He raised those same matters in his proposed grounds of appeal and in his submissions in support of those summonses. On 24 June 2020 Ierace J refused leave for Mr Bar-Mordecai to institute proceedings seeking leave to appeal against my judgment and dismissed his summonses: Application of Bar-Mordecai [2020] NSWSC 796. In that way, also, the present summonses are a collateral attack on the judgment of Ierace J.

  9. [9]

    Thirdly, as is apparent from the proposed amendments, Mr Bar-Mordecai effectively seeks to withdraw admissions that he made when he first filed a defence to the statements of claim of JNF seeking possession of the properties.

  10. [10]

    In his earlier application to amend his defences Mr Bar-Mordecai also effectively sought to withdraw admissions that he had earlier made. I discussed that aspect of his earlier application at [102]-[105] of my earlier judgment. Nothing has changed from the position that obtained at that time to justify any reconsideration of the issue of withdrawing admissions.

  11. [11]

    I am satisfied that the present applications identified in the two summonses are an abuse of the process of the Court, are instituted without reasonable ground and are instituted for the wrongful purpose of challenging my earlier judgment in circumstances where an application for leave to appeal has been refused, and for the wrongful purpose of challenging the judgment of Ierace J in refusing leave for Mr Bar-Mordecai to file a summons for leave to appeal to the Court of Appeal.

  12. [12]

    Accordingly, I make the following orders:

Unofficial copy. Source: NSW Caselaw. Refer to the official version for authoritative text.