Attorney General v Bar-Mordecai [2005] NSWSC 142 (25 February 2005)

Last Updated: 23 March 2005

NEW SOUTH WALES SUPREME COURT

CITATION: Attorney General v Bar-Mordecai [2005] NSWSC 142



CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): 10622/04

HEARING DATE{S): 16/11/04
18/11/04
19/11/04

JUDGMENT DATE: 25/02/2005

PARTIES:
Attorney General in and for the State of NSW
Michael Jacob Bar-Mordecai

JUDGMENT OF:

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
Mr D Officer QC / Mr R C Titterton - Plaintiff
Mr M Bar-Mordecai in person - Defendant

SOLICITORS:
I V Knight - Plaintiff
Defendant in person


CATCHWORDS:


ACTS CITED:
Supreme Court Act
Family Provision Act
Conveyancy Act
Corporations Act
Medical Practice Act

DECISION:
1. That Michael Jacob Bar-Mordecai shall not, without leave of this court, institute proceedings in any court.
2. That any legal proceedings instituted by Michael Jacob Bar-Mordecai, in any court before the date of this order shall not be continued by him without leave of this court.
3. That Michael Jacob Bar-Mordecai pay the costs of these proceedings.
4. The exhibits may be returned.
5. That Michael Jacob Bar-Mordecai give not less than 3 days notice to Crown solicitor of any application to institute proceedings for leave pursuant to orders 1 and 2 above.


JUDGMENT:

- 50 -
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION





PATTEN AJ

25 FEBRUARY 2005

No: 10622 of 2004




THE ATTORNEY GENERAL IN AND FOR THE STATE OF NEW SOUTH WALES
v
MICHAEL BAR-MORDECAI



JUDGMENT:

1. HIS HONOUR: This is an application by the Attorney General under s 84(1) of the Supreme Court Act (the Act). That subsection provides:-

“84 (1) Where any person (in this subsection called the vexatious litigant) habitually and persistently and without any reasonable ground institutes vexatious legal proceedings, whether in the Court or in any inferior court, and whether against the same person or against different persons, the Court may, on application by the Attorney General order that the vexatious litigant shall not, without leave of the Court, institute any legal proceedings in any court and that any legal proceedings instituted by the vexatious litigant in any court before the making of the order shall not be continued by the vexatious litigant without leave of the Court.”



2. Many authorities establish the principles which inform the exercise of the jurisdiction conferred by the sub-section. I adopt (as did Whealy J in Attorney General v Bhattarcharya; (unreported 10 December 2003) and Hoeben J in Attorney General v Betts (unreported 30 September 2004), the statement of Roden J in Attorney General v Wentworth (1988) 14 NSWLR 481 at 491):
“1 Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.

2 They are vexatious if they are brought for collateral purposes and not for the purpose of having the court adjudicate on the issues to which they give rise.

3 They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.

4 In order to fall within the terms of s84:

(a) Proceedings in categories 1 and 2 must also be instituted without any reasonable ground (proceedings in category 3 necessarily satisfy that requirement).

(b) The proceedings must have been “habitually and persistently” instituted by the litigant.”


3 The Defendant, Mr Bar-Mordecai, was a medical practitioner who, for some time prior to 1983, treated a Mr Jack Hillston and his wife, Eveline (Mrs Hillston). Mr Hillston died on 5 August 1983. Some few months, thereafter, the Defendant formed a personal relationship with Mrs Hillston, which continued until her death on 25 June 1994. The exact nature of the relationship was an issue in some of the litigation, to which I will hereafter refer, but it seems undoubted that it included sexual intercourse and that, for most of the period from 1983 to Mrs Hillston’s death, they lived under the same roof.


4 An avalanche of litigation in this court followed Mrs Hillston’s death and much of it, (about 40 separate pieces of litigation), was relied upon by the Attorney General in these proceedings.

5 The test whether a particular piece of litigation was vexatious, when instituted, is objective, that is, as stated by Ormerod LJ in Re Vernazza (1960) 1QB 197,
“The question is not whether they have been instituted vexatiously but whether the legal proceedings are in fact vexatious.”

It seems to me that I will need to form my own view about each piece of litigation relied upon by the Attorney General. In doing so, however, I believe that I am entitled to have regard to the result of the proceedings and, where appropriate, the findings of, and views expressed, by the various judicial officers who dealt with them. In that connection, I follow what was said by Starke J (with whom Crockett and Beach JJ agreed) in the decision of the Full Court of Victoria Gallo v Attorney General (unreported 4 September 1984) upon the hearing of an appeal from Gray J

“I return then to the learned judge’s findings in regard to this matter. He started by saying, at page 35 of the appeal book, this: “The gist of what the respondent submits is that, in each instance, the proceeding in question is a genuine proceeding brought to redress a genuine grievance or wrong. I was invited to make some investigation in detail of the cases, the subject matter of the application. However, I do not feel it necessary to do so on an application of this sort. It is sufficient for my purposes that in a large number of instances various judges and Masters of this Court have expressed opinion as to the vexatious character of the particular proceeding before them. It is perhaps desirable to make some detailed reference to the cases which fall into category one.”

He then dealt with those. I might say, in parenthesis, that I agree with the learned judge that where an order has been made by a Judge or a Master dismissing an action as frivolous or vexatious, or striking a pleading out, it is not for this Court to go behind that order and, as it were, go into the merits of the argument as a court of appeal would.”

6 Proceedings in the Equity Division of this court, 12009/94 (the Probate proceedings) were heard by Einstein J over a lengthy period, prior to 16 June 1998, upon which date His Honour commenced to deliver an ex tempore judgment which, when transcribed, occupied some 136 pages. The substantial issues before Einstein J, which provide an illuminating backdrop to most of the litigation relied upon by the
Attorney General were conveniently summarised in the preliminary paragraphs of his judgment, as follows:-

“Eveline Hillston (“the Deceased”), late of 30-32 Eastbourne Avenue, Clovelly died on 25 June1994.

In these proceedings the Plaintiff, Dr Michael Jacob Bar-Mordecai, claims at the date of the Deceased’s death to have been the de facto husband of the Deceased, claims that the Deceased died intestate and claims pursuant to s 61B(2) of the Wills, Probate and Administration Act 1908, to be the person entitled to the whole of the Deceased’s estate on intestacy.

The First Defendant joined in the proceedings, Selma Rotman, was the sister of the Deceased. Selma Rotman died on 1 July 1997. Her son, Liviu Rotman, was substituted in the proceedings as legal representative of and to represent the estate of Selma Rotman for the purposes of the proceedings. The First Defendant denies the Plaintiff’s claim to have been, at the Deceased’s death, her de facto husband. The First Defendant’s case is that the Plaintiff was in a position of influence over the Deceased by virtue of his status as her treating medical practitioner for approximately eleven years prior to the death of the Deceased and claims that the joint financial arrangements and shared living arrangements upon which the Plaintiff seeks to rely as ostensible evidence of the de facto relationship alleged to have existed between the Plaintiff and the Deceased, was procured by the exercise by the Plaintiff of undue influence on the Deceased. The First Defendant’s claims are, inter alia, that the Plaintiff, having been a treating medical practitioner of both the Deceased and the Deceased’s late husband, had inveigled his way into the Deceased’s personal affairs, including her financial affairs, and that the Plaintiff took advantage of the extreme age and poor physical health and vulnerability of the Deceased so as to restrict her movements, to overbear her, and to facilitate his misrepresentation of her as his de facto spouse for his own pecuniary benefit as well as to confer financial benefits upon him.

The First Defendant’s further claim is that the Plaintiff’s influence over the Deceased was such that the Deceased was not a free agent able to choose to live separately from the Plaintiff or to avoid or sever joint financial arrangements with him, that the Deceased had an intermittent distrust of the Plaintiff; that the Deceased had for some years prior to her death suffered from poor health and consequently had become increasingly reliant upon the Plaintiff for medical treatment and advice; and the Deceased was 83 years of age at the date of her death.

An alternative claim put by the First Defendant is grounded upon the assertion that the Plaintiff unlawfully killed the Deceased and is thereby precluded from acquiring a benefit within the meaning of s.3 of the Forfeiture Act 1995 (NSW).

In the Amended Second Cross-Claim, the First Defendant as Cross-Claimant, asserts that the Deceased in fact made and executed a Will on or about 31 August 1989, which Will cannot be traced to her possession later than as at 17 September 1990 and cannot be located. Up to the twentieth day of the hearing, the First Defendant claimed that the Will did not embody the testamentary intentions of the Deceased at the date of her death. As between the Plaintiff and the First Defendant, there was no issue on this matter as the Plaintiff/Cross Defendant admitted that the Will did not embody the Deceased’s testamentary intentions at the date of her death and, in any event, asserted that the Deceased revoked the Will by destroying it.

On the twentieth day of the hearing, the First Defendant amended his pleadings to abandon his claim that the August 1989 Will did not embody the Deceased’s testamentary intentions as at the date of her death. Further, the First Defendant admits the allegation in the Statement of Claim that the Deceased died intestate.

7 Einstein J found that Mr Bar-Mordecai was an unreliable and untruthful witness. He concluded that he had failed to prove a de facto marital relationship with Mrs Hillston, and he also concluded that Mr Bar-Mordecai lied on oath, in relation to his allegation that he saw Mrs Hillston tear up her 1989 will. His Honour described his evidence regarding this as, “a monstrous untruth and an untrue issue at a time when (Mr Bar-Mordecai) had become aware that, in all probability, no later will had ever been made by (Mrs Hillston), and that he stood to gain the whole of (Mrs Hillston’s) estate on intestacy, if he were able to prove that he was (Mrs Hillston’s) de facto husband at the time of her death”. His Honour added, “All that stood between (Mr Bar-Mordecai) and obtaining the whole of (Mrs Hillston’s) estate, as her de facto husband, was the will of (Mrs Hillston) of 1989”. His Honour further found that “(Mr Bar-Mordecai) himself, destroyed, or suppressed, the 1989 will after the date of death of (Mrs Hillston)” and rejected the evidence of Mr Bar Mordecai, “that (Mrs Hillston) in 1994 had told him that she had made a new will”.

8 In the result, Einstein J held that Mr Bar Mordecai had not discharged the onus of establishing the revocation by Mrs Hillston of her 1989 will. As a consequence, he granted letters of administration with a copy of that will annexed to a Mr Allan Hillston, her nephew. Mr Bar-Mordecai was ordered to pay, on an indemnity basis, the costs of the two defendants to the proceedings, in respect of the issue relating to his claim to be in a de facto relationship with Mrs Hillston and of his claim that the will was revoked, by Mrs Hillston tearing it up.

9 It cannot, in my opinion, be said that the Probate proceedings were instituted, either with the intention of annoying or embarrassing the Defendants against whom they were brought, or for collateral purposes and not for the purpose of having the court adjudicate on the issues to which they gave rise.

10 The question remains whether the proceedings were, “so obviously untenable or manifestly groundless as to be utterly hopeless”. On their face, the Probate proceedings could not be so regarded. In my view, it is manifest from the judgment of Einstein J that Mr Bar-Mordecai, at least by his own evidence, established a prima facie case for the relief which he sought. He failed because Einstein J rejected his evidence to the extent that it was contentious. In none of the authorities to which I have been referred was a piece of litigation characterised as vexatious merely because the putative vexatious litigant having proved an arguable case was disbelieved on his or her oath. The cases seem to have been concerned only with pieces of litigation which, on their face, appeared doomed to failure.


11 Although Einstein J made very adverse findings upon the credit of Mr Bar-Mordecai, he did not, himself, categorise the proceedings as frivolous or vexatious. Notwithstanding, I think there is much to be said for what was, in effect, submitted by Mr Officer, namely, that where proceedings are instituted based upon wholly false allegations, they could be categorised as vexatious, in the context of this case, I do not think it would be appropriate to so regard the Probate proceedings.

12 The next piece of litigation relied upon by the Attorney General was Mr Bar Mordecai’s appeal to the Court of Appeal from the judgment of Einstein J. It is well established that an appeal can constitute the institution of vexatious legal proceedings within s.84 (1) of the Act (see for instance Re Vernazza per Willmer LJ at 215). The Court of Appeal dismissed the appeal with costs on 16 May 2000, holding that all the findings of fact made by Einstein J were open to him. Other grounds of appeal, including allegations of bias by the trial judge were rejected by the Court of Appeal. A ground of appeal alleging perjury, by witnesses for the Respondent to the appeal, was stated by the Court of Appeal to be “misconceived”. In the concluding paragraphs of their joint judgment Sheller JA, Stein JA and Giles JA said:-

“Following the institution of the appeal the appellant filed a 600 page submission which addressed his Honour’s judgment in the most minute detail. His further written submissions on the appeal, filed prior to the hearing, exceeded 300 pages. During the hearing of the appeal the appellant handed up three further written submissions totalling 71 pages. On any assessment the written submissions were prolix. This would be of less concern were it not for the repetitious nature of a great deal of the material. Selective quoting of the evidence was heightened by the frequent reproduction of rejected evidence or evidence not called in the trial or received on appeal. The unnecessarily vituperative nature of much of the almost 1000 pages, added nothing to its substance.


Many of the frequently repeated submissions were manifestly untenable, and many were manifestly misconceived or lacking in any substance. To address every one of the matters purported to be raised in the submissions of the appellant (written and oral) would be well nigh impossible. It is also unnecessary, because while we have considered all that the appellant put in his submissions there is no need to discuss arguments which are hopeless or inconsequential to the result in the proceedings. In accord with the approach explained in Australian Breeders Co-operative Society Ltd v Jones [1997] FCA 1405; (1997) 150 ALR 488 at 503 and Amadio Pty Ltd v Henderson (1998) 81 FLR 149 at 175, we have confined these reasons to those issues with which we understand the appellant has principally concerned himself and which we see as of some significance or consequence.


In our view the appeal should be dismissed with costs.”

13 In my opinion, the appeal to the Court of Appeal from the decision of Einstein J was “so obviously untenable or manifestly groundless as to be utterly hopeless”. It was, in my view, vexatious within the meaning of s.84 (1) of the Act.

14 On 12 July 1999, there came before Stein JA, a summons filed by Mr Bar-Mordecai against two Defendants, seeking, inter alia, orders that he be entitled to remain in occupation of premises 30-32 Eastbourne Avenue, Clovelly, pending the hearing and disposal of the appeal from the decision of Einstein J, in the Probate proceedings. Stein JA dismissed the summons, observing:-
“It seems to me that the summons before the court is misconceived. It did not join the trustees for sale, who would be necessary parties for any such proceedings. Without an appeal being afoot from the Master’s order there is no jurisdiction in the Court of Appeal, nor can I see that any argument as to derivative justice in relation to the subject appeal of Einstein J, which is before the court, would give me jurisdiction to make the orders sought in Dr Bar Mordecai’s summons.”

It is plain that the summons, which came before Stein JA, was untenable and, in my opinion, should be regarded as vexatious.

15 On 17 March 1999, Mr Bar-Mordecai commenced proceedings in the Equity Division 1707 of 1999. He sought orders under the Family Provision Act, in relation to the estate of Mrs Hillston. His affidavit sworn in support of the summons on 24 June 2002 claimed that he, “was in a de facto relationship for 11 years with the deceased, the late Eveline Hillston”.

16 On 1 July 2002, Mr Bar Mordecai filed in the Equity Division a Statement of Claim 3039 of 2002, in which he sought, in a rather incomprehensible fashion, various forms of relief, including the removal of the administrator of Mrs Hillston’s estate and damages for injuries viz. “deterioration and progression of the Plaintiff’s psychiatric condition i.e. depression”.

17 The proceedings under the Family Provision Act 1707/99, the Statement of Claim 3039/02 (both of which the Attorney General claims were vexatious), and proceedings commenced by Mr Allan Hillston 3240/98 against Mr Bar-Mordecai seeking to set aside a number of gifts made by Mrs Hillston to Mr Bar Mordecai in her lifetime, on the grounds that they were obtained by the presumed exercise of undue influence, were heard together by Bryson J on 47 hearing dates, from 9 September 2002 to 29 November 2002. His Honour J delivered a 154-page judgment on 28 February 2003. At paragraph 7, he said of the proceedings 3039/02:-
“In the Summons in proceedings 3039 of 2002 Mr Michael Bar-Mordecai claimed an order that the letters of administration granted to Mr Allan Hillston be revoked, that Mr Allan Hillston be removed as administrator and that Mr Michael Bar-Mordecai be appointed administrator. He filed a Statement of Claim in those proceedings; the Statement of Claim makes various claims for damages, costs and interest, on the basis of allegations which contain much material which is obviously extraneous; the Statement of Claim when taken as a whole cannot be understood, and it cannot be treated as a pleading of facts which support the claims in the Summons.”

18 Like Einstein J, Bryson J formed an unfavourable view of Mr Bar-Mordecai’s credibility. The following paragraphs from the judgment are indicative:-

“A great deal of time and attention was given during the hearing to issues relating to Mr Bar-Mordecai’s credit. On many subjects he was shown by cross-examination, or even by comparison of evidence which he has given at different places, to be an unreliable witness. He has often given evidence which contradicts his evidence in other places or which introduces qualifications or supplementary explanations so far-reaching as to disavow evidence which he has given elsewhere. From time to time, when confronted with some adverse evidence, he produced new affidavits, with new explanations of conduct or events which he could well have produced earlier, if they were true. He did not produce the evidence of persons whom, in a complete and convincing presentation of his case, it would reasonably be expected that he would call. He left significant parts of the events with little or no explanation; his case was particularly unsatisfactory in not giving credible circumstantial explanations of the evolution of decisions of Mrs Eveline Hillston to make gifts, and his own participation in their evolution.
..................................................

Mr Bar-Mordecai made many claims that he was under difficulties in presenting his evidence because he suffered memory loss as a result of an injury in a motor accident in January 1992; however he produced no medical evidence which confirmed the existence of any such memory loss, or explained how it might have arisen, although very often challenged by the plaintiff’s counsel to produce such evidence. He described it as intermittent memory loss (t990 l26) and described his short term and long term memory defects. He very often explained himself in evidence by reference to his alleged memory loss. However on many occasions he gave evidence, or made statements during submissions which showed striking capacity for recollection (if indeed the recollections which he then apparently displayed were genuine). He professed to have remarkably detailed and complete recollections of many events, even in the distant past, and he produced such recollections on occasion with great speed, although on other occasions he professed to have extreme difficulty in calling to mind circumstances which may well have been quite important both at the time and since.


I do not accept that Mr Bar-Mordecai has any disability or condition, which has diminished his powers of recollection. In my finding he simulates memory loss when it is suitable to him to do so, and on the whole he has rather better powers of recollection than the average person, although he is not frank or sincere in what he claims to recollect, or not to recollect.

........................................................
In my evaluation, Mr Michael Bar-Mordecai exhibited extremely unsatisfactory demeanour as a witness. As a witness he was markedly an opportunist. It was extremely difficult, on occasions, to bring him to address directly questions, which were important; however he did not have corresponding difficulty in bringing his mind and expression to bear on matters, which he perceived to be of assistance to his case. He often gave what were nominally answers which, in fact, were unresponsive, or instead of answering a question launched into what would perhaps, if the question had been answered, have been an excuse or explanation for an answer adverse to him. He often obtruded references to grievances, including altogether improbable grievances, into answers when the grievances had little or no relation to the matter in hand.


I do not believe that Mr Bar-Mordecai is in truth a person whom fate and malignity have exposed to an astonishing number of improbable circumstances, lies and hostilities. When he has given unsupported evidence of something which is improbable, my view is that I should not accept his evidence. In addressing allegations the evidence for which is solely or substantially evidence of Mr Bar-Mordecai alone I am unable to find facts on the basis that his evidence is in any way reliable. Written records made by him are also unreliable. It is no use attempting to weigh up degrees of probability and improbability and attempting to assess how much improbability is too much; his evidence is simply unreliable. I do not see any relevant limits to what he would be prepared to say, or to what he would be prepared to accuse somebody else of doing. He would say anything. Some things he has asserted seem like fantasies from the travels of Baron Munchausen. Perhaps some of these are true, but there is no way of concluding that they probably are true. I do not regard any of his evidence as reliable. It is not even appropriate to treat his evidence as reliable when it was or seemed to be adverse to his own interest, as he had no real perception of what his interest was, and sometimes strongly maintained positions adverse to his apparent interest. Except where his evidence accords with something which is otherwise well established, for example by admissions in pleadings or by contemporaneous records which can be regarded as having an objective source or by witnesses who can be treated as reliable, little of what he has himself stated in evidence can be acted on.


19 After reviewing the evidence in the case in considerable detail, Bryson J expressed, at paragraph 231 of his judgment, the following conclusion, in relation to the relationship between Mr Bar-Mordecai and Mrs Hillston:-

“In my finding, while Mr Bar-Mordecai and Mrs Eveline Hillston both occupied 30 Eastbourne Avenue, Clovelly there were significant periods during which they slept together in the double bed in the main bedroom. It may well be true that they had sexual intercourse while living in that house, although Mr Bar-Mordecai has greatly overstated the intensity of sexual activity in his evidence. Mrs Eveline Hillston spoke of the main bedroom in ways which acknowledged that she shared the bed and the bedroom with Mr Bar-Mordecai to several witnesses, and when I consider their evidence together I am of the view that it should be accepted that she made a few spoken acknowledgements that she did so. It does not at all follow that I should not accept other evidence to the effect that Mr Bar-Mordecai also had a bedroom of his own in the house; there are said to have been (at least) seven bedrooms in the house. There is no reason to disbelieve the evidence of persons including Mr Allan Hillston, Mr Alex Hillston and Mrs Jane Hillston who saw indications that Mr Bar-Mordecai apparently used a bedroom of his own, or who made observations which did not show to them that the two shared a bedroom, or their evidence that they were not told to that effect. I regard it as plain on the whole of the evidence that they did not always share a bedroom or a bed at 30 Eastbourne Avenue. The sexual element in the parties’ relationship was not made known to Mrs Eveline Hillston’s relatives, on what was known to them the interpretation that there in fact was a sexual element in the relationship would not be made at all readily, and they did not make it. It was only made by a very few people.”


20 Bryson J went on to find that the relationship between Mr Bar-Mordecai and Mrs Hillston was explained by a long continuing intrigue by Mr Bar-Mordecai to obtain control of Mrs Hillston’s property. His Honour said that he did not accept that he ever was sincerely involved in any emotional bond with Mrs Hillston. In the result, he held that Mr Bar-Mordecai did not, when Mrs Hillston died, meet the definition of “eligible person”, as that expression was defined in the Family Provision Act at the relevant time, because, “at the time of her death, he was not living with her as her husband on a bona fide domestic basis”.

21 Notwithstanding his finding that Mr Bar-Mordecai was not an eligible person within s.6 of the Family Provision Act, in relation to Mrs Hillston’s estate, His Honour considered whether, in any event, he should be allowed an extension of time to bring proceedings. The summons under the Family Provision Act was issued on 17 March 1999 but the last day for commencing proceedings fixed by the statute was 25 December 1995. His Honour concluded that it was not a proper case for the allowance of an extension of time. The proceedings 1707/99 were dismissed.

22 In relation to proceedings 3039/02 Bryson J held that there was no substance in any discernible claim and ordered that the proceedings be dismissed.

23 In the proceedings commenced by Mr Hillston, Bryson J held that Mr Bar-Mordecai had not rebutted the presumption of undue influence arising from his position as Mrs Hillston’s medical adviser in relation to gifts of money and other transactions. He ordered that a number of them be set aside and entered judgment against Mr Bar-Mordecai for $684,473.37. Consequential declarations and orders were made, including, in respect of the property at 30 Eastbourne Avenue Clovelly, where Mr Bar Mordecai and Mrs Hillston had lived.

24 It follows, I think, from what I have set out above, that Bryson J whilst forming a very unfavourable view of the credibility of Mr Bar-Mordecai, did not entirely reject the case he made out in proceedings 1707/99. It would be wrong, in my opinion, to categorise those proceedings as vexatious. However, the proceedings commenced by Statement of Claim 3039/02 were, I think, plainly vexatious.

25 Mr Bar Mordecai appealed to the Court of Appeal against the judgment of Bryson J adverse to him, in proceedings 1707/99, 3039/02 and 3240/98. The Attorney General relies on those appeals as constituting vexatious proceedings.

26 The Court of Appeal (Mason P; Tobias JA and Davies AJA) published a joint judgment on the appeals in the three matters on 17 March 2004. It upheld Mr Bar-Mordecai’s appeal in respect of the finding by Bryson J that he was not an eligible person for the purposes of the Family Provision Act. However, it upheld His Honour’s decision that no extension of time should be granted. In the result, the appeal in the Family Provision Act matter was dismissed with costs.

27 In relation to the appeal against the orders of Bryson J in proceedings 3240/98, the undue influence proceedings, Mr Bar-Mordecai’s appeal was partially successful, in that, the Court set aside declarations and orders regarding the property at 30 Eastbourne Avenue, Clovelly. The appeal in respect of proceedings in the Equity Division 3039 of 2002 was dismissed with costs.

28 Having regard to the measure of success obtained by Mr Bar-Mordecai in the appeal, and the fact that, although three separate sets of proceedings were involved, there was only one appeal and therefore, probably only one legal proceeding instituted within s.84 (1), the appeal, in my view, should not be regarded as vexatious.

29 On 16 April 1999, in Equity Division proceedings 3240/98 Master McLaughlin, appointed trustees for sale of the property known as 30 Eastbourne Avenue, Clovelly, pursuant to s.66G of the Conveyancing Act. Mr Bar-Mordecai applied by summons for leave to appeal to the Court of Appeal from this decision and, on 9 December 1999, the Court of Appeal dismissed the summons as incompetent on the ground that an appeal from the Master’s decision lay not to the Court of Appeal but to a single judge in the Equity Division (s.104 of the Act). The Court of Appeal on 16 May 2000, in dealing with the costs of the application for leave to appeal, however, observed (paragraph 8) “for present purposes and taking account of remarks made in court, in the presence of (Mr Bar-Mordecai) before Stein JA on 12 July 1999 and Hodgson CJ in Eq. on 5 August 1999, we accept that the claimant genuinely believed, with some encouragement from others, that his right to appeal from the Master’s decision, was to the Court of Appeal”.

30 Although I would classify the application for leave to appeal from the decision of Master McLaughlin as vexatious, in the sense that it was bound to fail, the comments of the Court of Appeal (Sheller JA, Stein JA, and Giles JA), quoted above, suggest that the filing of the summons for leave to appeal may have constituted, what I imagine would be, the rare case of vexatious proceedings instituted with “reasonable ground”.

31 On 5 November 2001, Mr Bar-Mordecai filed a Notice of Appeal in the Court of Appeal CA 40874/01. It is appropriate that the Notice of Appeal be reproduced, omitting formal parts:
“The proceedings appealed from were heard during two time brackets within the month of October 2001

a. 10.10.2001
b. 26.10.2001

Over the last few months of proceedings, in the Appellant’s absence, several judgments issued.

The appellant appeals from all of the judgment dated 10.10.2001 of Bryson J.

The Appellant appeals from all of the judgment dated 26.10.2001 of Bryson J.

Grounds:

1. That on the 10.12.2000 when the Appellant made an oral application for the sale of the surgery

a. He was of unsound mind – in view of the fact that he attempted suicide on the 15.12. 2000 and was hospitalised at Prince of Wales Hospital.

b. There were no funds available to defray the Mortgage on his property at 212 Clovelly Rd, Randwick.

2. Whilst he was on a life support system in the intensive care unit at Prince of Wales Hospital, Bryson J made Orders in his absence, for the sale of his property with no written application and supporting affidavit.

3. When the matter necessitated reversal, Bryson J required a NOM and an affidavit and then refused to consider or revisit the issues.

4. That the trial judge was partial in his judgment, and hence an appeal against all his Orders has issued.

A There has been a reasonable apprehension that an impartial judicial mind was not brought to bear on the resolution of the proceedings.

B That his lack of partiality has been characterized by

1. Blatant abrasive antagonism.

2. Refusal to discuss issues and answer direction (sic) questions.

3. Threatening the Appellant with contempt.


4. Demanding that the Appellant recall for him where, months before, in the proceedings before him, he exhibited malicious attitude and demeanour to the Appellant.

5. The Appellant was a litigant in person at the bar table, when Bryson J was exhibiting on the 5.10.2001 the same atrocious conduct and behaviour characterized by his:

a. Hostile demeanour

b. Screaming at the Appellant

c. Frothing at the mouth

d. Tremoring

e. Being generally evasive.

5. The trial judge, Bryson J, refused to disqualify himself for alleged bias and failing to be impartial.

6. As a litigant in person, it is not in the interest of justice to be intimidated by Bryson J’s overbearing conduct and threats.

7. The trial judge threatened the Appellant with contempt, where the Appellant being a litigant in person was exercising his discretionary powers to have the judge investigated both by his peers, the Attorney General and by ICAC for perversion of the course of justice.

8. The trial juge failed to assess his own demeanour, refusal to communicate, and attitude to the Appellant.

9. That the trial judge refused to answer the Appellant during the court proceedings on important matters.

10. That the trial judge perverted the course of justice by bypassing the Call over:

a. Whilst the matter was in the registry for a call over, Justice Bryson’s associate under his instruction called the registry, and demanded that the call over be bypassed, and that Bryson J be self-appointed to the trial judge in hearing the matter on the 26.10.2001.

Order Sought:

1. An Order that all the orders and cost Orders made by Bryson J from 1998 in 3240/98 be dissolved, and in particular that the Order made in relation to the sale of the surgery in December 2000 be dissolved, and all Orders made in October be dissolved.

2. An Order that the moneys held in trust for the Appellant on his behalf be immediately dispersed to the Appellant with interest.

3. An Order that the Court strike out the 1st Opponent’s statement’s statement of Claim in matter No. 3420 of 1998.

4. An Order that the Court of Appeal Order that the matters in front of Bryson J be re-litigated, in matter no. 3240 of 1998, from November 2000.

5. An Order that the 1st Opponent pay the Appellant’s costs of the Appeal and the costs Orders made by Bryson J since 15.12.2000 relevant to the proceedings in the Court below.

6. An Order that Bryson J be dismissed from the proceedings 3240 of 1998 forever.

7. An Order that there be a stay of proceedings until
A. The matter of the Appeal No CA 40568 be reopened heard and a judgment made or in the alternative

B. The matter of Einstein Judgment of the 4.9.1998 be set aside.


8. An Order that the Court of Appeal prepare the Appeal books, otherwise I would be unfairly prejudiced in the circumstances.

9. An Order that payment of fees be postponed until after the hearing.

a. That the unit at 1/6 Mount Street, Randwick be immediately vacated and made available for the use of the Appellant for his lifetime.

Such proper Orders as the Court may think proper.

Interlocutory Orders sought:

1. An Order that there be a ‘stay’ placed on proceedings 3420 of 1998 until this matter is heard in the Court of Appeal and judgment is handed down.

2. An Order that an immediate Order for relief be made for the benefit of the Appellant to release to him all his moneys held in trust on his behalf by the “First and or Second Opponents.

3. An Order that the Citibank mortgage on 212 Clovelly Rd, Randwick be discharged immediately by the 1st and or 2nd Opponents with money held in trust for the Appellant.

4. That the unit at 1/6 Mount Street, Randwick be immediately vacated and made available for the use and benefit of the Appellant for his lifetime.

5. An Order that all rents with accrued interest to date, that were paid to the estate for 1/6 Mount Street, Randwick, be henceforth credited to the Appellant.

6. An Order that Bryson J be dismissed from the proceedings 3240 of 1998 forever.”


32 The Notice of Appeal CA 40874/01 constituted the institution of legal proceedings within s.84 (1) of the Act. On their face, the proceedings so instituted were obviously untenable or manifestly groundless and, in my opinion, constituted vexatious legal proceedings. A further relevant factor is that they were dismissed for want of prosecution on 22 March 2002.

33 Mr Bar-Mordecai commenced proceedings in the Equity Division No. 2548 of 2002, seeking leave under s.338 (1) (c) of the Crimes Act to prosecute a Mr William Wigoder for perjury. That subsection is in the following form:-
“(1) A person is not to be prosecuted for perjury except:

(a) by the Director of Public Prosecutions, or

(b) at the direction of the Attorney General, or

(c) by any other person with leave of the judicial officer who constituted the judicial tribunal before which the perjury is alleged to have been committed. “

34 The material before me seems to be silent as to the originating process for those proceedings, although there is in evidence a document headed “William Wigoder Statement of Charge” and an affidavit by Mr Bar-Mordecai. The document headed Statement of Charge read as follows:-
Charge 1 That the Defendant knowingly and wilfully deposed allegedly perjured evidence in his affidavit to mislead the Court.

The Defendant deposed allegedly perjured affidavit evidence sworn on 3.4.1996 that was filed and read in the Probate proceedings and relied on by the Court.

Specifically, the Defendant alleged that he had interviewed the Plaintiff as the informant following the death of the late Eveline Hillston in the Chevra Kaddisha in his role as the Director of the Chevra Kaddisha in 1994.

Charge 2. That the Defendant, Mr W Wigoder had aided and abetted Mr Allan Hillston to embark on vexatious litigation in:

a. Deposing that Dr Bar-Mordecai was Eveline Hillston’s good friend instead of her de facto husband.

b. Failing to give cross-examination evidence in the Supreme Court to confirm his affidavit evidence.

Charge 3. That the Defendant appeared in the Medical Tribunal hearing in 1999 and knowingly deposed false evidence under oath.

Charge 4. That the Defendant abused his professional standing as the Funeral Director of the Sydney Chevra Kaddisha by:

a. Completing an otherwise blank Births, Deaths and Marriages registration form after Dr Bar-Mordecai and Mrs E Speiser had signed that blank form;

b. Entering on that said form erroneous information i.e. “good friend” instead of de facto.



35 The application under 338 (1) (c) of the Crimes Act came before Windeyer J on 8 August 2002. It was dismissed with costs. In the course of his judgment, His Honour said:-

“In the action before Einstein J evidence was given by Mr William Barnett Wigoder. The plaintiff claims that part of this evidence was false. That part of it which he claims to have been false was that part contained in an affidavit of Mr Wigoder sworn on 3 April 1996 under which Mr Wigoder, in essence, said that he had interviewed the plaintiff, Mr Bar-Mordecai, after the death of Eveline Hillston and that the plaintiff had described Mrs Hillston as “my good friend” and that he was with the plaintiff, Mr Bar-Mordecai, when he, as plaintiff, filled out the form of information which was required for the registry of Births, Deaths & Marriages.

The basis on which that evidence is said to be perjured is that Mr Bar-Mordecai did not see, and had never seen for some years after that, the said William Barnett Wigoder, that Wigoder was not present when arrangements for the funeral were made, these arrangements having been made with a Mrs Speiser, who was a receptionist at the Sydney Chevra Kaddisha, where the funeral arrangements were made and where the funeral was to take place.

According to the plaintiff the arrangements were made with Mrs Speiser on a Monday immediately after the death of Mrs Hillston and that Mr Wigoder was not present at that time. It is clear on the evidence that he was not so present.

The plaintiff says that he signed in blank a form which contained the details which would be required to be forwarded to the Registry of Births, Deaths & Marriages to enable the death to be registered and a death certificate would be issued. On that the plaintiff was the informant and against the heading “Relationship to Deceased” was put the words “good friend”. It is accepted that those words are written in the handwriting of Mr Wigoder. It is accepted that the signature of Mrs Speiser appears on that form as a witness to the signature of Mr Bar-Mordecai.

The question is whether or not there is sufficient evidence to justify the Court in giving leave to bring private proceedings for perjury, meaning the giving of false sworn evidence on a material matter in connection with the proceedings before the Court.


I consider that the evidence as to the relationship was a material question in the proceedings before the Court, although it may not have been necessary for the trial judge to determine whether or not the deceased and the plaintiff were in a de facto relationship because in the long run he held that the deceased died testate, rather than intestate. Nevertheless, it was an issue which was clearly before the trial judge.

The evidence of Mr Wigoder is, in short, that he saw the plaintiff on the Sunday and obtained necessary details to fill in the form. He does not suggest that he was there on the Monday when the signature of the plaintiff and the signature of Mrs Speiser were placed on the form.

Mrs Speiser, on the other hand, says that Mr Wigoder was not present on the Monday, that she does not obtain signatures from persons on important forms before they are completed and thus she would not have done so on this occasion. She was unable to explain why the document appeared as it did, because Mr Wigoder was not there at the time when she was there with the plaintiff.

The position therefore is as follows; the plaintiff says that his evidence, which is contrary to that of Mr Wigoder, is confirmed by the evidence of Mrs Speiser and is further corroborated by the form on which his signature and that of Mrs Speiser appear. I do not consider that it is so corroborated by Mrs Speiser and to the extent to which her evidence given before the Medical Tribunal might have been thought to be ambiguous as to this, it is certainly not sufficient evidence upon which to allow proceedings for perjury to be commenced.

In those circumstances the application for leave to bring a prosecution for perjury is refused.”


36 In my opinion, the application under s.338 (1) (c) of the Crimes Act constituted the institution of legal proceedings within s.84 (1) of the Act, and, in my opinion, such proceedings were vexatious, in the sense that the probability is that they were instituted with the intention of annoying or embarrassing Mr Wigoder. They were also obviously untenable or manifestly groundless, as to be utterly hopeless.

37 Mr Bar-Mordecai, on 29 August 2002, filed a Notice of Appeal in the Court of Appeal from the judgment of Windeyer J. The appeal was numbered 40755 and was subsequently, on 20 March 2003, dismissed as incompetent. The proceedings commenced by the filing of the Notice of Appeal were, in my opinion, vexatious, for the same reasons as were the proceedings at first instance.

38 Similarly, I regard as vexatious Mr Bar-Mordecai’s application for leave to appeal to the Court of Appeal from the decision of Windeyer J, that application being dismissed with costs.

39 By summons, filed in the Equity Division 2551/02, Mr Bar-Mordecai sought leave under s.338 (1) (c) of the Crimes Act to prosecute Mr Allan Hillston for perjury. As it seems, Mr Bar-Mordecai formulated charges against Mr Hillston as follows:

“Charge 1. That the Defendant knowingly and wilfully deposed allegedly perjured evidence in his affidavit to mislead the Court.

Charge 2. That the Defendant tailored his evidence to suit the litigation.

Wherein in his Probate proceedings the Defendant gave evidence that there was no work relationship between Dr Bar-Mordecai and his former de facto wife, the late Eveline Hillston, in the alleged undue influence claim he deposed to a work relationship between Dr Bar-Mordecai and his former de facto wife, the late Eveline Hillston in his verified statement of claim in matter no 3420 of 1998.”


40 The summons for leave to prosecute Mr Hillston for perjury was dealt with by Windeyer J on 9 August 2002, when His Honour dismissed it with costs. In relation to the first “charge” sought to be brought by Mr Bar-Mordecai, Windeyer J said at paragraph 9:

It is necessary in perjury proceedings to look at the evidence as a whole. First, s o far as the challenged statement is concerned, there is no evidence by any other witness that the statement made by Mr Hillston, as to his observation, was not a true statement. On that basis, a prosecution for perjury would fail, at least so far as the evidence shows at the present time. It is then put that it is established that this statement was false by the evidence given in cross-examination, which it is fair to say certainly cast doubt upon it. But it is necessary in perjury proceedings to look at the whole of the evidence given in any proceedings and, taken as a whole, it is I think, quite clear that it would be an abuse of process to bring perjury proceedings based on the evidence which is relied upon. Whether or not there is a collateral purpose is another matter, but the fact is that it would clearly be a waste of public resources and would, therefore, be an abuse, and this Court should not allow those proceedings to be brought in those circumstances.”


41 In relation to the second “charge”, inter alia, Windeyer J observed:

“There is no possible basis on which one can glean from the pleading that there is an admission that the evidence given in the probate proceedings in the passage to which I have referred was false and false to the knowledge of the person giving that evidence, namely, Mr Hillston, the defendant here.”


42 In my opinion, the application for leave to prosecute Mr Hillston constituted the institution of legal proceedings within s.84 (1) of the Act, and such proceedings were vexatious for the reason that, as it seems to me, they were instituted with the intention of annoying or embarrassing Mr Hillston, but, in any event, were manifestly groundless.

43 By summons filed in the Equity Division 2553/02, Mr Bar-Mordecai claimed, “an order that the Defendant (Mr John Whittle SC) be prosecuted for contempt of court”. Mr Whittle had appeared for Mr Hillston in the Probate proceedings before Einstein J. Mr Bar-Mordecai formulated, in writing, four “charges” which he sought to have instituted against Mr Whittle. That any of them might constitute a proper basis for a charge of contempt of court was, in my opinion, manifestly misconceived as they, in effect, amounted to no more than allegations that Mr Whittle, in an entirely proper way, represented his client in the proceedings before Einstein J. Illustrative is the 4th “charge”:-
“Charge 4. That the Defendant wilfully and purposefully made damaging, erroneous and false submissions to the Court to mislead the trial judge. Such submissions as:

a. That Dr Bar-Mordecai had failed to explain significance of the markings in the Eveline Hillston diaries that denoted the frequency of intercourse and were designated by an m, n, o etc..

b. That the trial judge should assign little weight or in fact not accept certain health care indicators in the Eveline Hillston medical record – because those parameters were recorded by the Plaintiff.

44 The proceedings against Mr Whittle were subsequently, by consent, dismissed with costs. It is probable that they were instituted for an improper collateral purpose, but, in any event, they were manifestly groundless and should be characterised as vexatious.

45 By summons filed in the Equity Division 2555/02, Mr Bar-Mordecai sought an order that Mr David Courtney, solicitor for Mr Hillston in the proceedings before Einstein J, be prosecuted for contempt of court. Mr Bar-Mordecai swore an affidavit in support of his summons, on 28 June 2002. Nothing in the affidavit, to my mind, suggests the slightest basis for an allegation of contempt of court against Mr Courtney. Much of it is confused and meaningless, apart from being almost wholly objectionable in form.

46 The proceedings against Mr Courtney were, in my opinion, vexatious legal proceedings within s 84 (1) of the Act for the reasons that they were manifestly groundless and also, on the probabilities, instituted for an improper collateral purpose. The proceedings were, in fact, dismissed with costs upon Mr Bar-Mordecai’s own application to Windeyer J on 9 August 2002.

47 In proceedings 2556/02, Mr Bar-Mordecai sought leave to prosecute Mr Brendan Burke for contempt of court. Mr Burke of counsel appeared with Mr Whittle in the Probate proceedings before Einstein J. Allegations against Mr Burke were almost identical with the allegations against Mr Whittle. There was, in my opinion, no discernable basis for an allegation of contempt of court against Mr Burke and the proceedings against him were hopeless and bound to fail. They were, in my view, vexatious within s 84 (1) of the Act. Windeyer J on 9 August 2002 dismissed them with costs upon Mr Bar-Mordecai’s application.

48 By summons filed on 9 April 2002 in the Common Law Division, but subsequently transferred to the Equity Division, Mr Bar-Mordecai sought leave to prosecute Mr Stewart Levitt for contempt of court. Mr Bar-Mordecai’s claim was formulated as follows:-

“The Plaintiff Claims:-

1. An Order that leave be granted to the Plaintiff to prosecute Stewart Levitt Solicitor for contempt (knowingly and purposefully recruiting a witness Peter Rowston to depose perjured affidavit evidence) of Court in matter No. 120009/94 heard before Einstein J in the Probate Division of the Supreme Court in 1998.

2. An Order that leave be granted to the Plaintiff to have the Court impose a monetary fine and or a term of custodial care or both the above or otherwise dealt with for contempt of Court.

3. An Order that a declaration be given that Mr Stewart Levitt solicitor was guilty of contempt of Court and wilfully, and purposefully had Mr Rowston depose perjured affidavit evidence to mislead the Court in matter No. 120009/94.

4. That Mr Stewart Levitt Solicitor pay the claimant damages commensurate with the grievous harm he has caused the Plaintiff through losses and adverse publicity.

5. Costs.”


49 On 8 August 2002 Windeyer J noted that Mr Bar-Mordecai did not seek to proceed with the matter against Mr Levitt and the summons was dismissed with costs.

50 In evidence before me was a lengthy affidavit sworn 2 December 1996 by Mr Peter Rowston, together with a number of other documents relating to the matters to which he deposed. Although some of the matters deposed to by Mr Rowston seemed inherently unlikely and conflicted with the testimony of other witnesses as well as Mr Bar-Mordecai, there was nothing to suggest that Mr Levitt knew the affidavit was false. I conclude that the proceedings against Mr Levitt were also manifestly groundless and should be held to be vexatious, within s 84 (1) of the Act.

51 Mr Bar-Mordecai filed a summons in the Equity Division 2559/02 in which he sought an order that he be granted leave to prosecute Mr Leviu Rotman for perjury. Mr Bar-Mordecai formulated the “charges” that he wanted brought against Mr Rotman in these terms:-

“Charge 1 That the Defendant knowingly and wilfully deposed allegedly perjured evidence in his evidence to mislead the Court.

The Defendant deposed in his affidavit sworn on 18.12.1997 that was filed, read and withdrawn in the Probate proceedings as to false dates of births for both:

1. His mother, the Late Selma Rotman; and
2. His aunt, the Late Eveline Hillston.

Charge 2 That the Defendant instructed his solicitor, to recruit a witness to depose allegedly perjured affidavit evidence.

The Defendant instructed his solicitor, Mr Stewart Levitt to recruit Mr Peter Rowston to depose allegedly perjured scandalous and highly injurious affidavit evidence to mislead the trial judge in the Supreme Court probate litigation.”

52 The matter was dealt with by Windeyer J, who disposed of it by judgment on 8 August 2002.

53 After noting that Mrs Selma Rotman was originally a defendant in the Probate proceedings, but died before they were completed and that her son, Liviu Rotman, was substituted as defendant in her place, Windeyer J, in his judgment, continued:
“Whether or not there was a serious issue in the proceedings as to whether or not Selma Rotman was the sister of Eveline Hillston is not entirely clear. Nevertheless, had she not been the sister, she would have had no standing in the proceedings. It seems to me, therefore, that the question as to whether she was, or was not, the sister of the deceased Eveline Hillston, was a material matter in the proceedings so far as the offence of perjury is concerned.

The next question is whether or not there is a basis for a perjury prosecution. The basis on which it is claimed that there is, is that there was exhibited to an affidavit of the defendant in the proceedings, which was sworn, I think, on 8 December 1997, a document put forward as a copy of an amended birth certificate which the deponent to that affidavit, namely, Mr Rotman, said that he had obtained. That birth certificate showed the date of birth of the deceased, Eveline Hillston, to have been 10 August 1908. There was annexed, as a matter of interest, a birth certificate of Mr Rotman’s mother, Selma, showing her date of birth as 12 August 1910.

Mr Bar-Mordecai claims that the date of birth of Eveline Hillston was 21 December 1910. If that were the position, it is perfectly clear that she and Selma could not have been sisters.

There is some documentary evidence by way of a passport otherwise showing the date of birth of Eveline to be 21 December 1910. There is an affidavit of Solomon Axonfeld which was read in the proceedings under which he says that Eveline was born in December 1910 and that Selma was born in 1912. I am not sure how that evidence was admitted unless he could be shown to have precise knowledge of this, but in view of the relationship between the families, it is possible that he was able to give that evidence.

The question, though, is whether it can be shown in these proceedings that the evidence which was put forward by Rotman was false and known by him to be false. All that is said is that it was obtained in response to evidence as to date of birth, which was available to him and that he has said that the birth certificate, a copy of which is annexed to his affidavit, is an amended certificate. There is no basis, on that evidence, on which it would be possible to find that the certificate was false or was known by him to be false.

In those circumstances, proceedings for perjury could not be successful. In those circumstances leave should not be granted and the proceedings must fail. In those circumstances the summons must be dismissed. I propose to make that order. I order that the summons be dismissed with costs.”

54 In my opinion, the proceedings against Mr Rotman were manifestly hopeless and should be regarded as vexatious within s.84 (1) of the Act.

55 In proceedings in the Equity Division of this court, 2560/02, Mr Bar-Mordecai applied for leave to prosecute Ms Jane Hillston for perjury, in respect of evidence she gave in the Probate proceedings before Einstein J. In support, Mr Bar-Mordecai swore a lengthy affidavit, dated 1 April 2002, in which he purported to highlight discrepancies between oral evidence given by Ms Hillston and statements made in affidavits sworn by her. Some of the alleged discrepancies pointed to by Mr Bar-Mordecai were not, in my opinion, discrepancies at all and, in some cases where, for instance, Ms Hillston had made a positive statement in her affidavit, she claimed, in oral evidence, to be unable to remember the relevant event or provided answers which were simply imprecise or unclear. In some cases, Mr Bar-Mordecai relied solely on the circumstance that Ms Hillston’s testimony conflicted with his own. In my opinion, nothing disclosed by Mr Bar-Mordecai’s affidavit would warrant a prosecution for perjury against Ms Hillston.

56 I believe that the proceedings seeking leave to prosecute Ms Hillston for perjury were manifestly groundless and were vexatious within s 84 (1). The proceedings were disposed of by Windeyer J on 8 August 2002, when the application for leave to prosecute was withdrawn and the summons was dismissed.

57 Mr Bar-Mordecai commenced proceedings in the Equity Division 2561/02 seeking leave to prosecute Mr Alexander Hillston for perjury and for orders under s 331 and s.333 of the Crimes Act. This matter was dealt with by Bryson J in a judgment delivered on 27 June 2003. For reasons which he gave, Bryson J concluded that the proceedings, in effect, were vexatious and he ordered that they be dismissed with costs. As His Honour observed:
“Mr Bar-Mordecai has sought in response to questions from me to explain what underlay the charges and why they should not be treated as vexatious. His explanations, insofar as they can be followed, seem to me to be directed to contentions that in the case of each charge, if a correct view (and he challenged my conclusions) of the overall evidence were taken, it would appear that the evidence given by Mr Alexander Hillston was false.”

58 There is nothing in the material before me, which would suggest that the application for leave to prosecute Mr Hillston for perjury was other than hopeless. In my opinion, it was vexatious under sec 84 (1) of the Act.

59 Mr Bar-Mordecai applied for leave to appeal to the Court of Appeal from the decision by Bryson J dismissing his application to prosecute Mr Alexander Hillston. His application was dismissed with costs by the Court of Appeal (Mason P; Tobias JA and Davies (AJA) on 25 September 2003. The application for leave to appeal should also, in my opinion, be regarded as vexatious.

60 In proceedings commenced in the Common Law Division, but apparently transferred to the Equity Division and numbered 2562/02, Mr Bar-Mordecai sought leave to prosecute Mr Peter Rowston for perjury. On 8 August 2002, Windeyer J, noting that Mr Rowston had not been served, ordered, upon the application of Mr Bar-Mordecai that the summons be dismissed. As indicated above, the alleged falsity of Mr Rowston’s affidavit was the basis of Mr Bar-Mordecai’s application for leave to prosecute Mr Levitt for contempt of court. The affidavit of Mr Rowston sworn 2 December 1996 certainly makes some extraordinary allegations in relation to Mr Bar-Mordecai, which, as I earlier indicated, to a large extent, are in conflict with the evidence of Mr Bar-Mordecai, himself and with the evidence of other witnesses. So far as I can see, his evidence was of marginal relevance to the Probate proceedings, in any event. In relation to Mr Rowston, it may be that there was some basis for an application to seek leave to prosecute him for perjury and I do not find that the proceedings against him were vexatious. They were, in any event, withdrawn before service was effected.

61 During 2002, Mr Bar-Mordecai commenced a series of proceedings in the Common Law Division of the court against judicial officers. Those proceedings were taken against Bryson J (20205/02); Einstein J (20209/02); Sheller JA, Giles JA and Stein JA (20229/02) and Cooper DCJ who with Dr John Woodforde, Dr John Richards and Ms Moira Brophy who constituted the Medical Tribunal which removed the name of Mr Bar-Mordecai from the register of medical practitioners (20231/02)

62 Each of the Defendants to those proceedings sought orders dismissing or permanently staying them. The applications came before Dowd J, who delivered judgment on 6 September 2002. In my review of all this litigation, I borrow heavily from His Honour’s judgment:
“The subject Statements of Claim

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

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.


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.


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.


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

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.


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.


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

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.


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.


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.


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.


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

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.


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.


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.”


63 In relation to the judicial defendants, Dowd J, after referring to and quoting from Rajski v Powell (1987) 11 NSWLR 522; Yeldham v Rajski (1989) 18 NSWLR 48 and also making reference to Wentworth v Wentworth [2000] NSWCA 350; (2001) 52 NSWLR 602; Bajgat v Young (2002) NSWSC 331; Re East & Ors ex parte Nguyen [1998] HCA 73; (1998) 196 CLR 354 and Rippon v Chilcotin [2001] NSWCA 142; 53 NSWLR 198, said, “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 to suggest that the doctrine doesn’t, or that it shouldn’t. The Statements of Claim therefore disclose no course of action”. In relation to the actions against the members of the Medical Tribunal, other than Cooper DCJ, Dowd J held that the action was, in effect, an attempt to re-litigate issues, which had been determined by the Tribunal and upheld in the Court of Appeal. He considered the actions against the members of the Tribunal, other than Cooper DCJ, to be an abuse of the court’s process.

64 In the result, all of the actions were dismissed and Mr Bar-Mordecai was ordered to pay the costs of the various defendants.

65 I respectfully agree with Dowd J that the law, in relation to actions against judicial officers is well settled and am of the opinion that all the proceedings were, on the state of the law in this state, “so obviously untenable or manifestly groundless as to be utterly hopeless”. I also respectfully agree with the conclusions of Dowd J in respect of the action against the members of the Medical Tribunal, other than Cooper DCJ. Moreover, in my opinion, it is probable that the proceedings were instituted with the intention of annoying or embarrassing the persons against whom they were brought. I regard each of the proceedings as vexatious within s 84(1) of the Act.

66 I would similarly categorise Mr Bar-Mordecai’s applications for leave to appeal to the Court of Appeal in respect of the various orders made by Dowd J. All the applications were dismissed as either incompetent or out of time. In my opinion, each of them should be regarded as vexatious as being utterly without prospect of success.

67 On 28 June 2002, Mr Bar-Mordecai filed in the Common Law Division a Statement of Claim 20280/02 against “United Medical Protection”. The Statement of Claim, which comprised some 24 pages, was obviously prepared by someone without legal training and it is difficult to discern from it a statement of a cause of action known to the law. Much of it was completely inappropriate to the pleading of a cause of action, and I have no doubt that it was susceptible to an order that it be struck out pursuant to pt 15 r 26 of the rules. As best as I can understand it, Mr Bar-Mordecai intended to allege that United Medical Protection failed to honour a contractual obligation to provide him with medical indemnity insurance, in relation to the proceedings taken against him by the Health Care Complaints Commission, as a consequence of which he allegedly suffered losses which he claimed under various headings, namely “health”; “professional standing”; “loss of standing in the community”; “ridicule by the community”; and “a loss of 7 years of earnings as a medical practitioner”.

68 In my opinion, the cause of action as pleaded in the Statement of Claim 20280/02 was plainly vexatious within s 84(1) in that, on its face the claim was manifestly hopeless. It appears that, in any event, the Defendant was wrongly named and that the entity against which Mr Bar-Mordecai intended to seek relief was in liquidation. Proceedings against it required the leave of the court pursuant to s.471B of the Corporations Act.

69 Subsequently, Master Harrison heard a motion by Mr Bar-Mordecai seeking an order that leave be granted to file an Amended Statement of Claim against Australasian Medical Insurance Limited and for leave under s.471B of the Corporations Act. There was also before the learned Master, a motion by the Defendant pursuant to Pt 11 r 8 of the rules seeking an order that the Statement of Claim be set aside. In the result it became unnecessary for the Master to consider that Notice of Motion. She held that on the merits, there was no serious issue to be tried between Mr Bar-Mordecai and Australasian Medical Insurance Limited. She refused Mr Bar-Mordecai leave to file an Amended Statement of Claim.

70 By summons, Mr Bar-Mordecai sought leave to appeal from the judgment of Master Harrison. Before the Registrar of the Court of Appeal on 10 November 2003, that summons was withdrawn. In my opinion, the application for leave to appeal was a vexatious proceeding, even though Master Harrison had dealt with the matter on its merits by seeking to discern whether Mr Bar-Mordecai had, in truth, an arguable cause of action against Australasian Medical Insurance Limited.

71 Undeterred by his setback at the hands of Master Harrison, Mr Bar-Mordecai commenced another action by Statement of Claim filed in the Common Law Division 20325/03 on 20 November 2003. He named as Defendant “United Medical Protection”, the same as in proceedings 20280/02. Although the cause of action was again inappropriately pleaded, it seems that he intended to plead, in substance, the same cause of action as pleaded in the earlier proceedings. It is, perhaps, useful if I set out the formulation of his claims at the end of the pleading:
“And the Plaintiff claims:

1. A declaration that all the litigation losses suffered by the Plaintiff in:

a. The Medical Tribunal of NSW

b. The Probate Division of the Supreme Court;

c. The Equity Division of the Supreme Court’

and referred to above were the result of the Defendant’s breach of contract in failing to provide the Plaintiff with legal advice and representation.

2. A declaration that the Defendant is indebted to the Plaintiff for the financial losses and legal costs he has suffered as a consequence of those litigations enumerated and their consequential appeals in the above paragraph.

Judgments for:

a. The Plaintiff’s loss of professional earnings for seven years from 6.9.2000

b. The costs sought by the HCCC, the complainant in the Medical Tribunal Litigation;

c. The costs of the Medical Appeal in matter no. CA 40793 of 2000 with the HCCC as yet to determine an amount;

d. The legal costs in the Probate litigation in matter No. 120009/94, its consequential appeal in the Court of Appeal in 40568/98, and in High Court of Australia matter No. 131/2000.

e. The legal costs in the Equity litigation being the Undue Influence issue in matter No. 3240/98; and its consequential appeal in the Court of Appeal in matter No. 40225/03.

4. A judgment for loss of investment of the Plaintiff’s earnings and loss of realizing the potential in his property investments.

5. A judgment for the HCCC legal costs at the Medical Tribunal and the Court of Appeal as in claims 3b and 3c above.

6. A judgment for the Probate legal costs.

7. A judgment for the sum yet to be determined for the Equity (undue influence) legal costs – a sum yet to be determined.

8. A judgment as of l6.9.2000 for the goodwill of the Plaintiff’s medical practice.

9. A judgement for pain, attempted suicide depression, adjustment disorder and suffering experienced by the Plaintiff.

10. A judgment for loss of reputation experienced by the Plaintiff.

11. A judgment for loss of property.

12. Equitable compensation.

13. Interest pursuant to s. 94 of the Supreme Court Act, including compound interest.

14. Costs.”


72 In my opinion, the Statement of Claim filed in proceedings 20325/03 should be regarded as vexatious, in that it did not plead a comprehensible cause of action.

73 The matter of the Statement of Claim in action 20325/03 came before Master Harrison on the, unsurprising, motion by the Defendant that it be struck out. The Master observed in her judgment of 24 September 2004, “as the Defendant, properly named United Medical Protection of NSW Limited, was no longer in liquidation, the Statement of Claim was filed as of right”. She also observed:

“The Plaintiff has cast a wider net and now pleads causes of action of breach of contract, breach of a constructive trust, statutory breaches of the Insurance Contracts Act 1984 (Cth) (ICA), the Trades Practices Act 1974 (Cth) (TPA), and the Fair Trading Act 1987 (NSW) (FTA), breaches of the duty of good faith (both statutory and in general law), loss of opportunity, negligence, misrepresentation, misleading and deceptive conduct and estoppel.”


74 In her judgment, the Master considered anew, in the light of further evidence adduced by Mr Bar-Mordecai, whether there was available to him a serious question to be tried against the Defendant. In the result, she concluded that the substance of the case, which he wished to present, was hopeless and ordered that the Statement of Claim be dismissed with costs.

75 A further proceeding relied upon by the Attorney General was Mr Bar-Mordecai’s appeal from the decision of the Medical Tribunal ordering his deregistration as a medical practitioner. Judgment upon the appeal was given by the Court of Appeal (Meagher JA, Beazley JA, Pearlman AJA) on 28 May 2002. The appeal was unanimously dismissed on the ground that, as their Honours found, it did not raise any question of law as required by Division 4 of Pt 4 of the Medical Practice Act. In light of what was said by the Court of Appeal, namely, that no question of law was involved, it is plain that Mr Bar-Mordecai’s appeal was bound to fail. However, in all the circumstances, I would stop short of categorising the appeal itself as vexatious. In reaching this conclusion, I bear in mind the significance to Mr Bar-Mordecai of an order removing his name from the Register of Medical Practitioners and the observations made by Meagher JA in his short judgment agreeing with Beazley JA.

76 Another piece of litigation, relied upon by the Attorney General was the appeal by Mr Bar-Mordecai against a decision of Judge Williams in the District Court. The pleadings in the District Court, which are in evidence before me, indicate that it was a claim against Mr Bar-Mordecai and his brother, Dr Isaac Bar-Mordecai, for professional negligence. The negligence alleged was that of Mr Bar-Mordecai. The judgment of Judge Williams is not before me and the Notice of Appeal, filed on 21 May 2001, was a Notice of Appeal without appointment. It appears from the letter of the Court of Appeal to the Registrar of the District Court that as the appellants did not file a Notice of Appeal with appointment, the appeal was taken to be discontinued. There is nothing in the material before me upon which, in my opinion, I could conclude that the appeal was vexatious within s 84 (1) of the Act.

77 On 3 July 1998, Einstein J heard and disposed of 2 motions filed by Mr Bar-Mordecai which the Attorney General asserts constituted the institution of vexatious proceedings within s.84(1) of the Act. Both motions were numbered in the Probate proceedings, but, nonetheless, in my opinion, constituted the institution of legal proceedings within s.84(1) in that judgment had already been given in the action, and the motions represented an attempt by Mr Bar-Mordecai, in effect, to set the judgment aside.

78 Yeldham J discussed this question in Hunters Hill Municipal Council v Pedler and what he said in the following passage was adopted by Roden J in Attorney General v Wentworth: “While it is probably correct to say that interlocutory proceedings taken in the course of an action instituted by another person, which is still current, are not within the section, I think, without endeavouring to supply an exhaustive definition that, where a final decision has been given, any attempt, whether by way of appeal or application to set it aside, or to set aside the proceedings taken to enforce such decision, which is in substance an attempt to relitigate what has already been decided, is the institution of legal proceedings. It is to the substance of the matter that regard must be had and not to its form”. I respectfully, also, adopt the above quoted words of Yeldham J.

79 The first motion dealt with by Einstein J, according to His Honour’s judgment, sought orders “that leave be granted to him to reopen his case for the purpose of calling additional witnesses in evidence, directions for fixing further hearing dates, further dates for subpoenas, and an order that a copy of the court’s ex tempore judgment be delivered to the parties prior to the further date”. Einstein J concluded his judgment:

‘It would be a rare case indeed where in circumstances in which many weeks of a hearing had taken place, numerous witnesses had been called and cross-examined, numerous affidavits had been filed and read, submissions had been taken from all parties and an ex tempore judgment delivered setting out the reasons of the Court in relation to the various claims made in the proceedings, that the unsuccessful party or, indeed, the successful party, would be granted leave to re-open their cases, or either of their cases, for the purposes of calling additional witnesses and evidence, and re-opening the whole of the matters effectively closed by the delivery of the ex tempore judgment.

There is a public interest in the regular conduct of proceedings before the Court and in the finality of those proceedings. Naturally questions of natural justice must be addressed if and when they arise for being appropriately addressed.

The application now made is one without substance. The Notice of Motion is dismissed.”

80 The second motion dealt with by Einstein J on 3 July 1998 sought that, “the judgment be nullified and withdrawn, an order that His Honour dismiss himself from the case, and an order that a new trial be called”.

81 In his judgment upon the second motion, Einstein J concluded:
“In support of the Notice of Motion returnable instanter this morning, to which I have referred, the Plaintiff has sought to rely upon an Affidavit which he has made on 3 July 1998. That Affidavit and the Plaintiff’s submissions from the Bar table are put forward in support of a submission by the Plaintiff that natural justice was denied to the Plaintiff in the proceedings.

In my view, there is no matter which would justify or require the making of any of the orders sought in the Notice of Motion. Once an ex tempore judgment has been delivered by the Court, identifying for relevant purposes which parties succeed and which parties fail after a contested hearing, very exceptional circumstances indeed would need to be shown before the Court would order a new trial or be persuaded to accept that another Justice of the Court ought hear the proceedings.

The motion is dismissed. The Plaintiff is ordered to pay the costs of the Defendants of that motion.”

82 In my opinion, both motions were vexatious, in that they were obviously untenable.

83 On 31 October 2001, Mr Bar-Mordecai filed a further motion in the Probate proceedings. Inter alia, he sought orders that he be granted leave to have the judgment of Einstein J in the Probate proceedings set aside and that a new trial be granted, “as a consequence of the perjury of several witnesses”. The motion was dismissed by Windeyer J on 19 November 2001 upon the application of Mr Bar-Mordecai. In my opinion, the motion constituted the institution of legal proceedings within s 84 (1) of the Act and such proceedings were vexatious as being manifestly untenable. In reaching that conclusion, I have taken into account the matters set forth by Mr Bar-Mordecai in his affidavit of 31 October 2001 sworn in support of the motion. Nothing in that affidavit would seem to provide any ground at all for the making of the orders sought upon the motion.

84 Two days after the dismissal, upon his own application of the motion filed 31 October 2001, Mr Bar-Mordecai filed a further motion, proceedings 120009/94. Apart from formal orders and an order for costs it sought:
1. An Order that leave be granted to extend the time for filing an application to have the Judgment of Einstein J of the 4.9.1998 set aside as to the issues of de facto and revocation.

2. An Order that a new trial be granted as a consequence of

a. Defendants and their witnesses' perjury in matter No. 120009/94

b. Perversion of the course of justice by the representative solicitors, Mr D. Courtenay and Mr S Levitt.

c. Perversion of the Course of justice by Mr Whittle of Counsel.”

85 The motion filed on 2 November 2001 was dismissed with costs by Windeyer J apparently after a hearing on 19 November 2001. I have not seen the judgment of Windeyer J in relation to the matter, but I have read the affidavits of Mr Bar-Mordecai sworn 1 November 2001 and 13 November 2001 in support of the motion. Nothing in either affidavit suggests that the motion had any prospect of success. In my opinion, it was manifestly untenable and should be regarded as a vexatious proceeding instituted in the court.

86 On 7 April 2000, Mr Bar-Mordecai filed a Notice of Motion in the Court of Appeal seeking a large number of orders in relation to the Probate proceedings before Einstein J, including an order that the judgment of Einstein J “be dissolved”. It is manifestly apparent that none of the order sought in the motion was the proper subject of a motion to the Court of Appeal. The motion, which was subsequently dismissed with costs by the Court of Appeal, was untenable and should, in my opinion, be regarded as a vexatious proceeding within s.84 (1) of the Act.

87 As indicated earlier, the Court of Appeal dismissed Mr Bar-Mordecai’s appeal from the judgment of Einstein J in the Probate proceedings on 16 May 2000. Less than a week later, he filed in the Court of Appeal a Notice of Motion seeking, inter alia, an order that he be given leave to re-open his case in the appeal and an order that the order of the Court of Appeal dismissing the appeal with costs, be set aside pending a new hearing. The Court of Appeal (Sheller JA, Stein JA, Giles JA) dealt with the matter in a judgment published on 25 March 2003, the penultimate paragraph of which read:
“Judgment in this Court was given on 16 May 2000 and entered on 18 May 2000. A principle of general law is that when proceedings have been disposed of by a final order which has been entered, the proceedings are at an end and cannot be revived; Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529; Gamser v Nominal Defendant [1977] HCA 7; (1977) 136 CLR 145 and FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268. Such exceptions as there are to this rule would not permit this Court to set aside its former order. No grounds are shown for doing so. In fact, the applicant sought special leave to appeal to the High Court from this Court’s decision. That application was refused with costs on 4 May 2001.

The notice of motion should be dismissed with costs.”


88 In my opinion, the application to re-open the appeal constituted the institution of legal proceedings within s.84 (1) of the Act and, in my opinion, particularly having regard to what was said by the Court of Appeal, such proceedings were vexatious as being manifestly untenable.


89 A further proceeding relied upon by the Attorney General as vexatious is a Notice of Motion heard by Bryson J on 28 November 2002, whereby Mr Bar-Mordecai sought judgment in default of a defence on a Statement of Claim filed against Mr Allan Hillston. By the time the motion was dealt with by Bryson J, a defence had been filed and, as observed by His Honour, it was filed 36 days after the Statement of Claim, in circumstances where the rules do not appear to fix a time for filing a defence.

90 Bryson J said that in any event, difficulties in formulating a defence, having regard to the terms of the Statement of Claim, would excuse any delay in filing it. The motion for default judgment was, as it seems, on any basis, extremely unmeritorious but, in the circumstances, I do not think I should categorise it as vexatious within s. 84 (1) of the Act.

91 On 18 December 2002, Barr J dealt with 2 applications in relation to the action by Mr Bar-Mordecai against Bryson J and Einstein J. The motions sought orders setting aside the judgment of Dunford J on 14 June 2002 and for default judgment against Bryson J and Einstein J, in the absence of any defence filed by them.

92 As at 18 December 2002, Dowd J, on 6 September 2002 had struck out both Statements of Claim. Mr Bar-Mordecai’s application for leave to appeal to the Court of Appeal was pending. The reference to the judgment of Dunford J was that, on 14 June 2002, he extended the time in which defences should be filed, by reference to the determination of the then pending strike out applications. Barr J pointed out that, “what the application is really trying to do is go behind the orders of Dowd J, striking out the Statements of Claim. That he may not do. The only right he has is to take his chances in the Court of Appeal”. Barr J dismissed the applications with costs.

93 Clearly, in my view, the 2 applications before Barr J constituted legal proceedings instituted in this court and, equally clearly, the orders sought were so manifestly groundless as to be utterly hopeless. Both applications, in my opinion, were vexatious within s. 84 (1).

94 Finally, in relation to the proceedings listed in exhibit B. upon which the Attorney General relies, I make reference to 2 judgments of Campbell J delivered on 19 July 2002. They concerned, respectively, Mr Bar-Mordecai’s actions against Liviu Rotman and against Stewart Levitt. In both cases, Mr Bar-Mordecai sought default judgment and costs. Campbell J pointed out that there was a fundamental flaw in Mr Bar-Mordecai’s motions, in that Pt 17 of the rules envisages that default judgment be given only in cases commenced by Statement of Claim whereas the relevant proceedings had been commenced by summons. Each motion was dismissed with costs.

95 It is plain from the judgments of Campbell J that the motions had no prospects of success and were doomed to fail. They also, in my opinion, should be categorised as vexatious proceedings instituted in this court within the meaning of s.84 (1) of the Act.

96 After judgment was reserved on 19 November 2004, the Attorney General applied by motion for leave to reopen his case. That matter came before me on 21 February, when I granted leave to the Attorney General to reopen its case for the purpose of adducing into evidence two Notices of Motion filed by Mr Bar-Mordecai, respectively on 20 January 2005 and 24 January 2005 in the Court of Appeal.


97 The first motion seeks an order for the reopening of the appeal from the judgment of Einstein J in the Probate proceedings. The second motion seeks the reopening of the appeal from Bryson J, referred to in paragraph 26 above. The motions were returnable earlier this month but, so I was informed by Mr Bar-Mordecai, have been adjourned for hearing to a date in March.


98 The motions seek to re-agitate matters which substantially, if not wholly, have been previously litigated. Although they seek orders for the calling of fresh evidence, none of such evidence, as it seems to me, was unavailable when the relevant appeals were heard.

99 Against the objection of Mr Officer, I permitted Mr Bar-Mordecai to hand up, in effect as submissions, the voluminous material upon which he would seek to rely in support of the motions in the Court of Appeal. I have read all of that material, much of it repetitive and much of it in emotive language, doing nothing to assist Mr Bar-Mordecai’s cause.

100 Given that the material, in my opinion, raises no new point of substance given the history of the litigation and given the well established principle that there is a public interest in the finality of litigation, I believe that neither motion has any prospect of success. The motions, in my opinion, should be held to be vexatious within s. 84(1) of the Act.

101 It follows that, in my opinion, within a period of about 5 years, up to and including this year, Mr Bar-Mordecai has instituted numerous vexatious proceedings in this court and in the Court of Appeal. In all but one of those cases, which I identified, I am satisfied that the proceedings were commenced without any reasonable ground. The sheer number of them, coupled with the relative brevity of the period, inescapably, in my opinion, leads to a conclusion that the proceedings were instituted habitually and persistently within s.84 (1).

102 Although an order under s.84 (1) of the Act is discretionary where, as in this case, the basis for an order is plainly established, such an order should, in my view, ordinarily be made, notwithstanding the impact it will have upon the ordinary rights of a citizen to approach a court, in respect of real or imagined grievances. Costs should follow the event.

103 I make these orders:

1. That Michael Jacob Bar-Mordecai shall not, without leave of this court, institute proceedings in any court.

2. That any legal proceedings instituted by Michael Jacob Bar-Mordecai, in any court before the date of this order, shall not be continued by him without leave of this court.

3. That Michael Jacob Bar-Mordecai pay the costs of these proceedings.

4. The exhibits may be returned.

5. That Michael Jacob Bar-Mordecai give not less than 3 days notice to Crown solicitor of any application to institute proceedings for leave pursuant to orders 1 and 2 above.

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LAST UPDATED: 23/03/2005