Medical Tribunal New South Wales

• Medium Neutral Citation: Michael Bar-Mordecai v The Medical Council of New South Wales [2013] NSWMT 5
• Hearing dates: 25 March 2013; 3 April 2013
• Decision date: 03 April 2013
• Before: Colefax SC DCJ

Decision

1. Amended application dated 24 April 2013 is dismissed.

2. No further application to be accepted by the Tribunal without a further order from the Supreme Court of NSW.

3. Each party to bear its own costs.

• Catchwords: Medical practitioner - application to disqualify Deputy Chairperson refused - application to Tribunal struck out as an abuse of process - failures to comply with conditions of Supreme Court leave and directions of the Tribunal - inherent power in Tribunal of its own motion to strike out proceedings as an abuse of process.
• Legislation Cited: Supreme Court Act 1970; Vexatious Proceedings Act 2008
• Cases Cited: British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; Re Dr AKS [2011] NSWMT 14; Metropolitan Bank v Pooley (1885) 10 App Cas 2; Rogers v the Queen (1994) 181 CLR 251; Walton v Gardiner (1993) 197 CLR 378; Batistatos v The Roads and Traffic Authority (2006) HCA 27; Sudath v Health Care Complaints Commission [2012] NSWCA 171
• Category: Interlocutory applications
• Parties: Mr Michael Bar-Mordecai (Applicant); Medical Counsel of NSW (Respondent)
• Representation: Ms. D. Ward (Respondent); Mr. M. Bar-Mordecai (self represented) (Applicant)
• File Number(s): 40009/12 & 40011/12.
• Publication restriction: No

Judgment

1 On 25 March 2013, I directed that the application filed in this tribunal by Mr Michael Bar-Mordecai should be listed for hearing for him to show cause why that application should not be struck out as an abuse of process.

2 On 2 April 2013, Mr Bar-Mordecai filed in court a document which I have had marked for identification three in which he foreshadowed an application that I disqualify myself from undertaking today the show cause hearing which I fixed on 25 March.

3 As anticipated in that document, Mr Bar-Mordecai has today formally made application that I disqualify myself from considering the show cause matter. Mr Bar-Mordecai made submissions both as to the disqualification issue and more generally on the abuse of process issue.

4 If Mr Bar-Mordecai's application that I disqualify myself is successful, it is of course unnecessary for me to address the abuse of process issue.

5 As I have understood Mr Bar-Mordecai's submission on the disqualification issue, he has submitted that at the directions hearing on 25 March 2013, I exhibited towards him both prejudice and self-interest. The relevant authority for a judge (or a judicial officer such as a deputy chairperson of this tribunal) disqualifying himself from undertaking the duties of such a judicial officer is set out in the decision of the High Court of Australia in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2.

6 Although the High Court split as to the ultimate outcome, their Honours were, generally speaking, of one mind as to what the appropriate test should be, and that is whether a fair-minded lay observer would conclude, bearing in mind all of the material, that the judge would not bring an open mind to determining the issues before him.

7 In this regard, Mr Bar-Mordecai submits that because he wishes to assert that other judicial officers who have functioned as either the chairperson or the deputy chairperson of this tribunal have engaged in what he describes as corrupt conduct, a fair-minded observer would conclude that I, being a judicial colleague of those other judges, would be prepared to participate in some form of judicial conspiracy.

8 The statement needs only to be articulated for it to be seen to be without substance.

9 I have had no dealings with Mr Bar-Mordecai of any kind before 25 March 2013, and my knowledge of the background to his application has been formed exclusively by reference to the tribunal file.

10 I reject his application to disqualify myself from further involvement in these proceedings.

11 Turning to the question of whether Mr Bar-Mordecai has shown cause why his application should not be struck out as an abuse of process, as I have understood his submission, there are three broad reasons (apart from the conspiracy issues) which he seeks to advance - or at least there are three issues which require significant consideration.

12 The first submission is that the tribunal contains no power to strike out an application as an abuse of process. The second submission is that the order of Beech-Jones J precludes the tribunal from striking the proceedings out as an abuse of process, assuming the first question is resolved adversely to Mr Bar-Mordecai. The third broad submission is that in the absence of an application by the Medical Council, it is not appropriate, nor does the tribunal have power of its own motion, to consider a strike-out application (or even to formulate for itself a strike-out application).

13 I have had previous occasion to consider whether or not the tribunal of its own motion has power to strike out an application by reason of it being an abuse of process of the tribunal.

14 In Re Dr AKS [2011] NSWMT 14, I reviewed what I thought to be the relevant authorities in that regard. In that decision at para 36, I cited the judgment of Lord Blackburn in Metropolitan Bank v Pooley (1885) 10 App Cas 210 for the proposition that the power existed to enable a court to protect itself from abuse of its processes, thereby safeguarding the administration of justice; and I noted that that purpose may transcend the interests of any particular party to the litigation.

15 Further, in that case, I cited the judgment of McHugh J in Rogers v the Queen (1994) 181 CLR 251 where at p 286 his Honour said:

"Many, perhaps the majority of, cases of abuse of procedure arise from the institution of proceedings. But any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the Court's process."

16 Finally in that judgment at para 38, drawing on Walton v Gardiner (1993) 197 CLR 378 I said:

"Extra curial tribunals, such as this tribunal, can call in aid this doctrine of abuse of process, a doctrine which 'is insusceptible of a formulation comprising closed categories. Development continues.' see Batistatos v The Roads and Traffic Authority (2006) HCA 27 at 9 per Gleeson CJ, and Gummow, Hayne and Crennan JJ."

17 That decision was the subject of appeal. In Sudath v Health Care Complaints Commission [2012] NSWCA 171, the three justices of appeal concluded that my ultimate order was wrong, and their Honours set it aside. Significantly, however, the Court of Appeal did not say that I was in error in holding that this tribunal had the power of its own motion to strike out proceedings as an abuse of process per se.

18 To the extent therefore that Mr Bar-Mordecai's submissions today are based upon an assertion that this tribunal has of its own motion no power to strike out proceedings as an abuse of process, I reject those submissions.

19 That ruling however does not deal with Mr Bar-Mordecai's second principal submission, and that is that the orders of the Supreme Court on 24 April 2012 preclude this tribunal from taking the step which I have been discussing.

20 In order to understand my conclusion in relation to that submission, some background material is necessary.

21 On 25 February 2005, Patten AJ made an order under s 84(1) of the Supreme Court Act that Mr Bar-Mordecai not institute proceedings in any court without the leave of the Supreme Court. The order of his Honour became "a vexatious proceedings order" upon the coming into effect of the Vexatious Proceedings Act.

22 For the purpose of a vexatious proceedings order, any application in this tribunal was covered.

23 On 19 March 2012, without the leave required by s 14(2) of the Vexatious Proceedings Act, Mr Bar-Mordecai filed an application in this tribunal.

24 On 24 April 2012, Beech-Jones J made orders in the Supreme Court granting leave to Mr Bar-Mordecai to make an application in this tribunal to review earlier orders removing his name from the register of medical practitioners. His Honour was fully seized of the nature of the material which Mr Bar-Mordecai had filed without leave on 19 March 2012 because in granting that leave his Honour made very specific conditions as to the nature of the material which Mr Bar-Mordecai could file.

25 On the same day as the Supreme Court made those orders, Mr Bar-Mordecai filed an amended application in this tribunal. That application was in general terms consistent with the orders made by Beech-Jones J.

26 However on 8 May 2012, Mr Bar-Mordecai filed an application in the tribunal in effect seeking summary judgment at the then next forthcoming directions hearing which was to be conducted on 10 May 2012. The application for summary judgment which Mr Bar-Mordecai filed repeated much, if not all, of the allegations that Beech-Jones J did not give him leave to bring.

27 At the directions hearing on 10 May 2012, it is unclear what occurred. The tribunal does not have a transcript of the proceedings, and the relevant deputy chairperson's associate's note is not relevantly helpful or enlightening.

28 What next happened was that on 21 June 2012, a further directions hearing was conducted, and a hearing date was fixed for 22 October 2012.

29 At that directions hearing, apart from fixing a hearing date, an evidentiary timetable was fixed, and Mr Bar-Mordecai was directed to file and serve affidavits and submissions by 28 June 2012. In addition to fixing that timetable, the deputy chairperson granted liberty to apply.

30 On 22 October 2012, the hearing date which had been fixed in June was vacated. It was vacated because Mr Bar-Mordecai filed and served material that went significantly beyond and indeed was in contravention of the leave granted by Beech-Jones J. It in effect sought to reagitate matters in respect of which leave had been specifically refused.

31 It is appropriate to note that Mr Bar-Mordecai on that occasion acknowledged that much of the material he had filed and served was contrary to the leave granted by his Honour. It is further appropriate to note that the respondent made no use of the liberty to apply before the hearing date.

32 In vacating that hearing date, the tribunal gave detailed directions for the preparation of evidence for a further hearing date, and stood Mr Bar-Mordecai's application over for directions to 21 February 2013 when it was expected (in the light of the served material) that a fresh hearing date would be fixed.

33 On 21 February 2013, that directions hearing took place. In the meantime, Mr Bar-Mordecai had filed and served further material. It too was also contrary to the leave granted by Beech-Jones J and the earlier directions of the tribunal.

34 The tribunal adjourned the proceedings for six weeks to allow Mr Bar-Mordecai to approach the Supreme Court if he wished to vary the conditions of leave so that the material that he had repeatedly placed before the tribunal in breach of the orders of the Court might be reconsidered. The tribunal noted that if, in the meantime, no such application were made to the Supreme Court, then at the next directions hearing six weeks later, a timetable would be set for the filing of material within the scope of the existing Supreme Court orders.

35 The matter was therefore stood over for directions to 25 March 2013.

36 On 18 March 2013, Mr Bar-Mordecai filed a substantial affidavit and submissions. Those have been marked for identification one and two. Both the affidavit and the submissions again persist in breaching the conditions of leave fixed by Beech-Jones J and earlier rulings of the tribunal.

37 However, those documents go further than previous documents filed. The documents filed on 18 March 2013 also extend an attack to Beech-Jones J.

38 It will therefore be seen that on four separate occasions, Mr Bar-Mordecai has filed material in the tribunal which have been inconsistent with and in breach of the condition of leave granted by the Supreme Court on 24 April 2012.

39 One way in which this persistent breach of the Supreme Court's ruling might have been dealt with would have been for the Medical Council to take the matter back to the Supreme Court to have the grant of leave withdrawn. That has not occurred.

40 Mr Bar-Mordecai has submitted that the tribunal is unduly concerned with criticism of judicial officers and he points to Canadian authority which correctly says that Courts ought to welcome public scrutiny.

41 The tribunal is not concerned at the moment with criticism. Nor is the tribunal concerned about proper public scrutiny.

42 What the tribunal is presently concerned about is that Mr Bar-Mordecai is subject to a vexatious proceedings order. That order mandates that he may only bring proceedings with leave of the Supreme Court. He has persistently breached that leave, and it is because he has persistently breached that leave that in my opinion the continuation of the application would be an abuse of process. I therefore order that Mr Bar-Mordecai's

WARD: Before your Honour does so - I am sorry to interrupt - but will I have an opportunity, your Honour, to address your Honour in relation to some of the matters that your Honour has just set out in your Honour's extempore judgment?

DEPUTY CHAIRPERSON: No, Ms Ward.

WARD: Because I'm concerned that your Honour is referring to a vexatious proceedings order that talks about the way in which

DEPUTY CHAIRPERSON: Ms Ward, I'm talking about the order which Beech-Jones J made on 24 April 2012.

WARD: Yes, and your Honour's judgment refers to the order as if in terms it addresses the question of evidence that the applicant can file as opposed to proceedings.

DEPUTY CHAIRPERSON: I won't hear you, Ms Ward.

WARD: As your Honour pleases.

DEPUTY CHAIRPERSON: I have got to the end of this judgment. I am about to pronounce orders.

WARD: Yes. That's why I intervened when I did, your Honour, because I did want to be heard on that point.

DEPUTY CHAIRPERSON: Yes.

APPLICANT: Your Honour

DEPUTY CHAIRPERSON: Both of you please sit down.

43 I order that the amended application filed by Mr Bar-Mordecai on 24 April 2012 be dismissed as an abuse of process of the tribunal.

44 I further order that no further application or document be accepted by the tribunal for filing without a further order being made by the Supreme Court.

[Note: draft received on 22 April 2013 and revised 23 April 2013].

Decision last updated: 30 April 2013