Application by Bar-Mordecai [2019] NSWSC 810

Application by Bar-Mordecai [2019] NSWSC 810

The discontinuance of the application for leave under s 14(2) of the Vexatious Proceedings Act 2008 (NSW) fell within r 12.1 of the Uniform Civil Procedure Rules 2005 (NSW), because "any proceedings" is to be construed broadly and encompassed the present application to discontinue. Although the notice was not in the proper form, strict compliance was waived because the applicant was self-represented and the notice was largely in the correct form. Leave to discontinue was appropriate because the applicant was the only active party and the summons, or at least a significant part of it, did not attract s 15 of the Act.

Jurisdiction
Australia
Judgment Date
28 June 2019
Procedural Posture
Application by a Vexatious Litigant for Leave to Discontinue a Summons Seeking Leave to Institute Proceedings by Filing a Notice of Appeal / On the Papers
Outcome
Leave granted to discontinue the summons filed 19 March 2019 in matter number 2019/86784.
Legal Topics
['vexatious Proceedings Act 2008 (nsw)' 'leave to Institute Proceedings' 'notice of Discontinuance' 'uniform Civil Procedure Rules 2005 (nsw) R 12.1' 'construction of "proceedings"']
['civil Procedure' 'vexatious Proceedings'] ['vexatious Proceedings Act 2008 (nsw)' 'leave to Institute Proceedings' 'notice of Discontinuance' 'uniform Civil Procedure Rules 2005 (nsw) R 12.1' 'construction of "proceedings"']

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Procedural Posture

Application by a Vexatious Litigant for Leave to Discontinue a Summons Seeking Leave to Institute Proceedings by Filing a Notice of Appeal / On the Papers

Legal Issues

  1. 1 ['Whether the applicant could discontinue the summons filed 19 March 2019 seeking leave under s 14(2) of the Vexatious Proceedings Act 2008 (NSW).' 'Whether the notice filed by the self-represented applicant should be accepted despite not being in the proper form required by r 12.1 of the Uniform Civil Procedure Rules 2005 (NSW).' 'Whether r 12.1 of the Uniform Civil Procedure Rules 2005 (NSW) applied to the discontinuance of an application for leave under s 14(2) of the Vexatious Proceedings Act 2008 (NSW).']

Ratio Decidendi

The discontinuance of the application for leave under s 14(2) of the Vexatious Proceedings Act 2008 (NSW) fell within r 12.1 of the Uniform Civil Procedure Rules 2005 (NSW), because "any proceedings" is to be construed broadly and encompassed the present application to discontinue. Although the notice was not in the proper form, strict compliance was waived because the applicant was self-represented and the notice was largely in the correct form. Leave to discontinue was appropriate because the applicant was the only active party and the summons, or at least a significant part of it, did not attract s 15 of the Act.

Court Disposition

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

Orders

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