Application of Michael Bar-Mordecai [2014] NSWSC 414

Application of Michael Bar-Mordecai [2014] NSWSC 414

Leave was refused because Mr Bar-Mordecai accepted that the proposed proceedings would be instituted without reasonable grounds, the Court had twice previously refused leave to sue Dr XY and no additional material justified a different result, an ineluctable component of the proposed claim was bad in law because Dr XY was immune from suit for conduct as a witness, and the proposed Statement of Claim would likely be struck out; accordingly the proposed proceedings would be vexatious proceedings under the Vexatious Proceedings Act 2008.

Jurisdiction
Australia
Judgment Date
11 April 2014
Procedural Posture
Application Under Vexatious Proceedings Act 2008 for Leave to Commence Proceedings / On the Papers
Outcome
The application for leave to commence proceedings was dismissed.
Legal Topics
['vexatious Proceedings' 'leave to Institute Proceedings' 'witness Immunity From Suit' 'medical Negligence Claim' 'strike Out']
['procedure' 'civil Procedure'] ['vexatious Proceedings' 'leave to Institute Proceedings' 'witness Immunity From Suit' 'medical Negligence Claim' 'strike Out']

Case Brief

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Procedural Posture

Application Under Vexatious Proceedings Act 2008 for Leave to Commence Proceedings / On the Papers

Legal Issues

  1. 1 ['Whether leave should be granted to Michael Bar-Mordecai to commence proceedings against Dr XY for medical negligence.' 'Whether the proposed proceedings would be vexatious proceedings or instituted without reasonable grounds within the meaning of the Vexatious Proceedings Act 2008.' "Whether the proposed claim was bad in law because it relied on Dr XY's conduct as a witness, attracting witness immunity." 'Whether the proposed Statement of Claim would be likely to be struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005.']

Ratio Decidendi

Leave was refused because Mr Bar-Mordecai accepted that the proposed proceedings would be instituted without reasonable grounds, the Court had twice previously refused leave to sue Dr XY and no additional material justified a different result, an ineluctable component of the proposed claim was bad in law because Dr XY was immune from suit for conduct as a witness, and the proposed Statement of Claim would likely be struck out; accordingly the proposed proceedings would be vexatious proceedings under the Vexatious Proceedings Act 2008.

Court Disposition

The application for leave to commence proceedings was dismissed.

Orders

  • ['The application for leave to commence proceedings pursuant to s 14 of the Vexatious Proceedings Act 2008 contained in the Summons filed 18 October 2013 is dismissed.']