Citation: BAR-MORDECAI v. HILLSTON [2003] NSWSC 1269
Court: Supreme Court of New South Wales (Equity Division)
Date: 27 June 2003
Judge: Bryson J
Background
The plaintiff, a self-represented litigant, applied to the Supreme Court for leave to prosecute a witness for perjury under s 338(1)(c) of the Crimes Act. The application concerned evidence given by the defendant witness across several proceedings, including equity proceedings heard by Bryson J and earlier probate proceedings heard by Einstein J. The plaintiff also initially sought leave in relation to evidence given before the Medical Tribunal, but abandoned that aspect of the application during the hearing.
The plaintiff had been unsuccessful in the underlying equity litigation and alleged that the defendant witness had given false evidence across multiple hearings. The charges were set out in a Second Further Amended Summons filed on 14 April 2003, more than a year after proceedings were commenced.
Under s 338(1)(c) of the Crimes Act, leave to prosecute for perjury must be obtained from the court. Where perjury is alleged to have been committed before a judicial officer, that officer is ordinarily the person designated to decide whether leave should be granted. Bryson J was therefore the appropriate decision-maker for the charges arising from the equity proceedings before him.
Legal Issues
- Whether Bryson J was disqualified by actual or apprehended bias from determining the leave application, given that he had presided over the proceedings in which the alleged perjury occurred.
- Whether leave to prosecute for perjury should be granted under s 338(1)(c) of the Crimes Act.
- Whether the proceedings should be summarily dismissed as vexatious.
Decision
Bryson J rejected the bias argument. He observed that the legislation specifically designates the judicial officer before whom the alleged perjury occurred as the decision-maker for a leave application. The fact that he had reached conclusions adverse to the plaintiff's position in the principal proceedings was an inescapable feature of those proceedings, not a basis for disqualification. He was not satisfied that any reasonable, dispassionate observer would perceive bias.
On the merits of the leave application, Bryson J found that the charges as set out in the Second Further Amended Summons were legally inadequate. The document did not identify, in any recognisable form, the date, place, or proceedings in which each alleged perjury occurred, nor did it set out the true state of facts that would establish the falsity of the evidence. The charges could not form the basis of any informed decision to grant leave.
More fundamentally, the plaintiff did not point to any objective evidence that the defendant's evidence had been false. What the plaintiff sought was, in substance, a re-examination of material that had already been put to Bryson J and determined on the balance of probabilities, but now tested to the criminal standard. Bryson J held that rehashing already-adjudicated material, without fresh objective evidence of falsity, provided no rational foundation for a perjury prosecution.
Bryson J noted a further indicator of the vexatious character of the proceedings: the plaintiff was simultaneously pursuing an appeal in the Court of Appeal to overturn the same findings of fact, while also seeking to initiate criminal prosecutions arising from that same subject matter. The proceedings were dismissed summarily.
Orders Made
- Proceedings dismissed with costs.
- Hearing appointment for October vacated.
Key Takeaways
- Under s 338(1)(c) of the Crimes Act, the judicial officer before whom alleged perjury was committed is ordinarily the designated decision-maker for a leave application, and the fact that they made findings adverse to the applicant in the principal proceedings does not, without more, give rise to disqualification for bias.
- A perjury prosecution cannot rationally be founded solely on a re-examination of evidence already adjudicated in the principal proceedings; some objective material demonstrating the falsity of the evidence is required before leave will be granted.
- Charges supporting a leave application must be formulated with sufficient particularity, including the date, place, and proceedings involved, and must identify the true state of facts that would show the evidence to be false.
- Section 338 of the Crimes Act is intended to prevent perjury prosecutions from becoming satellite litigation attached to every hard-fought factual dispute.
- Simultaneously pursuing an appeal to overturn findings of fact while also seeking to initiate perjury prosecutions on the same subject matter is a strong indicator that the leave application is vexatious.
Legislation and Cases Referenced
Legislation:
- Crimes Act (NSW), s 338(1)(c) and s 338(2): governing applications for leave to prosecute for perjury, including the designation of the appropriate judicial officer to hear such applications.
No cases were cited in the judgment text or metadata.