Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: Attorney General in and for the State of New South Wales v Markisic [2014] NSWSC 1596 Hearing dates: 14 November, 15 November 2011, 16 November 2011, 15 March 2012, 2 June 2014, 3 June 2014, 24 September 2014 and written submissions Decision date: 13 November 2014 Jurisdiction: Common Law Before: Schmidt J Decision: 1. Pursuant to s 8(7)(b) of the Vexatious Proceedings Act 2008 (NSW), Mr Dragan Markisic is prohibited from instituting proceedings in New South Wales without leave of the Court.
2. Pursuant to s 8(7)(b) of the Vexatious Proceedings Act 2008 (NSW), the cross-claim already instituted by Mr Dragan Markisic be stayed.
3. Mr Dragan Markisic is to bear the Attorney General's costs of the proceedings brought against him in this case, as agreed or assessed.
Catchwords: PROCEDURE - orders sought under the Vexatious Proceedings Act 2008 (NSW) - procedural requirements satisfied - litigious history established by evidence and admissions - vexatious proceedings established - defendant frequently involved in vexatious proceedings - whether orders should extend to cross-claim - orders made
EVIDENCE - documentary evidence - documents in dispute - judgments and transcripts of proceedings - relevance - admissibility - s 91 Evidence Act 1995 (NSW) - proof - s 157 Evidence Act 1995 (NSW) - judgments - whether reasons for judgment are a public document - proof of reasons for judgment pursuant to s 48 of the Evidence Act 1995 (NSW) - hearsay - s 64 of the Evidence Act 1995 (NSW) - judges not compellable to give evidence - s 69 application of business records exception to judgments and reasons
EVIDENCE - application under s 67 of the Evidence Act 1995 (NSW) - direction givenLegislation Cited: Civil Procedure Act 2005 (NSW)
Evidence Act 1995 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Vexatious Proceedings Act 2008 (NSW)Cases Cited: Australian Competition and Consumer Commission v Air New Zealand [2012] FCA 1355; (2012) 207 FCR 448
Australian Securities and Investments Commission v Rich [2005] NSWSC 417; (2005) 216 ALR 320
Attorney General v Chan [2011] NSWSC 1315
Attorney General of New South Wales v Croker [2010] NSWSC 942
Attorney General in and for the State of New South Wales v Markisic [2011] NSWSC 1304
Attorney General in and for the State of New South Wales v Markisic [2011] NSWSC 1333
Attorney General in and for the State of New South Wales v Markisic [2011] NSWSC 1436
Attorney General in and for the State of New South Wales v Markisic [2012] NSWSC 433
Attorney General in and for the State of New South Wales v Markisic [2012] NSWSC 510
Attorney General in and for the State of New South Wales v Markisic [2012] NSWSC 866
Attorney General in and for the State of New South Wales v Markisic [2012] NSWSC 1143
Attorney General in and for the State of New South Wales v Markisic [2012] NSWSC 1253
Attorney General in and for the State of New South Wales v Markisic [2013] NSWSC 1212
Attorney General in and for the State of New South Wales v Markisic [2014] NSWSC 581
Attorney General of New South Wales v
Croker v Attorney General of New South Wales [2010] NSWCA 355
Crown Glass & Aluminium P/L v Ibrahim [2005] NSWCA 195
Cvetkovic v R [2010] NSWCCA 329
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Dragan Markisic v Department of Community Services of NSW, State of New South Wales, Commonwealth of Australia, The Trustees of the Roman Catholic Church for the Archdiocese of Sydney and Qantas Airways Limited (Supreme Court (NSW), Grove J, 18 July 2005, unrep)
Dragan Markisic v Department of Community Services and 7 Ors; Oliver Markisic v Commonwealth of Australia and 3 Ors (Court of Appeal (NSW), Bryson JA, 29 January 2007, unrep)
Dragan Markisic v Director-General of the Department of Community Services [1998] FamCA 142)
Director-General of the Department of Community Services v Dragan Markisic (Family Court, Johnston JR, 17 August 1998, unrep)
Director-General of the Department of Community Services v Dragan Markisic [1998] FamCA 2229
Director-General, Department of Community Services v Markisic & Anor (Family Court of Australia, Cohen J, 1 March 2011, unrep)
Fletcher International Exports Pty Ltd v Lott [2010] NSWCA 63
Jones v Toben [2002] FCA 1150; (2002) 71 ALD 629
Karmas v New South Wales Land and Housing Corporation [1999] NSWSC 157
In the Matter of Maiden Civil Pty Ltd [2012] NSWSC 1618
King Investment Solutions v Hussain [2005] NSWSC 1076; (2005) 64 NSWLR 441
Markisic v AEA Ethnic Publisher Pty Ltd & Ors [2006] NSWCA 378
Markisic v AEA Ethnic Publisher Pty Ltd & Ors [2007] HCATrans 582 (4 October 2007)
Markisic v Director-General Department of Community Services [1998] HCATrans 374 13 October 1998)
Markisic v Department of Community Services of New South Wales & Ors [2005] NSWSC 1373
Markisic v Department of Community Services of New South Wales & Ors [2005] NSWSC 1374
Markisic (Dragan) v Department Of Community Services & Ors [2006] NSWCA 149
Markisic v Department of Community Services of New South Wales & Ors [No 2] [2006] NSWCA 321)
Markisic v Department of Community Services of New South Wales & Ors [2007] NSWCA 30
Markisic v Department of Community Services of New South Wales & Ors [2007] HCATrans 111 (5 March 2007)
Markisic v Department of Community Services of New South Wales & 4 Ors (Supreme Court (NSW), Fullerton J, 18 July 2008, unrep)
Markisic & Anor v Middletons Lawyers & Ors [2005] NSWSC 258
Markisic & Anor v Middletons Lawyers & Ors [2006] HCATrans 713 (14 December 2006)
Markisic & Anor v Middletons Lawyers & Ors [2007] NSWSC 1147
Markisic & Anor v Middletons Lawyers [2008] HCASL 516
Markisic & Anor v Nicholson CJ [2002] NSWSC 771
Markisic v Today-Denes & Ors [2002] NSWSC 308
Markisic v Today-Denes & Ors [2002] NSWSC 1051
Markisic v Today-Denes & Ors [2005] NSWSC 1276
Markisic v Today-Denes & Ors [2008] NSWSC 482
Markisic & Anor v United States of America & Anor [2006] NSWSC 839
Markisic & Anor v United States of America & Anor [2006] NSWSC 973
Markisic & Anor v United States of America & Anor [2006] NSWSC 1010
Markisic & anor v Ms Gina Vizza & 16 Ors (Court of Appeal (NSW), Irwin R, 24 June 2002, unrep)
Markisic & Anor v Vizza & Ors [2001] NSWSC 1155
Markisic & Anor v Vizza & Ors [2002] NSWCA 53
Markisic & Anor v Vizza & Ors [2002] NSWCA 243
Markisic & Anor v Vizza & Ors [2002] NSWCA 384
Markisic & Anor v Vizza & Ors [2003] HCATrans 464 (14 November 2003)
National Australia Bank Ltd v Rusu [1999] NSWSC 539; (1999) 47 NSWLR 309
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589
Ryan v Watkins [2005] NSWCA 426Category: Principal judgment Parties: Attorney General in and for the State of New South Wales - Plaintiff/First Cross-Defendant
Dragan Markisic - First Defendant/First Cross-Claimant
Oliver Markisic - Second Defendant/Second Cross-Claimant
The Commonwealth of Australia - Second Cross-DefendantRepresentation: Mr JS Emmett (Plaintiff)
Mr DP Robinson SC (Second Cross Defendant)
IV Knight, Crown Solicitor (Plaintiff)
Oliver Markisic (In Person)
Dragan Markisic (In Person)
File Number(s): 2011/76594 Publication restriction: None
Judgment
By summons filed in March 2011 the Attorney General sought orders under s 8(7) of the Vexatious Proceedings Act2008 (NSW) ("the Act"), prohibiting the then defendants, the brothers, Mr Dragan Markisic and Mr Oliver Markisic, from instituting proceedings in New South Wales without leave of the Court. Following Mr Oliver Markisic's death in 2013, the proceedings are now only pursued against Mr Dragan Markisic.
The procedural history of the matter has been regrettably difficult and protracted.
The matter was originally listed for hearing for three days in November 2011. Beforehand Rothman J had given two interlocutory judgments (see Attorney General in the State of New South Wales v Markisic [2011] NSWSC 1304 and Attorney General in and for the State of New South Wales v Markisic [2011] NSWSC 1333). The November hearing was taken up with various other interlocutory applications which had not earlier been dealt with. The parties later also pursued other interlocutory matters.
In the result the defendants' application that the Attorney General's summons be summarily dismissed was refused in May 2012 (see Attorney General in and for the State of New South Wales v Markisic [2012] NSWSC 433). The defendants had also filed a first cross-summons, the hearing of which was deferred until after the Attorney General's summons had been heard and determined (see Attorney General in and for the State of New South Wales v Markisic [2013] NSWSC 977).
On the summary dismissal application, what had been in contention, amongst other things, was the proper construction of the Vexatious Proceedings Act; whether the Attorney General's summons was deficient in various ways; and whether the documents on which the Attorney General's case rested were admissible, having regard to various provisions of the Evidence Act 1995 (NSW). As to the latter issue I concluded in the May 2012 judgment at [68] - [72] that:
"68 Amongst other things, the matters over which the parties join issue involve questions of the proper construction of the Evidence Act. The arguments advanced for the Attorney General as to these matters have not been shown to be obviously untenable. It follows that these are matters about which the parties must be heard, in the context of the particular documents sought to be relied on. They may not simply be dismissed as groundless, at this stage of the proceedings.
69 Whether or not the contents of the documents, if admitted, will prove the case which the Attorney General seeks to establish is another matter, which can only be determined once the admissibility of the various documents in issue has been resolved. At this stage, the matter must be approached on the basis of the Attorney General's case being taken at its highest. On that basis, the evidence on which the Attorney General wishes to rely may not be dismissed as simply irrelevant and incapable of establishing the case sought to be advanced.
70 To the contrary, that the defendants on their own cases have been parties to various proceedings since proceedings in the Family Court in 1998 involving Mr Dragan Markisic, suggests that the real issues in the proceedings are, in reality, somewhat narrower than the defendants' submissions suggest. It is the authenticity and admissibility of the documents sought to be relied on and what they may prove, over which the parties differ and which must be resolved.
71 This is not the time to come to any conclusions about these matters. It is however, pertinent to note that the defendants rely on s 91 of the Evidence Act. The section provides:
"91 Exclusion of evidence of judgments and convictions
(1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.
(2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose."
72 In its terms this section does not preclude a judgment being tendered as evidence in other proceedings. To the contrary, it is settled that a judgment may be tendered in other proceedings in order to establish things other than the truth of the facts found in the proceedings (see Ainsworth v Burden [2005] NSWCA 174 at [109])."
After hearing various other interlocutory applications, the Attorney General's summons was heard ex parte on 2 and 3 June 2014, when the Attorney General pressed orders sought in an amended summons, only filed on 4 June 2014, despite leave to amend the summons having been given in Attorney General in and for the State of New South Wales v Markisic [2013] NSWSC 1212 and the oversight having been raised at the commencement of the hearing on 2 June. The orders finally sought were:
"1. Orders pursuant to s. 8(7)(b) of the Vexatious Proceedings Act 2008 prohibiting the first defendant from instituting proceedings in New South Wales without leave of the Court.
2. Orders pursuant to s. 8(7)(b) of the Vexatious Proceedings Act 2008 prohibiting the second defendant from instituting proceedings in New South Wales without leave of the Court.
3. Pursuant to s. 8(7)(a) of the Vexatious Proceedings Act 2008, an order staying the first defendant's cross claim.
4. Pursuant to s. 8(7)(a) of the Vexatious Proceedings Act 2008, an order staying the second defendant's cross claim.
5. Such further or other order as the Court considers appropriate.
6. Costs."
Despite this, orders were only pressed against Mr Dragan Markisic. The Attorney General's case against him rested on the evidence of Ms Jessica Kavanagh, a solicitor formerly employed by the Crown Solicitor's Office, who had affirmed an affidavit in March 2011 and had been cross-examined on certain matters at the November 2011 hearing. Annexed to her affidavit were documents which she described to be copies of various judgments given in proceedings in which Mr Markisic had been a party, on which it was explained at the hearing, the Attorney-General's case rested.
Ms Kavanagh deposed that she had obtained some of these documents by searching legal databases such as and the New South Wales Supreme Court website and printing copies of them. In other cases Ms Kavanagh had obtained copies of judgments by writing to the Local Court, the Family Court and this Court, asking to be provided with copies of unpublished judgments. In some cases Ms Kavanagh had obtained copies of judgments kept in Crown Solicitor's office files.
The Attorney General had served written submissions in October 2011, but they did not deal with its case as to the admissibility of the documents annexed to Ms Kavanagh's affidavit. In March 2014, directions were given that the Attorney General file and serve an outline of submissions by 19 May 2014; that Mr Markisic file and serve his outline by 26 May and that the Attorney General file and serve any outline of submissions in reply by 29 May 2014.
In May 2014 another version of the Attorney General's 2011 submissions, in which references to the case against Mr Oliver Markisic had been deleted, was served on Mr Markisic. Those revised submissions did not address the Attorney General's case as to the admissibility of the documents annexed to Ms Kavanagh's affidavit, despite that having been identified to be one of the significant issues lying between the parties, which had to be resolved at the trial, as I have explained.
Nor did Mr Markisic serve any evidence or submissions, despite the Registrar having made orders in 2011 that the parties serve all of their evidence prior to the hearing fixed in November 2011, and the further orders later made as to his service of the evidence and submissions on which he wished to rely to meet the case against him. Nor did he finally appear at the hearing to defend the Attorney General's case.
In the result, the position of the disputed documents on which the Attorney General's case rested, finally received without objection, is like that discussed in Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, where it was observed at [46]:
"First, if the document was of unknown origin, it could have been objected to as unauthenticated and irrelevant. The Evidence Act 1995 does not permit documents to authenticate themselves save in limited circumstances: National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309. The plaintiff's complaint is that there was no evidentiary basis for the trial judge's finding that it was, when read with Exhibit 4C, what it purported to be, namely a page of Dr Thurai's patient history of the plaintiff. If so, the document could have been rejected on objection. And if the complaint is that there was no evidence that there was a Dr Thurai or that there was no evidence that he had treated the plaintiff, or that "Terence Daw" was not the plaintiff, the document was not capable of rationally affecting the assessment of the probability of a fact in issue, and hence was irrelevant (Evidence Act s 55(1)) and inadmissible (s 56(2)). But since the document was not objected to by the plaintiff at the trial, it is not now open to the plaintiff to raise complaints about the defendant's failure to prove its origin by explicit means."
Even so, I am satisfied for the reasons which follow, that the documents on which the Attorney General's case rested, were relevant and admissible and proved the case which it sought to establish against Mr Markisic.
Application under s 67 of the Evidence Act1995
The hearing was adjourned on 2 June 2014 on the Attorney General's application to 3 June, and on that day, it was again adjourned in order for Mr Markisic to be given the opportunity to make submissions responding to those which had been advanced for the Attorney General, which had not earlier been dealt with in its written submissions.
That adjournment followed receipt on 3 June of a medical certificate from a Dr Nick Cvetkovski, which was sent to the Court by facsimile, without any explanation. It was not addressed to my attention or that of my Associate. It was not accompanied by any written explanation or any adjournment application. The certificate provided:
"This is to confirm that Mr Dragan Markisic attends our practice and has[sic] unfortunately still grieving the loss of his brother and having recurring anxiety/panic attacks. He will not be capable of attending any court proceeding for the period of of one month."
The Attorney General accepted that the certificate should be treated as if it were a further adjournment application, which was opposed. It was submitted that the way in which the application had been made and the material on which it rested did not provide a satisfactory basis on which these proceedings ought, yet again, to be adjourned.
The force of that submission was apparent, given the procedural history of the matter. Despite that conclusion, I took the view that the hearing should be adjourned once the submissions for the Attorney General had concluded, so that Mr Markisic could be given a final opportunity to advance submissions to support his case.
I reached that conclusion having in mind the draconian nature of the orders sought by the Attorney General and because, despite the orders made in March 2014 requiring that the Attorney General file and serve the submissions on which it proposed to rely, so that Mr Markisic could understand the case being pressed against him, the submissions served did not deal with the crucial issues lying between the parties in relation to the documents annexed to Ms Kavanagh's affidavit.
On 2 June, the Attorney General sought and I granted an adjournment, so that consideration could be given to the Court of Criminal Appeal's judgment in Cvetkovic v R [2010] NSWCCA 329, in which the operation of s 157 of the Evidence Act, the proper construction of which had earlier been put in issue, had been considered.
The nine page written submission then relied on at the hearing on 3 June was addressed orally for over an hour. It dealt with the construction of s 157 and other matters which had been alluded to in the submissions advanced in November 2011. That submission had not been served on Mr Markisic, despite an application made in those submissions for a direction to be given under s 67 of the Evidence Act. That was the result, it was explained, of an oversight. Service of a s 67 notice had been foreshadowed at the hearing in November 2011, but had not been served.
Section 67 provides:
"67 Notice to be given
(1) Sections 63 (2), 64 (2) and 65 (2), (3) and (8) do not apply to evidence adduced by a party unless that party has given reasonable notice in writing to each other party of the party's intention to adduce the evidence.
(2) Notices given under subsection (1) are to be given in accordance with any regulations or rules of court made for the purposes of this section.
(3) The notice must state:
(a) the particular provisions of this Division on which the party intends to rely in arguing that the hearsay rule does not apply to the evidence, and
(b) if section 64 (2) is such a provision-the grounds, specified in that provision, on which the party intends to rely.
(4) Despite subsection (1), if notice has not been given, the court may, on the application of a party, direct that one or more of those subsections is to apply despite the party's failure to give notice.
(5) The direction:
(a) is subject to such conditions (if any) as the court thinks fit, and
(b) in particular, may provide that, in relation to specified evidence, the subsection or subsections concerned apply with such modifications as the court specifies."
In all of the circumstances, and having in mind the serious consequences of any orders made under the Act for Mr Markisic, it seemed to me that Mr Markisic had to be given a fair opportunity to be heard on the Attorney General's belated written submissions and the s 67(4) application. Accordingly, I ordered that the written submissions and the transcript of the hearing be served on Mr Markisic and fixed a timetable to permit him to file and serve any submissions on which he wished to rely. Mr Markisic did not avail himself of that opportunity.
During my absence on leave on 8 August a further medical certificate dated 3 July 2014 was received from Dr Cvetovski to the effect:
"This is to confirm that Mr Dragan Markisic is still grieving the unexpected death of his brother Oliver. He is still in a very depressed state and in my opinion he is still not in a good mental and physical condition to attend any court proceedings in the next three months.
I hope that you take this into consideration.
Should you have any further enquiries, please don't hesitate to contact me."
I relisted the matter after my return, on 24 September 2014. The Attorney General then opposed Mr Markisic being given any further time to put his submissions. Despite the case advanced, I concluded that Mr Markisic should have a final opportunity to put on his submissions. Again, he did not avail himself of that opportunity.
In all of the circumstances, I am satisfied that a direction should be made under s 67(4) of the Evidence Act, that s 63(2) and s 64(2) apply despite the Attorney General's failure to give the notice foreshadowed in 2011.
I have reached that conclusion because Mr Markisic has long had notice of the case which the Attorney General proposed to pursue against him. Further, he was given until 17 October to respond to the application and has not availed himself of the opportunity to oppose it. The submissions advanced at the further hearing in June have been served upon him, as has the transcript of that hearing. He thus had actual notice of the case which the Attorney General advanced and was given a fair opportunity to respond. He did not avail himself of that opportunity. That was a matter for him.
In the result I am satisfied that justice demands that the direction be given. The sparse information provided in the medical certificates belatedly provided as to his condition, was not a proper basis for a refusal of this application.
Mr Markisic's position
Despite Mr Markisic's non-appearance at the hearing on 3 June, his attitude to the Attorney General's summons was then not in any doubt. Accordingly I have had regard to it, in considering the Attorney General's case.
Mr Markisic's case was, from the outset, that any proceedings in which he has been involved and on which the Attorney General relied, were not "vexatious proceedings" as defined in s 6 of the Act. Further, as discussed in Attorney General in and for the State of New South Wales v Markisic [2012] NSWSC 866, Mr Markisic has not conceded that he has been involved in many of the proceedings on which the Attorney General's case rested, despite making certain admissions, which I will return to.
Further, Mr Markisic did not admit that many of the documents annexed to Ms Kavanagh's affidavit were judgments given in such proceedings. Which judgments he did concede to be authentic, was not entirely clear. However Mr Markisic had repeatedly submitted that most of the documents annexed to Ms Kavanagh's affidavit were not authentic or admissible under the Evidence Act, matters which I had repeatedly said could only be resolved when the Attorney General's summons was finally heard. Further, on his case, the Attorney General could not rely on such judgments, even if proven to be authentic and in any event, they could not prove the case advanced against him.
As it transpired, Mr Markisic did not finally appear to defend the case advanced against him. In the result, I proceeded on the basis that he had made no adverse concessions as to the authenticity of any particular document on which the Attorney General's case rested, other than those signed by the judge and sealed with the court seal.
The procedural requirements of the Vexatious Proceedings Act have been satisfied
Section 8 of the Act provides:
"8 Making of vexatious proceedings order
(1) When orders may be made
An authorised court may make an order under this section (a vexatious proceedings order) in relation to a person if the court is satisfied that:
(a) the person has frequently instituted or conducted vexatious proceedings in Australia, or
(b) the person, acting in concert with a person who is subject to a vexatious proceedings order or who is referred to in paragraph (a), has instituted or conducted vexatious proceedings in Australia.
(2) For the purposes of subsection (1), an authorised court may have regard to:
(a) proceedings instituted or conducted in any Australian court or tribunal (including proceedings instituted or conducted before the commencement of this section), and
(b) orders made by any Australian court or tribunal (including orders made before the commencement of this section).
(3) An authorised court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.
(4) Orders may be made on court's own motion or on application
An authorised court may make a vexatious proceedings order of its own motion or on the application of any of the following persons:
(a) the Attorney General,
(b) the Solicitor General,
(c) the appropriate registrar for the court,
(d) a person against or in relation to whom another person has instituted or conducted vexatious proceedings,
(e) a person who, in the opinion of the court, has a sufficient interest in the matter.
(5) An application for a vexatious proceedings order may be made by a person referred to in subsection (4) (e) only with the leave of the authorised court.
(6) A judicial officer, member or registrar of a court or tribunal may make a recommendation to the Attorney General that he or she consider making an application for a vexatious proceedings order in relation to a specified person.
(7) Orders that may be made by Supreme Court
The Supreme Court may make any one or more of the following vexatious proceedings orders in relation to a person:
(a) an order staying all or part of any proceedings in New South Wales already instituted by the person,
(b) an order prohibiting the person from instituting proceedings in New South Wales,
(c) any other order that the Court considers appropriate in relation to the person.
... "
"Vexatious proceedings" are defined in s 6, which provides:
"6 Meaning of "vexatious proceedings"
In this Act, vexatious proceedings includes:
(a) proceedings that are an abuse of the process of a court or tribunal, and
(b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and
(c) proceedings instituted or pursued without reasonable ground, and
(d) proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose."
"Institute" is defined in s 5:
"5 Instituting proceedings
(1) In this Act, institute, in relation to proceedings, includes:
(a) for civil proceedings-the taking of a step or the making of an application that may be necessary before proceedings can be started against or in relation to a party, and
(b) for proceedings before a tribunal-the taking of a step or the making of an application that may be necessary before proceedings can be started before the tribunal, and
(c) for criminal proceedings-the making of a complaint or the obtaining of a warrant for the arrest of an alleged offender, and
(d) for civil or criminal proceedings or proceedings before a tribunal-the taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceedings or to a decision made in the course of the proceedings.
(2) A reference in this Act to instituting proceedings includes a reference to instituting:
(a) proceedings generally, and
(b) proceedings in relation to a particular matter, and
(c) proceedings against or in relation to a particular person, and
(d) proceedings in a particular court or tribunal."
The effect of a vexatious proceedings order is potentially draconian, as I have said, given the wide definition of "proceedings" appearing in s 4 and the provisions of s 13. Section 4 provides:
"4 Meaning of "proceedings"
In this Act, proceedings includes:
(a) any cause, matter, action, suit, proceedings, trial, complaint or inquiry of any kind within the jurisdiction of any court or tribunal, and
(b) any proceedings (including any interlocutory proceedings) taken in connection with or incidental to proceedings pending before a court or tribunal, and
(c) any calling into question of a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way."
As Adamson J discussed in Attorney General v Chan [2011] NSWSC 1315 at [34]:
"The term "proceedings" is defined by s 4 of the Act to include interlocutory proceedings as well as appeals. This means that the Court can have regard to baseless applications or appeals. Attorney General (NSW) v Wilson [2010] NSWSC 1008 (Wilson) at [15]. Repeated oral applications with no proper basis are relevant: Wilson at [16]. The manner in which the person speaks or acts in the courtroom is relevant: Wilson at [16]; Attorney General in and for the State of NSW v Gargan [2010] NSWSC 1192 (Attorney General v Gargan) at [7]. The term "proceedings" includes matters not only before courts, but also before tribunals."
Section 13 provides:
"13 Contravention of vexatious proceedings order prohibiting institution of proceedings
(1) If an authorised court makes a vexatious proceedings order prohibiting a person from instituting proceedings:
(a) the person may not institute proceedings of the kind to which the order relates without the leave of an appropriate authorised court under section 16, and
(b) another person may not, acting in concert with the person, institute proceedings without the leave of an appropriate authorised court under section 16.
(2) If proceedings are instituted in contravention of subsection (1), the proceedings are stayed until they are dismissed (or taken to be dismissed) under this section.
(3) Any proceedings that are stayed by subsection (2) are taken to be dismissed by the court or tribunal in which they were instituted on the expiry of the period of 28 days after the proceedings were first instituted, unless the proceedings are sooner dismissed under subsection (4).
(4) Without limiting subsection (2) or (3), the authorised court, or the court or tribunal in which the proceedings are instituted, may make:
(a) an order declaring that proceedings are proceedings to which subsections (2) and (3) apply, and
(b) an order dismissing the proceedings before the expiry of the period referred to in subsection (3), and
(c) any other order in relation to the proceedings that it considers appropriate, including an order for costs.
(5) An authorised court, or the court or tribunal in which the proceedings are instituted, may make an order under subsection (4) of its own motion or on the application of a person referred to in section 8 (4).
(6) An application may be made by a person referred to in section 8 (4) (e) only with the leave of the authorised court or the court or tribunal in which the proceedings are instituted."
The Act deals in s 14, s 15 and s 16 with how leave to institute proceedings may be sought by a person against whom a vexatious proceedings order has been made and how such an application is to be determined.
In the circumstances I have earlier described, there can be no question that Mr Markisic has been given the opportunity to be heard, which s 8(3) requires and that the need to afford him procedural fairness has been satisfied (see Fletcher International Exports Pty Ltd v Lott [2010] NSWCA 63 at [42]).
In determining whether the orders sought should be made, what has to be resolved includes what the evidence on which the Attorney General relied establishes, particularly, whether it establishes that any of the proceedings in which Mr Markisic has been shown to have been involved are vexatious proceedings; and whether on that evidence, the discretion to make the orders which the Attorney General pressed should be exercised.
Mr Dragan Markisic's litigious history has been established by evidence and admissions
The Attorney General's case was that Mr Markisic's litigious history demonstrated that he had frequently instituted or conducted "vexatious proceedings" as defined in s 6 of the Act and that his conduct in these proceedings had also fallen within that definition. Not all of the proceedings which he had commenced or pursued were submitted to have been vexatious, but even in such cases, how he had conducted the proceedings had, on the Attorney General's case, also brought those proceedings within the definition of "vexatious proceedings".
Mr Markisic's position has been made clear by the stance which he took at various interlocutory stages of the proceedings. It was that the litigious history on which the Attorney General's case rested had to be positively established by credible and admissible evidence. It could not be established by his own admissions.
At the June 2014 hearing the Attorney General tendered Ms Kavanagh's affidavit and the documents annexed to it, without objection. Five categories of proceedings were identified in the submissions advanced:
- The original Family Law Proceedings (matter numbers SY6727 of 1998 and SY 6226 of 1998).
- Two sets of criminal prosecution proceedings (matter numbers SC 12575/01 and SC 12583/01).
- Two sets of civil misconduct proceedings (SC 20698/00 and SC 20369/01).
- Three sets of defamation proceedings (matter numbers SC 20492/99, SC 20285/04 and SC 20286/04).
- Further Family Court proceedings (matter numbers (P)(SYC1502/2008).
Mr Markisic had been aware of the evidence on which the Attorney General proposed to advance the case against him, since written submissions were served on him in 2011. His attitude to that case was somewhat contradictory. On the one hand he did not concede that he had been involved in various of the proceedings on which the Attorney General relied. On his approach, one of the matters which the Attorney General had to prove was that he had been involved in the proceedings relied on and that this could not be done by the documents annexed to Ms Kavanagh's affidavit.
On the other hand, Mr Markisic himself made various admissions as to his involvement in such proceedings, both in documents which he filed and in submissions which he advanced at various stages of the proceedings. Despite this, he vehemently disputed that what he had written or submitted amounted to admissions, or that the Attorney General could rely on them. On his approach, the Attorney General's case could not rest on anything which he had said or done in these proceedings, but had to be proven on the evidence which it led against him.
Mr Markisic maintained that position even though in the first cross-summons filed by the defendants in these proceedings, before the November 2011 hearing, it was said that he had sought declarations in relation to the original Family Court Law Proceedings (matter number SY6727 of 1998) and in the Full Court of the Family Court in matter number EA 14 of 1998 (see paragraphs 9(g) and (h) of the first cross-summons). Later, in November 2012, for example, when pressing an adjournment application by motion supported by an affidavit, Mr Markisic also relied on his involvement in the Family Law Proceedings he had commenced in 1998 (see Attorney General in and for the State of New South Wales v Markisic [2012] NSWSC 1253).
Mr Markisic made similar references to his involvement in other proceedings on which the Attorney General relied, in submissions which he made from time to time, in affidavits on which he relied at certain interlocutory stages of these proceedings, and in the second cross-summons later filed by the defendants.
This included, for example, that he was involved in the proceedings before the Family Court in matter number SYC 1502 of 1998 (referred to in clause 9(i) of the first cross-summons); before Simpson J in matter number 20492 of 1999 (referred to in clause 9(c), (d), (e), (o) of the first cross-summons); before Harrison J in matter numbers 20492/99 and 20285 of 2004 (referred to in clause 9(q) (r) and (s) of the first cross-summons); and in matter number 20698 of 2000 (referred to in clause 16 (d) of the first cross-summons).
In the first cross-summons, Mr Markisic sought declarations that employees of the State and the Commonwealth had conspired to fabricate and counterfeit judgments and orders made in various proceedings there identified. These were claims to which Mr Markisic repeatedly returned in his submissions in relation to various interlocutory matters.
Further, in the second cross-summons Mr Markisic also made reference as to his own involvement in other proceedings referred to in the various documents annexed to Ms Kavanagh's affidavit. He there sought declarations that various of those documents were false, counterfeit, void, irregular or illegal instruments, or obtained against good faith, or in fraud.
Contrary to the position Mr Markisic maintained, his reliance on his involvement in these various proceedings, when he sought to advance his own case in these proceedings amounted to "admissions" on which the Attorney General was entitled to rely, to advance the case pressed against him, as I earlier discussed in Attorney General in and for the State of New South Wales v Markisic [2012] NSWSC 433. That conclusion flows from the definition of that term in the Dictionary to the Evidence Act, as:
"admission means a previous representation that is:
(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and
(b) adverse to the person's interest in the outcome of the proceeding."
The existence of, and his involvement in, the various proceedings on which the Attorney General's case against him rested, were unquestionably representations made by Mr Markisic which were adverse to his interests in these proceedings. Accordingly, the Attorney General was entitled to rely on these admissions to advance the case pressed against Mr Markisic.
It is convenient to observe at this point that Mr Markisic's approach to this, and other contested matters, plainly did not accord with the obligations imposed on all litigants by s 56(3) of the Civil Procedure Act2005 (NSW), which provides:
"56 Overriding purpose
...
(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court."
The overriding purpose is specified in s 56(1) to be the "just, quick and cheap resolution of the real issues in the proceedings". The real issues in these proceedings are concerned with whether the proceedings in which Mr Markisic has been involved were vexatious proceedings as defined and whether the orders sought should be made against him.
Mr Markisic's refusal to concede anything, even that he had been involved in proceedings on which he himself relied in order to advance his own applications and submissions in these proceedings, not only reflected a failure to adhere to the obligations imposed upon him by s 56(3), it was ultimately pointless. It also helped reveal that his conduct in these proceedings was, as the Attorney General finally submitted, also vexatious, a matter to which I will return. The inescapable consequence of the way in which Mr Markisic conducted his case was that he made relevant admissions as to his own litigious history, on which the Attorney General was entitled to rely.
By his own actions, Mr Markisic admitted not only his involvement in the proceedings on which the case against him rested, but also in some cases, that judgments had been given in these proceedings, even though, on his case, the documents on which the Attorney General relied could not establish that they were judgments given by the judicial officers who had presided over the proceedings and who had purported to give those judgments.
In the result, I find on the basis of these admissions and the evidence received without objection at the June 2014 hearing to which I will turn, that Mr Markisic was involved in the various proceedings on which the Attorney General's case depended.
Before turning to the question of whether the evidence established that the proceedings were vexatious proceedings as defined in s 6 of the Act, I will deal with the question of the relevance and admissibility of the documents on which the Attorney General's case rested.
The documents in dispute
Relevance
The Attorney General's case depended upon proof of the matters specified in s 6 of the Vexatious Proceedings Act. To make out the case pressed against Mr Markisic, the Attorney General relied on various of the documents annexed to Ms Kavanagh's affidavit, which on her evidence were copies of reasons for judgment and transcript of proceedings to which he was a party. I will refer to these documents as "the documents in dispute".
For the reasons which follow, I am satisfied that the documents were both relevant and admissible, even though they were all finally received at the hearing without objection.
It is only relevant evidence which is admissible, s 55 of the Evidence Act providing that relevant evidence is evidence that could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings. If a question as to relevance arises, s 58 of the Evidence Act permits the Court to examine the document and any reasonable inference arising from it, including an inference as to its authenticity or identity.
Mr Markisic's objections to the documents annexed to Ms Kavanagh's affidavit did not relate to the relevance of the judgments given in litigation in which he had been involved, but rather to the authenticity of the documents on which the Attorney General's case rested. Sections 166 to 169 of the Evidence Act establish a request system which Mr Markisic could have utilised, to advance his contentions as to the authenticity of the documents. He did not do so. Nor did he finally appear to advance his case or take advantage of the opportunities given to him to make written submissions in relation to the case advanced against him.
The documents in dispute are plainly relevant to the resolution of the issues lying between the parties in these proceedings, dealing as they do not only with what was claimed in the proceedings to which they relate, what was then in issue between the parties and how those matters were resolved, but also how the proceedings were conducted, that being a matter relevant to the question of whether particular proceedings are vexatious proceedings, as defined in the Act.
Admissibility - s 91 of the Evidence Act 1995
At various interlocutory stages, Mr Markisic submitted that even if the documents in dispute were proven to be judgments given in proceedings to which he was a party, none of them were admissible because s 91 of the Evidence Act provides:
"91 Exclusion of evidence of judgments and convictions
(1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.
(2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose."
As I observed at [72] in the 8 May 2012 judgment (see Attorney General in and for the State of New South Wales v Markisic [2012] NSWSC 433) , s 91 may not be construed in the way which Mr Markisic contended. The section does not preclude a judgment being tendered as evidence in other proceedings in order to establish things other than the truth of the facts found in the proceedings.
It follows that the Attorney General is not entitled to rely on the documents in dispute to prove the existence of a fact in issue in the proceedings to which they related, as was accepted at the hearing. They can, however, be relied on to establish in these proceedings that the earlier proceedings were vexatious, as defined in s 6 of the Vexatious Proceedings Act, that not having been a matter in issue in any of the earlier proceedings.
As discussed by Adamson J in Chan at [47], where the tender of judgments in other proceedings in which the defendant had been involved was also sought to be relied on to establish that the defendant had been involved in vexatious proceedings:
"47 ... [t]he judgments establish the procedural matters and the outcome of various applications made by, and against, the Defendant, in the proceedings relied upon by the Plaintiff. Furthermore, they also record the Defendant's conduct in the course of the proceedings. These matters do not constitute findings of facts in issue in the proceedings. Whether such judgments contain statements which express judicial views on the merit, or otherwise, of the Defendant's stance in proceedings, the judgments are the best, if not the only, evidence of such views. Accordingly, I admitted the evidence tendered by the Plaintiff, notwithstanding the Defendant's objection on that basis. Nonetheless I am cognisant of s 91(1) and have not used such judgments for the proscribed purpose."
Accordingly, in this case too, the documents in dispute were admissible.
Proof - s 157 of the Evidence Act 1995
The original document rule was abolished by s 51 of the Evidence Act. Proof of documents is dealt with in various provisions of that Act. On Mr Markisic's case it was only s 157 which was relevant.
Section 157 provides:
"157 Public documents relating to court processes
Evidence of a public document that is a judgment, act or other process of an Australian court or a foreign court, or that is a document lodged with an Australian court or a foreign court, may be adduced by producing a document that purports to be a copy of the public document and that:
(a) is proved to be an examined copy, or
(b) purports to be sealed with the seal of that court, or
(c) purports to be signed by a judge, magistrate, registrar or other proper officer of that court."
Earlier in the proceedings Mr Markisic had accepted that the documents annexed to Ms Kavanagh's affidavit which had been sealed by a court or signed by a judge were admissible under s 157.
Mr Markisic had repeatedly contended that s 157 required judges to sign judgments and reasons for judgments when they are given. In its terms the section imposes no such requirement (see Attorney General in and for the State of New South Wales v Markisic [2013] NSWSC 1212 at [70] -[73]). It rather makes provision for how certain "public documents" may be proven. "Public document" is defined to include judgments of Australian courts, the definition providing in the Dictionary to the Act as:
"public document means a document that:
(a) forms part of the records of the Crown in any of its capacities, or
(b) forms part of the records of the government of a foreign country, or
(c) forms part of the records of a person or body holding office or exercising a function under or because of the Commonwealth Constitution, an Australian law or a law of a foreign country, or
(d) is being kept by or on behalf of the Crown, such a government or such a person or body,
and includes the records of the proceedings of, and papers presented to:
(e) an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament, and
(f) a legislature of a foreign country, including a House or committee (however described) of such a legislature."
Some of the documents in dispute had been signed by judges' associates who had certified that they were judgments which had been given in the proceedings. Mr Markisic did not accept that judgments so signed by a judge's associate were admissible under the section, or that they could be proven in other ways. Few of the documents in question were signed or sealed in the way Mr Markisic contended they had to be and so on his approach could not be relied on to prove the case against him. This contention rested on the proper construction of s 157 and other provisions of the Evidence Act, which were in issue between the parties.
On the Attorney General's case, s 157 could not be construed as Mr Markisic contended and, in any event, the section was not an exclusionary provision as to how judgments and reasons for judgment could be proven. Given the scheme of the Evidence Act, those submissions must be accepted.
Section 157 is not the only means by which matters contained in such public documents can be proven. It is a facilitative provision which appears in Division 2 "Matters of official record" of Part 4.3 "Facilitation of Proof" of Chapter 4 "Proof". There are other such provisions in Chapter 4.
In s 178, which appears in Division 4 "Procedures for proving other matters" of Part 4.3, for example, provision is made for proof of certain facts by a certification process. That is another method by which certain of the facts evidenced by judgments which are dealt with in s 157, may also be proven. Section 178 provides:
"178 Convictions, acquittals and other judicial proceedings
(1) This section applies to the following facts:
(a) the conviction or acquittal before or by an applicable court of a person charged with an offence,
(b) the sentencing of a person to any punishment or pecuniary penalty by an applicable court,
(c) an order by an applicable court,
(d) the pendency or existence at any time before an applicable court of a civil or criminal proceeding.
(2) Evidence of a fact to which this section applies may be given by a certificate signed by a judge, a magistrate or registrar or other proper officer of the applicable court:
(a) showing the fact, or purporting to contain particulars, of the record, indictment, conviction, acquittal, sentence, order or proceeding in question, and
(b) stating the time and place of the conviction, acquittal, sentence, order or proceeding, and
(c) stating the title of the applicable court.
(3) A certificate given under this section showing a conviction, acquittal, sentence or order is also evidence of the particular offence or matter in respect of which the conviction, acquittal, sentence or order was had, passed or made, if stated in the certificate.
(4) A certificate given under this section showing the pendency or existence of a proceeding is also evidence of the particular nature and occasion, or ground and cause, of the proceeding, if stated in the certificate.
(5) A certificate given under this section purporting to contain particulars of a record, indictment, conviction, acquittal, sentence, order or proceeding is also evidence of the matters stated in the certificate.
(6) In this section:
acquittal includes the dismissal of the charge in question by an applicable court.
applicable court means an Australian court or a foreign court."
The conclusion that the s 157 process is not the only way in which judgments, acts or other process of a court can be proven is supported by the views expressed by Campbell JA (with whom Simpson and Whealy JJ agreed) in Cvetkovic v R [2010] NSSWCCA 329, where his Honour observed at [315] that "section 157 is concerned with facilitation of proof of facts that are otherwise relevant and admissible." It was observed at [306] - [307]:
"306 While the Dictionary to the Evidence Act contains a definition of "public document", the Crown does not raise any point that the reasons for judgment of an Australian court do not constitute a "public document" that falls within the chapeau to section 157. The Appellant submits that section 157 itself recognises that "a judgment" of an Australian court can be a public document. In these circumstances I would prefer to reserve for further consideration whether "a judgment" in section 157 extends to reasons for judgment. I note though, that there are numerous legal contexts (eg, rule 36.2 Uniform Civil Procedure Rules 2005) in which a distinction is drawn between a judgment, and the reasons for judgment. At least some judgments can be entered (UCPR 36.11), or set aside (UCPR 36.15), or enforced, and some foreign judgments can be registered - processes not appropriate for reasons for judgment. See also National Employers Mutual General Insurance Association Ltd v Manufacturers Mutual Insurance Ltd (1988) 17 NSWLR 223. However, section 129(3) Evidence Act specifically contemplates that there might be at least some circumstances in which "published reasons for a decision" might be admitted or used in a proceeding. The Crown in the present case did not seek to draw any distinction between judgments and reasons for judgment. Hence, I shall proceed by assuming, without deciding, that "a judgment" in section 157 includes reasons for judgment.
307 Section 157 enables a judgment, and the other types of document referred to in the chapeau of section 157 to be proved by tender of a copy, if that copy satisfies one or other of paras (a), (b) or (c) of section 157."
The question which Campbell JA reserved for further consideration, whether "a judgment" referred to in s 157 includes to reasons for judgment, arises in this case. In my view s 157 does apply to reasons given for judgment on which the Crown's case here rests. If reasons for judgment are not comprehended within the word "judgment" itself, then they are certainly a "public document", that is, a document forming part of the court's records of an "act or other process" of the court, as the definition of that term encompasses. Further, s 129 of the Evidence Act, to which I will now return, also contemplates that evidence of reasons for a decision may be given by tender of published reasons for decision.
Like a judgment, reasons for judgment form part of the records of proceedings ordinarily maintained by a court. In the case of this Court, for example, when exercising the functions it is granted by the Supreme Court Act1970 (NSW), s 91 requires:
"91 Judgment
(1) The Court is, at or after trial or otherwise as the nature of the case requires, to give such judgment or make such order as the nature of the case requires."
Similar provision is made in s 90 of the Civil Procedure Act, which also applies to other State courts. Delivery of written reasons for judgment is the usual practice, in the case of the Supreme Court, whether such reasons are given at the time that an order or judgment is given or subsequently (see Campbell J's discussion in King Investment Solutions v Hussain [2005] NSWSC 1076; (2005) 64 NSWLR 441 at [144] - [164]).
It is Rule 36.2 of the Uniform Civil Procedure Rules2005 (NSW) which deals with the giving of such written reasons as a part of the Court's ordinary processes. It provides:
"36.2 Written reasons for judgment
(1) If the court gives any judgment, or makes any order or decision, and its reasons for the judgment, order or decision are reduced to writing, it is sufficient for the court to state its judgment, order or decision orally, without stating the reasons.
(2) After a judgment, order or decision has been stated orally under subrule (1), a written copy of it, including the court's reasons for it, must then be delivered to an associate, registrar or some other officer of the court for delivery to the parties or may instead be delivered directly to the parties."
This Rule confirms that the giving of reasons is an "act or other process" of the Court.
Such reasons are nowadays produced and published with the assistance of the judges' staff, by use of a computer. Both an electronic and paper record of such reasons, as well as of the judgments delivered, are maintained in court files and on court databases by steps taken by judges' associates.
In this Court the practice is that once reasons are delivered by the judge, whether orally or in a reserved, written decision, a "hard" or paper copy of the written reasons is produced and certified by the judge's associate, once the judge delivers those reasons in open court. That document is kept on the Court file. The associate signs the certificate placed on the copy of those reasons, which indicates that the document is a true copy of the reasons given for the judgment or orders made in the proceedings. A "soft" or electronic copy of the reasons given by the judge is also stored in the Court's computer system, again, as the result of steps taken by the judge's associate. The associate also takes the necessary steps which results in those reasons being published on the Caselaw website, which is accessible through the Court's website. Such judgments can then be accessed, downloaded and printed as Ms Kavanagh deposed that she did, in the case of certain of the documents in dispute.
Provision is made in s 157 as to how a public document that purports to be a copy of a judgment, act or other process of a court may be proven, that is, by tender of a document which purports to be signed by a judge, magistrate, registrar or "other proper officer" of that court. That term is not defined in the Evidence Act, but in the case of this Court, such officers include the judges' associate whose functions include certifying the copy of the reasons given, which is then kept on the Court's file, as well as storing a copy of those reasons on its computer system and having them published so that they are accessible through its website.
Contrary to Mr Markisic's submissions, s 157 of the Evidence Act may not be construed as requiring a judgment or reasons for judgment given in proceedings before a court to be signed by the judge when given. Nor does it provide that such reasons may only be proven by such a signature, or by a copy sealed with the court's seal. To the contrary, judgments and reasons for judgment, plainly being "public documents" as defined, in s 4 of the Act, may be proven by any one of the various ways provided in s 157, including by certification by a judge's associate.
In the result, the documents in dispute which are certified in one of the various ways provided by s 157 must be accepted as having been proven to be a copy of the reasons for judgment given in the proceedings to which they relate.
Proof - s 48 of the Evidence Act1995
On the Attorney General's case, the documents in dispute which did not satisfy s 157 could be proven in accordance with the provisions made in s 48 "Proof of contents of documents" in Chapter 2 "Adducing evidence". Section s 48 provides:
"48 Proof of contents of documents
(1) A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods:
(a) adducing evidence of an admission made by another party to the proceeding as to the contents of the document in question,
(b) tendering a document that:
(i) is or purports to be a copy of the document in question, and
(ii) has been produced, or purports to have been produced, by a device that reproduces the contents of documents,
(c) if the document in question is an article or thing by which words are recorded in such a way as to be capable of being reproduced as sound, or in which words are recorded in a code (including shorthand writing)-tendering a document that is or purports to be a transcript of the words,
(d) if the document in question is an article or thing on or in which information is stored in such a way that it cannot be used by the court unless a device is used to retrieve, produce or collate it-tendering a document that was or purports to have been produced by use of the device,
(e) tendering a document that:
(i) forms part of the records of or kept by a business (whether or not the business is still in existence), and
(ii) is or purports to be a copy of, or an extract from or a summary of, the document in question, or is or purports to be a copy of such an extract or summary,
(f) if the document in question is a public document-tendering a document that is or purports to be a copy of the document in question and that is or purports to have been printed:
(i) by a person authorised by or on behalf of the government to print the document or by the Government Printer of the Commonwealth or by the government or official printer of another State or a Territory, or
(ii) by the authority of the Government or administration of the State, the Commonwealth, another State, a Territory or a foreign country, or
(iii) by authority of an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament.
(2) Subsection (1) applies to a document in question whether the document in question is available to the party or not.
(3) If the party adduces evidence of the contents of a document under subsection (1) (a), the evidence may only be used:
(a) in respect of the party's case against the other party who made the admission concerned, or
(b) in respect of the other party's case against the party who adduced the evidence in that way.
(4) A party may adduce evidence of the contents of a document in question that is not available to the party, or the existence and contents of which are not in issue in the proceeding, by:
(a) tendering a document that is a copy of, or an extract from or summary of, the document in question, or
(b) adducing from a witness evidence of the contents of the document in question."
I have already dealt with Mr Markisic's admissions. They did not extend to the documents in dispute being judgements given in the proceedings to which they relate.
Adducing evidence of documents is generally dealt with in "Part 2.2 Documents" of "Chapter 2 Adducing evidence" of the Evidence Act. In considering the proper construction of s 48, other relevant provisions of the Evidence Act must be borne in mind.
Section 47 contemplates that devices used to produce copies may not produce exact copies, as here, for example, where the URL or website address was also printed on some of the documents in dispute, when Ms Kavanagh downloaded them from various websites. The section provides:
"47 Definitions
(1) A reference in this Part to a document in question is a reference to a document as to the contents of which it is sought to adduce evidence.
(2) A reference in this Part to a copy of a document in question includes a reference to a document that is not an exact copy of the document in question but that is identical to the document in question in all relevant respects."
"Part 4.3 Facilitation of proof" of "Chapter 4 Proof" also makes relevant provisions as to the use of devices such as photocopiers and computers, which can be used to copy or print documents. Section 146 provides:
"146 Evidence produced by processes, machines and other devices
(1) This section applies to a document or thing:
(a) that is produced wholly or partly by a device or process, and
(b) that is tendered by a party who asserts that, in producing the document or thing, the device or process has produced a particular outcome.
(2) If it is reasonably open to find that the device or process is one that, or is of a kind that, if properly used, ordinarily produces that outcome, it is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that, in producing the document or thing on the occasion in question, the device or process produced that outcome."
This provision gives rise to an unchallenged presumption that the documents Ms Kavanagh described in her affidavit as having printed or copied, were so produced.
Proof of documents was considered by Austen J in Australian Securities and Investments Commission v Rich [2005] NSWSC 417; (2005) 216 ALR 320, where his Honour observed at [150] - [152]:
"150 The Evidence Act draws a distinction between ways of adducing evidence and admissibility of evidence. Ways of adducing documentary evidence are addressed in Part 2.2, a central component of which is the abolition of the common law "original document" rule (s 51) and facilitation of the process of adducing evidence of the contents of a document where something other than the original document is tendered (s 48).
151 Section 48 permits evidence of the contents of a "document in question" (defined in s 47(1)) to be adduced by various methods, which include tendering a copy (s 48(1)(b)), tendering a document produced from electronically-stored information (s 48(1)(d)) and tendering a document that forms part of the records kept by a business and purports to be a copy of the document in question (s 48(1)(e)).
152 In Rusu, Bryson J observed (at 314) that the effect of s 48(1), when a copy of a document is tendered to prove its contents, is that admissibility is in the same position as if the tendering party had tendered the original document in question. He said that s 51 had not abolished or affected the need to prove that the document tendered is the document it purports to be, and s 48(1) had not authorised the adducing of evidence merely by tendering a document in the absence of any evidence establishing what the document was, for s 48(1) merely prescribes the means of adducing evidence of the contents of documents and leaves untouched the need to establish their authenticity."
In this case Ms Kavanagh's unchallenged evidence proves what each of the documents in dispute are. Ms Kavanagh deposed to how each of the documents in question was either created by her, by copying judgments obtained from Court files or from files maintained by the Crown Solicitor, or by printing judgments accessible from court and websites.
Section 48 provides for how contents of documents, including "public documents", can be proven, "document" being defined in the Dictionary to mean:
"document means any record of information, and includes:
(a) anything on which there is writing, or
(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them, or
(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else, or
(d) a map, plan, drawing or photograph."
Also to be considered is clause 8 of Part 2 of the Dictionary which provides:
"8 References to documents
A reference in this Act to a document includes a reference to:
(a) any part of the document, or
(b) any copy, reproduction or duplicate of the document or of any part of the document, or
(c) any part of such a copy, reproduction or duplicate."
These definitions capture documents maintained in court computer systems, such as judgments, reasons for judgment and certain transcripts of proceedings, in the case of High Court special leave applications, which Ms Kavanagh deposed to having downloaded from the website by which such transcripts are publicly accessible.
It follows that the documents in dispute which Ms Kavanagh accessed through court or the websites and then printed were documents to which s 48(1)(b) applied, they being documents which purported to be a copy of the document in question, that is, the reasons given for judgment in particular proceedings, or the transcript of parts of those proceedings. The transcripts were also documents to which s 48(1)(c) applied. Those reasons and transcripts had been published on the websites which Ms Kavanagh had accessed, either a court website or the website, using a device that both reproduces the contents of documents and a device that prints those contents, as s 146 contemplates.
The documents also fell within s 48(1)(d), being documents produced by a device, a computer, on which information is stored, by respective courts, as I have already explained, in such a way that it cannot be used by the Court, or anyone else, unless the device is used to produce the document.
They also fell within s 48(1)(e), being documents which form part of the records either kept by the relevant court on its website as part of its business, or in the case of the documents printed from the website, that being a separate business, being documents which form part of the records kept by that business.
These conclusions are supported by views expressed in National Australia Bank Ltd v Rusu [1999] NSWSC 539; (1999) 47 NSWLR 309, by Bryson J, as he then was, who observed at [17]:
"Before a business record or any other document is admitted in evidence it is obviously necessary that there should be an evidentiary basis for finding that it is what it purports to be. Documents are not ordinarily taken to prove themselves or accepted as what they purport to be; there are exceptions under the Common Law and under statutes for public registers and for many kinds of documents when certified in various ways: and see the method of proof provided in some cases by ss 170 and 171 of the Evidence Act 1995. At the simplest, the authenticity of a document may be proved by the evidence of the person who made it or one of the persons who made it, or a person who was present when it was made, or in the case of a business record, a person who participates in the conduct of the business and compiled the document, or found it among the business's records, or can recognise it as one of the records of the business."
Here that evidence was provided by Ms Kavanagh's uncontested affidavit. In Rusu his Honour accepted that the documents there in question, bank statements, were relevant, if authentic, authenticity being something on which relevance depended (at [19]). He took the view that s 51 did not abolish or in any way affect the need to prove that a document tendered is the document which it purports to be; that s 48(1) does not authorise the adduction of evidence merely by tendering a document in the absence of any evidence establishing what the document is; that s 48(1) leaves untouched the need to establish that a document is what it purports to be; and does not mean that documents prove themselves, as if judicial notice must be taken of them (at [26]). He also observed at [28]:
"So far as I am aware there is no judgment which has decided that under the Evidence Act, 1995 the authenticity of a document tendered in evidence may be determined simply on the basis of the form and contents of the document or on that basis taken with information about the source from which it was produced showing that it was produced on subpoena and by whom. References in case law to authentication of documents tendered are usually brief and incidental. Texts dealing with the legislation do not appear to have commented to the effect that under the legislation documents establish their own authenticity."
In this case, of course, as I have explained, Ms Kavanagh finally gave unchallenged evidence as to what each of the documents in question were and how she had accessed and printed them. That evidence has to be considered in light of the observations in Daw v Toyworld at [46] earlier referred to at [12], namely, that since the documents were not finally objected to at the hearing, no complaint about the Attorney General's failure to prove their origin by other means can be advanced.
Mr Markisic did not appear to resist the Attorney General's case. Nor had he served any evidence or submissions beforehand, or given any notice that Ms Kavanagh was required for further cross-examination, or utilised the objections system. The documents were accordingly tendered and received.
It should also be noted, however, that the correctness of Bryson J's approach in Rusu has since been questioned. In the Matter of Maiden Civil Pty Ltd [2012] NSWSC 1618, Brereton J considered the decision and the cases which later considered it, concluding at [23]:
"As in other cases in which a Rusu objection has recently been taken before me, so in this, Needham J's judgment in Marra Developments has been in the back of my mind, and I have used this opportunity to consult it more fully in the light of Rusu. In my view, the position shortly stated is, first, that the mere production of a document cannot authenticate it; secondly, Marra establishes, although Rusu might contradict, that production on subpoena from an identified source might suffice to show that it is produced from the custody of the entity whose business it is, which would facilitate an inference that it was a business record; and thirdly, Rusu should not to be taken to limit the way in which authenticity of a document can be proven. For my part, I would respectfully doubt whether production on subpoena by the entity whose business the document is alleged to be a record of would always be insufficient to found the requisite inference; however, Rusu has been endorsed, subject to the minor qualification of the words, "save in limited circumstances" in the Court of Appeal and by Austin J in this Division, and on that basis, I should follow it."
In this case those observations apply to those of the disputed documents obtained either from Court files on Ms Kavanagh's request and those obtained from Crown Solicitor's files.
In Australian Competition and Consumer Commission v Air New Zealand [2012] FCA 1355; (2012) 207 FCR 448, Perram J also considered the authorities which had questioned Rusu and declined to follow it, taking the view that its approval in Daw v Toyworld (NSW) Pty Ltd was obiter (see at [92] - [104]). His Honour there discussed the distinction between admissibility of evidence, a question of law and authenticity of documents, a question of fact. He considered that a document the authenticity of which was in issue could be relevant and admissible under s 55 and s 56 of the Evidence Act, with its authenticity being a question of fact in issue which had to be determined on all of the evidence in the proceedings. His Honour gave examples of such cases, including forgery prosecutions and contests over whether a signature on a Will was genuine.
In this case, Mr Markisic put the authenticity of the judgments on which the Attorney General's case rested in issue, even though there was evidence as to the origin of each of them, namely they either having been provided to Ms Kavanagh by the relevant court on her request for a copy of the judgment; or she had produced them from copies of judgments kept in Crown Solicitor's files; or she had produced them by accessing the judgments which were published on Court websites and and printing them. That evidence was finally not challenged. Under s 183 of the Evidence Act it leaves open various inferences, to which I will return.
As to Ms Kavanagh's printing of certain of the documents in question from the websites which she accessed, s 146 of the Evidence Act is relevant, as I have explained. There is no evidence which raises any doubt that the documents in question were produced in the way Ms Kavanagh described and so, it follows, there is no question that the documents are other than what they purport to be, copies of reasons for judgment and transcripts published on those websites.
Further to be considered in relation to these documents is the consequence of the provisions of s 144 of the Evidence Act, which provides:
"144 Matters of common knowledge
(1) Proof is not required about knowledge that is not reasonably open to question and is:
(a) common knowledge in the locality in which the proceeding is being held or generally, or
(b) capable of verification by reference to a document the authority of which cannot reasonably be questioned.
(2) The judge may acquire knowledge of that kind in any way the judge thinks fit.
(3) The court (including, if there is a jury, the jury) is to take knowledge of that kind into account.
(4) The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced."
The Attorney General's submission was that the Court is entitled to act on knowledge its own processes as to the publication of judgments and reasons for judgment on its own website. That accords with the approach taken in Crown Glass & Aluminium P/L v Ibrahim [2005] NSWCA 195, where McColl JA referred at [130] to the common law test as to judicial notice, which she considered in that case had the same result as the test under s 144, observing:
"In Munro v Tooheys Ltd (1991) 29 FCR 74 at 91, Beaumont J (quoting E M Morgan, Some Problems of Proof under the Anglo-American System of Litigation, at p 61) said "the party seeking judicial notice 'has the burden of convincing the judge that (a) the matter is so notorious as not to be the subject of dispute among reasonable men or (b) the matter is capable of immediate accurate demonstration by resort to readily accessible sources of indisputable accuracy' ". Applying that test his Honour held that "the question of drinking habits in the community is not a matter of this kind. It is not something so notorious or so demonstrable that evidence of it is not necessary ...".
Contrary to questions of drinking habits in the community, knowledge of the processes of Australian courts certainly does meet this statutory test.
Also relevant to consider is that the nature of the operation of computers, the internet and the world wide web has long been considered to be a matter of general common knowledge. In Jones v Toben [2002] FCA 1150; (2002) 71 ALD 627 Branson J observed, for example, at [64] - [65]:
"64 Section 144 of the Evidence Act 1995 (Cth) ("the Evidence Act"), in my view, renders proof of the nature of the Internet and the World Wide Web unnecessary for the purposes of this case. The general nature of both the Internet and the World Wide Web is now well known. The Canadian Human Rights Tribunal in Citron v Zündel (No. 4) (2002), 41 C.H.R.R. D/274 (C.H.R.T.) at [60] described the Internet as follows:
"The Internet is a means of global communication that relies on a universal set of protocols or standards for the transmission of information. Two related sets of communication instructions, Transmission Control Protocol, (TCP) and Internet Protocol, (IP), govern how information will move through the system, defining addresses, routing systems, and all the regulation necessary to permit communication among users."
65 At [67] the Tribunal described the World Wide Web in the following way:
"The World Wide Web, (the "Web"), is a specific application that uses the Internet to send and display data, including text, graphics, audio and video. There are two active components on the Web: a server that stores and transmits information, and a client or browser that requests, receives and displays the information obtained from the server. A "web site" is a collection of computer files that are coded in a specific way ... to allow information to be sent on request to a browser. The files are then displayed in a way consistent with the instructions provided by the creator of the web site. Every web site has a unique Uniform Resource Locator (URL), akin to their Internet address. Once connected to the Internet, the URL ... is necessary to gain access to a given web site ...."
Their pursuit was also submitted to have been oppressive, given the serious charges alleged against a wide range of people, including private individuals, public officers and corporations. Mr Markisic's ongoing conduct, including his repeated pursuit of interlocutory applications which were doomed to fail, repeated disqualification applications, and allegations of bias and criminal conduct, also established that the proceedings were vexatious.
That Mr Markisic has not accepted the finality of judgments by which he is bound is plainly revealed by his pursuit of the various proceedings I have referred to. Even in these proceedings he has sought to re-litigate such matters by the cross-summons which he filed. That he has not accepted the finality of the decisions made in the Family Court and later proceedings on which the Attorney General relied, was amply evidenced in these proceedings, not only by the various judgments in evidence, but also by the relief sought in the first cross-summons, by the proposed second cross-summons, and by submissions which Mr Markisic repeatedly advanced in these proceedings, before the final hearing.
Like other litigants Mr Markisic is bound by the principles discussed in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 where Brennan J observed at 608 - 609:
"Unless a judgment recovered after litigation between parties is reversed or set aside, it binds the parties and determines their rights and liabilities inter se according to its tenor (Livesey v. Harding [1855] EngR 875; (1855) 21 Beav 227 (52 ER 846) ; Peareth v. Marriott (1882) LR 22 Ch D 182 ; Thompson v. Thompson (1923) 2 Ch 205, at p 214 ; Badar Bee v. Habib Merican Noordin (1909) AC 615 ). "It is most clear", said Lord Mansfield in Moses v. Macferlan (1760) 2 Burrell 1005, at p 1009 [1760] EngR 713; (97 ER 676, at p 678) , "that the merits of a judgment can never be over-haled by an original suit, either at law or in equity. Till the judgment is set aside, or reversed, it is conclusive, as to the subject matter of it, to all intents and purposes." No civil proceedings which impugn a judgment can be brought by parties bound by the judgment except proceedings to have it reversed or set aside (Cabassi v. Vila [1940] HCA 41; (1940) 64 CLR 130, at p 148 , per Williams J.). An action to recover a second judgment giving more copious relief than the relief given by the first judgment cannot be brought merely because the evidence was not properly prepared in the first action (Marriot v. Hampton [1797] EngR 443; (1797) 7 TR 269 (101 ER 969) ; Wilson v. Ray (1839) 10 Ad & E 82 (113 ER 32) ) nor merely because some point was omitted from the argument then put to the court (Greathead v. Bromley [1798] EngR 16; (1798) 7 TR 455 (101 ER 1073) ). Both public policy and the interests of the litigants require that there should be an end to litigation as to a particular subject matter once a judgment determining the rights and liabilities of the parties as to that matter has been recovered (Lockyer v. Ferryman (1877) LR 2 AC 519, at p 530 )."
Mr Markisic's repeated pursuit of matters finalised in earlier judgments unquestionably has repeatedly involved an abuse of process. That term is not defined in the Act. As Fullerton J discussed in Attorney General of New South Wales v Croker [2010] NSWSC 942, however, at [17]:
"...In Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256 at [9] Gleeson, Gummow, Hayne and Crennan JJ observed that what amounts to an abuse of court process is insusceptible of a formulation comprising closed categories. That said, the concept of abuse of process is often relied upon in the exercise of the inherent jurisdiction of superior courts to stay proceedings and was frequently used to ground orders made under s 84 of the Supreme Court Act. An abuse of process includes, by illustration rather than by definition, the following examples:
i. The pursuit of proceedings that have no prospect of success, or no real prospect of resulting in a remedy of any substance, but which involve unjustifiable expense or use of judicial resources;
ii. The pursuit of concurrent proceedings for substantially the same relief, or the pursuit of fresh proceedings after unremedied default in previous proceedings."
The first of these descriptions properly describe Mr Markisic's repeated pursuit of disqualification applications for bias against various judicial officers, including myself in these proceedings, applications that judgments be set aside, even after appeals from those judgments have failed, as well as by the pursuit of the civil misconduct proceedings, and the criminal proceedings earlier described.
The second matter described by Fullerton J aptly describes the applications that judgments be set aside after appeals have failed; the second defamation proceedings; and the 2008 proceedings in the Family Court.
The reasons for decision in evidence also repeatedly refer to Mr Markisic's conduct of the proceedings, conduct also pursued in these proceedings, which can properly be described as falling within paragraph (d) of the definition appearing in s 6 of the Act, namely:
"(d) proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose."
For example, in March 2011, Cohen J noted at [28] that the case then advanced was that all of the judgments, orders and the warrant issued in the first Family Court proceedings commenced in 1998, including those of the Full Court, were forged, false and/or technically defective so as to be null and void. At [35] his Honour explained in relation to the orders sought and how the proceedings were pursued:
"35. The application for final orders, application to issue subpoenas and submissions, on their face, are obviously those of the very type of litigants that s. 118 is directed at; the type of persons every lawyer experienced in litigation is familiar with; the type of persons who to any layman seem to be, as they seem to me as a layman to be, manipulative, clever but unbalanced and disturbed, unwilling to accept the umpires[sic] decision, obsessed with their cause, claiming to have been unjustly treated by the courts, and alleging a wide ranging and exceptionally complex and difficult to carry out conspiracy against them by a large group of people in circumstances where it would ordinarily be highly unusual to find even one corrupt person in such a group."
His Honour explained how it was that the orders in evidence complied in various ways with s 157 of the Evidence Act; that there was no evidence which suggested that they were other than genuine; and no prospect that the witnesses who Mr Markisic wished to call in these proceedings, who included the former Chief Justice of the Family Court, other retired Judges and Registrars, could give evidence which would assist his case. His Honour observed at [48]:
"The written submissions relied on by the respondents and the oral submissions add nothing of substance to those which I have dealt with in more detail. Although the product of intelligent and cunning minds, they are the misguided manipulative and or paranoid ravings of vexatious and frivolous litigants. They have no realistic prospect of success in the cause they have brought before this Court. The proceedings for the issue of the subpoenas and for final orders are frivolous because the case brought in each instance has no weight. They are vexatious because both applications impose upon the Court, those sought to be subpoenaed and the Director-General undue trouble, inconvenience and cost in circumstances where the respondents' case has no weight and could not reasonably have any."
Cohen J used strong language in 2008. Similar views have been expressed in later cases. Harrison J, for example, observed at [25] in Markisic v Today-Denes [2009] NSWSC 482 that Mr Markisic's approach was "[w]hen confronted with clear evidence that he cannot explain or avoid, the plaintiff concocts an "explanation" that seeks to impugn or discredit or deny the existence of the offending material" (at [25]). This included submissions such as those referred to at [35] "that the court file might have been tampered with, or documents might have been "planted" in it, and that the judgment might have been fraudulently uploaded to the court's website". His Honour noted that there was no evidence which supported his theories and at [36] said that:
"It was made all the more bizarre by the plaintiff's contention that the fraud was in his belief concocted by the Crown Solicitor and the Attorney-General's Department, to cover up the fact that bandits, masquerading as Australian Federal Police officers, had been hired by or at the behest of the Crown Solicitor to kidnap his daughter in 1998 and deliver her into the possession of child predators and paedophiles."
Harrison J also noted Mr Markisic's continued pursuit of his belief that eight judgments of the Family Court were counterfeit, fake or forged (at [66]). His Honour observed at [80]:
"It is plain that the plaintiff is unable or unwilling to accept defeat. In the ninth defendant's words, he refuses to accept the umpire's decision. I have no reason to suspect that his reaction to my decision in this case will be any different. Indeed, the plaintiff has foreshadowed as much in the written submissions to which I have just referred."
That expectation has borne fruit in these proceedings. Yet again, by the first cross-summons filed in these proceedings and the second cross summons in respect of which he has sought leave, Mr Markisic sought to pursue these beliefs. In these proceedings, too, he has unsuccessfully pursued subpoenas requiring some 50 witnesses to be brought to court, including not only former judges and public servants who he has been refused leave to issue subpoenas to give evidence in earlier proceedings, but also a former Prime Minister. He has advanced both written and oral submissions which evidence the unwarranted continuation and pursuit of these beliefs.
This type of conduct was also pursued in the earlier proceedings before Simpson J in 2006, before Mr Markisic abandoned his pursuit of those proceedings. This was considered in the Court of Appeal in Markisic v AEA Ethnic Publishers Pty Ltd & Ors [2006] NSWCA 378, where Mr Markisic pursued some 115 grounds of appeal (at [220]). Tobias JA there observed at [112] in relation to the fourth bias application pressed before Simpson J that Mr Markisic's conduct was then "bordering on the vexatious". That bridge was later crossed.
Such vexatious conduct was also more than amply displayed in these proceedings, as I have explained in the various judgments I have earlier delivered. Mr Markisic's response to decisions or rulings which did not favour the case which he was pressing, was to repeatedly pursue baseless bias applications and in one case, even to pursue an application that leave to bring criminal proceedings against me be given by the Local Court.
There can, to my mind, be no question that in these proceedings Mr Markisic's behaviour is properly described as having been vexatious as that term is defined in s 6. That conduct has been pursued deliberately in order to harass and annoy others involved in the proceedings, as well as to delay the proceedings.
In earlier proceedings orders have been made to restrain Mr Markisic from taking further steps without prior leave of the Court. Grove J, for example, made such an order in July 2005 in Dragan Markisic v Department of Community Services of NSW, State of New South Wales, Commonwealth of Australia, The Trustees of the Roman Catholic Church for the Archdiocese of Sydney and Qantas Airways Limited observing at [13] - [14]:
"13 I have already made an order dismissing the motion for the issue of a warrant to arrest Ms Muirhead. An affidavit by Ms Drummy, a solicitor in the employ of the Crown Solicitor, exhibited a death extract certificate showing that Ms Muirhead died on 24 October 2004. Ms Drummy obliterated the recording of the place of death. That information is none of the plaintiffs business. I also record that I refused to allow the plaintiff to cross examine Ms Drummy as I was not satisfied that there was any matter of bona fide challenge being sought to be raised by the plaintiff.
14 The plaintiff stated that he was not convinced that Ms Muirhead was deceased and that the Crown Solicitor should have provided him with more detail. It was neither the duty nor the function of the Crown Solicitor to volunteer information about Ms Muirhead to the plaintiff."
His Honour took the view that the motion then pursued was entirely misconceived and that an order should be made under s 84 of the Supreme Court Act 1970 (NSW), being satisfied that unless restrained, Mr Markisic would institute further baseless claims against the respondents who he had sought to have dealt with for contempt and removed from the roll of legal practitioners (see at [48]). An appeal from that decision was dismissed, the Court of Appeal observing that the order made was protective of the orderly administration of justice (see Markisic (Dragan) v Department Of Community Services & Ors [2006] NSWCA 149 at [40]- [41]).
It is not necessary to explain in further detail all of the reasons for which it must unquestionably now be concluded that the Attorney General has established that the proceedings in question were vexatious. These examples more than suffice to explain why it must be concluded that this aspect of the Attorney General's case has been proven.
Has Mr Markisic frequently been involved in vexatious proceedings?
What constitutes "frequently", a term not defined in the Act, was considered by Fullerton J in Attorney General of New South Wales v Croker at [18] - [23]. An appeal from her Honour's decision was dismissed (see Croker v Attorney General of New South Wales [2010] NSWCA 355). Her Honour there observed at [19] - [23]:
"19 In Attorney General v Wentworth (1988) 14 NSWLR 481 at 492 Roden J distinguished between the twin concepts of "habitually and persistently" and the concept of "frequently" in the following way:
"On first impression, these words clearly imply more than great frequency. 'Habitually' suggests that the institution of such proceedings occurs as a matter of course, or almost automatically, when the appropriate conditions (whatever they may be) exist: 'persistently' suggests determination, and continuing in the face of difficulty or opposition, with a degree of stubbornness."
While his Honour did not dilate upon the concept of frequency as a comparative concept, the point of distinction with the test under the Supreme Court Act is implicit.
20 The plaintiff also submitted that in considering what is encompassed by the concept of frequency, I would be guided by the construction adopted by the Supreme Court of Queensland, since s 8 of the New South Wales Act mirrors s 6(1) of the Vexatious Proceedings Act 2005 (Qld).
21 In National Australia Bank Limited v Freeman [2006] QSC 086 at [30] Muir J observed that:
""Frequently" is defined in the Shorter Oxford English Dictionary as: "At frequent or short intervals, often repeatedly; numerously". Whether proceedings have been instituted or conducted "frequently" must be looked at in the context of litigation. In that sense 'frequently' is a relative term."
22 In Hambleton & Anor v Labaj [2010] QSC 124 at [56] Applegarth J reaffirmed that:
"Whether vexatious proceedings were "frequently" instituted or conducted must be looked at in the context of litigation. Frequency is a relative term."
23 Rule 6(1) of the High Court Rules 1952 (Cth) operates to prohibit a person from bringing any action, appeal or other proceeding in the Court without leave where that person has frequently and without reasonable ground instituted vexatious legal proceedings. In Jones v Cusack [1992] HCA 40; (1992) 109 ALR 313 at [14] Toohey J also considered that "frequently", in the context of r 6(1), was a relative term which in that case had to be determined in the context of whether it could be said that Mr Cusack frequently instituted legal proceedings in the High Court. His Honour was satisfied that the order should issue after his review of Mr Cusack's litigation history over a number of years as he sought (repeatedly) to challenge the legality of Australia's paper money and banking system with reference to the Currency Act 1965 (Cth) and the Reserve Bank Act 1959 (Cth)."
On Mr Markisic's established, admitted and finally unchallenged litigious history, as I have already explained, there can be no question that Mr Markisic has frequently instituted and conducted vexatious proceedings in Australia. In the result, the power to make a vexatious proceedings order against him has been enlivened.
I am well satisfied on the evidence I have referred to, that unless restrained by order of the Court, Mr Markisic will persist with bringing and pursuing proceedings which are vexatious, as defined in the Act. In the circumstances I have explained, I am satisfied that the Court's protective discretion to make the orders sought must now be exercised
That Mr Markisic has abused his right to bring proceedings unsupervised by the Court has been well established. He has repeatedly used court processes to assert rights and grievances for which he has no reasonable grounds and to attempt to re-litigate issues which he has lost, contrary to regularly given judgments which bind him. The cross-summons brought in the proceedings is yet another attempt to re-litigate such matters. He has repeatedly made damaging allegations of reprehensible conduct against many individuals, including judicial officers and legal representatives, who have no practical right of redress. He has repeatedly taken up court time in wholly unproductive ways, contrary to his obligations under the Civil Procedure Act, as I have explained, at considerable unnecessary cost and inconvenience to other parties and to the unnecessary detriment of the legal system.
Should the orders extend to Mr Markisic's cross-claim?
The Attorney General's case was that the orders made should extend to the cross-claim which Mr Markisic advanced in these proceedings. Thereby he sought to reagitate matters dealt with in other of the proceedings in which he has earlier been involved, which are the subject of orders which already bind him, as I have explained.
Mr Markisic has not finally appeared to resist any of the orders sought against him in these proceedings. In the circumstances and for the reasons already given, I am also satisfied that this order should be made. To refuse it would give Mr Markisic yet another unwarranted opportunity to re-litigate rights and grievances already resolved by earlier litigation in a fruitless, vexatious pursuit of matters which have properly thereby been brought to an end.
Orders
In the circumstances I have explained, I am well satisfied that the orders pressed should be made.
The usual order is that costs follow the event. That is the order sought by the Attorney General. Mr Markisic has not appeared to resist that, or any of the other orders sought. In the circumstances I have explained, I am satisfied that is the appropriate order to make in this case in relation to the Attorney General's costs. He should not, however, have to bear the cost of the proceedings earlier brought against his brother.
For the reasons given, I order that:
1. Pursuant to s 8(7)(b) of the Vexatious Proceedings Act 2008 (NSW), Mr Dragan Markisic is prohibited from instituting proceedings in New South Wales without leave of the Court.
2. Pursuant to s 8(7)(b) of the Vexatious Proceedings Act 2008 (NSW), the cross-claim already instituted by Mr Dragan Markisic be stayed.
3. Mr Dragan Markisic is to bear the Attorney General's costs of the proceedings brought against him in this case, as agreed or assessed.
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- AGLC
- Attorney General in and for the State of New South Wales v Markisic [2014] NSWSC 1596
- Case
- [2014] NSWSC 1596
- Decision Date
CaseChat Overview and Summary
The court had to consider the nature of the evidence presented, including documentary evidence and judgments from previous proceedings, and whether these met the admissibility standards under the Evidence Act 1995. The court found that the documentary evidence, including judgments and transcripts, was relevant and admissible. The reasons for judgment were deemed public documents, and their admissibility was supported by the statutory provisions. The court also examined the hearsay rule and the exceptions applicable to judgments and reasons.
The court concluded that the procedural requirements were met, and the evidence established a pattern of vexatious litigation. The defendant had a history of bringing and maintaining proceedings that were not warranted by any serious question to be determined. The court made orders under the Vexatious Proceedings Act 2008, restricting the defendant's ability to bring further proceedings without the court's permission. These orders also extended to any cross-claims the defendant might bring.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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