Attorney General in and for the State of New South Wales v Markisic
[2013] NSWSC 1212
•02 September 2013
Supreme Court
New South Wales
Medium Neutral Citation: Attorney General in and for the State of New South Wales v Markisic [2013] NSWSC 1212 Hearing dates: 19 August 2013 Decision date: 02 September 2013 Jurisdiction: Common Law Before: Schmidt J Decision: 1. The proceedings are adjourned until further order, so far as Mr Oliver Markisic is concerned. The parties have liberty to approach to have them restored to the list, on the giving of three days' notice.
2. The orders sought by Mr Dragan Markisic in the motions of 14 March 2012 and 29 May 2012 are refused.
3. So far as Mr Dragan Markisic is concerned, the Attorney General is given leave to amend in the terms sought:
(a) the motion of 22 August 2012
(b) the summons.
4. Costs of the motions are reserved.
Catchwords: PROCEDURE - adjournment application - refused - further disqualification application - refused - notice of motion seeking leave to file second cross-summons - not granted - orders sought to restrain legal practitioners from acting in the proceedings - not granted - notice of motion seeking three judgments to be set aside - refused - notice of motion seeking an amendment to summons - additional prayer to be added to the summons, that the cross-claim be stayed - granted - costs reserved - further directions Legislation Cited: Civil Procedure Act 2005
Crimes Act 1900
Crimes Act 1914 (Cth)
Evidence Act 1995
Family Law Act 1914
Family Law Act 1975 (Cth)
Legal Profession Act 2005
Limitation Act 1969
Uniform Civil Procedure Rules 2005
Vexatious Proceedings Act 2008Cases Cited: 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 [2011] NSWSC 1436
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 977
Driclad Pty Ltd v Commissioner of Taxation (Cth); Marine Plastic Co Pty Ltd v Commissioner of Taxation (Cth); Rollason v Commissioner of Taxation (Cth) [1968] HCA (1968) 121 CLR 45 Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561
McDonald v McDonald [1965] HCA 45; (1965) 113 CLR 529
Markisic v Commonwealth of Australia [2010] NSWSC 24
Markisic v Department of Community Services of New South Wales (No 2) [2006] NSWCA 321
Perpetual Trustees Australia Ltd v Heperu Pty Ltd [No 2] [2009] NSWCA 387; (2009) 78 NSWLR 190
R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546Category: Interlocutory applications 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: Counsel:
Mr JS Emmett (Plaintiff/First Cross Defendant)
Mr DP Robinson SC (Second Cross Defendant)
Solicitors:
IV Knight, Crown Solicitor (Plaintiff)
Mr A Markus, Australian Government Solicitor (Second Cross-Defendant)
Mr Dragan Markisic (in person)
File Number(s): 2011/76594 Publication restriction: None
Judgment
In these proceedings the Attorney General seeks orders declaring the defendants to be vexatious litigants. By judgment of 2 August 2012 (see Attorney General in and for the State of New South Wales v Markisic [2012] NSWSC 866), I concluded, amongst other things, that the questions raised by the Attorney General's summons are to be dealt with as separate, preliminary questions; that the case against each defendant is to be heard separately; and that the parties were each to file short minutes of the further directions which they sought, in relation to the hearing of the Attorney General's summons and the defendants' outstanding motions.
This judgment deals with the proceedings so far as Mr Dragan Markisic is concerned, apart from the making of a formal order that the proceedings are adjourned, so far as Mr Oliver Markisic is concerned.
There is an outstanding motion filed by the Attorney General, as well as motions filed by the defendants. By a judgment of 21 September 2012, I gave directions as to the hearing of these motions (see Attorney General in and for the State of New South Wales v Markisic [2012] NSWSC 1143). I there said at [49] - [50]:
"49 Given the difficulties which have been encountered in the proceedings to date and having in mind the requirements of s 56 of the Civil Procedure Act, I have determined that the parties will be given only limited opportunity to make oral submissions on 30 November, given what needs to be dealt with on that day. Under s 62(3)(e) of the Civil Procedure Act, I direct that the parties put all of the submissions which they wish to advance in support of their motions in writing and that they also put on any reply which they wish to advance, in writing. At the hearing oral submissions will be restricted to any response to the other side's reply, in relation to any matter which has not already been addressed in the written submissions.
50 I give the following directions:
1 Each party is to file and serve their written submissions in support of their motions within 21 days.
2 Each party is to file any written submissions in reply, within a further 21 days.
3 At the hearing the parties' oral submissions will be limited to a response, in each case, to any matter raised by the reply and not already dealt with in the parties' written submissions.
4 The defendants are to file any motion by which they seek to pursue any further disqualification application, supported by an affidavit and all written submissions on which they seek to rely."
Those directions were later amended (see Attorney General in and for the State of New South Wales v Markisic [2012] NSWSC 1253).
In accordance with those directions, the parties filed written submissions.
As was explained in a judgment which I gave on 18 July 2013 (see Attorney General in and for the State of New South Wales v Markisic [2013] NSWSC 977), most regrettably Mr Oliver Markisic is gravely ill. The proceedings had to that point been repeatedly adjourned, in the hope that he would sufficiently recover his health, so that the outstanding motions which relate to both defendants, could be dealt with. On 18 July, the other parties opposed Mr Dragan Markisic's further application that the proceedings again be adjourned. I then concluded that while the proceedings against Mr Oliver Markisic could not proceed, there was no further proper basis for the adjournment of the proceedings against Mr Dragan Markisic, notwithstanding the stage which the proceedings had then reached.
That was, that two motions which both defendants had brought and one brought by the Attorney General, all remained to be determined. The parties had all put on written submissions and the matter had been listed in November 2012, so that they could put on any oral submissions in reply. The matter was listed for that purpose, so far as Mr Dragan Markisic was concerned, on 19 August.
Further adjournment refused
While not making another adjournment application, on 19 August Mr Dragan Markisic again protested on behalf of both himself and his brother, at the hearing of the motions proceeding, so far as they concerned him. On his brother's behalf he complained that the potential outcome of the course I had concluded must be pursued, was that a decision would be reached on the motions, which would prejudice his brother. On his own behalf, he complained that he was entitled not only to his brother's support in the proceedings, but that he was entitled to rely on any oral submissions which his brother might wish to advance. His brother was the author of the written submissions on which they both relied. He wanted the opportunity to hear his brother's oral submissions, before deciding what oral submissions he should make himself.
Both the Attorney General and the Commonwealth accepted that any decision reached on the outstanding motions could not bind Mr Oliver Markisic, who would be entitled to be heard, before any decision binding him was made. It was accepted that a practical outcome of the notices being determined, so far as Mr Dragan Markisic was concerned, might be that if I reached a conclusion which was adverse to Mr Dragan Markisic, if the case against Mr Oliver Markisic proceeded, it might have to be heard by another judge. That however, was not a basis, they submitted, for further adjourning the proceedings against Mr Dragan Markisic.
They were submissions which I accepted, having in mind the requirements imposed by s 56 of the Civil Procedure Act 2005, as to the just, quick and cheap resolution of the real issues lying between the parties. As I have observed before, it is unfortunate that the Attorney General brought in the one set of proceedings, applications for orders under the Vexatious Proceedings Act, against both defendants. That has given rise to a number of difficulties, referred to in judgments I have earlier given.
Nevertheless, I have ordered that the two applications are to be heard separately, once these outstanding motions have been dealt with. In those circumstances, I was satisfied that to further delay their resolution, so far as Mr Dragan Markisic was concerned, did not accord with the requirements of s 56. There was no evidence led to suggest that Mr Oliver Markisic's prognosis has improved. Further delay in the hearing of the proceedings against Mr Dragan Markisic in the hope that Mr Oliver Markisic will recover sufficiently so that the proceedings against him can continue, does not accord with what the dictates of justice requires in the circumstances which have arisen, regrettable as they are.
As I sought to explain to Mr Dragan Markisic, any judgment which I gave on the three notices could not bind Mr Oliver Markisic. If the application which the Attorney General has brought proceeds against him, the result of my decision that the case against Mr Dragan Markisic must proceed, may well provide a proper basis upon which it should be concluded that another judge should hear the application brought in respect of Mr Oliver Markisic, if the case against him is pressed.
There is no point, however, in speculating as to what the future might hold in that regard. How the application against Mr Oliver Markisic should proceed, will have to be dealt with, as events unfold themselves in the future.
Further disqualification application refused
This decision resulted in a further disqualification application, on the basis of both actual and apprehended bias, for similar reasons to those which Mr Dragan Markisic and his brother have unsuccessfully advanced in earlier applications (see 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 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).
On this occasion they included that I had refused the further adjournment application, until Mr Oliver Markisic had recovered; that the refusal involved both appellable error and unfairness to both Mr Dragan and Mr Oliver Markisic; that the decision had been given to wrongly advantage the Attorney General's case against them; that the decision did not rest on my own views, but of those of the Attorney General; that I and other judges of this Court, constantly acted to favour the Attorney General; that I was not the author of decisions which have been given in the proceedings; that every decision I had made had favoured the Attorney General; that I did not permit him to put his case as he wished and constantly interrupted him; that I had an animosity towards him; that I had not fairly allowed Mr Dragan Markisic to put all of the submissions which he wished to advance; and that we were adversaries, because he was seeking to bring criminal proceedings against me. Mr Dragan Markisic also complained that I was advantaging the case put for the Attorney General because of the family connection between the Attorney's counsel Mr Emmett and a judge of the Court of Appeal and that I had offended him, by wishing his brother ill.
Mr Dragan Markisic's submissions are not factually correct. He and his brother have succeeded on various applications which they have made, over the other parties' objections, as the judgments I have given reveal. He has also been given ample opportunities to advance his submissions. Further, as I have discussed in the decisions earlier given on other disqualification applications, if a particular conclusion I have reached involves appellable error, as Mr Dragan Markisic has repeatedly submitted, that is not a basis upon which a finding of either actual or apprehended bias can rest.
As I have said on more than one occasion, Mr Oliver Markisic has my best wishes for a full recovery, but on the material which has been put before the Court, that he will make such a recovery, speedily, or at all, cannot be assured. In the circumstances my view that justice required that the proceedings continue so far as Mr Dragan Markisic is concerned, was not ideal, but I was satisfied that it was a conclusion which had to be reached, in the difficult circumstances which have presented themselves.
That conclusion is not one which evidences either actual or apprehended bias, notwithstanding Mr Dragan Markisic's fervently held belief that it does.
I will not repeat all that I have said in the earlier judgments as to how applications such as this must be determined. I adopt what I there said. So approached I was satisfied that the matters Mr Dragan Markisic relied on did not evidence actual or apprehended bias, notwithstanding his vehement disagreement with decisions which I had made and how I had sought to manage the conduct of the proceedings.
It is not necessary to outline again Mr Dragan Markisic's ongoing conduct in court. It is sufficient to observe that it is now even less disciplined than it was, while his brother, who frequently admonished and remonstrated with him, was present during earlier stages of these proceedings. That helps explain his desire not to proceed in the absence of his brother, but is not a basis upon which the hearing of the proceedings against him can justly be further delayed. The constant need to manage his conduct in court is certainly challenging, but does not provide a basis upon which either actual or apprehended bias can be found.
It is pertinent, however, to now observe that a "fair and unprejudiced mind" is "not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it" (see R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546 at 554).
As Mason J said in Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352:
"It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson ((1976) 136 C.L.R. 248) and Livesey ((1983) 151 C.L.R. 288) has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be 'firmly established': Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group ((1969) 122 C.L.R. 546, at pp. 553-554); Watson ((1976) 136 C.L.R., at p. 262.); Re Lusink; Ex parte Shaw ((1980) 55 A.L.J.R. 12, at p. 14; 32 A.L.R. 47, at pp. 50-51)."
Further, as Lush J said in Ewert v Lonie [1972] VR 308 at 311 - 312:
"Every reasonable man knows that consistency in decision is one of the aims of judicial or quasi-judicial institutions, but if he is exercising his quality of reasonableness he does not suppose that a tribunal will refuse to entertain or will fail to give proper attention to a submission opposed to its former decision merely because it is so opposed. In this case, the reasonable onlooker might have thought that the appellants would not have much chance of succeeding, but this is not the same thing as feeling or believing that they would not get a proper hearing. It is not a characteristic of the law's reasonable man either to be irrationally suspicious of every institution or authority or to think that every cynical appraisal represents an absolute truth."
Further, despite his complaints that I had unnecessarily interrupted him, I was satisfied that a fair minded observer of these proceedings would have been left with an impression that what the parties respectively advanced in relation to matters which arose to be resolved, was decided on an impartial assessment of what was advanced, notwithstanding the manner in which Mr Markisic pursued his case.
The outstanding motions
Mr Dragan Markisic did not accept my decisions, with the result that when I called on him to make the oral submissions which he wished to advance on the outstanding motions, so far as he was concerned, he refused. He said that he reserved his right to make such submissions, after his brother had made his oral submissions.
Despite again pointing out to him that he had the opportunity then to make such submissions and could not simply elect, as he sought to do, to defer making them until his brother was heard, he refused to put any further oral submissions.
In the circumstances, Mr Dragan Markisic having been given a fair opportunity to put anything further which he wished to add to his written submissions and the other parties not wishing to be heard further, I reserved my decision on the motions.
The motion of 14 March 2012
By that motion orders are sought in the following terms:
"1 Leave is granted to the Cross-Claimants to file their Second Cross-Claim (the document attached to the affidavit of Dragan Markisic).
2 Ian Victor Knight, (the NSW Crown Solicitor and solicitor on record and legal representative for the NSW Attorney-General in these proceedings), be removed from proceedings on the ground of having conflict of interest.
3 David Robinson, (barrister representing the Commonwealth of Australia in these proceedings), be removed from proceedings on the ground of having conflict of interest.
4 Roshana Wikremanayake, (solicitor employed in the Australian Government and representing the Commonwealth of Australia in these proceedings), be removed from proceedings on the ground of having conflict of interest.
5 Further orders as required by the Applicants."
The Attorney General and the Commonwealth oppose the orders sought.
The second cross-summons
I do not propose to grant the leave sought to file the second cross-summons for the following reasons.
The proposed second cross-claim does not identify the amendments sought to be made to the existing cross-claim. It is apparent, however, from a reading of the two documents, that many of the amendments sought seek relief in relation to matters which are clearly relevant to the case which the Attorney General seeks to establish, by evidence of which Mr Dragan Markisic has long been put on notice.
Both the Attorney General and the Commonwealth opposed the leave sought being granted, submitting amongst other things that the new allegations sought to be made had no reasonable prospects of success, given decisions made in various earlier proceedings.
Mr Dragan Markisic argued that their submissions should not be accepted, the other parties not having led relevant evidence on which their submissions could rest. He also submitted that a simple comparison of the pleading pursued in 2006 in the Court of Appeal proceedings on which the other parties relied and the proposed cross-summons, showed that 'it was completely different claim with different allegations of facts' that he sought to pursue in the second cross-summons. He also submitted that it was apparent from its submissions that the Commonwealth now sought to again lie about matters which had been lied about before the Court of Appeal.
To support his leave application, Mr Dragan Markisic also relied on the fact that what is proposed now is an 83-page document. That plainly does not provide a basis for the leave sought, notwithstanding what Mr Dragan Markisic has submitted, as to the clarification thereby provided of the relief sought to be pursued in the existing cross-summons.
In the existing cross-summons orders are sought that various documents purporting to be judgments given in various proceedings in which the defendants have been involved, on which the Attorney General seeks to rely, should be set aside. Orders are also sought, for example, that the judgments are false or counterfeit, void, illegal and given irregularly or in bad faith; and that they are result of a conspiracy between various persons. They include judges of this and other Courts, and employees of the State and the Commonwealth, who it is claimed, conspired to fabricate and counterfeit judgments and orders in identified proceedings, going back to proceedings in the Family Court commenced in 1998.
In the proposed second cross-summons, claims of this kind are sought to be considerably broadened and directed to encompass judgments which the Attorney General has identified as judgments on which reliance will be sought to be placed, in the case brought against Mr Dragan Markisic. The authenticity of the documents purporting to be such judgments is in issue.
What is sought to be pursued in the second cross summons must be considered in the context that Rule 36.15 permits the Court to set aside a judgment or order given by the Court in any proceedings, on sufficient cause being shown, 'if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.' In Perpetual Trustees Australia Ltd v Heperu Pty Ltd [No 2] [2009] NSWCA 387; (2009) 78 NSWLR 190 it was explained at [16] - [17]:
"16 The focus of Pt 36.15(1) is on the judgment or order that is attacked, and question is whether it was "given, ... entered or ... made" irregularly etc. The focus is on irregularity in those steps, not on the merits of any decision, or the irregularity of other steps in the proceedings, or in the proceedings below.
17 The rule applies with particular force to default or consent judgments and orders, and those given or made ex parte. It can only have limited application to judgments and orders made or entered after a hearing on the merits at which all parties were represented and fully heard."
It was further observed at [32]:
"In Burrell v R [2008] HCA 34, 82 ALJR 1221, 1226 Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ said:
"A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances. That tenet finds reflection in rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud and in the doctrines of res judicata and issue estoppel. The principal qualification to the general principle of finality is provided by the appellate system. But in courts other than the court of final resort, the tenet also finds reflection in the restrictions upon reopening of final orders after they have been formally recorded." "
In order for a judgment to be set aside on the ground of fraud, evidence must be led which permits an affirmative finding of the fraud alleged (see McDonald v McDonald [1965] HCA 45; (1965) 113 CLR 529).
So understood, the difficulty with many of the orders proposed in the second cross-summons is stark.
Some of the judgments the proposed subject of the second cross-summons are judgments of the Court of Appeal and other Courts. Orders setting aside those judgments could not be made in these proceedings.
As to judgments of this Court, that there is any basis upon which it might be established that they were the result of any irregularity or fraud, has not been shown. That Mr Dragan Markisic holds a vehement belief that this occurred, is not a sufficient basis upon which to grant the relief now sought, in respect of the proposed second cross-summons.
In all of those circumstances, I am satisfied that the leave sought should be refused. To grant it, would fail to adhere to the requirements of the Civil Procedure Act, which by s 60 requires that 'the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute'. To permit the leave sought would risk potentially futile costs being incurred. The dictates of justice do not permit that course, particularly when the following matters are taken into account.
This conclusion is reinforced by the fact that the proposed second cross-summons also seeks to advance claims in negligence and misfeasance, in respect of alleged events which occurred in 1998, when it appears that Mr Dragan Markisic's child was removed from his custody and care, after proceedings in the Family Court. Mr Dragan Markisic claims that he then suffered various personal and other injuries, for which he seeks damages, including aggravated and exemplary damages. Those damages have been formulated to include loss of a business, a business opportunity, and future earnings in the business and his profession. What that business is, is not revealed in the second cross-claim.
The Attorney General submitted that this was a vexatious attempt to re-litigate matters already dealt with in earlier proceedings and that the claims were statute barred, relating as they do to events which occurred in 1998 (see s 14 of the Limitation Act 1969 which provides a 6-year limitation period 'from the date on which the cause of action first accrues' and the 12-year long-stop limitation period, which is 'the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned' provided in s 50C).
Mr Dragan Markisic conceded that this 'could be' the only valid argument advanced against the leave which he sought, but submitted that it also had to be considered that the Commonwealth and the State were joint tortfeasors, against whom he had made legitimate demands for counter relief. That submission does not assist Mr Dragan Markisic. He has not established anything which might be considered could provide a foundation for the conclusion that the damages claim which he seeks to advance by the second cross-claim, would be brought within time.
The Commonwealth also relied on proceedings brought against it, in which an appeal from a refusal to grant leave to file an amended statement of claim was dismissed, except as to certain claims (see Markisic v Department of Community Services of New South Wales (No 2) [2006] NSWCA 321). While much is in issue between the parties as to the prior litigation between them, it is apparent from Mr Dragan Markisic's submissions, that he accepts that he was given such leave by the Court of Appeal, which I understand he is now actively pursuing before Price J. The Court of Appeal observed, as to the damages which were sought to be pursued at [67]:
"Regard should then be had to the harm which Mr Markisic alleges he suffered. The particulars of damages in the fresh draft amended statement of claim are of psychological injury and of loss of Elena with consequential psychological injury and injury to health. There is reference also to damage to reputation causing damage to health. Apart from loss of Elena's services, business losses from the effect of the psychological injury on the conduct of Mr Markisic's business are alleged."
The Commonwealth also relied on conclusions reached by Davies J in Markisic v Commonwealth of Australia [2010] NSWSC 24 at [128,] to submit that the relief sought would not be granted, his Honour having stayed those proceedings, where similar damages were sought. Mr Dragan Markisic does not concede that this judgment was given, as I understand him.
Nevertheless, in all of these circumstances, I am satisfied that the leave sought cannot sensibly be granted, consistently with the requirements of s 56 and s 58 of the Civil Procedure Act.
Orders restraining legal practitioners from acting in the proceedings
There was no issue between the parties as to the Court's inherent jurisdiction to preserve the proper administration of justice by restraining a legal practitioner from acting in a particular case. Whether the discretion to make such exceptional orders would be exercised in this case, was in issue.
Brereton J had to consider the Court's jurisdiction over legal practitioners and its power to restrain them from acting, in Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561. After an extensive review of the authorities, amongst other things his Honour observed at [76]:
" ...
- However, the court always has inherent jurisdiction to restrain solicitors from acting in a particular case, as an incident of its inherent jurisdiction over its officers and to control its process in aid of the administration of justice [Everingham v Ontario; Black v Taylor; Grimwade v Meagher; Newman v Phillips Fox; Mitchell v Pattern Holdings; Spincode; Holborow; Williamson v Nilant; Bowen v Stott; Law Society v Holt]. Prince Jefri does not address this jurisdiction at all. Belan v Casey and British American Tobacco are not to be read as supposing that Prince Jefri excludes it. Asia Pacific Telecommunications appears to acknowledge its continued existence.
- The test to be applied in this inherent jurisdiction is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice [Everingham v Ontario; Black v Taylor; Grimwade v Meagher; Holborow; Bowen v Stott; Asia Pacific Telecommunications].
- The jurisdiction is to be regarded as exceptional and is to be exercised with caution [Black v Taylor; Grimwade v Meagher; Bowen v Stott].
- Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause [Black v Taylor; Grimwade v Meagher; Williamson v Nilant; Bowen v Stott].
- The timing of the application may be relevant, in that the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief [Black v Taylor; Bowen v Stott]."
At [92] his Honour further observed:
"The inherent jurisdiction is discretionary. The cases emphasise that consideration is to be given to the prima facie right of a party to be represented by the lawyer of its choice, to the inconvenience, cost and disruption which might be occasioned by requiring a party to change lawyers, and to the "exceptional" nature of the jurisdiction."
So approaching the resolution of Mr Dragan Markisic's applications, I have concluded that the orders which he sought cannot be made, for the following reasons.
The Crown Solicitor
The Crown Solicitor Mr Knight is not a party to these proceedings, which it is to be remembered have been brought against Mr Dragan Markisic by the Attorney under the Vexatious Proceedings Act.
Mr Dragan Markisic's case was that Mr Knight had a conflict of interest, because he had a personal interest in the proceedings. That was because one of 24 court attendance notices issued by he and Mr Oliver Markisic in February 2011 had been issued against Mr Knight, for breach of s 65Z of the Family Law Act 1975 (Cth), in respect of his personal involvement in the kidnap of his daughter. He had also been named as a tortfeasor in various other proceedings, which they had commenced in the past.
In the result, it was submitted, Mr Knight should not have been permitted to participate in any proceedings involving Mr Dragan Markisic. Because of his personal interest, he could not effectively discharge his duties as a court officer under the Rules and the Legal Profession Act 2005.
Despite these submissions, I am not satisfied that Mr Dragan Markisic has established a proper basis for the grant of his application in respect of Mr Knight. Allegations, even serious ones, are easy to make. Some real basis for them must be apparent, before the exceptional relief here sought could be granted.
That Mr Dragan Markisic has in the past made allegations against Mr Knight as to alleged criminal conduct, does not establish that 'a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice'. There is no suggestion that any criminal proceedings have ever resulted from the allegations made against Mr Knight. Nor is there evidence that any other proceedings have been successfully pursued against him, despite allegations made against Mr Knight in the past.
Mr Dragan Markisic's submission that "The law in Australia (and NSW) says that the crime they have done never expires" takes the matter no further. That is not a sufficient basis upon which the order sought can be made, having in mind the principles upon which such an application must be judged.
Nor can the leave sought in the proposed second cross-summons, for a declaration that Mr Knight is 'in breach of s 65XZ of the Family Law Act 1914 (effectively Crimes Act of the Commonwealth of Australia)' and in 'civil breach of s 90, s 90A and s 91 of the Crimes Act 1900', in relation to the alleged kidnapping of Mr Dragan Markisic's daughter in 1998, provide a basis for the orders sought. Mr Dragan Markisic cannot so pursue an alleged criminal offence and he has not been given leave to do so.
The mere fact that he has made further allegations against Mr Knight, in the proposed second cross summons, does not provide a basis for concluding that a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that Mr Knight should be prevented from acting for the Attorney in these proceedings, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice'.
Mr Robinson SC and Ms Wikremanayke, the Commonwealth's counsel and solicitor
The same conclusions must be reached in relation to the applications made in respect of Mr Robinson SC and Ms Wikremanayke.
That Court attendance notices may have been prepared, naming Mr Robinson and alleging that he made intentional use of fabricated evidence, does not give him a personal interest in these proceedings, or provide a sufficient basis upon which to make the orders sought. There is no evidence that the notices were ever issued, or that any criminal proceedings resulted. Nor was any basis established for the submission that he has not only done all that he could to ensure that the Commonwealth succeeded in these proceedings, but had 'overstepped in the area of crime' by knowingly using fabricated evidence before every single judge on every separate occasion.
It is not sufficient merely to make such allegations, serious as they are, if an order such as this is to be made.
The same submissions were advanced in relation to Ms Wikremanayke. They neither established that what was alleged was true, or that she had a personal interest in these proceedings.
Nor can the leave sought in the proposed second cross-summons, for a declaration that Mr Robinson and Ms Wikremanayke are in civil breach of s 36 of the Crimes Act 1914 (Cth), which makes it an offence to fabricate evidence or use fabricated evidence, provide a basis for the exceptional orders sought. Mr Dragan Markisic cannot so pursue an alleged criminal offence and he has not been given leave to do so.
The mere fact that he has sought to pursue such a case in these proceedings, is also not a basis upon which it could be concluded that a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that Mr Robinson and Ms Wikremanayke should be prevented from acting for the Commonwealth, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.
The motion of 29 May 2012
The defendants pressed for an order that three judgments given in these proceedings given in open court on 28 November 2011, 8 May 2012 and 17 May 2012 be set aside. They were:
- 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
In the 28 November judgment I gave reasons for various procedural rulings, including four bias applications and a refusal to issue certain warrants. In the 8 May judgment I gave reasons for other rulings, including a ruling requiring the defendants to make applications by way of motion, supported by an affidavit; I dealt with a summary dismissal application, which was refused; an application for trial by jury; a refusal to give summary judgment in favour of the defendants; and I dealt with various notices to produce documents. In the 15 May judgment, I gave reasons for refusing a further disqualification application.
This application was made under Rules 36.15 and 36.16 of the Uniform Civil Procedure Rules 2005, on the basis of irregularity. Mr Dragan Markisic submitted that the judgments were irregular, because they 'did not pass the requirement imposed by the law', that is by s 157 of the Evidence Act 1995. That section 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."
Mr Dragan Markisic's submissions are misconceived. It is apparent from the text of the section itself, that s 157 is not concerned with how judgments are delivered. It is concerned with how evidence of a judgment might be given in other proceedings. In this instance, such proof was unnecessary, because these judgments were given in these proceedings, the orders made being announced in open court, in Mr Dragan Markisic's presence, when a copy of the judgment was given to him.
As discussed in Driclad Pty Ltd v Commissioner of Taxation (Cth); Marine Plastic Co Pty Ltd v Commissioner of Taxation (Cth); Rollason v Commissioner of Taxation (Cth) [1968] HCA (1968) 121 CLR 45 at 64, there is a difference between a judgment and the reasons given for the judgment, which it is important not to overlook. Even putting that to one side, however, the problem with the defendants' application is that s 157 is concerned with how evidence of a judgment given by an Australian court may be adduced in other proceedings. It is not concerned with how such a court may give a judgment. In the case of this Court, that is governed by the provisions made in Rule 36 of the Uniform Civil Procedure Rules. That permits judgments to be pronounced in open court, as these were (see Rule 36.3). Rule 36.2 permits the reasons for a decision or order to be delivered to the parties, as Mr Dragan Markisic himself deposed they were.
Nothing in these submissions provides a basis for an order setting aside the judgments given in the proceedings,
Mr Dragan Markisic also submitted that he intended to challenge the authenticity of the judgments I had given in these proceedings, intending to prove that they are not judgments that I have given. A basis for such a challenge is impossible to see.
He submitted that the judgments were "purported' judgments because the copies he received had been certified by my associate as being a copy of the judgment given in these proceedings; that I have not signed that copy; and that while all the parties had witnessed me publishing the judgments as my reasons in open court, when the judgments were delivered, that did not constitute proof that I really 'stood behind' the judgments. That required my signature. The reason that was postulated for the judgment not having been signed, was that the judgments were not my own, which would explain my 'reluctance' to sign them.
Why I had not signed the judgments was a matter which Mr Dragan Markisic argued required consideration at trial before a jury, at which I would be called as a witness on issue of a subpoena, as would my associate and the Principal Registrar of the Court.
It was also submitted that given the sensitivity of the issue, namely that questions raised at such a trial could look like questions involving 'a fraud by false judicial instruments', that a trial by jury was required. In the result, orders for case management for such a trial were sought; subpoenas for production of documents and the giving of oral evidence were sought to be issued to my associate, the Principal Registrar and me.
This application must be refused as entirely misconceived. It rests on an irrelevant matter, namely the requirements of s 157 of the Evidence Act and fails to address the relevant questions, namely the applicable requirements of the Uniform Civil Procedure Rules. It also overlooks the provisions of s129(3) of the Evidence Act.
To grant what is sought would fly in the face of the requirements of s 56 of the Civil Procedure Act. It is irrelevant to a proper determination of the real issues lying between Mr Dragan Markisic and the other parties to these proceedings; would result in unnecessary expense and delay; and would be contrary to what the dictates of justice require in the circumstances which have arisen.
Further submissions were advanced as to further unidentified orders sought for proper case management, the issuing of unidentified discovery and interrogatories and a stay of the proceedings. Such matters have already been dealt with (see Attorney General in and for the State of New South Wales v Markisic [2012] NSWSC 433).
In the result the orders sought by this motion must be refused, so far as Mr Dragan Markisic is concerned.
The Attorney General's motion of 22 August 2012
This motion relevantly sought an order staying Mr Dragan Markisic's cross-claim pursuant to s 8(7)(a) of the Vexatious Proceedings Act 2008. By submissions made on 9 October 2012, attention was drawn to an error in the motion and leave to amend the motion was sought, in terms there set out. What was intended to be sought was an order adding a prayer to the summons, that the cross claim be stayed.
It was explained that before the Court ordered that the Attorney General's summons be heard first, the additional order now sought to be pursed in the summons was unnecessary, because all matters were to be resolved in the one hearing. Now that the Attorney's summons was to be heard first, the Attorney General's position was that the relief sought should apply to Mr Dragan Markisic's cross-summons, if the Attorney succeeded in obtaining the order sought against Mr Dragan Markisic under the 2008 Act.
It was submitted that the order sought was arguably unnecessary, but that in light of observations made in the judgment given on 2 August 2012, (see Attorney General in and for the State of New South Wales v Markisic [2012] NSWSC 510), the amendment had been sought to make the relief being pursued by the summons clear. There I observed in relation to submissions which had been advanced:
"74 In the circumstances, the benefit in making the order sought was said to be obvious. Also submitted to be relevant to be considered was the potential impact of the making of the orders sought, on the balance of the proceedings. It was submitted that if the orders sought were made, because the view was reached that the defendants were persons who should not be permitted to commence or carry on litigation in New South Wales without leave of the Court, that would have an impact on the wide ranging claims which the defendants seek to pursue in these proceedings. Conversely, if, as the defendants argue, the Attorney General's case against them failed because the documents on which reliance is sought to be placed are not found to be admissible, for example, then their pursuit of their claims in the proceedings would not be prejudiced.
...
94 The parties' disagreement over the operation of the Vexatious Proceedings Act is not a basis upon which the Attorney General's application may be refused. Both the Attorney General and the defendants pursue orders under the Vexatious Proceedings Act against each other. The defendants also pursue such orders against the State of NSW and the Commonwealth Attorney General.
95 If the Attorney General's submissions as to the operation of the Vexatious Proceedings Act are correct, success on either application will have an impact on the claims which the other party or parties later seek to pursue in these proceedings. That the Attorney General might achieve such success, if the summons is heard first, with the potential result that there might then be an impact on the defendants' further pursuit of their claims in these proceedings, is in my view not a basis for refusing to hear the Attorney General's summons before the defendants' claims are heard."
It was submitted that the amendment would not cause any prejudice, the Attorney General's position having been clearly articulated in the oral arguments advanced in June 2012. The application was responsive to a change in the case management of the proceedings.
Mr Dragan Markisic opposed the order sought, submitting that the claim that there would be no prejudice was a cynical submission and involved a sneaky move on the Attorney General's part. He argued that there was no evidentiary basis for the proposed orders and even if successful, that would not necessarily result in the cross-summons being vexatious. That would be a matter for the Attorney General to prove. The 2008 Act would not shut the door forever, even if an order under the Act were made against him. A litigant declared vexatious still has the opportunity to convince a judge on application, that proposed proceedings were not vexatious. In the present circumstances, the cross-summons having already been filed, the onus would lie on the Attorney General to prove that already instituted proceedings were vexatious.
I propose to grant the leave sought to amend the motion and to make the order sought.
As the parties' submissions revealed, there is no surprise or prejudice flowing from the proposed amendment to the summons. It relates to matters which the parties have already debated to some extent.
Granting the Attorney General leave to amend the summons will not necessarily preclude Mr Dragan Markisic proceeding on the cross-summons. Rather, it will mean that if orders are made declaring him to be a vexatious litigant, the question of whether his cross-summons may proceed, will also have to be determined. That will require consideration of the proper construction of the Vexatious Proceedings Act, about which the parties are disagreed.
The case which the parties will respectively advance in that regard has been revealed, having been the subject of submissions referred to in the judgment given on 2 August 2012 and in the submissions addressed to this motion. There is no surprise to either side as to the nature of that disagreement.
The Attorney General will argue that on the proper construction of the legislation, if declared to be a vexatious litigant, it will then be a matter for Mr Dragan Markisic to seek and obtain leave to proceed on the cross-summons, under the statutory regime. He will argue that because the cross-summons is already on foot, he would not be obliged to seek such leave and that it will be for the Attorney General to establish that the proper construction of the Act imposes that obligation on him.
There is, in the result, no prejudice to Mr Dragan Markisic in permitting the amendment to the Attorney General's summons. It ensures that the summons properly identifies all of the issues lying between the parties, in relation to the Attorney General's application, so that they can be addressed at the hearing. That accords with the requirements of both s 56 and s 58, which requires the Court to act according to the dictates of justice, as well as s 64 of the Civil Procedure Act, which permits leave to amend documents to be granted at any time and which provides in sub-s(2):
"Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings."
Further directions
I now propose to list the Attorney General's summons in relation to Mr Dragan Markisic for hearing. The matter was originally listed for three days, at a time when both the summons and cross-summons were to be heard. Given that it is only the Attorney General's case against Mr Dragan Markisic that is to be heard, it seems to me that the parties should be well able to ensure that the hearing of that summons is completed within that timeframe.
I will hear the parties as to final directions. What now appears to remain to be done prior to the hearing of the summons is for Mr Dragan Markisic to put on any further evidence on which he wishes to rely, to resist the Attorney General's summons and for the Attorney General to respond to such evidence. I will also require the parties to file outlines of their final submissions.
What I have in mind directing is that:
1. Mr Dragan Markisic is to file and serve any further affidavit evidence or documents on which he wishes to rely on or before 22 October 2013.
2. The Attorney General is to file and serve any evidence in reply and an outline of submissions on or before 12 November 2013.
3. Mr Dragan Markisic is to file and serve his outline of submissions on or before 23 November 2013.
5. The matter is listed for hearing on 27-29 November 2013.
Orders
For these reasons, I order:
1. The proceedings are adjourned until further order, so far as Mr Oliver Markisic is concerned. The parties have liberty to approach to have them restored to the list, on the giving of three days' notice.
2. The orders sought by Mr Dragan Markisic in the motions of 14 March 2012 and 29 May 2012 are refused.
3. So far as Mr Dragan Markisic is concerned, the Attorney General is given leave to amend in the terms sought:
(a) the motion of 22 August 2012
(b) the summons.
4. Costs of the motions are reserved.
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Decision last updated: 03 September 2013
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