Attorney General in and for the State of New South Wales v Markisic
[2012] NSWSC 1253
•16 October 2012
Supreme Court
New South Wales
Medium Neutral Citation: Attorney General in and for the State of New South Wales v Markisic [2012] NSWSC 1253 Hearing dates: 16 October 2012 Decision date: 16 October 2012 Jurisdiction: Common Law Before: Schmidt J Decision: New hearing date fixed.
Catchwords: PROCEDURE - motion - orders seeking hearing date to be vacated and directions to be varied - adjournment opposed - new hearing date fixed Category: Procedural and other rulings 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)
Mr DP Robinson SC (Second Cross Defendant)
Solicitors:
IV Knight, Crown Solicitor (Plaintiff)
Dragan Markisic (In person)
Oliver Markisic (In person)
File Number(s): 2011/76594 Publication restriction: None
EXTEMPORE Judgment
Before the Court today is a motion filed in Court by the defendants seeking orders that a hearing fixed on 30 November be vacated and that directions earlier given for the preparation of the matter for that hearing be varied. The motion is supported by an affidavit sworn by Mr Dragan Markisic on 15 October 2012 in which he explains the circumstances in which the application has come to be made.
The proceedings are concerned with an application made by the Attorney General, who is seeking orders declaring the defendants to be vexatious litigants. The hearing on 30 November was fixed as a result of the judgement which I gave on 21 September 2012. It is to deal with certain outstanding motions. I then directed that each party was to file and serve their written submissions in support of their motion within 21 days, that each party was to file any written submissions in reply within a further 21 days and that at the hearing the parties' oral submissions to be limited to a response in each case to any matter raised by the reply not already dealt with in the parties' written submissions. The date 30 November was fixed having in mind commitments which I had in respect of a criminal trial, which was due to commence yesterday.
In Mr Markisic's affidavit he gives an account of circumstances in which his daughter became the subject of custody proceedings in the Family Court in 1998 at a time when he and his wife divorced. From his affidavit it appears that his daughter now resides in Macedonia and that he has not seen her since her departure from Australia in 1998. He has had, on his account, but little contact with his daughter since then and has made travel arrangements to visit Macedonia in the hope that he can see his daughter. It is proposed that he and his brother will leave Australia on 14 November and will return on 12 February 2013. It has been clarified that as yet, while a booking has been made, there has been no payment for the proposed travel pending determination of this application.
So far as the directions made on 21 September 2012 are concerned, it appears that the Attorney General has filed and served written submissions on 9 October or thereabouts but the defendants have not complied with that direction. The explanation for that is their involvement in other proceedings before Price J. That matter is presently part heard and due to come before his Honour on 24 October for the purpose of further hearing dates being listed. There is a question as to whether or not that matter can be heard this year, given his Honour's commitments in other criminal proceedings, and the defendants' proposed departure overseas in November. It is in all of those circumstances that the defendants press the application for adjournment of the hearing to March next year, and a variation to the directions given on 21 September.
The adjournment application is opposed by the Attorney General for reasons explained. Emphasis is particularly placed on the resulting delay in the proceedings which have now been on foot since 2011 where, it was submitted, it was important to consider that the application was pursued by the Attorney General in the public interest.
In order to seek to accommodate the defendants' desire to travel to Macedonia to visit Mr Dragan Markisic's daughter, I proposed to the parties that the outstanding matters in relation to the motion be heard on 9 November rather than 30 November so that the defendants could proceed unhindered with their travel plans. That is possible because of developments yesterday in the criminal trial, which I earlier mentioned. Both the Attorney General and the Commonwealth were able to accommodate that alteration but it was one which the defendants opposed for a number of reasons, including their concern as to what hearing dates might be fixed by Price J in other proceedings in which they are involved, as well as their anxiety about their travel to Macedonia and submissions developed as to the distress which would result if they were required to deal with the outstanding motions before travelling overseas.
Having weighed all of these matters in the balance, it seems to me, as I said to the defendants, that their desire to travel to Macedonia to visit Mr Dragan Markisic's daughter is both understandable and one which the Court should strive to accommodate.
Having in mind the history of these proceedings, what was directed on 21 September and what is due to be heard on 30 November, it seems to me that the hearing on 30 November should be vacated but that sensibly the matter cannot be adjourned until March of next year. That would not be a just or sensible balance of the competing considerations which have arisen. It is possible to hear the parties on 9 November. The Attorney General has put on its written submissions. What is left to be done by way of preparation is for the defendants to put on their written submissions and any written submissions in reply to those which have been filed by the Attorney General. There is, it seems to me, adequate time to deal with those matters if the defendants are granted an extension and the other directions are revisited.
Accordingly, I will fix the hearing of the motion for 9 November. The defendants are directed to file and serve any written submissions in support of their motion by 31 October and the parties are to file and serve any written submissions in reply by 7 November. Otherwise the directions made on 21 September remain unaltered.
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Decision last updated: 17 October 2012
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