Attorney General in and for the State of New South Wales v Markisic
[2012] NSWSC 866
•02 August 2012
Supreme Court
New South Wales
Medium Neutral Citation: Attorney General in and for the State of New South Wales v Markisic [2012] NSWSC 866 Hearing dates: 29 June 2012 Decision date: 02 August 2012 Jurisdiction: Common Law Before: Schmidt J Decision: 1. The defendants are to pay the other parties' costs of the interlocutory matters dealt with in the 8 May 2012 judgment, as agreed or assessed.
2. The Attorney General is to pay the defendants' disbursements in respect of the motion of 16 November 2011.
3. The questions raised by the Attorney General's summons are to be dealt with as separate, preliminary questions.
4. The Attorney General's case against the two defendants are to be heard separately, one after the other.
5. The matters are to be listed for directions on 29 August 2012 at 9:30am.
6. The parties are each to file short minutes of the further directions which they seek in relation to the hearing of the Attorney General's motion and the defendants' outstanding motions, on or before 22 August 2012.
Catchwords: PROCEDURE - various motions - motion to have questions raised in summons dealt with as preliminary questions - application by defendants to have their further two motions heard before Attorney General's motion - application not granted - oral application that the Attorney General's summons be dismissed - not granted - application to defer decision of Attorney General's motion, until the defendant's three outstanding motions have been dealt with - not granted - Attorney General's order must be granted - costs
PROCEDURE - courts and judges generally - two disqualification applications - apprehended bias - both applications refused - reasonsLegislation Cited: Civil Procedure Act 2005
Crimes Act 1900
Evidence Act 1995
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005
Vexatious Proceedings Act 2008Cases Cited: Attorney General in and for the State of New South Wales [2012] NSWSC 433
Attorney General in and for the State of New South Wales v Markisic [2012] NSWSC 510
Attorney-General in the State of NSW v Markisic [2011] NSWSC 1304
Attorney-General in the State of NSW v Markisic [2011] NSWSC 1333
Attorney General in and for the State of New South Wales v Markisic [2011] NSWSC 1436
Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411; (1992) 9 ACSR 309
Commonwealth Bank of Australia v Clune [2008] NSWSC 1125
In the matter of Cheal Industries Pty Ltd - Fitzpatrick v Cheal [2012] NSWSC 812Category: 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)
Oliver Markisic (In Person)
Dragan Markisic (In Person)
File Number(s): 2011/76594 Publication restriction: None
Judgment
By motion filed on 21 March 2012, the Attorney General in and for the State of New South Wales ('Attorney General') sought orders under Part 28 of the Uniform Civil Procedure Rules 2005, that the questions raised by the summons by which the Attorney General initiated these proceedings in March 2011, be dealt with as preliminary questions. By that summons the Attorney General seeks orders under s 8(7)(b) of the Vexatious Proceedings Act 2008, prohibiting each of the defendants from instituting proceedings in New South Wales, without leave of the Court.
The motion was supported by an affidavit sworn by Ms Kavanagh, of the Crown Solicitor's office, who has carriage of the matter, where she deposed to the procedural history of the proceedings.
In written submissions which the defendants filed on 30 April 2012, the orders sought in the motion were opposed. At the hearing on 29 June 2012, however, it finally emerged that it was common ground between the parties that the Attorney General's summons should be heard separately from the claims which the defendants seek to pursue in these proceedings. What was still not agreed was that the Attorney General's summons should be heard before the claims sought to be pursued in the proceedings by the defendants. The defendants also submitted that the claims advanced against each of them by the Attorney General for orders under the Vexatious Proceedings Act, should be heard separately. That was opposed by the Attorney General.
It was on 15 May 2012 that the Attorney General's motion was listed for hearing on 29 June 2012, over the Attorney General's objection. The Attorney General sought to have the motion dealt with on the basis of the written submissions. The defendants sought and were granted an opportunity to later address their written submissions orally, because I took the view that given that they were appearing unrepresented, they should, as a matter of justice, be given that opportunity.
The defendants had also filed a motion on 14 March 2012, by which they sought leave to file a second amended cross-claim; that Mr Knight, the NSW Crown Solicitor and the solicitor on the record be removed from the proceedings on the basis of a conflict of interest; and that Mr Robinson SC, the Commonwealth's counsel and Ms Wikremanayake, its solicitor, be removed from the proceedings on the basis of a conflict of interest. On 15 May the defendants opposed that motion being dealt with on the basis of the written submissions, or being listed for hearing on 29 June, submitting that they required further time to prepare their submissions in respect of that motion. Again, over the Attorney General's objections, I refused to list the defendant's 14 March motion for hearing on 29 June and stood it over.
On 29 June the defendants had altered their position. They pressed an application that the Attorney General's motion not be heard, until after two further motions which they had filed on 29 May and 27 June were heard and determined. I refused that application, indicating that I would later give reasons for my decision.
That refusal generated an application by both defendants, that I refrain from further hearing the matter, on the basis of both apprehended and actual bias. I also refused that application, indicating that I would later give reasons. During the course of Mr Dragan Markisic's further submissions, he made a further application that I refrain from hearing the matter, on the basis of apprehended and actual bias. This further application was not supported by Mr Oliver Markisic, who indicated that he remained 'neutral' on that application. I also refused that application, again indicating that I would later give reasons for that decision.
Later, during the course of the defendants' submissions, they pressed an oral application that the Attorney General's summons be dismissed, which was opposed by the other parties. They also finally made an application that having heard the Attorney General's motion, I refrain from deciding it, until the three other motions which they have filed were heard and determined. That application was also opposed.
This judgment deals with all of these matters, as well as the question of the costs of the matters dealt with in the judgment given on 8 May (see Attorney General in and for the State of New South Wales v Markisic [2012] NSWSC 433), on which I reserved on 15 May.
The costs of the matters dealt with in the 8 May 2012 judgment
The 8 May judgment dealt with various interlocutory applications, some advanced by motion and some contained in the defendants' cross-summons. The usual order is that costs follow the event. The only application in respect of which the defendants succeeded, was in relation to the production of correspondence referred to in Ms Kavanagh's affidavit of 8 March 2011 at [4]. Otherwise the relief pursued by the defendants was refused and the other parties succeeded, in respect of the interlocutory matters pursued against them.
On 15 May, the Attorney General sought that the defendants should be ordered to pay the Attorney General's costs, other than in respect of the 16 November motion, in respect of which it was accepted that there was some success. The Commonwealth sought an order in its favour in relation to the matters dealt with in the judgment.
The orders sought were opposed by the defendants. They submitted that no judgment of 8 May had been given according to law and that accordingly, no question of costs arose to be dealt with. They argued that the document which was provided to them in open Court on 8 May, when the judgment was delivered, was not a judgment of this Court. They submitted that in order for any costs order to be made, it was necessary for the defendants to tender the judgment on which they relied. The judgment purportedly delivered on 8 May had not been tendered and was not in any event admissible, because it did not adhere to the requirements of s 157 of the Evidence Act 1995. In the absence of the successful tender of the judgment relied on, no application for costs could be made or entertained.
The defendants also argued that in order for any application as to costs to be entertained, it was necessary for the Attorney General and the Commonwealth to make an application by way of notice of motion, for an order for costs. The judgment of 8 May was challenged. In those circumstances I was not entitled to assist the other parties to find evidence to support their case against the defendants. Nor was I entitled to state or proceed on the basis that I had given judgment. If the other parties wished to rely on any judgment which I had purportedly given, they had to tender it and lead evidence from both me and my Associate, so that we could be cross-examined and another judge of this Court could determine whether I had given judgment on 8 May. Given that I would then become a material witness, I would also have to disqualify myself from further hearing the matter. The defendants also foreshadowed making an application that the judgments which had been purportedly given, be set aside.
The defendants also urged that costs on the motions should be reserved until the proceedings had been finalised. It was explained that the defendants intended to appeal my decisions in relation to previous applications and that costs should be reserved until the proceedings had all been finalised. It was also submitted that the Attorney General knew that the defendants were impecunious and that it was pointless asking for costs from them, at this stage. In the circumstances, costs should only be dealt with after they had succeeded in obtaining an order for damages in their favour from the other parties. In any event, costs would not be ordered against them, given that the proceedings were baseless and had been commenced for an improper purpose. The pursuit of a costs order at this stage was also submitted to be vexatious. It was accepted that if the defendants were not successful, the other parties would then get some costs, but that they would only be paid at the end of the trial.
The defendants' submissions may not be accepted. The costs in question were those in respect of the various interlocutory matters dealt with on an earlier occasion in these proceedings. What lay between the parties was resolved by the orders made in the 8 May judgment, which is on the Court file and a copy of which was that day provided to the parties in open Court. The judgment has been entered in the Court's computerised court record system, in accordance with Rule 36.11 and it has also been published on the Court website, in accordance with the Court's usual practices. I said at [136] of the judgment that I would hear the parties on costs. No evidence needed to be led in these proceedings as to the terms of the 8 May judgment, before I heard the parties on the question of those costs. Nor was it necessary, in the circumstances, for the parties to pursue the question of costs by way of a motion. What was required was that they each be given an opportunity to address on the question of costs. That opportunity was given.
The usual order is that costs follow the event. That is what Rule 42.1 provides, consistently with s 98 of the Civil Procedure Act 2005. Contrary to what the defendants submitted, neither the Attorney General nor the Commonwealth have sought an order that the costs in question be payable forthwith. In accordance with Rule 42.7, any costs ordered will not be payable until the conclusion of the proceedings. All that has been sought is that the question of the costs incurred in relation to the motions dealt with in the 8 May judgment be determined.
There is nothing in the submissions which the defendants advanced, which provides a basis for a departure from the usual order. A costs order is not punitive, but it is intended to be compensatory in respect of the costs incurred by the successful party. In the case of litigants in person, such as the defendants, they may recover reasonably incurred disbursements and witness expenses, but not costs in respect of their own time spent in the preparation and conduct of the proceedings.
In my assessment the just orders in the circumstances are that the defendants should bear the costs of the interlocutory matters on which they failed, as well as the costs of the motion on which the Commonwealth succeeded and that the defendants should have an order in their favour for the disbursements incurred in respect of the motion of 16 November 2011, on which they were partially successful. Otherwise, they should bear the costs of that motion, given that they were otherwise unsuccessful, in what they there pursued.
Refusal to adjourn the hearing of the Attorney General's motion
The defendants' motion of 29 May came before the Registrar, who referred it to me, over the defendants' objections. They sought to have that motion referred to another judge for hearing. That application was opposed by the other parties and refused by the Registrar. The defendants' 27 June motion was in the Registrar's list on 17 July. I ordered that it be removed from that list.
The 29 May motion seeks various directions and 'proper case management' as to the preparation of the motion for hearing, including orders as to discovery, interrogatories, mode of trial and subpoenas; an order under s 85(2) of the Supreme Court Act 1970 that the motion be tried by jury; orders that subpoenas for the production of unspecified documents and subpoenas for unspecified witnesses to give oral evidence be made; that orders as to unspecified interrogatories and discovery be made; that a statement of claim annexed to an affidavit sworn by Mr Dragan Markisic be set down for trial. It also seeks an order for the stay of the whole proceedings, until finalisation of the motion; in the alternative, that the motion be fixed for hearing before the Attorney General's summons and the defendants' cross-summons; orders at common law and under Rule 36.15 and 36.16 of the Uniform Civil Procedure Rules, setting aside judgments which I gave in these proceedings on 28 November 2011 (see Attorney General in and for the State of New South Wales [2011] NSWSC 1436); in relation to various disqualification applications which I refused; the judgment given on 8 May 2012 in relation to the defendants' application for summary dismissal of the Attorney General's summons and other interlocutory applications (see Attorney General in and for the State of New South Wales [2012] NSWSC 433); and the judgment given on 17 May 2012 in relation to a further disqualification application (see Attorney General in and for the State of New South Wales [2012] NSWSC 510).
The 27 June motion seeks similar directions and 'proper case management' in relation to that motion, as is sought in relation to the 29 May motion; that the defendants be given leave to prosecute Ms Kavanagh for perjury under s 327 of the Crimes Act 1900, in relation to her 8 March affidavit, as well as the Attorney General, Mr Knight, and the Attorney General's counsel, Mr Emmett; that leave to issue unspecified subpoenas for production and subpoenas to give oral evidence on unspecified witnesses be granted; that orders in relation to unspecified interrogatories and discovery be made; trial of the motion by jury be ordered.
In written submissions which the defendants filed in support of the 27 June motion, they explained that the grounds on which they seek to have the judgments I have given in these proceedings set aside are irregularity, because they do not comply with requirements of s 157 of the Evidence Act and authenticity, because I did not sign the judgments. The defendants wish to argue that despite their purported publication by me, that does not constitute proof that I made those judgments, or stood behind them.
On 29 June the defendants explained that they wished to have both their recently filed motions dealt with by another judge and sought to have all of their outstanding motions heard and determined, before the Attorney General's application to have the questions raised by its summons heard and determined. The other parties opposed that course.
The defendants urged that their motions be dealt with before the Attorney General's motion was heard, because they explained they wished to start again. They were of the view that if another judge heard their motions, they would be able to convince that judge that the judgments I have given in these proceedings should be set aside and that accordingly, the parties would have to start afresh, to have the various matters I have already dealt with reheard. They argued that to take any other course would be to their prejudice.
The Attorney General submitted that there was no reason to expect that the course which the defendants had pursued, in making repeated applications by way of motions which delayed the hearing of the matter, would alter, even if their present application was acceded to. There was no reason why the motions which the defendants had recently filed, had to be determined before the Attorney General's separate question application. The hearing of the motion had been deferred to 29 June on the defendants' application and there was no good reason for its hearing to be further deferred. The Commonwealth supported these submissions, arguing that the recently filed motions were but an attempt to frustrate the hearing of the Attorney General's motion.
This submission led to a vehement response from the two defendants, with various submissions being pressed, including as to the conduct of the Commonwealth in other proceedings in 2001, which followed events in which the Markisic family was involved in 1998, which it was submitted, had turned the defendants' lives upside down. Mr Robinson, it was submitted made submissions in order to upset Mr Oliver Markisic and ought to be removed and the defendants' motions heard. Mr Dragan Markisic agreed and added that a Practice Note issued, possibly by the former Chief Justice, required that all interlocutory matters be finalised before either of the parties' claims were fixed for trial What Practice Note he had in mind was not identified.
He also submitted that he had been involved in litigation with the other two parties over the past 12 years, during which they had made interlocutory applications which had been dealt with, including in relation to the defendants' inadequate pleadings. They had used delaying tactics, including false affidavits and false evidence, in those other proceedings. By comparison, these proceedings had been on foot for only a year and the defendants were entitled to have their interlocutory applications heard, given the orders they had sought, because success on those motions would have an impact on the hearing of the Attorney General's summons, including by the potential removal of their current legal representatives.
The controversy lying between the parties as to the adjournment of the hearing of the Attorney General's motion had to be resolved in accordance with the obligations imposed by the Civil Procedure Act, which requires the Court to exercise its discretions to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Questions of eliminating delay (s 59) and proportionality of costs also had to be kept in mind (s 60), as well as the parties' respective adherence to their own obligations under the Act, which include the duty imposed by s 56(3A), to take reasonable steps to resolve or narrow the issues in dispute (s 58).
Having those obligations in mind, I could not accede to the course which the defendants urged, given the course which the proceedings had taken to that point and the nature of the applications made in the defendants' outstanding motions and what was raised in the Attorney General's motion.
While the orders sought by the defendants, if granted, might conceivably have some impact on the hearing of the Attorney General's summons, particularly as to the time at which it is heard and who might appear for the Attorney General and the Commonwealth, the motions did not, in my assessment, require hearing before the Attorney General's motion in relation to the separate question application was dealt with. To that point the parties had each filed written submissions and the defendants had received the opportunity they had sought, over the Attorney General's objection, to make oral submissions to expand on those written submissions and the other parties had prepared for that hearing. In my assessment, no proper basis for any further delay in hearing that motion was provided by the alteration in course which the defendants had recently decided to pursue, by the filing of their further motions. Adjournment of the hearing of the Attorney General's motion was not a proper, just, or efficient basis upon which to proceed.
As it emerged the parties were, in fact, agreed that the Attorney General's summons should be heard separately from the claims which the defendants seek to pursue in the proceedings. What remained in issue was whether the Attorney General's summons, or the claims which the defendants wish to pursue, should be heard first.
The disqualification applications
The defendants have made repeated applications that I disqualify myself on the basis of both apprehended and actual bias. I dealt with the earlier applications in Attorney General in and for the State of New South Wales v Markisic [2011] NSWSC 1436, given on 28 November 2011, where I discussed the applicable tests and in Attorney General in and for theState of New South Wales v Markisic [2012] NSWSC 510, given on 17 May 2012. I do not repeat what I there said about those tests, but add the following observations.
As Ward J recently discussed In the matter of Cheal Industries Pty Ltd - Fitzpatrick v Cheal [2012] NSWSC 812, a view that there has been appellable error is not a basis upon which a disqualification application may be pursued and judges must resist being driven from their courts by the conduct or assertions of parties, including assertions of actual or imputed bias. As was observed in Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411; (1992) 9 ACSR 309, by Kirby P at 418:
"Judges should perform the duties of their office which, of their nature, will often be painful and unrewarding. They should do so with courage and decisiveness avoiding the relinquishment of their duties which will then necessarily fall to another judicial officer for whom the task may be no more congenial. Such relinquishment will also involve costs, delay and inconvenience to parties who are otherwise entitled to have the decision of the judicial officer appointed to their case (referring to Re JRL; Ex parte CJL; Re Polites; Ex Parte Hoyts Corporation Pty Ltd [1991] HCA 25; (1991) 100 ALR 634)."
.
The first disqualification application made on 29 June was pressed by both defendants on the basis that my refusal of their application that the hearing of the Attorney General's motion be deferred, pending the hearing and determination of their recently filed motions, was the result of actual bias and that it would also establish in the mind of a fair-minded observer that I would not bring an impartial mind to the resolution of the questions which arise for determination in these proceedings.
I refused this application because I was satisfied that actual bias was not established, nor could the matters complained of give rise to any apprehension of bias in the mind of a fair-minded lay observer of these proceedings, with actual knowledge of the circumstances of the case.
Mr Dragan Markisic argued that the way in which the proceedings had been conducted to date had been to the defendants' prejudice and to the Attorney General's advantage. This had left him feeling that I was not independent, but a member of the Attorney General's team, doing whatever the Attorney General asked. He had no confidence that I would be impartial in further dealing with the matter and he had no doubt as to what the outcome of the proceedings would be, a decision in favour of the Attorney General, without the defendants being given any fairness. He submitted that what the defendants put to me was politely heard, but my decisions had already been made. He had a feeling that the proceedings were a set up.
He also reiterated his view that I have never delivered any judgments in these proceedings and complained that I had not delivered certain judgments ex tempore, but had later delivered irregular judgments. He argued that he would be prejudiced by any judgments not being delivered ex tempore. He also reiterated his views as to other matters already dealt with in earlier judgments, which he seeks to have reconsidered. He submitted that the refusal of the defendants' application had resulted in a waste of his time. Any official observer sitting in the court room would form the view that I was biased. The Attorney General was pressuring judges of this Court and if there was such influence, it was corruption.
Mr Oliver Markisic agreed and advanced further submissions as to the defendants' belief that judgments earlier given were irregular. He submitted that those judgments would have to be put in evidence by the Attorney General, so that the defendants' views as to the application of s 157 of the Evidence Act could be tested. He submitted that I was conscious that the s 157 test could not be satisfied and hence, I was anxious to proceed with the trial, without having the challenge to my judgments determined by another judge. This, it was submitted formed the basis of my bias. It was submitted that I would not do my duty, if the question arose to be decided in these proceedings, because I would have a concern for myself and thus I was anxious to proceed to hear the Attorney General's application.
It was also submitted that judges were human beings and that the doctrine of separation of powers did not operate, when a person with a high position like the Attorney General, the first law officer in the State, was involved in the proceedings. In such a case, all those below in the pyramid, including me, were affected.
These submissions had to be rejected as groundless. The notion that I, and all other judges in this State involved in hearing proceedings in which the Attorney General was a party, would be so influenced as to be biased against every other party, is extraordinary. Having in mind that the Attorney General is a frequent litigant at every level of the court system in this State and that the Crown is the prosecutor in almost all criminal proceedings pursued in this State, the submissions advanced, if correct, would make the legal system of this State unworkable.
I was satisfied that the views pressed by the defendants were not a basis upon which this further disqualification application could be acceded to. In my view, refusal of the defendants' application for the deferral of the hearing of the Attorney General's motion, given the circumstances in which it had been fixed for hearing and the events which had intervened, could not have left a fair-minded observer of these proceedings with the impression that it resulted from anything other than an impartial assessment of the cases which the parties had respectively advanced. Nor could it have left such an observer with any impression other than that what remains to be determined in these proceedings will be determined impartially.
All that was decided was that the hearing of the Attorney General's motion would not be deferred until after the hearing of the defendants' motions. The parties have yet to be heard as to what directions should be given in relation to the defendants' motions. No decisions have been made about those motions, as yet, other than that they are to come before me.
As to the submission that the proceedings had been conducted to that point on the basis that the Attorney General had urged, it was clear that the submission was factually incorrect. Even the hearing on 29 June was fixed because I had rejected the position advanced for the Attorney General at the directions hearing on 15 May. There have been other occasions on which applications which the defendants have made were accepted over the Attorney General's objection. The view that I always acceded to applications and submissions advanced for the Attorney General was plainly wrong. Even if it were not, as I explained in the 28 November 2011 judgment at [59] - [60], the rejection of a submission or application which lacks merit, when advanced by a litigant who wrongly and irrationally suspects bias, cannot evidence either actual or apprehended bias.
As it transpired, it later emerged that there was in fact a measure of agreement between the parties on the matters raised by the Attorney General's motion. They all took the view that the Attorney General's summons should be heard separately from the claims which the defendants wish to pursue in these proceedings. All that was finally in issue was whether or not the Attorney General's summons should be heard before the defendants' claims.
The second disqualification application was pressed by Mr Dragan Markisic. It was not supported by Mr Oliver Markisic.
In his submissions Mr Dragan Markisic complained variously that I was impatient with him; that I had a problem dealing with him; and that I was nervous or anxious. He explained that he suffered from a serious condition, for which he requires medication and which causes him on occasions to become nervous or anxious, for which he asked the Court's understanding, if he engaged in improper behaviour. He also explained that this condition stopped him from working, even though he had the highest qualifications obtainable in his profession. He said that he perceived that like many others in the community, I too might suffer from a condition.
Mr Dragan Markisic also explained that he believed that we were like enemies and that he was causing me stress and I could not stand him, for no reason. He submitted that his allegations of corruption by judges of this Court and the Attorney General made me anxious and jumpy, he believed, because I was personally involved and because I was intent on resolving the proceedings as the Attorney General would like.
I did not doubt that Mr Dragan Markisic held the beliefs which he explained, but I was satisfied that they were not a basis upon which his further disqualification application could be accepted. Like all litigants, Mr Dragan Markisic must abide by the directions which the judge hearing the matter gives, as the proceedings are progressing. It is regrettable that he takes the view that I have not permitted him to advance his case as he wishes and that he perceives me to be agitated and upset and not dealing fairly with him. That appears to be the result of the way in which he conducts himself; his inability to accept that he needs to comply with my directions; and the resulting steps which need to be taken, from time to time, in order to ensure that the hearing proceeds in an orderly fashion.
The disqualification application was made immediately after I had insisted that Mr Dragan Markisic attend to a question I was putting to him, rather than moving on to deal with another matter, which he had decided he wished to pursue instead. Mr Dragan Markisic resisted what I was requiring him to do, namely answer a question as to whether he had any objections to an affidavit on which the Attorney General sought to rely in support of the motion being heard, because he wished to press another application that the Attorney General's motion be dismissed.
Mr Dragan Markisic has had considerable difficulty in accepting that these proceedings must be conducted on the basis which I determine, rather than according to ideas which he forms, sometimes from moment to moment, as to matters which I should deal with and applications and issues which he ought to be permitted to pursue. At times this approach not only gives rise to difficulties which I must deal with, it also gives rise to disagreements, sometimes heated, voluble and prolonged, between Mr Dragan Markisic and his brother.
In the result, on occasions it has been necessary for me to raise my voice to catch Mr Dragan Markisic's attention and have him attend to what I am seeking to pursue with him. Mr Dragan Markisic adopts a variety of tactics to achieve his own ends, including interjecting, raising his voice to speak over me and others, and speaking so fast, without pause, that there is no opportunity to stop him, without creating real difficulties for the Court reporters trying to record the proceedings. While he complained that I have interrupted his submissions and that he has not been permitted to finish what he is submitting, that is necessary on occasions, including this one. On this occasion, my firm and repeated insistence that Mr Dragan Markisic not move on to deal with other matters which he wished to deal with, but to answer my question led to this further disqualification application.
I refused this application because I was satisfied that the circumstances in which it was made and the matters which Mr Dragan Markisic advanced, could not give rise to any apprehension of bias in the mind of a fair-minded observer of these proceedings, let alone evidence any actual bias.
The difficulty which Mr Dragan Markisic's approach gives rise to on occasions, was soon illustrated by his behaviour after the refusal of this second application, while making submissions in relation to the Attorney General's motion. At one point, a considerable disagreement emerged between the two defendants, during which they loudly argued and remonstrated with each other, in another language. What they were saying to each other could not be understood by others present who did not speak that language, but it could be clearly heard and seen. That there was a vehement disagreement between them was apparent and led Mr Oliver Markisic to observe that he had similar difficulties with his brother, to those which I have had.
The defendants each appear to be highly intelligent, well experienced litigants, who are appearing unrepresented to defend a summons of considerable importance to them and to advance claims about which they clearly feel strongly. Despite their repeated submissions as to the breadth of their understanding of court procedures and practices and how this Court's discretions should be exercised and the other parties should conduct the litigation and their legal advisers should conduct themselves, they are not always correct and their submissions may not always be accepted. Rejection of applications which the defendants make or submissions which they advance, does not reflect any dislike, or bias on my part, whether apprehended or actual, but rather decisions I judge necessary to be made as to matters in issue between the parties, which are disagreed. I am also required to ensure that necessary steps are taken so that the proceedings are conducted in an orderly fashion, having in mind what justice demands for all of the parties before the Court. The rights of other litigants need also to be born in mind. While many latitudes have been extended to the defendants, appearing as they are unrepresented, there is a limit to what they may be permitted to do.
The defendants at one point complained about my refusing certain of their applications, without immediately giving ex tempore reasons for their refusal. The reason for adopting that course, when it is adopted, is not any difficulty with giving such reasons, but because the defendants frequently make oral applications of various kinds, which have to be refused in circumstances where stopping to give oral reasons would unnecessarily delay what has to be dealt with in available Court time. The course which I have adopted in reserving reasons on some occasions accords with what I have judged is required, given the obligations imposed by s 56 of the Civil Procedure Act, namely that I act to ensure that the course taken facilitates the just, quick and cheap resolution of the real issues in the dispute or proceedings. The defendants' dissatisfaction with my not giving ex tempore reasons is not a basis upon which a different course may be adopted, nor does it establish any bias.
The defendants have repeatedly explained that they do not accept the correctness of various decisions which I and Rothman J have made in the proceedings, or indeed even that we have given various judgments in these proceedings, although they have plainly read them. They intend to pursue those views in various ways, including by the orders sought in the motion of 27 June and in due course on appeal.
The defendants are free to exercise their rights, but neither their views that decisions have been made wrongly, nor the foreshadowed exercise of their rights, can deflect me from acting in accordance with what I judge the merits of the parties' position on matters over which they join issue in these proceedings to be, consistently with the obligations imposed by the Civil Procedure Act.
The oral application that the Attorney General's summons be dismissed
This application was made during the course of other submissions, on the basis that the Attorney General's summons disclosed no cause of action. I refused this application, accepting the Attorney General's submission that the relief sought in the summons disclosed the cause of action being pursued, namely orders under s 8(7)(b)of the Vexatious Proceedings Act, prohibiting the defendants from instituting proceedings in New South Wales without leave of the Court.
As I discussed in the May 2012 judgment, such orders may only be made if the Attorney General establishes that the defendants have frequently instituted or conducted vexatious proceedings in Australia (see at [41] -[49].) The Attorney General seeks to establish the case advanced on that cause of action, relying on the documents annexed to Ms Kavanagh's supporting affidavit.
The defendants did not establish any basis for the further summary dismissal order which they pressed. I discussed what had to be established, if such an order was to be made, in the May 2012 judgment at [35] - [39]. This was neither attempted, nor established and accordingly, the further oral application also has to be dismissed.
The application that I defer deciding the Attorney General's motion, until the defendants' three outstanding motions have been dealt with
This application must, in my view, also be refused. Given the common ground which had emerged between the parties, that the Attorney General's summons and the defendants' claims should be heard separately, that there should be any further delay in deciding what remained disagreed between the parties in respect of the Attorney General's motion, may not justly be accepted.
I take this view notwithstanding the matters raised in the defendants' outstanding motions, for the same reasons I discussed above, in relation to the application that I not hear the Attorney General's motion. This conclusion is reinforced by the common ground which had emerged between the parties, that the claims should be heard separately. It is necessary to determine which claim should be heard first. There is no sensible reason in the circumstances, to delay the making of that decision.
The Attorney General's motion
Part 28 of the Rules relevantly provide:
"28.1 Definition
(cf SCR Part 31, rule 1)
In this Part, question includes any question or issue in any proceedings, whether of fact or law or partly of fact and partly of law, and whether raised by pleadings, agreement of parties or otherwise.
28.2 Order for decision
(cf SCR Part 31, rule 2)
The court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings.
28.3 Record of decision
(cf SCR Part 31, rule 5)
If any question is decided under this Part, the court must, subject to rule 28.4, either:
(a) cause the decision to be recorded, or
(b) give or make such judgment or order as the nature of the case requires.
28.4 Disposal of proceedings
(cf SCR Part 31, rule 6)
(1) This rule applies if the decision of a question under this Division:
(a) substantially disposes of the proceedings or of the whole or any part of any claim for relief in the proceedings, or
(b) renders unnecessary any trial or further trial in the proceedings or on the whole or any part of any claim for relief in the proceedings.
(2) In the circumstances referred to in subrule (1), the court may, as the nature of the case requires:
(a) dismiss the proceedings or the whole or any part of any claim for relief in the proceedings, or
(b) give any judgment, or
(c) make any other order."
Also relevant is s 62 of the Civil Procedure Act, which provides:
"62 Directions as to conduct of hearing
(cf Act No 52 1970, section 87; Act No 9 1973, section 77 (4); SCR Part 34, rules 6 and 6AA)
(1) The court may, by order, give directions as to the conduct of any hearing, including directions as to the order in which evidence is to be given and addresses made.
(2) The court may, by order, give directions as to the order in which questions of fact are to be tried.
(3) Without limiting subsections (1) and (2), the court may, by order, give any of the following directions at any time before or during a hearing:
(a) a direction limiting the time that may be taken in the examination, cross-examination or re-examination of a witness,
(b) a direction limiting the number of witnesses (including expert witnesses) that a party may call,
(c) a direction limiting the number of documents that a party may tender in evidence,
(d) a direction limiting the time that may be taken in making any oral submissions,
(e) a direction that all or any part of any submissions be in writing,
(f) a direction limiting the time that may be taken by a party in presenting his or her case,
(g) a direction limiting the time that may be taken by the hearing.
(4) A direction under this section must not detract from the principle that each party is entitled to a fair hearing, and must be given a reasonable opportunity:
(a) to lead evidence, and
(b) to make submissions, and
(c) to present a case, and
(d) at trial, other than a trial before the Local Court sitting in its Small Claims Division, to cross-examine witnesses.
(5) In deciding whether to make a direction under this section, the court may have regard to the following matters in addition to any other matters that the court considers relevant:
(a) the subject-matter, and the complexity or simplicity, of the case,
(b) the number of witnesses to be called,
(c) the volume and character of the evidence to be led,
(d) the need to place a reasonable limit on the time allowed for any hearing,
(e) the efficient administration of the court lists,
(f) the interests of parties to other proceedings before the court,
(g) the costs that are likely to be incurred by the parties compared with the quantum of the subject-matter in dispute,
(h) the court's estimate of the length of the hearing.
(6) At any time, the court may, by order, direct a solicitor or barrister for a party to give to the party a memorandum stating:
(a) the estimated length of the trial, and the estimated costs and disbursements of the solicitor or barrister, and
(b) the estimated costs that, if the party were unsuccessful at trial, would be payable by the party to any other party."
In exercising the Court's power under Rule 28, the Court must give effect to the overriding purpose provided in s 56 of the Act, namely, 'to facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings'.
The usual position is that all issues raised in proceedings should be tried at the same time. Caution must be exercised in any departure from that approach. Nevertheless, there is no question that in an appropriate case, an order of the kind sought by the Attorney General may be made. The onus falls on the moving party to establish that the circumstances are such, that a particular question or questions should be determined separately. In cases where issues are clearly severable, such an order may be appropriate. The parties' agreement is plainly a relevant consideration. In my view, given the nature of the claims which the defendants wish to pursue, the basis of the parties' agreement is apparent and sensible,
As Johnson J discussed in Commonwealth Bank of Australia v Clune [2008] NSWSC 1125:
"6 It has been observed that, since the Civil Procedure Act 2005, the Court should take a more interventionist role in identifying and separating important issues which can resolve significant parts of litigation expeditiously: Integral Home Loans Pty Limited v Interstar Wholesale Finance Pty Limited [2006] NSWSC 1464 at [6]. Although trial courts will probably be more disposed nowadays to order separate questions than they might have been in the past, it remains the case that separate determination is an exceptional course to be contrasted with the ordinary course of deciding a case in its totality: Street v Luna Park Sydney Pty Limited [2007] NSWSC 697 at [5]."
The Attorney General's case was put in written submissions filed on 16 April 2012. It was there submitted that the evidence on which the Attorney General wished to rely had been served in 2011. It was essentially a case based on documents annexed to Ms Kavanagh's affidavit of 8 March 2011. The defendants have put in issue the authenticity of those documents, which they say are not judgments, as they purport to be.
The Attorney General relied on the service of detailed written submissions in support of the orders which it sought by its summons, together with a chronology of relevant events in October 2011, in preparation for the 3 day hearing fixed by the Registrar to commence on 14 November. There, it was submitted, the basis of its case against the defendants was outlined. The defendants' strike out motion has since been heard and dismissed At the hearing of that motion, the Attorney General's case was further explained.
Since then the defendants had filed further motions, including the 14 March 2012 motion by which they sought to amend their cross-summons to raise further claims. That motion has as yet not been dealt with. The Attorney General and the Commonwealth were ready to proceed, but its hearing had been delayed as the result of the position of the defendants, who at the directions hearing in May opposed that motion being listed for hearing on 29 June, when the Attorney General's motion was listed for hearing. Since then the defendants had filed two other motions, which on the Attorney General's case, were largely concerned with the issues sought to be raised by their cross-summons.
In the result the defendants were not ready to take a hearing date in respect of their claims. Those claims include, for example, amongst very many other claims, an application that the Attorney General, the State of New South Wales and the Attorney General of the Commonwealth should all be declared vexatious litigants. The other claims advanced in the cross-summons are outlined in the 8 May judgment at [2]. Additional claims are advanced in the second cross-summons and also in the statement of claim, which the defendants explained is an alternative claim which they seek to pursue, if they cannot pursue the second cross-summons.
While it was accepted by the Attorney General that there might be some overlap between factual matters relevant to the Attorney General's summons and the claims which the defendants wish to pursue, it was submitted that it needed to be considered that they have not yet been given leave to pursue the proposed amended cross-summons; they have foreshadowed a pursuit of further case management applications, including orders for interrogatories and discovery in respect of the wide-ranging claims which they seek to advance; and they have foreshadowed the need to lead further evidence, in the event that they are successful in obtaining such orders, prior to any hearing of their claims.
In the result it was argued that the Attorney General's summons should be heard before the myriad of matters sought to be pursued in the proceedings by the defendants. The Attorney General would rely on a documentary case and did not anticipate the need would arise for cross-examination of the defendants, given their approach to the Attorney General's case and that the summons did not raise questions of the defendants' credibility.
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.
In oral submissions reliance was placed on the further motions which the defendants had filed, as well as what was sought in the 14 March motion. It was submitted that it was still not clear what claims the defendants really sought to pursue and given their various interlocutory applications, apparent that they were not ready to proceed.
By way of contrast, the Attorney General was ready to proceed on the summons. The Registrar had in 2011 made orders as to the filing of evidence and the matter had been listed for hearing for 3 days in November 2011. Since then various matters had been dealt with, including the defendants' unsuccessful summary dismissal application. Given the nature of the orders sought in the summons and the continuing uncertainty as to the case which the defendants wished to pursue, the orders sought would be made.
The potential consequences of the orders sought by the summons, if made, were explained to include the possibility that the regime established by the Vexatious Proceedings Act would apply to the balance of these proceedings, as well as to any future proceedings which the defendants might seek to pursue. This was explained to be the result of the provisions of s 8(7) of that Act which provides:
"(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."
While these proceedings had not been instituted by the defendants, s 8(7) nevertheless applied, it was submitted, because of the provisions of s 4 and s 5, which provide:
"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.
"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 these provisions, it was submitted, was that if the Attorney General were successful, orders could be made under s 8(7) in respect of the claims advanced by the defendants in these proceedings.
The defendants' position was put in written submissions filed on 30 April, which they addressed on 29 June in their extensive oral submissions, after I refused the application that I not hear the Attorney General's motion
In the written submissions the defendants had argued that the Attorney General and his legal representatives were delusional, because the summons initiating the proceedings raised no 'question' to be determined, with the result that there was no 'question' which could be determined as a 'preliminary question' in the proceedings. The application and submissions advanced for the Attorney General involved an abuse of process, which should be punished by the Court, by a declaration that the Attorney General was a vexatious litigant, which would act as a future deterrent.
The history of the proceedings to which Ms Kavanagh had deposed was disputed and said to involve fabrication. The defendants relied on their further application for reconsideration of judgments earlier given in the proceedings.
The defendants also submitted that the Attorney General's submission that there was overlap in matters raised in the summons and their cross-summons was 'plain nonsense'. They argued that the summons raised no questions and had zero overlap with what they sought to pursue and reflected only hatred, which the Attorney General's legal representatives felt toward them. The summons was submitted to be a waste of public money being spent on a personal vendetta being waged on the defendants.
It was also submitted that the Attorney General would not be permitted to block the defendants' attempt to criminally prosecute his employees for various crimes and that he was attempting to put judges of this Court into the position of Registrars of the Local Court and to alter the effect of the Criminal Procedure Act, which permits private prosecutions to be brought by leave of a Registrar of a Local Court.
The defendants also submitted that the onus fell on the Attorney General to prove the authenticity of the judgments on which it was sought to rely and that allegations could not be advanced against them, by the submissions and the chronology earlier provided, to explain the case which would be advanced on that summons. It was submitted that the allegations advanced had to be provided in the summons. There were no such allegations there to be found and accordingly, the Attorney General's submissions in support of the hearing of the summons should be rejected and the summons instantly dismissed.
While the defendants finally agreed on 29 June that their claims should be heard separately from the Attorney General's summons, they objected to the summons being heard before their claims had been heard and determined. They explained that they wished to purse their second cross-summons, and now took the view that they did not require the Court's leave to do so and in the alternative, that they wished to pursue a statement of claim, in terms annexed to an affidavit sworn by Mr Dragan Markisic dated 14 March 2012.
They disputed that any orders made against them under the Vexatious Proceedings Act, could have any effect on the pursuit of their claims in these proceedings. They submitted, nevertheless, that it was not just that the Attorney General be permitted to pursue the summons before their claims were heard, given that view. It would not be just to apply the regime established by the Vexatious Proceedings Act to claims which they had already advanced, in these proceedings, as they were entitled to do.
The defendants also expanded on their submissions as to the case they wish to advance in relation to the judgments I have already given and their views about the matters already there dealt with. They do not accept the correctness of the matters there decided. They also insist that the matters raised in their outstanding motions must be determined before the Attorney General's summons is heard.
Mr Oliver Markisic also explained why no particulars had been sought of the basis upon which the Attorney General pursued the orders sought in the summons. That was because of the defendants' view that the summons was defective, making no allegations against them and not revealing any cause of action. In those circumstances they made no application that they be provided with any particulars and again invited me to strike the summons out. That submission was developed into a further oral application for summary dismissal of the summons.
It was also submitted to be preposterous and an abuse of process to ask that the questions raised by the summons be decided as preliminary questions, because the summons asked no questions. Despite what had been decided in the 8 May 2012 judgment, particularly at [47], the existence of which was not acknowledged, it was submitted that the summons needed to be amended, to put before the Court the questions which were sought to be determined. They could not be advanced by way of Ms Kavanagh's affidavit, or by submissions. To permit the Attorney General to proceed on the summons would involve appellable error and a perversion of justice.
Mr Oliver Markisic sought an immediate ruling on that submission, which I declined to provide. The application for summary dismissal of the summons was thereupon further agitated.
The defendants also developed an argument that the orders sought in the Attorney General's motion were not clear. When it was explained for the Attorney General that what was being sought was that the prayers in the summons be dealt with, by the summons being set down for hearing, it was submitted that this amounted to an oral application for leave to amend the motion. It was also argued that there was a problem with the orders sought; that the questions raised by the summons be dealt with as preliminary questions. That was submitted to be a trick sought to be played on the defendants and was an application which could not be made under Part 28 of the Rules.
The Attorney General's order must be granted
I have concluded that the orders sought by the Attorney General must be made. That application was supported by the Commonwealth. In the circumstances which have arisen, I accept the sense of the common position which the parties reached, that their respective claims should be heard separately. That means that either the Attorney General's summons, or the defendants' claims must be heard first. The parties are not agreed about this, but in my view of the matters over which the parties have joined issue, the controversy must be resolved in favour of the Attorney General's summons being heard and determined first in time.
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.
If the Attorney General's submissions as to the operation of the Vexatious ProceedingsAct 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.
If the construction of the Vexatious ProceedingsAct for which the Attorney General contends is correct, that there may be an impact on the claims which the defendants wish to pursue, if the orders sought are made, is simply a consequence of the statutory scheme which the Legislature has established. The fact of the existence of that aspect of the statutory scheme, is not a good reason for refusing to deal with the questions raised by the Attorney General's summons separately and prior to the claims which the defendants wish to pursue, if a proper basis for the making of such an order is established.
The defendants' arguments that this is not what the Attorney General's motion sought, or that the submissions advanced orally for the Attorney General had altered the relief sought in the motion, may not be accepted. The summons contains a number of prayers in which specified orders are sought under s 8(7)(b) of the Vexatious Proceedings Act. The questions raised by the summons are whether such orders should be made. It is these questions which the motion seeks to have dealt with, before the defendants' claims are heard.
A number of other matters sway me to the conclusion that the Attorney General's summons should be heard first. The first of these is that these proceedings were initiated when the Attorney General filed the summons, seeking orders against the two defendants. It was the defendants who later took steps which resulted in the Commonwealth becoming a party to the proceedings, when they filed their cross-summons. That process raised a plethora of claims, which I described at [2] of the 8 May judgment and do not repeat here. Given what is there pursued, as well as what is contained in the second cross-summons and the proposed statement of claim, it is apparent that the defendants seek to pursue a complex series of claims, which both the Attorney General and the Commonwealth will oppose. The case which the wish to pursue is not yet settled.
Another important consideration is that the defendants are not ready to have their claims heard, while the Attorney General's case was ready to proceed in November 2011, when the matter first came before me for hearing. The hearing followed upon two decisions earlier given by Rothman J. In the first, the matters dealt with included the refusal of the defendants' application for leave to issue a large number of subpoenas to identified persons, and the refusal of a trial by jury (see Attorney-General in the State of NSW v Markisic [2011] NSWSC 1304). In the second judgment his Honour refused to reconsider his earlier decision (see Attorney-General in the State of NSW v Markisic [2011] NSWSC 1333).
The hearing of the Attorney General's summons was delayed because I acceded to the defendants' application that their strike out application and various other interlocutory matters, should be resolved before the Attorney General's summons was heard. They were the matters which I dealt with in the 8 May judgment.
Also relevant is the orders made by the Registrar, that the parties file and serve all of their evidence in preparation for the hearing listed in November 2011. The defendants did not put on evidence in support of the claims which they then wished to pursue. They explained that this was because of the various interlocutory applications which they had pursued and the case management claims which they had advanced by their cross-summons, which on their approach had to be heard and determined before they were in a position to put on their evidence and for their claims to be heard.
Since then the defendants' position has altered somewhat, but they say that their evidence is still not on. They have made further applications to amend their initiating process and to pursue other pleadings, so that they can pursue additional claims. Those applications have yet to be dealt with. Given the nature of the relief which the defendants pursue and the interlocutory orders which they now seek to advance by the further motions they have filed in 2012, it is apparent that there are still a number of interlocutory matters on which all of the parties, including the Commonwealth, may have to be heard, before the defendants' complex claims are ready for hearing.
By way of contrast, as I discussed in the 8 May judgment, the questions raised by the Attorney Generals summons are whether orders should be made under s 8(7) of the Vexatious Proceedings Act in respect of either defendant. That depends upon the Attorney General establishing that they have each frequently instituted or conducted vexatious proceedings in Australia. The Attorney General seeks to bring a documentary case, relying on the documents annexed to Ms Kavanagh's affidavit of 8 March 2011, but it is not the same documents which are said to support the cases brought against the two defendants. The Commonwealth has not put on evidence in relation to the Attorney General's case and has indicated that it will play but a limited role in that aspect of the proceedings.
It follows that by comparison to the plethora of claims which the defendants wish to pursue, in which both the Attorney General and the Commonwealth are involved, the Attorney General seeks to pursue a relatively straightforward case. Its determination will depend on firstly, whether the Attorney General is able to establish the authenticity and admissibility of the documents annexed to Ms Kavanagh's affidavit and secondly, whether those documents establish in respect of either defendant, that he has frequently instituted or conducted vexatious proceedings in Australia, vexatious proceedings being defined in s 6, to be:
"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"
The defendants have explained that theirs is a defensive case. They do not concede that they have been involved in any proceedings, or that any judgments have been given in any such proceedings, or that most of the documents annexed to Ms Kavanagh's affidavit are authentic. They also deny that any proceedings in which they have been involved, fall within the definition of 'vexatious proceedings'. It is apparent that the Attorney General's case is a much simpler piece of litigation, than the claims which the defendants seek to pursue and on the defendants' submissions, does not depend on the factual matters which the defendants will seek to establish in respect of their claims.
It seems to me, in all of those circumstances, that consistently with the requirements of the Civil Procedure Act, the orders which the Attorney General seeks should be made. There is in my view no good reason for delaying the hearing of the Attorney General's summons, in the circumstances, until the outcome of the claims which the defendants wish to pursue has been determined. To the contrary, in my assessment first hearing the questions raised by the Attorney General's summons is consistent with what the dictates of justice require, having regard not only to the parties' respective positions, but also to the requirements of s 56 and s 57 of that Act, as well as the matters specified in s 58(2), particularly what is provided in paragraphs (2)(b)(i) - (vi):
"(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,
(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,
(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,
(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),
(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,
(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,"
I am satisfied that the circumstances are not such that it may justly be concluded that the hearing of the Attorney General's summons should be delayed until the defendants are ready to proceed with a hearing of the many and varied claims which they seek to advance.
What must finally be resolved is whether the cases which the Attorney General advances against the two defendants should be heard together, or one after the other. The defendants seek separate hearings, while continuing to complain that they do not understand what is alleged against them, notwithstanding the explanations which have now been repeatedly given, that against each of them, the Attorney General will seek to rely on judgments given in proceedings in which they have been involved, which are said to be annexed to Ms Kavanagh's affidavit. Thereby the Attorney General seeks to establish that they have each frequently instituted or conducted vexatious proceedings in Australia, as that term is defined in the Vexatious Proceedings Act. The defendants have never sought particulars of the claims made against them and insist that they do not wish to do so, given their view that the Attorney General's summons is deficient.
The Attorney General opposed the course urged by the defendants, but it seems to me that it has certain attractions, particularly having in mind that it has been explained for the Attorney General that the two cases do not rest on the same documents. Having in mind some of the difficulties resulting from the way in which the defendants have conducted themselves in the proceedings, not only to the Court and the other parties, but also to each other; the way in which they put their submissions; and the arguments which repeatedly break out between them as to matters which arise to be dealt with, separate hearings may well resolve some of the difficulties presently being encountered.
It must be accepted that the defendants have not ignored my direction that they should not simply repeat submissions which the other has already made, with which they agree, but should indicate whether they agree and then only add matters, which have not already been dealt with. They have not always succeeded in adhering to it, however. On occasions one of the defendants will defer to the other, but will later seek to put further submissions, in any event. On other occasions they seek to speak for the other, which is not their right, as they have themselves explained to me. On some occasions they complain when I do not stop to hear them, having wrongly understood they were adopting what the other had said, when they want to add submissions. There are also repeated long delays, while the brothers confer with each other, about questions I have asked, or the submissions which they should advance. On some occasions their consultation has degenerated into vehement disagreement. They also constantly interrupt each other, while one of them is on their feet and on occasions they interject during the others' submissions.
In the result it seems to me that the simpler and ultimately more efficient and just course, consistent with the requirements of the Civil Procedure Act, is for the cases which the Attorney General seeks to advance against the two defendants to be heard separately, one after the other. I will deal with the necessary directions for the conduct of the hearing of the Attorney General's summons in respect of the two defendants on that basis on 29 August 2012.
The defendants' outstanding motions
I deferred consideration of the defendants' three outstanding motions, until after I had given this decision, taking the view that the parties should have an opportunity to consider the conclusions which I have reached in relation to the Attorney General's motion, before those motions and any directions necessary to be given in relation to them are considered. The parties must now be heard on the question of whether the three outstanding motions, or any part of them, need to be heard before the hearing of the Attorney General's motion.
Further directions
The matter will also be listed on 29 August 2012 for that purpose. The parties are each directed to file and serve short minutes of the directions and orders which they will seek that day, in respect of the defendants' outstanding motions and the hearing of the Attorney General's motion on or before 22 August 2012.
Costs
Again, the usual order as to the costs of the Attorney General's motion would be an order that they be borne by the defendants, as agreed or assessed. I will hear the parties on costs if that order is not agreed.
Orders
I make the following orders:
1. The defendants are to pay the other parties' costs of the interlocutory matters dealt with in the 8 May 2012 judgment, as agreed or assessed.
2. The Attorney General is to pay the defendants' disbursements in respect of the motion of 16 November 2011.
3. The questions raised by the Attorney General's summons are to be dealt with as separate, preliminary questions.
4. The Attorney General's case against the two defendants are to be heard separately, one after the other.
5. The matters are to be listed for directions on 29 August 2012 at 9:30am.
6. The parties are each to file short minutes of the further directions which they seek in relation to the hearing of the Attorney General's motion and the defendants' outstanding motions, on or before 22 August 2012.
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Decision last updated: 02 August 2012
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