Attorney General in and for the State of New South Wales v Markisic
[2012] NSWSC 510
•17 May 2012
Supreme Court
New South Wales
Medium Neutral Citation: Attorney General in and for the State of New South Wales v Markisic [2012] NSWSC 510 Hearing dates: 15 May 2012 Decision date: 17 May 2012 Jurisdiction: Common Law Before: Schmidt J Decision: Application is refused.
Catchwords: PROCEDURE - courts and judges generally - disqualification - apprehended bias - application refused - reasons Legislation Cited: Evidence Act 1995
Uniform Civil Procedure Rules 2005Cases Cited: 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 [2011] NSWSC 1436Category: 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)
Solicitors:
IV Knight, Crown Solicitor (Plaintiff)
Oliver Markisic (In Person)
Dragan Markisic (In Person)
Mr A Markus, Australian Government Solicitor (Second Cross-Defendant)
File Number(s): 2011/76594 Publication restriction: None
Judgment
On 15 May 2012, when this matter came before me for further directions, I heard and dismissed a further application made by the defendants that I disqualify myself, on this occasion for incompetence and prejudgment. Earlier disqualification applications were dealt with in Attorney General in and for the State of New South Wales v Markisic [2011] NSWSC 1436, given in November 2011.
On this occasion the application was put on the basis of matters concerning the judgment which I gave on 8 May 2012, in which the defendants' application that the Attorney General's summons be summarily dismissed was refused (see Attorney General in and for the State of New South Wales v Markisic [2012] NSWSC 433). That judgment was delivered in open Court that day, in the presence of the defendants and the other parties' representatives and they were provided with a copy of the reasons which I then published.
The defendants' case was that the judgment, so delivered, did not adhere to the requirements of s 157 of the Evidence Act 1995, or of the applicable Rules and that accordingly, no such judgment had been given as a matter of law. In particular, the defendants submitted that in order for a judgment to be given at law, it must be signed by a judge and must bear the Court's seal. They have a belief, which rests on that section and Rule 36.3 of the Uniform Civil Procedure Rules 2005, that they must be given a copy of the judgment, which I have signed and which is sealed with the Court's seal. If they are not provided with such a judgment, judgment has not been given according to law.
The defendants also contended that the question of whether the May judgment had been given had become a material fact in issue in the proceedings, in respect of which I, and my Associate, would have to give evidence, in the event that the other parties sought to rely upon it. This, it appears because the other parties sought an order for costs in their favour, in respect of the matters dealt with in the judgment, where I observed:
"Costs
136 The usual order as to costs is that they follow the event. I will hear the parties on costs."
It should be noted that in issue in these proceedings is the authenticity of other documents purporting to be judgments given in other proceedings. On the defendants' approach, given my own incompetence in delivering the 8 May judgment, I was not in a position to determine the issues lying between the parties, as to the authenticity of the other documents in issue.
The other parties did not support the defendants' application, submitting that the judgment had been regularly delivered and that s 157 of the Evidence Act had no relevance.
As I observed to the defendants, they have misunderstood the Court's processes, the requirements of the Rules and the role of the provision of the Evidence Act on which they rely.
Section 157 of the Evidence Act is not a section which must be complied with, when a judgment is given in proceedings brought before this Court. Rather, it is a provision concerned with how evidence of such a judgment may later be adduced. The Rules deal with how judgments are to be delivered.
The 8 May judgment deals with various matters over which the parties have joined issue in the proceedings. It was given in open Court on 8 May, having been listed for judgment on an earlier day and re-listed on that day, to suit the convenience of Mr Dragan Markisic. The judgment forms a part of the Court's file. In accordance with the Court's usual practice, the judgment on that file has been certified by my Associate; it has been given a medium neutral citation; and it has been published on the Court's website, where it is available to be accessed electronically.
It was in accordance with the Court's usual practice, that a copy of the judgment was provided to the parties when I pronounced the orders which I made in open Court on 8 May, having earlier reserved my decision. That also accorded with the requirements of the Rules.
The Rules do not require that a judgment delivered in open Court be signed or sealed, as the defendants submitted was required. In the case of a reserved judgment, Rule 36.3 provides:
"36.3 Reserved decision
(cf DCR Part 2A, rule 7, Part 31, rule 10)
(1) If in any proceedings a judicial officer reserves his or her judgment or decision on any question, he or she:
(a) may give the judgment or decision, either in open court or in the absence of the public:
(i) at the venue for those proceedings, or
(ii) at any other place at which he or she is authorised to hear or dispose of those proceedings, or
(b) may reduce the judgment or decision to writing, sign it and forward it to the registrar at the venue for the proceedings.
(2) If a registrar receives a judgment or decision forwarded under subrule (1) (b):
(a) the registrar must appoint a time for the judgment or decision to be read, and
(b) the registrar must give at least 24 hours' notice to the parties, in writing or otherwise, of the appointed time, and
(c) at the appointed time, the judgment or decision must be read by another judicial officer of the court, or by the registrar, whether or not the court is sitting at that time.
(3) A judgment or decision given under subrule (1) (a) or read under subrule (2) (c) takes effect on the day on which it is so given or read and is as valid as if given by the judicial officer at the hearing of the proceedings to which the judgment or decision relates.
(4) Rule 36.2 applies to a judgment or decision referred to in this rule in the same way as it applies to a judgment or decision referred to in that rule."
In this case the reserved judgment was delivered in open Court on 8 May in the presence of the defendants and the other parties' representatives and other people who happened to be present in court that day. There was no requirement that I sign the judgment or affix the Court's seal to it, before it was delivered. What was required is specified in Rule 36.2, which provides:
"36.2 Written reasons for judgment
(cf SCR Part 40, rule 2; DCR Part 31, rule 9; LCR Part 26, rule 2)
(1) If the court gives any judgment, or makes any order or decision, and its reasons for the judgment, order or decision are reduced to writing, it is sufficient for the court to state its judgment, order or decision orally, without stating the reasons.
(2) After a judgment, order or decision has been stated orally under subrule (1), a written copy of it, including the court's reasons for it, must then be delivered to an associate, registrar or some other officer of the court for delivery to the parties or may instead be delivered directly to the parties."
This is not a Rule which is concerned only with ex-tempore judgments, as the defendants submitted. In this case, in accordance with the Court's usual practice, I stated the orders orally and a written copy of the judgment, including the orders made, was given to the parties, who were then present or represented in Court. In the circumstances, there is no need for any evidence to be led in these proceedings, as to what I decided in the 8 May judgment. What remains to be dealt with in respect of the matters with which that judgment is concerned, is the question of costs, on which I have reserved.
It is in those circumstances that it can be seen that the basis upon which the defendants pressed this further disqualification application, had no foundation.
I discussed the tests applicable to applications for both apprehended and actual bias at [23] - [25] of the November 2011 judgment. Given the basis upon which the defendants advanced this further disqualification application, I was satisfied that they had not established that a fair-minded observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the questions which had arisen for decision in these proceedings, or that there had been prejudgment or incompetence in the delivery of the 8 May judgment. Nor was actual bias established.
In the circumstances, I considered that I have a duty to exercise the judicial functions assigned to me in respect of these proceedings and that accordingly, this further disqualification application also had to be refused.
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Decision last updated: 17 May 2012
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