Attorney-General in the State of NSW v Markisic

[2011] NSWSC 1304

Supreme Court

New South Wales

Medium Neutral Citation:

Attorney-General in the State of NSW v Markisic [2011] NSWSC 1304

Hearing dates:

26, 27 and 28 October 2011

Decision date:

28 October 2011

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

1. That motion, notice of which was filed on 20 October 2011, is dismissed;

2. Leave to issue subpoenas to attend to 54 persons is refused;

3. The requisition for a trial by jury is refused;

4. Costs reserved

Catchwords:

PROCEDURE - civil - judgments and orders - application to review decision of the registrar to adjourn the hearing of a motion - motion determined - leave to issue subpoenas - trial by jury refused

Legislation Cited:

Evidence Act 1995
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005
Vexatious Proceedings Act 2008

Cases Cited:

Maroubra Rugby League Football Club Inc v Malo and Anor [2007] NSWCA 39
Muir v Council of Trinity Grammar School [2005] NSWSC 555

Category:

Procedural and other rulings

Parties:

Dragan Markisic (first applicant/cross claimant)
Oliver Markisic (second applicant/cross claimant)
Attorney General in and for the State of New South Wales (first respondent/cross defendant)
Commonwealth of Australia (second respondent/cross defendant)

Representation:

Counsel
Self represented applicants
JS Emmett and J Kavanagh (first respondent)
A Markus (second respondent)
Solicitors
Crown Solicitor's Office
Australian Government Solicitor (second respondent/cross defendant)

File Number(s):

2011/76594

Ex Tempore Judgment

1. The Court has before it an application to review a decision of the Registrar to adjourn the hearing of a motion. The motion relates to a summons, which is listed for hearing on 14 November 2011. The original notice of motion was filed by the defendants, Dragan Markisic and Oliver Markisic (hereinafter, "the applicants"), on 20 October 2011. An affidavit of Oliver Markisic sworn 23 August 2011 and the applicants' submissions filed on 20 October 2011 support the motion. The motion seeks the Court's leave to issue subpoenas to 54 persons under rule 7.3 of the Uniform Civil Procedure Rules 2005 (hereinafter "UCPR"). The motion also seeks an order under s 85(2) of the Supreme Court Act 1970 (NSW) that the substantive proceedings listed on 14 November 2011 be before a jury.

1. The original preliminary view of the Court was that the Court should confine its review to the adjournment of the motion by the Registrar. The parties have convinced the Court to hear the original motion that otherwise would have potentially disrupted the hearing of the summons on 14 November 2011. This is due to the fact that if the applicants were successful on the application for a jury, the hearing could not continue, and, further, if any one of the subpoenas were issued than, presumably, an adjournment would be sought to serve the subpoena and adduce evidence from the witness.

1. On 9 March 2011, the substantive proceedings were commenced by the Attorney General in and for the State of NSW (hereinafter, "the respondent") by way of summons. The summons sought an order against the applicants under s 8(7)(b) of the Vexatious Proceedings Act 2008. The trial has been fixed for 14 November 2011. The Court notes that the applicants are currently unrepresented.

1. It is not the role of the Court as presently constituted, to determine the substantive issues before the Court on 14 November 2011. However, a brief description of the nature of the matter will assist in determining whether the Court should grant the orders sought in the notice of motion currently before the Court.

1. According to the affidavit of Dragan Markisic, a cross-summons was filed on 3 June 2011. The cross-summons sought relief and damages against the Attorney-General in and for the State of NSW (the respondent) and the Commonwealth of Australia (listed as the second cross defendant). The applicants allege that the State of NSW and the Commonwealth tendered false material facts and fabricated evidence, which led to allegedly fraudulent judgments. The particulars of those allegations, as outlined at length in the affidavit, are summarised for the purposes of this judgment.

1. There appears to be three sources of angst by Dragan Markisic. The first relates to Family Court proceedings commenced by Dragan Markisic in July 1998. The applicants allege that the agents of the Commonwealth and State involved in those proceedings acted with malice towards him and his family and that the judgments and orders relating to those proceedings were fabricated.

1. The second source of angst relates to Dragan Markisic's child. The applicants allege that the Commonwealth took his child from him and his family without a valid warrant and placed her in a secret private prison where she was physically, mentally and sexually abused by agents of the respondent. The child was sent to Macedonia to be with her mother, Katerina Markisic. Katerina Markisic and Dragan Markisic have been divorced since May 1999.

1. The applicants further allege, as I understand it, that on 29 September 1998, during an appeal of the abovementioned Family Court proceedings to the Full Family Court, a group of persons sent by the Commonwealth and State government raided Dragan Markisic's residential premises. The group is said to have deceived Mr Markisic's mother in falsely presenting themselves as Australian Federal Police. Dragan Markisic says that the group later mentally, and physically abused his mother, subjected her to false imprisonment for 2 weeks and transported her overseas against her will. The applicants further allege that the group deceived the applicants by falsely claiming that their actions were in response to the orders of Justice Alwynne Rowlands of the Family Court.

1. Dragan Markisic has been involved in various other court proceedings. As discussed in his affidavit, he commenced proceedings in December 2000 against the Department of Community Services of NSW, State of NSW, Commonwealth of Australia, Qantas and the Catholic Church. He, again, alleges that he was deceived by the State and Commonwealth governments. The State of NSW filed a notice of motion to strike out the statement of claim on the basis that no cause of action was pleaded. The notice of motion was supported by an affidavit sworn by Doreen Edith Muirhead, which Mr Markisic describes as containing false material facts and fabricated and counterfeit documents. The matter went before Master Malpass for hearing and the statement of claim was struck out with leave to replead. The Commonwealth of Australia also filed a notice of motion to strike out the statement of claim. Again, Mr Markisic alleged that a supporting affidavit of Roshana Wikramanayake contained false material facts and fabricated and counterfeit documents. The notice of motion came before Justice Smart on 31 May 2005. He granted leave to proceed with respect to the claim of nervous shock, only.

1. Mr Markisic sought to appeal the decision of Justice Smart. The application for leave to appeal came before Giles J, Ipp J and Santow J and the Court delivered judgment on 23 November 2006. According to Mr Markisic, the Court granted leave to file an amended statement of claim with respect to defamation. The matter later came before Justice Price. Justice Price delivered ex-tempore judgment on 27 February 2008 apparently directing Mr Markisic to institute proceedings in the Family Court. The matter apparently came before Justice John Cohen but was 'indefinitely adjourned'. According to Mr Markisic he appeared regularly before Justice Price at directions hearing to update him on the Family Court proceedings.

1. In 2001, Oliver Markisic also instituted proceedings against the Commonwealth of Australia. He, along with Marika, alleged that the Commonwealth was vicariously liable for the negligence of its agents. Roshana Wikramanayake swore an affidavit in the proceedings. As outlined in Master Harrison's judgment, delivered on 28 January 2001, the plaintiffs were not successful in their claim. Mr Markisic now alleges that the Commonwealth knowingly tendered false and misleading evidence. On 13 August 2001, Justice Bell granted the applicants leave to file an appeal. The case proceeded to trial before Justice Patten on 27 February 2007 or thereabouts. Justice Patten struck out certain paragraphs of the applicants' further amended statement of claim. It is alleged that the case went before Registrar Bradford on 28 May 2008 and 18 June 2008 and Justice Davies for hearing on 19 October 2009. Apparently, the matter was heard over eight days and judgment was published in favour of the Commonwealth on 25 February 2010. The applicants, again, allege that the entire history of the proceedings was fraught with false material facts and fabricated and counterfeit documents.

1. A third stream of proceedings were commenced by Dragan Markisic in 1999. The proceedings concerned the publication of three allegedly defamatory articles concerning Mr Markisic and his family. The matter went before Justice Simpson on 28 November 2005. On 17 September 2007, Mr Markisic sought, by notice of motion, to set aside the orders made by Justice Simpson on the grounds that the orders were made "irregularly, illegally or against good faith or in fraud". The notice of motion came before Justice Harrison on 26 September 2007 and was dismissed on 10 July 2006. Mr Markisic alleges that Justice Harrison took sides with the Commonwealth and failed to disqualify himself on the basis that he is a witness in the substantive proceedings.

1. It is up to the Court hearing the substantive proceedings to comment on the truth of the above allegations. However, on the material put by the applicants it is apparent that the applicants, in effect, want a Royal Commission into what has occurred. The 54 persons sought to be called are all persons associated with the foregoing: judges, solicitors and the like. While Mr Dragan Markisic may have shown themselves an intelligent, erudite advocate who has grave suspicions, Courts do not conduct investigations or Royal Commissions.

Trial before jury

1. S 85(2) of the Supreme Court Act states that the Court may order that the proceedings be tried with a jury if the party seeking the order files a requisition for trial with a jury, pays the prescribed and the Court is satisfied that the interests of justice require a trial by jury. The Court granted leave to file the requisition for trial by jury in court.

1. Whilst the applicant has complied with the administrative matters outlined in s 85(2)(a), the interests of justice do not require a trial by jury. The Court's power to order trial by jury is only triggered if both the requirements in s 85(2)(a) and (b) are met. As discussed by Mason P in Maroubra Rugby League Football Club Inc v Malo and Anor [2007] NSWCA 39, the term, 'interests of justice', refer to considerations going beyond the private interests of the parties. There must be 'a substantial reason which would both justify and warrant a departure from what is now the normal method or mode of trial in the proceedings' (see Muir v Council of Trinity Grammar School [2005] NSWSC 555 per Hall J).

1. The only reason that seems to be relied upon in support for a trial by jury is the apprehension of bias. However, there are two major difficulties in ordering a trial by jury for this reason. A Judge is still required to rule on the admissibility of evidence. A trial by jury therefore, does not completely remedy the apprehension of bias that would supposedly emanate from the presiding Judge. Secondly, it seems to me the applicants have assumed that Judges will be giving evidence in the hearing or be parties to the proceedings. As stated below, Judges are not compellable as witnesses under s 16 of the Evidence Act 1995 (NSW). Therefore, there will be no apprehension of bias arising if the matter comes before a single Judge of the Supreme Court.

1. For the foregoing reasons a jury trial is not granted. Relying on the comments of McClellan CJ at Common Law:

The issuing of subpoenas

1. The applicants say that, in order to prove their case, they need to subpoena a number of witnesses. The subpoenas are directed towards members of the judiciary, former Ministers of government, barristers, solicitors of the Commonwealth Attorney-General's Department, the NSW Crown Solicitor's Office, the NSW Department of Community Services and various other government employees.

1. The evidence before the Court in these proceedings, if accepted, proves the initial abduction and transporting overseas of Mr Markisic's child. However, that is not the test for the grant of leave to issue subpoenas. It must have a forensic purpose. Mr Markisic was asked what evidence the Family Court Judge would give and the Court was informed that the applicants seek to prove that certain Family Court order were not made. Alternative means of proving the facts were suggested to Mr Markisic and the response was that the documents of the Family Court may have been forgeries or were forgeries.

1. Similarly, Mr Markisic was asked what evidence Mr Howard (the Former Prime Minister of Australia) would give. The response related to general matters about the operation of the Department of the Prime Minister and Cabinet and the means of entry and departure from Australia. The applicants allege that Mr Howard (or some other official) has granted government sanctions and this is the evidence about which Mr Howard will be asked. The applicants also intend to subpoena Mary Gaudron, a former Judge of the High Court of Australia. They intend to call Mary Gaudron to give evidence about false statements that she permitted to be adduced in Court.

1. The Court makes the following orders:

1. The motion, notice of which was filed on 20 October 2011, is dismissed;

2. Leave to issue subpoenas to attend to 54 persons is refused;

3. The requisition for a trial by jury is refused;

4. Costs reserved

Decision last updated: 02 November 2011