Markisic (Dragan) v Department of Community Services & Ors

The claimant, Dragan Markisic, sought leave to appeal against an interlocutory order made by the Supreme Court of New South Wales. The dispute concerned an earlier order that had been made in the Common Law Division, which the claimant alleged was erroneous. The respondents to the appeal were the Department of Community Services and other parties referred to as opponents.

The primary legal issue before the Court of Appeal was whether it had jurisdiction to hear an appeal from a judgment that a person or persons did not commit contempt. A secondary issue was whether, even if an appeal were available, leave to appeal should be granted, given the prospects of success. The court was also required to determine the appropriate basis for awarding costs to the respondents.

The Court of Appeal held that it had no jurisdiction to hear an appeal from a judgment that a person or persons did not commit contempt, whether subject to leave or not. Even if jurisdiction existed, the court found that an appeal would have insufficient prospects of success, particularly as the interlocutory order was protective of the orderly administration of justice and capable of variation. The court also considered the claimant's financial circumstances, noting that being a pensioner or impecunious was not a reason to avoid costs orders, including those on an indemnity basis.

Consequently, the summons was dismissed with costs. The costs of the First, Second, Third, and Fifth Opponents were ordered to be paid on an indemnity basis, reflecting the claimant's notice of the potential for indemnity costs orders in hopeless applications. The costs of the Fourth Opponent were ordered to be paid on a party and party basis.