Markisic v AEA Ethnic Publishers Pty Ltd & Ors - [2006] NSWCA 378

NEW SOUTH WALES COURT OF APPEAL

CITATION: Markisic v AEA Ethnic Publishers Pty Ltd & Ors [2006] NSWCA 378

FILE NUMBER(S):
41005/05

HEARING DATE(S): 13 November 2006

DECISION DATE: 20/12/2006

PARTIES:
Dragan Markisic
AEA Ethnic Publishers Pty Ltd
Igor Pavlovski
Toni Pavlovski
Zlatko Blajer
Ljupco Stankovski

JUDGMENT OF: Beazley JA Tobias JA Basten JA

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 20492/99

LOWER COURT JUDICIAL OFFICER: Simpson J

COUNSEL:
A: In person / Oliver Markisic
1R-3R: No appearance
4R: Dr M J Collins

SOLICITORS:
A: Dragan Markisic, Arncliffe
1&2R: Igor Pavlovski, Mill Park, Victoria
3R: Toni Pavlovski, Mill Park, Victoria
4R: SBS Solicitors, Sydney
5R: D C Chambers & Associates

CATCHWORDS:
PROCEDURE – defamation claim – litigant in person – refusal of application for appearance of McKenzie friend – refusal of application to vacate or adjourn proceedings – appellant abandoned hearing – whether apprehended bias – whether wrongful admission of witness statements – whether defences of truth and contextual truth made out – standard of proof – course of proceedings in Supreme Court

LEGISLATION CITED:
Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Defamation Act 1974 (NSW)
Evidence Act 1995 (NSW)
Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)
Migration Act 1958 (Cth)
Supreme Court Rules (NSW)

DECISION:
Appeal dismissed with costs

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA41005/05
BEAZLEY JA
TOBIAS JA
BASTEN JA
Wednesday 20 December 2006

DRAGAN MARKISIC v A.E.A. ETHNIC PUBLISHERS PTY LTD & ORS

Judgment

BEAZLEY JA: I agree with Tobias JA.
TOBIAS JA: On 29 October 1999 Mr Dragan Markisic (the appellant) instituted proceedings in the Defamation List of the Common Law Division of the Supreme Court of New South Wales claiming damages for defamation against 14 named defendants arising out of three separate (but virtually identical) publications. Each matter complained of was published in a Macedonian language newspaper in November 1998.
Relevantly for present purposes, the appellant alleged that the first, second and third respondents were variously involved in the publication of a Macedonian language newspaper called “Today-Denes” whereas the fourth respondent was involved in the publication of a similar newspaper called the “Australian Macedonian Weekly” of which the fifth respondent was its editor.
The subject of each publication related to alleged conduct by the appellant. Each newspaper published the relevant article under a different headline with an introductory synopsis in bold type of the events that followed. Each synopsis asserted that the appellant had without her mother’s knowledge or consent, kidnapped (or abducted) their baby daughter, Elena, while in Veles, Macedonia, and taken her to Australia. Each synopsis was then followed by a more detailed account to the effect that in April 1998, having obtained an Australian passport for Elena (the appellant being an Australian citizen), he then took his daughter purportedly for an access visit from the child’s mother to who he was married but from whom he was separated. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NSWCA 378
Decision Date: 20 December 2006

CaseChat Overview and Summary

The appellant, Markisic, appealed to the Court of Appeal of New South Wales against the Supreme Court's dismissal of his defamation claim against AEA Ethnic Publishers Pty Ltd and other respondents. The primary judge had entered verdicts for the respondents and awarded judgment accordingly.

The legal issues before the Court of Appeal included whether the primary judge erred in refusing the appellant's applications for a McKenzie friend and for the vacation or adjournment of proceedings. The appeal also concerned whether the appellant's abandonment of the hearing constituted a failure to establish his case, the appropriateness of the standard of proof for defences of truth and contextual truth, and whether the primary judge wrongly admitted witness statements. The appellant also raised issues of apprehended bias.

The Court of Appeal found no substance in the appellant's submissions. It held that by abandoning the hearing and failing to provide evidence to establish his reputation and any injury to it, the appellant left the primary judge with no choice but to award only nominal damages, if any. The court also determined that the appellant had failed to demonstrate any error in the primary judge's interlocutory decisions or final judgment that would warrant appellate intervention. The appellant's numerous grounds of appeal and extensive written submissions were largely repetitive and did not advance his case.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

The result was that the appellant’s claim against all respondents was dismissed and a verdict entered for each of them with judgment accordingly: [2005] NSWSC 1276. It is against that decision that the appellant appeals to this Court.The relevant factual background The appellant was at all material times an Australian citizen of Serbian descent and, therefore, the holder of an Australian passport. He met his future wife, Katerina, in Macedonia in June 1996 and they were married on 19 November of that year. They lived together in Veles, Macedonia, for a time, initially at his sister’s home and subsequently at her parents’ home. A daughter, Elena, was born on 3 May 1997. I shall hereafter refer for convenience to Mrs Markisic as Katerina without intending any disrespect. As it was originally the intention of the appellant and his wife to migrate to Australia, Katerina had made an application sponsored by her husband to the Australian Embassy in Belgrade for a spousal visa to migrate to Australia. By agreement between the appellant and his wife, an Australian passport was obtained for Elena. This passport was kept in a drawer in the apartment they occupied together with Katerina’s Macedonian passport and the appellant’s Australian passport. At some point Katerina discovered that Elena’s passport was no longer in the drawer. When she asked the appellant why this was so, he responded that he had taken it for safekeeping to his sister’s home. According to Katerina’s evidence called at the trial before the primary judge, during her pregnancy the appellant constantly abused her both psychologically and physically. He was unpredictable and would hit her with his elbow in the stomach which required her on one occasion to be hospitalised for a period. After the birth of Elena he threatened her and again abused her physically by throwing her against a wall “like an animal” causing a mark on her arm which she still retains. He would push her out of bed with his legs, again she said, “like an animal”. He constantly made threats and abused her. Ultimately, Katerina terminated the relationship and moved out taking Elena with her and who remained in her care until 12 April 1998. After he had separated from Katerina, the appellant obtained official permission, from the authorities in Veles for access to Elena. From time to time he exercised those rights in order to see the child. On 12 April 1998 he made an arrangement with Katerina to spend the day with Elena. He picked her up in accordance with those arrangements and expressly promised to return her at 7pm. He did not do so. Instead he travelled with Elena to Australia on a ticket purchased prior to 12 April 1998. On arrival in Australia he telephoned Katerina and informed her, according to her evidence, that “Elena is finally home, there where she belongs with her father. You can’t do anything. You should have known who you were dealing with. I’m the biggest kidnapping playboy.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Again, there is no substance in these submissions. By abandoning the proceedings and therefore failing to assist her Honour by giving or calling evidence which may have established his reputation and any injury to it, she was left with no choice but to award only nominal damages if otherwise the appellant was entitled to a verdict. Nor was it appropriate to cast gratuitous aspersions on the character of his former wife.Conclusion with respect to the challenge to the decision of the primary judge The appellant raised 115 grounds of appeal supported by 245 paragraphs in 87 pages of written submissions. I have done my best to isolate from each the major areas of challenge and to identify the errors alleged with respect to the primary judge’s reasons from that mass of material. Obviously, it has been impossible to deal with every allegation although there is a significant degree of repetition in both the grounds of appeal and the written submissions. The appellant’s oral submissions took the matter no further than his written submissions. However, I consider that I have covered all the areas of challenge which I would regard as having at least some relevance to the issues decided by the primary judge. In every respect, however, the appellant has failed to demonstrate that in the circumstances her Honour’s find on interlocutory decisions disclosed any error which would justify appellate intervention.Appellant’s amended written submissions On 5 October 2006 the appellant filed a document containing 14 pages of submissions asserting error with respect to a number of Nicholas J’s interlocutory decisions and some six additional pages of written submissions relating to the primary judge’s decision. I have considered the latter and do not regard them as adding anything further that is not repetitive of the appellant’s original submissions with respect to her Honour’s judgment. So far as the submissions relating to the various interlocutory decisions of Nicholas J are concerned, there is no ground of appeal amongst the 115 grounds of appeal that seeks to challenge any of his interlocutory decisions. The Notice of Appeal filed on 21 March 2006 is confined to the appeal against the primary judge’s rulings. No amended notice of appeal was ever sought to be filed. This being so the appellant would need leave to amend his Notice of Appeal to challenge the interlocutory decisions of Nicholas J which, had it been sought, I would have refused. In any event most, if not all, of the allegations of error on the part of Nicholas J are irrelevant and, at the end of the day, were subsumed into the hearing before the primary judge. It was simply too late, for instance, to appeal against the refusal of Nicholas J to disqualify himself, a tactic adopted by the appellant every time he lost before his Honour and which was reflective of the same tactic he adopted before the primary judge. Furthermore, many of the errors which the appellant asserted were committed by Nicholas J, were also asserted with respect to the primary judge and which I have rejected.

Ratio Decidendi

Legal Principle Established

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