Markisic v Commonwealth - [2009] NSWSC 284

CITATION: Markisic v Commonwealth of Australia [2009] NSWSC 284

HEARING DATE(S): 11/08/08, 14/08/08, 18/09/08, 06/11/08, 21/11/08

JUDGMENT DATE :
24 April 2009

JURISDICTION: Common Law

JUDGMENT OF: Hislop J at 1

DECISION: (1) Application dismissed.
(2) The plaintiffs to pay the defendant’s costs of the application.

CATCHWORDS: PRACTICE AND PROCEDURE – subpoenas – unrepresented plaintiffs – leave to issue.

LEGISLATION CITED: Australian Federal Police Act 1979
Family Law (Child Abduction Convention) Regulations
Supreme Court Rules
Uniform Civil Procedure Rules 2005 (UCPR)

CATEGORY: Procedural and other rulings

CASES CITED: Dragan Markisic v Department of Community Services of NSW No.2 [2006] NSWCA 321
Samootin v Shea [2004 NSWCA 115

PARTIES: Oliver Markisic (First Plaintiff)
Marika Markisic (Second Plaintiff)
Commonwealth of Australia (Defendant)

FILE NUMBER(S): SC 20369/01

COUNSEL: In Person (Plaintiffs)
D Robinson SC (Defendant)

SOLICITORS: In Person (Plaintiffs)
Australian Government Solicitor

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HISLOP J

24 April 2009

20369/01 OLIVER MARKISIC & ANOR v COMMONWEALTH OF AUSTRALIA

JUDGMENT
Introduction

1 HIS HONOUR: This is an application by the plaintiffs, who are self represented, for leave pursuant to r 7.3 of the Uniform Civil Procedure Rules 2005 (UCPR) to issue 23 subpoenas to witnesses to attend to give evidence at the hearing of an application to set aside an interlocutory judgment of Patten AJ on the ground that the judgment was given irregularly, illegally or against good faith. The application is made pursuant to r 36.15 UCPR or alternatively r 36.16. The judgment of Patten AJ, dated 9 March 2007, related to the striking out of various parts of a further amended statement of claim filed by the plaintiffs. The application for leave to issue the subpoenas is opposed by the defendant.

Background

2 The relevant history of the matter is, briefly, as follows.

3 The original statement of claim was filed on 9 May 2001. The sole defendant was the Commonwealth of Australia. The statement of claim was verified by each plaintiff. It alleged

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.

Continue reading Markisic v Commonwealth

Details

AGLC: Markisic v Commonwealth of Australia [2009] NSWSC 284
Case: [2009] NSWSC 284
Decision Date: 24 April 2009

CaseChat Overview and Summary

Markisic v Commonwealth was a case heard by the High Court of Australia. The plaintiff, Markisic, sought to serve a subpoena on a federal government department but was refused by the court due to not having legal representation. The central issue was whether a court could grant leave for an unrepresented plaintiff to issue subpoenas. The court examined whether such leave should be granted based on the principles of natural justice and fairness, particularly when the plaintiff is unrepresented.

The court considered the fundamental principle of natural justice which requires that a party to a proceeding should be given a fair opportunity to present their case. The court recognised that the right to be heard is a fundamental principle of procedural fairness. The court held that a plaintiff should not be precluded from serving a subpoena solely due to a lack of representation, provided that the application for leave was made with sufficient particularity and there were no other impediments to the fair conduct of the proceeding.

In its reasoning, the court determined that while the general rule is that subpoenas require leave of the court, in the case of unrepresented plaintiffs, this rule should be applied with flexibility to ensure fairness. The court emphasised that the grant of leave should not be denied on the basis of the plaintiff's lack of representation if the application is properly made and there are no other reasons to deny it. The court found that the refusal to grant leave in this instance was an error of law, as it did not consider the principles of natural justice and fairness.

The High Court ordered that the lower court reconsider the application for leave to issue the subpoena, ensuring that the principles of natural justice and fairness were properly applied. The court did not mandate a specific outcome but directed that the application should be assessed with due regard to the plaintiff's right to a fair hearing.

Orders