Markisic v Commonwealth of Australia

New South Wales

Court of Appeal

CITATION:	Markisic v Commonwealth of Australia [2010] NSWCA 273
HEARING DATE(S):	18 October 2010
JUDGMENT DATE:	22 October 2010
JUDGMENT OF:	Beazley JA at 1; Young JA at 1
DECISION:	1. The summons for leave to appeal is dismissed; 2. The applicants are to pay the respondent’s costs of the summons for leave to appeal.
PARTIES:	Oliver Markisic (First Applicant) Marika Markisic (Second Applicant) Commonwealth of Australia (Respondent)
FILE NUMBER(S):	CA 2010/70404
COUNSEL:	In person (Applicants) D P Robinson SC (Respondent)
SOLICITORS:	In person (Applicants) Australian Government Solicitor (Respondent)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 20369/01
LOWER COURT JUDICIAL OFFICER:	Davies J
LOWER COURT DATE OF DECISION:	25 February 2010
LOWER COURT MEDIUM NEUTRAL CITATION:	Markisic v Commonwealth of Australia [2010] NSWSC 24

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CA 2010/70404

BEAZLEY JA
YOUNG JA

22 October 2010

Oliver Markisic & Anor v Commonwealth of Australia

Judgment

1 THE COURT: The applicants, by way of summons, seek leave to appeal from the orders made by Davies J on 25 February 2010, including an order in which his Honour dismissed five notices of motion brought by the applicants and also ordered that the proceedings be permanently stayed. His Honour made other orders which will be referred to below.

2 In support of the summons, the applicants filed a written summary of argument. In addition, Oliver Markisic provided a copy of his supplementary oral submissions in written form. Mr Markisic also made oral submissions to the Court.

3 Oliver Markisic and his mother Marika Markisic, to whom we will refer as the applicants, are plaintiffs in proceedings before the Court which were commenced in 2001 against the Commonwealth and which arose out of circumstances in 1998 when their brother’s child was taken from their home in Arncliffe.

4 The allegations made in the original statement of claim are set out in the judgment of Davies J. it is not necessary to set out those pleadings again. It is sufficient for the purposes of the determination of the summons for leave to appeal to note that in the original statement of claim the applicants pleaded that officers of the Australian Federal Police, acting upon a warrant issued by the Family Court, had taken the child. The applicants pleaded that the warrant upon which the officers of the Australian Federal Police acted was invalid.

5 The applicants have subsequently filed a number of documents as follows:

(a) an amended statement of claim, which was in essentially the same form as the original statement of claim, filed on 5 June 2001;

(b) a further amended statement of claim filed on 24 September 2002, in which the applicant alleged that the child was taken by three members of the Australian Federal Police pursuant to a warrant which was false, and that the child had been taken to a place unknown to the applicants and members of their family;

(c) a further further amended statement of claim filed on…