Markisic v Commonwealth of Australia - [2010] NSWCA 273

No judgment structure available for this case.

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

- 27 -

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;

6 The Commonwealth case is that the child was taken by officers of the Australian Federal police pursuant to lawful orders made by the Family Court of Australia, in respect of an application made by the Director-General of the Department of Community Services of New South Wales pursuant to the Hague Convention on the Civil Aspects Of International Child Abduction.

7 On 28 June 2001, Master Harrison, on the application of the Commonwealth, ordered that the statement of claim and the proceedings be dismissed on the grounds that the claims were hopeless and were an abuse of process.

8 The applicant appealed. On 13 August 2002, Bell J held that the claims said to constitute trespass and, with respect to Marika Markisic, the claims in respect of false imprisonment, assault and negligence, were not so obviously untenable that they may not possibly succeed. Accordingly, her Honour allowed the appeal. However, she struck out the amended statement of claim and granted leave to the applicants to file a further amended statement of claim within 28 days:

“… limited to their claims arising out of the actions of members of the AFP in trespass and, with respect to [Marika Markisic], in false imprisonment, assault and negligence.”

9 Following these orders, the applicants filed the document entitled the further amended statement of claim on 24 September 2002.

10 On 9 March 2007, pursuant to an application brought by the Commonwealth, Patten AJ ordered that parts of the further amended statement of claim filed on 24 September 2002 be struck out.

11 On 28 May 2008, Registrar Bradford ordered the re-engrossment of the further amended statement of claim in the form ordered by Patten AJ.

12 On 18 July 2008, the applicants filed in the Registry a document entitled “Further Further Amended Statement of Claim”. This document was verified by the applicants in the usual form. The content of the further further amended statement of claim is set out in full in the judgment of Davies J at [22]. Again, it is not necessary to set it out in these reasons. It is sufficient, for the purposes of illustrating the significant difference between the pleading in the original and amended statement of claim and the further amended statement of claim and the pleading in the intended further further amended statement of claim to set out in para 8 of the further further amended statement of claim.

“In or about July 1998 certain Commonwealth's public officers (herein after referred to as ‘organisers’) with the assistance of certain Commonwealth's public officers and its agents (unlawfully) instituted proceedings in the Family Court of Australia with the father as respondent. The above proceedings were instituted with an improper purpose to (unlawfully) gain possession and control of the child from the possession, custody and care of the child by the Plaintiffs. The organisers were paedophiles and/or child predators.”

13 Reference should also be made to paras 10, 11 and 12 of the pleading, which assert that the decision of the Family Court was fabricated to unlawfully gain possession and control of the child (para 10); that orders in relation to the arrest and possession of the child and for her care were fabricated by certain Commonwealth public officers and agents (para 11); that the orders for the possession of the child were given to a group of men and that persons were ordered to present themselves as the Australian Federal Police to raid their home, to present the possession orders as a warrant of the Full Court, to enter the applicants’ land and to gain possession of the child from the applicants by deceit and by use of force (para 12).

14 Registrar Bradford refused to accept this document because it did not comply with his earlier order to file a re-engrossed document in the form amended by Patten AJ.

15 On 23 July 2009, the applicants filed a re-engrossed statement of claim making the amendments as ordered by Patten AJ. There was an affidavit verifying the statement of claim by each applicant which stated:

“I do not believe anymore that all the allegations of fact in the Statement of Claim set out above to the best of my knowledge are true. I have to make the above allegations in this form to comply with the order/directions of Registrar Bradford of the Supreme Court of New South Wales from 03.07.2009 and 28.05.2008.”

16 This affidavit does not comply with the Uniform Civil Procedure Rules 2005 (the UCPR), r 14.23(3)(a), which provides:

(a) as to any allegations of fact in the pleading, that the deponent believes that the allegations are true …”

17 Thereafter, the applicants filed a number of notices of motion, five of which came before Davies J for determination. His Honour summarised the orders sought in those notices of motion at [33], as follows:

Dragan Markisic v Department of Community Services

18 As already indicated, his Honour dismissed each of the motions and made other additional orders. The orders made by his Honour were as follows:

“(1) Dismiss the Plaintiffs’ Notices of Motion filed 25 July 2008, 2 July 2009, 27 July 2009, 1 September 2009 and the Amended Notice of Motion filed 3 August 2009.

(2) The Plaintiffs are to pay the Defendant’s costs of those Notices of Motion including the Amended Notice of Motion.

(3) The proceedings are permanently stayed.

(4) Order that the Plaintiffs are not to be allowed to file and are hereby restrained from filing and also from serving any Notice of Motion, and are not to be allowed to make and are hereby restrained from making any oral application in these proceedings without the leave of a judge of this Court.

(5) Order that in case the Plaintiffs shall, without the leave of a judge of this Court, file or serve any Notice of Motion, other parties are not to attend at the return of the Notice of Motion and they are not to participate in proceedings upon the Notice of Motion unless otherwise directed by a judge of this Court: and further order that unless the Court shall think fit to give such direction any such Notice of Motion shall be dismissed without being heard.

(6) Leave pursuant to Order (5) is to be sought by written application setting out the full basis on which leave is sought and the full basis of the claim for relief with a copy of the proposed Notice of Motion. No oral hearing will take place on an application for leave, which will be determined without notice to either party, unless the Judge otherwise directs.

(7) The Plaintiffs to pay the Defendant’s costs thrown away by reason of the failure of the Plaintiffs to comply with the orders of Registrar Bradford made 28 May 2008 and 11 July 2008 (excluding the costs of the Defendant’s Notice of Motion) assessed at $3000.

(8) The Plaintiffs to pay the Defendant’s costs of the Defendant’s Amended Notice of Motion assessed at $5000.

(9) In the event that the stay referred to in Order (3) is lifted the proceedings are further stayed until the Plaintiffs pay to the Defendant the sum of $1500 of the costs ordered to be paid in Orders (7) and (8).

19 The summons for leave to appeal seeks leave to appeal from the whole of his Honour's decision.

20 In the draft notice of appeal, prepared as required by the rules, the applicants have raised 25 grounds of appeal. Those grounds, to which submissions need to be addressed if the Court is to be persuaded to grant leave to appeal, provide a convenient means by which to consider the applicants’ arguments on the summons. The language of each draft ground is that contained in the draft notice of appeal. We have considered the grounds of appeal as they appear to be directed to the same or related issues. We will deal with those grounds alleging bias or relating to alleged bias of Davies J last. There is some judicial support for first dealing with a ground of appeal based upon bias of the trial judge: see Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 557 per Kirby and Crennan JJ. However, that is not a majority decision of the Court and there may be cases where that approach is inappropriate: see R v Rees [2010] NSWCCA 84. In this case, the challenge based upon bias appears to be substantially encompassed in the various separate draft grounds of appeal. In those circumstances, we consider that the preferable course is to consider the separate challenges to his Honour’s decision before dealing with the two grounds in the draft notice of appeal that raise the question of bias.

Draft ground 1: Denial of natural justice and fairness – denial to the Plaintiffs of a right of day in court

21 This ground appears to relate to his Honour's order that the proceedings be permanently stayed. We deal with that separately below.

Draft ground 4: Error of his Honour when making the Commonwealth to tender two affidavits into evidence

Draft ground 5: Error of his Honour when accepting in a form of affidavit of a deceased person

Draft ground 6: Error of his Honour when forming the judgment based on false and misleading evidence of a deceased person

Draft ground 7: Error of his Honour when disregarding the evidence of eyewitnesses in preference to false and misleading evidence of a deceased person

Draft ground 9: Stepping of his Honour into arena as if barrister for the Defendant

Draft ground 13: Denial by his Honour to the Plaintiffs right to cross-examine deponents of the affidavits

22 Draft grounds 4-7 challenge the manner in which his Honour dealt with the affidavit evidence of the Commonwealth. Draft ground 9 complained that his Honour, in effect, assisted the Commonwealth's case by suggesting that the affidavit evidence be read in the matter. Draft ground 13 makes a complaint in respect of his Honour's refusal to permit cross-examination. These matters overlap to some extent and are conveniently dealt with together.

23 During the course of the hearing, the Commonwealth sought to tender an affidavit of Ms Wikramanayake, the solicitor with the carriage of the matter for the Commonwealth. The affidavit annexed an affidavit of Ms Doreen Muirhead, a Legal Officer employed by the Department of Community Services. The affidavit had been filed in proceedings No 20698 of 2000, being proceedings brought by Dragan Markisic against the Department of Community Services and the State of New South Wales. Ms Wikramanayake stated that she believed the contents of Ms Muirhead’s affidavit to be true. The documents which had been exhibited to Ms Muirhead's affidavit were exhibited to Ms Wikramanayake's affidavit.

24 Ms Muirhead's affidavit referred to the Family Law (Child Abduction Contravention) Regulations (the Regulations) pursuant to which the Director-General, Department of Youth and Community Services was appointed to be the State Central Authority for New South Wales for the purposes of exercising the functions and obligations of the Commonwealth under the Hague Convention on the Civil Aspects of Child Abduction. Ms Muirhead stated that in practice, when the Commonwealth Central Authority received an application in accordance with the Hague Convention for the return of a child, it forwarded the application to the State Central Authority for the State in which it believes the child is living. The State Central Authority then files an application under the Regulations in the Family Court.

25 Ms Muirhead stated that she annexed a copy of an application filed on 20 July 1998 by the State Central Authority to which Dragan Markisic was the respondent. That document is a pro forma Family Law Court document which bears the words ‘Name of Document’. The word “Application” has been written in handwriting next to these words. Immediately under this, the pro forma words “Sworn by” and underneath that, “On” appear. A name has been written in handwriting beside the words “Sworn by” and the date 16 July 1998 has been written beside the word “On”. There is attached to that form a document headed “Application”. There is then an affidavit verifying the application by the person whose name appears on the front of the document.

26 The documents exhibited to Ms Wikramanayake’s affidavit and which had been exhibited to Ms Muirhead’s affidavit included copies of the various orders made by the Family Court.

27 Ms Muirhead is now deceased.

28 During the course of the hearing before his Honour, the Commonwealth sought to tender Ms Wikramanayake’s affidavit. His Honour indicated that he thought that the affidavit should be read, rather than being tendered. Pursuant to that indication, the affidavit was read into evidence. His Honour’s approach was perfectly orthodox. An affidavit is a means by which evidence, to which a person has sworn in the proceedings, is admitted. That is done by the affidavit being read. Documents or other items of property are tendered in evidence. His Honour's statement to the Commonwealth that he considered that the affidavit should be read was one of the matters upon which an application for bias was made by the applicants. As his Honour’s approach was correct, this aspect of the bias challenge is not supportable.

29 In any event, the affidavit relied upon by the Commonwealth was the affidavit of Ms Wikramanayake. That document in turn annexed Ms Muirhead’s affidavit together with its annexures and exhibited copies of the Family Court documents. Leaving aside the applicants’ challenge to the validity and authenticity of those various documents, there were no contentious facts contained in either of the affidavits. His Honour observed that the Evidence Act 1995, s 157 makes provision, relevantly, for the admission into evidence of copies of documents such as a judgment, Act or other process of an Australian court. In that circumstance, his Honour held, at [51], that in the face of the copies of judgment and orders of the Family Court, apparently signed and sealed and regular, it could not be said, at least in the course of interlocutory proceedings and probably for the purposes of a final hearing, that there was no arguable case that judgment and orders were made by the Family Court. Accordingly, the various documents which were either annexed or exhibited to the two affidavits could have been tendered in evidence. We see no error in his Honour's approach.

30 At [57], his Honour stated that for the purposes of the hearing of the application for summary judgment, his task was not to determine whether the documents referred to above were to be preferred over the evidence of Mr Dragan Markisic, who disputed the validity and authenticity of the documents. His Honour remarked that there was, without any doubt, support for the Commonwealth’s defence that the child was taken pursuant to the orders of the Family Court. His Honour's approach to the hearing of a summary judgment reflected in this paragraph was correct: see General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125.

31 Draft grounds 5, 6 and 7 were directed to his Honour's acceptance of and reliance upon the evidence of Ms Muirhead, who is deceased. There are two responses to this. First, a court is entitled to read the affidavit evidence of a deceased person: see Curley v Duff (1985) 2 NSWLR 716; UCPR, Pt 32, r 2. Whether it will do so will depend upon whether the court is of the view that it is appropriate that such evidence be admitted without there being an opportunity for the opposing party to cross-examine the deceased person. In this case, his Honour did not permit cross-examination of any of the witnesses. This is a common practice in interlocutory matters.

32 Whether or not a judge permits cross-examination in an interlocutory proceeding is a matter for that judge’s discretion. An appellate court will only interfere with a discretionary decision if an error of the kind referred to in House v R [1936] HCA 40; (1936) 55 CLR 499 at 504-505 is established. Further, the Courts will be slow to allow an appeal which relates to matters of practice and procedure: In the Will of Gilbert (1946) 46 SR (NSW) 318 at 323.

33 The evidence in Ms Muirhead’s affidavit comprised an explanation of the processes which the Commonwealth and the State followed under the Hague Convention and the annexing and exhibiting of documents. In this case, Ms Muirhead’s affidavit was an exhibit to the affidavit of Ms Wikramanayake. Ms Wikramanayake deposed that she believed the content of the affidavit of Ms Muirhead to be true. The statements as to the processes under the Hague Convention were not what would usually be considered in legal proceedings to be contentious. The documents which were annexed were admissible under the Evidence Act. The documents that were exhibited to Ms Wikramanayake’s affidavit were likewise admissible under the Evidence Act.

34 Having regard to the nature of the interlocutory proceedings that his Honour was determining, and the nature of the evidence contained in the affidavit of Ms Muirhead annexed to the affidavit of Ms Wikramanayake, there would have been no error had his Honour not permitted cross-examination of Ms Muirhead, had she been alive, and there was no error in not permitting cross-examination of Ms Wikramanayake.

35 The applicants also contended that UCPR, rr 36.15 and 36.16 required witnesses to be orally examined as part of the requirement under those rules that an applicant show “sufficient cause”. This is not a correct construction of the rules. An application under those rules is an interlocutory application in respect of which the court has a discretion as to whether cross-examination is required. For the reasons already given, his Honour did not err in admitting the affidavit evidence without permitting or requiring cross-examination.

36 Finally, on an application for summary judgment, the court is not concerned with determining whether the evidence of one party should be preferred over the other. Rather, the court is concerned to determine whether there is an arguable defence.

37 His Honour made reference to this on several occasions during the course of his judgment. His Honour did not disregard the evidence of eyewitnesses in preference to false and misleading evidence of a deceased person. Rather, as his Honour stated, at [51], in the face of the judgment and orders of the Family Court which appeared to be regular, it could not be said that there was “no arguable case” that judgment and orders were made by the Family Court: see judgment of Davies J at [83], where his Honour clearly had at the forefront of his consideration the test to be applied when determining an application for summary judgment.

38 The applicants have failed to persuade us that leave should be granted in respect of any of these draft grounds of appeal.

Draft ground 8: Error of his Honour forcing the Plaintiffs to plead facts to the wish of the Defendant

39 This ground of appeal is directed to his Honour’s refusal to permit the applicants to proceed with the further further amended statement of claim. UCPR, r 19.1 provides that a plaintiff has a right to amend the statement of claim once within 28 days of filing the statement of claim. The applicants thus required the leave of the Court to proceed with this document. The question of leave involves a discretionary determination of the trial judge.

40 Of course, this ground really states a false issue. The applicants weren’t forced to plead anything. They could have simply abandoned their previous case. In any event, there was no error in his Honour’s exercise of discretion. The proposed further further amended statement of claim is different in significant respects from the earlier pleadings and certain of the claims made are extravagant to say the least. This attempt to amend comes some nine years after the proceedings were commenced. The court and the parties have a statutory duty to assist in achieving the overriding purpose of the Civil Procedure Act 2005 and the rules of court “to facilitate the just, quick and cheap resolution of the real issues in the proceedings”: Civil Procedure Act, s 56. The Court would be remiss in its duty under this section if it permitted this pleading to proceed. The applicants would also be failing in their duty under s 56(3) if they persisted in seeking to amend their pleadings at this time and in the manner set out in this document.

Draft ground 10: Ignorance of his Honour at law and consequent incompetence of his Honour to fully comprehend the complexities of the case before him

41 His Honour carefully set out the factual matters that were in issue in the proceedings, correctly understood the principles of law he was required to apply on an interlocutory application and exercised his judicial discretion in an appropriate manner when required. There has been nothing advanced by the applicants in their submissions to persuade us that leave to appeal should be granted in respect of draft ground 10.

Draft ground 11: His Honour falsely promising the Plaintiffs during the hearing trial on all issues when latter in judgment permanently staying the proceedings and denying to the Plaintiffs their day in court.

Draft ground 12: His Honour falsely promising the Plaintiffs during the hearing that all facts in dispute will be resolved before the jury at the trial when latter in judgment himself resolved the facts in dispute without jury, in prejudice to the Plaintiffs, ignoring the Plaintiffs evidence and taking only false and misleading evidence of a deceased person

Draft ground 14: Error of his Honour when stating in his judgment certain material facts as proved at trial but which were otherwise in dispute between the parties and had to be resolved before the jury

Draft ground 16: Inconsistency of his Honour at the hearing and in the judgment

42 Draft grounds 11, 12, 14 and 16 essentially challenge his Honour's order in which he permanently stayed the proceedings. The applicants submitted that on over 30 occasions during the course of the hearing, his Honour made statements to the effect that factual matters that were in dispute had to go to trial. Likewise, his Honour refused permission to cross-examine as to credit on the interlocutory application, as that was also a matter for trial. In his judgment, on four separate occasions, at [83], [87], [88] and [138], his Honour made reference to disputed factual issues which were for determination at trial.

43 Notwithstanding his Honour's rulings during the hearing and the references in his judgment to the need for factual matters in dispute to be determined at trial, his Honour ordered that the proceedings be permanently stayed.

44 There was no error, nor inconsistency, in his Honour's approach. In making his statement and rulings in respect of the disputed factual matters and in refusing permission to cross-examine, his Honour was acting in accordance with the principles to be applied in the determination of an application for summary judgment. In determining that there should be a permanent stay, his Honour was dealing with a separate matter.

45 The applicants had initially failed to comply with the order of Registrar Bradford to re-engross the further amended statement of claim in accordance with the orders of Patten AJ. Subsequently, in purported compliance with the Registrar's order, the applicants had filled in the affidavit verifying in the manner set out above at [15].

46 His Honour dealt with the requirements of verification at [192]-[194], as follows:

“[192] One of the purposes of introducing the rule requiring verification of certain pleadings (the current version is found in Rules 14.22 to 14.24 UCPR) was to assist in the process of weeding out of baseless claims. The process was considerably enhanced by the insertion into the Legal Profession Act 1987 of what became Div 5C. That Division was, in substance, reproduced as Div 10 of the Legal Profession Act 2004. It imposed restrictions on solicitors and barristers providing legal services on claims for damages unless the legal practitioner concerned held the reasonable belief in the success of the claim or defence set out in s 345.

[193] Quite plainly Div 10 only applies to legal practitioners and not to litigants who act in person. That perhaps emphasises, however, the importance of the rules associated with verification of pleading at least in the matters for which verification is required.

47 His Honour, at [195], referred to the applicants’ wish to proceed with a case in the form pleaded in the further further amended statement of claim, but that that course was not open to them, as he had refused leave to the applicants to amend the pleadings in the form of the further further amended statement of claim: see at [122]-[146]. His Honour's reasons are cogent and contained no error.

48 His Honour, at [196]-[208], considered that the manner and the period over which the applicants had conducted the proceedings, including the manner in which they had purported to verify the further amended statement of claim, amounted to an abuse of process. Accordingly, pursuant to the Civil Procedure Act, s 67 and the court's inherent power to control proceedings, his Honour considered that there should be a permanent stay and he made an order to that effect. In doing so, his Honour did not finally shut the parties out from bringing their proceedings. He adverted to this expressly, at [206], where his Honour said:

“I do not think it is appropriate at this stage to dismiss the proceedings because there is at least a faint possibility that the Plaintiffs may realise that it is in their best interests to pursue the case that Bell J and Patten AJ considered was at least an arguable case, and which forms the basis of the present form of the Statement of Claim. If I were to dismiss the proceedings at this point and the Plaintiffs realised that that was their better course, there would be a considerable waste of resources and likely limitation problems for the Plaintiffs in commencing new proceedings.”

49 Orders (4), (5) and (6) related to the bringing of any further notices of motion in the matter. That would include the bringing of a notice of motion for lifting the order for a permanent stay. Order (9) recognised that the order for a permanent stay might be lifted, but its effect was to impose a further stay until the applicants paid certain costs orders.

50 Accordingly, there was nothing inconsistent in his Honour making rulings in respect of the conduct of the application for summary judgment in the manner he did and in then ordering a permanent stay. The stay is only permanent wheresoever the applicants wish to continue with proceedings against the Commonwealth in a manner which the Court has determined is an abuse of process.

51 Accordingly, leave to appeal in respect of these grounds is refused.

Draft ground 15: Error of his Honour when stating in his judgment material facts which were not provided by any of the parties

52 Draft ground 15 appears to relate to the applicants’ submissions in paras 3-6 of the ‘Summary of Arguments’ and possibly para 22 of the document entitled ‘Applicants Supplementary Oral Submissions’.

53 Paragraphs 3-6 of the ‘Summary of Arguments’ complain of the statements made by Justice Davies in [2] and [3] of his judgment, which were in the following terms:

“[2] On the day in question the only persons present in the property at the time these persons attended the property were Marika and Elena Markisic.

54 At [6], his Honour stated:

“The above facts are the only matters concerning the background and the events giving rise to the cause of action which are accepted as correct by both parties to the present proceedings.”

55 The applicants submitted that this was not a correct statement. They submitted that the facts stated by his Honour at [2] and [3] were not “accepted as correct by both parties”, because they were not as such between the parties at any time in the proceeding. The applicants submitted that his Honour was “putting those facts between the parties” and this was not open to him.

56 This submission must be rejected. In [2] and [3], his Honour, in a most neutral fashion, set out the context of the matter which involves the applicants asserting that certain persons, who claimed to be members of the Australian Federal Police, arrived at their premises and took the child.

57 The matter raised in para 22 of the supplementary oral submissions was as follows:

“In order to proof that the AFP took the child Justice Davies took into evidence against the Plaintiff’s evidence a fact not found in the Plaintiffs’ Further Amended Statement of claim. In par. 53, 133 and 137 of his judgment his Honour speaks about some business card allegedly left at the Plaintiffs’ house at the time of taking of the child by Christopher Noble. In relation to this the Plaintiffs submit:

a) there was no evidence whatsoever before the judge in relation to the alleged business card

b) it was not open to the judge on his own motion to search in the court file for any evidence. For an example Justice Davies included as evidence after the conclusion of the hearing before him the Plaintiff’s first Statement of claim despite the fact that this document was not part of evidence before him at all

c) it was not open to the judge to prove any material fact, for example whether the child was taken by AFP or not

d) it was the Commonwealth’s role to put any evidence but not to expect from the judge to do the job for them

58 This submission misunderstands his Honour’s reference to a business card in [53] of his judgment. The reference to a business card came from the affidavit of Dragan Markisic of 2 October 2009.

59 The applicants also complained that his Honour had reference to the original statement of claim in the matter. This is part of the court record to which his Honour was entitled to have regard. It is next asserted that it was not open to the judge to prove any material fact, for example, whether the child was taken by the Australian Federal Police or not. His Honour does not making any such finding in his judgment. Rather, the references to the Australian Federal Police are, relevantly, in [3], and [8], where his Honour records the Commonwealth case that the child was taken by the officers of the Australian Federal Police pursuant to orders of the Family Court. This is not a finding of fact. Other references in the judgment to the Australian Federal Police are those which are contained in the applicants’ pleadings or otherwise relate to assertions made by the parties.

60 There is no basis to grant leave to appeal in respect of this ground of appeal.

Draft ground 17: Error of his Honour to find that the Commonwealth was in default because of its defective defence and because of the defective affidavit verifying the defence and accordingly erred to enter judgment for the Plaintiffs

Draft ground 23: Error of his Honour to find that the Commonwealth was for 7 (seven) years from 2002 till 2009 in default and in abuse of process because of not having verified defence and that the Commonwealth which in default succeeded to obtain various judgments and orders against the Plaintiffs

61 The applicants raised two essential complaints in relation to be Commonwealth’s defence. First, they complained that the Commonwealth had filed a document entitled ‘Notice of Defence’, which was not a document recognised by the rules. The argument was to the effect that if a document does not comply with the rules it does not formally exist. Senior counsel for the Commonwealth conceded that the title to the document which they initially filed as a defence was wrong and that this was subsequently corrected.

62 The court has power to dispense with compliance with the rules: see the Civil Procedure Act, s 14 which provides

“ 14 Court may dispense with rules in particular cases

63 Having regard to the fact that the procedural irregularity has been rectified, there is nothing of substance in this complaint.

64 The second complaint relates to the failure, at one stage, of the Commonwealth to verify its defence. The applicants complain that his Honour, at [20], did not consider their arguments that the Commonwealth was in default because of having an unverified defence when it filed in court before Justice Patten its notice of motion for striking out of the parts of the applicants’ further amended statement of claim and obtaining a judgment in an abuse of process. They raise a similar argument in para 38 of ‘Summary of Arguments’, stating that Justice Davies omitted to find the Commonwealth’s defence was defective and entering default judgment against it. They make a similar complaint in relation to Smart AJA.

65 The Commonwealth conceded to the Court that it had not originally verified its defence. However, it has subsequently done so to the extent required by the rules. It is not unusual for a court to give a party the opportunity to rectify some defect or omission in the pleadings. There is no error in the Court not having entered default judgment against the Commonwealth in the absence of verification at one stage, or in circumstances where the defence was wrongly entitled.

Draft ground 18: Error of his Honour to enter summary judgment for the Plaintiffs

66 We have dealt with this in part above. However, it is appropriate for the purposes of this specific draft ground to set out the principles in General Steel. Barwick CJ in that case, at 129, held that in making an order for the summary dismissal or judgment of a matter, the lack of a cause of action, in the case of a plaintiff, or lack of defence, in the case of a defendant, must be clearly demonstrated. This condition was described in terms such that it required the other party’s case to be:

“… so obviously untenable that it cannot possibly succeed; manifestly groundless; so manifestly faulty that it does not admit of argument; discloses a case which the Court is satisfied cannot succeed; under no possibility can there be a good cause of action; [and] be manifest that to allow them (the pleadings) to stand would involve useless expense.”

67 The evidence of the copy Family Court documents was a sufficient basis for his Honour to be satisfied that the Commonwealth had an arguable defence.

Draft ground 20: Error of his Honour when made an order for costs against the Plaintiffs as a excessive punishment and making the said order without evidence

68 Draft ground 20 appears to relate to orders (7) and (8) made by his Honour. The reasons for making these orders is contained in the judgment at [152]-[189]. Contrary to the terms in which this ground of appeal is framed, there was evidence before his Honour as to the costs that the Commonwealth had incurred in respect of the matters the subject of orders (7) and (8). Pursuant to the Civil Procedure Act, s 98, costs are in the discretion of the court and the court has power to order, by whom, to whom and to what extent costs are to be paid. There was no error in the exercise of his Honour's discretion, either in ordering costs or in specifying the amount of costs.

69 We would only add that if this ground of appeal is also directed to the costs of the hearing of the various motions then, as his Honour indicated, as the applicant had been wholly unsuccessful on the notices of motion there was no reason why they should not pay the costs: see UCPR, r 42.1.

Draft ground 21: Error of his Honour not to set aside judgments and orders of Justices Bell and Patten and Master Harrison

70 His Honour dealt with these matters at sections (6), (7) and (8) his judgment, at [93]-[107].

71 The applicants submitted that his Honour should have set aside these judgments:

“… so the record would not be false as it is now. The public interest would require the record to be as much truthful as possible. It is not in public interest the public be deceived through facts presented in a judgment as true. The judgment and orders of his Honour biased and apologetic of trial creditors and as such should be set aside.”

72 This ground of appeal misunderstands both the judgment of his Honour, and the judgments of Justices Bell and Patten and Master Harrison. In the first place, the judgment of Master Harrison was the subject of a successful appeal to Justice Bell. Master Harrison ordered that the applicants proceedings be dismissed. That order was set aside by Justice Bell. Justices Bell and Patten have not made any final findings of fact. Their Honours were concerned with interlocutory applications of a procedural nature only.

73 The applicants also complained that his Honour misunderstood UCPR, rr 36.15 and 36.16, as those provisions did not impose any time limits. Again, the submission misunderstands his Honour’s reasoning. At [95](d), which is the paragraph of his Honour's judgment of which complaint is made, his Honour observed that no explanation had been given for the delay in moving to set aside the judgment of Master Harrison, which was given on 22 June 2001. The application to set aside the judgment was not made until the applicants filed a notice of motion on 2 July 2009. His Honour stated that even if everything else had been established sufficient to make an order under UCPR, rr 36.15 and 36.16 he would as a matter of discretion have refused to set aside Master Harrison's judgment.

74 The powers conferred by these provisions are discretionary. Delay in approaching the court for the exercise of a discretionary power is a matter that the court may take into consideration. The delay in this case was inordinate and there was no error in his Honour’s statement that he would have refused relief on the discretionary basis of delay.

Draft ground 22: Error of his Honour not to remit the part of the proceedings before the Court of Appeal for certain issues to be resolved there

75 His Honour dealt with this aspect of the applicants’ application before him in section (9) of his judgment, at [108]-[119]. The applicants contended that his Honour failed “to consider the interests of justice and weighed against the costs which will be incurred” by the remittance of the application to the Court of Appeal. The applicants also complained that his Honour's finding, at [119], that there was no evidence put before him to suggest that the decision of the Court of Appeal was obtained irregularly, illegally or against good faith, was simply not true, because it had been proven by finding that Ms Muirhead was a deceased person. The complaint in this regard was that the Court of Appeal had used Ms Muirhead’s affidavit referred to above. The applicants submitted that the Court of Appeal should have rejected all of the evidence annexed to her affidavit as misleading and unreliable as coming from a deceased person. It was submitted that this would require the Court of Appeal to admit a grave error of judgment and to overturn the judgment of the Court of Appeal in Dragan Markisic’s case. The appellants submitted that Davies J did not want this to happen, as he was biased against the applicants.

76 The last part of this submission is better understood by reference to his Honour’s judgment at [108]. There, his Honour pointed out that the applicants had made it clear they wanted the proceedings before him remitted to the Court of Appeal, so that they could ask the Court of Appeal to set aside the judgment in Dragan Markisic v Department of Community Services of South Wales (No. 2) [2006] NSWCA 321. His Honour observed, at [108], that the applicants:

“… are not parties to those proceedings but they say that they are affected by the decision in that case which was obtained irregularly, illegally or against good faith.”

77 His Honour gave five reasons for refusing the application. In summary, they were: (1) The applicants did not have standing to argue that the judgment in a matter in which they would not parties should be set aside. (2) If the Commonwealth had presented false evidence in Dragan Markisic’s case that should have been raised at the hearing of the Court of Appeal. The Court of Appeal had already dealt with an application to set aside the judgment under UCPR, r 36.15 at the instance of Dragan Markisic. That application had been unsuccessful. (3) The were other parties to the Dragan Markisic proceedings. If his Honour was to accede to this application, those other parties would have to be joined in the proceedings. His Honour did not consider that the costs of doing so were justified. (4) The applicants were not able to identify the orders of the Court of Appeal that they wished to set aside. Rather, it was apparent that their purpose was to seek to have different findings of fact made. (5) His Honour was not satisfied that the decision of the Court of Appeal had been obtained irregularly, illegally or against good faith.

78 These were cogent reasons for his Honour, in the exercise of his discretion not to remit the matter to the Court of Appeal.

Draft ground 24: His Honour erred by mismanaging the hearings in prejudice to the Plaintiffs

79 Draft ground 24 appears to relate to his Honour’s decision, recorded at [148] of his judgment, that he had declined to break up the hearing of the notices of motion as requested by the applicants. His Honour’s reasons for doing so were: first, that the notices of motion had been directed to be heard by him at the one time. Secondly, his Honour considered that it was clear early on in the hearing that most or all of the relief sought in the various notices of motion were closely interrelated.

80 The applicants contended that the first of these reasons was “complete nonsense for the reason that since when a judge of the Supreme Court must follow a direction of a Registrar of the Supreme Court”.

81 Whilst it was appropriate for his Honour to take the first of these matters into account, his Honour had an undoubted discretion to determine whether the notices of motion should be heard together. Accordingly, it is really the second reason which is of most significance in his Honour deciding that the motions be heard together. This reason was a powerful, if not overwhelming consideration, as to why that was the appropriate manner in which the notices of motion should be dealt with. There was no error in his Honour’s exercise of discretion.

Draft ground 25: His Honour erred by having the Plaintiffs in contempt for an attack on pedophiles and child predators in their Further Further Amended Statement of Claim and his Honour damaging the Plaintiffs’ case as much as possible

82 The only reference to contempt in his Honour's judgment is at [184], in which his Honour refers to a request by the applicants that they be permitted to file an application to have senior counsel for the Commonwealth punished for contempt of court and for attempting to pervert the course of justice because he had read the affidavit evidence, particularly that of Ms Wikramanayake, that the applicants consider false.

83 There is no basis for allowing leave to appeal on this issue.

Draft ground 2: Bias of his Honour Justice David Davies

Draft ground 3: Error of his Honour when declined or failed to disqualify himself on each of occasion

84 His Honour recorded in his judgment, at [36], that an application was made on nine occasions that he disqualify himself on the ground of bias or apprehended bias. His Honour observed that the applications were frequently made after he had made a ruling on evidentiary matters contrary to the applicants’ interests, including in relation to the admission into evidence of certain affidavits of the Commonwealth, in particular, the affidavit of Ms Wikramanayake sworn 14 June 2001, and rulings that he would not permit cross-examination of the deponents of those affidavits. The admission of the affidavit evidence has been dealt with above.

85 Other bases upon which this draft ground also appear to be encompassed in other challenges to his Honour's decision. They have also been dealt with above and for the reasons we have given in respect of those grounds of appeal, we do not consider that ground 2, that his Honour was biased, has been made out.

86 There were other arguments advanced in the ‘Summary of Arguments’ that specifically raised the bias ground. At para 34, the applicants complained that his Honour's statement at [85], that the applicants “had difficulty to comprehend that what happened could be other than as deposed to by them”, exhibited bias. This submission itself reverted to the reliance upon the affidavit of a deceased person with which we have already dealt. The rejection of the evidence of any party is not evidence of bias.

87 To the extent that the applicants alleged that his Honour applied the wrong test, then that submission itself is erroneous. His Honour applied the correct test in deciding whether or not there might be an apprehension that he was biased: see Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288.

Conclusion

88 The applicants raised a number of other matters in their submissions. However, we have not, in these reasons, separately dealt with any submission that cannot be linked with a ground in the draft notice of appeal. We have read and listened to all the submissions with care and do not consider that any matter raised established that his Honour erred in his reasons or in the orders he made.

89 The applicants have failed to demonstrate that there was any arguable error in his Honour's decision. In those circumstances, leave to appeal is refused. The orders that the court makes are as follows:

1. Summons for leave to appeal dismissed;

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Markisic v Commonwealth of Australia [2010] NSWCA 273

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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