Markisic v Commonwealth of Australia - [2010] NSWSC 24

No judgment structure available for this case.

CITATION: Markisic v Commonwealth of Australia [2010] NSWSC 24

HEARING DATE(S): 19/10/2009; 21-23/10/2009; 26-29/10/2009.

JUDGMENT DATE :
25 February 2010

JUDGMENT OF: Davies J

DECISION: (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). (10) The Defendant’s Amended Notice of Motion is otherwise dismissed.

CATCHWORDS: PROCEDURE - judgments and orders - amending, varying and setting aside - whether given or entered irregularly, illegally or against good faith. PROCEDURE - pleadings - verification of pleadings - who can verify. PROCEDURE - amendment of pleadings - late application for amendment - no evidentiary basis for proposed amended pleading. PROCEDURE - courts and judges - disqualification for apprehended bias. PROCEDURE - abuse of process - limited resources of courts - Plaintiffs' desire to pursue futile claims - proceedings stayed. COSTS - costs thrown away by failure of Plaintiffs to comply with Court orders - summary assessment of costs by Court - direction that costs to be paid forthwith or proceedings stayed.

LEGISLATION CITED: Australian Federal Police Act 1979 (Cth)
Civil Procedure Act 2005
Evidence Act 1995
Legal Profession Act 1987
Legal Profession Act 2004
Supreme Court Act 1970
Uniform Civil Procedure Rules

CATEGORY: Procedural and other rulings

CASES CITED: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 83 ALJR 951
Applicants A1 and A2 v G E Brouwer (No. 2) [2007] VSCA 269
Dawson v Deputy Commissioner of Taxation (1984) 71 FLR 364
Dragan Markisic v Department of Community Services of NSW (No. 2) [2006] NSWCA 321
Dragan Markisic & Anor v USA & Anor (unreported, Latham J, 19 September 2006)
Dragan Markisic & Anor v USA & Anor (unreported, Nicholas J, 12 December 2006)
Ebner v Official Trustee in Bankruptcy [2000] HCA 6; (2000) 205 CLR 337
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Livesey v NSW Bar Association (1983) 151 CLR 288
Markisic v Commonwealth of Australia [2009] NSWSC 284
Markisic & Anor v Commonwealth [2001] NSWSC 533
Markisic & Anor v Commonwealth of Australia [2002] NSWSC 698
Markisic v Department of Community Services of NSW & Ors [2006] NSWCA 106
Markisic v Department of Community Services of NSW and Ors [2007] NSWCA 30
Markisic v Middletons Lawyers [2007] NSWSC 1147
Mead v Watson [2005] NSWCA 133
Oliver Markisic & Anor v Commonwealth of Australia [2007] NSWSC 201
Oshlack v Richmond River Council (1998) 193 CLR 72
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Sali v SPC Limited (1993) 67 ALJR 841
State of NSW v Lepore [2003] HCA 4; (2003) 212 CLR 511
Webb v R (1994) 181 CLR 41
Wentworth v Rogers (No. 5) (1986) 6 NSWLR 534
Wentworth v Wentworth (unreported – Santow J – 6 February 1998)

TEXTS CITED: Balkin & Davis, Law of Torts (4th ed) LexisNexis Butterworths, 2009

PARTIES: Oliver Markisic (First Plaintiff)
Marika Markisic (Second Plaintiff)

FILE NUMBER(S): SC 20369/01

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

SOLICITORS: Australian Government Solicitor (Defendant)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DAVIES J

25 FEBRUARY 2010

20369/01 OLIVER MARKISIC & ANOTHER v COMMONWEALTH OF AUSTRALIA

JUDGMENT

Background

1 On 29 September 1998 certain persons attended at a property at 17 Edward Street, Arncliffe. The people who resided at that property were Oliver Markisic (the First Plaintiff), Marika Markisic (the Second Plaintiff), Dragan Markisic and Dragan Markisic’s infant daughter Elena Markisic. Oliver and Dragan Markisic are brothers and Marika Markisic is their mother.

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.

3 The persons who attended the property claimed to be members of the Australian Federal Police. They presented documents to Marika Markisic and requested the child Elena to be handed over to them. They took the child and drove away from the property.

4 At that time Dragan Markisic had commenced Family Court proceedings against his former wife Katerina (who resided in Macedonia) seeking custody of Elena.

5 As a result of those persons taking the child away from the property Oliver and Marika Markisic have commenced proceedings against the Commonwealth of Australia in which they claim damages for trespass both to the person and to land, for negligence resulting in nervous shock and for deceit.

6 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.

7 This judgment does not concern the substantive issues in the proceedings but deals with a number of Notices of Motion filed by both parties to the proceedings. So that the issues raised by the Notices of Motion can be better understood I shall briefly summarise the Commonwealth’s factual assertions in relation to the matter. These matters are disputed by the Plaintiffs.

8 In short, the Commonwealth says that the child was taken by officers of the AFP pursuant to orders of the Family Court that had been sought by the Director-General of the Department of Community Services of NSW pursuant to the provisions of the Hague Convention on the Civil Aspects of International Child Abduction. The Commonwealth points to the various judgments in the Family Court, particularly the judgment of Judicial Registrar Johnston which was ultimately upheld on an appeal to Rowlands J and subsequently to the Full Court of the Family Court.

9 That judgment recites that Mr Dragan Markisic and his wife were separated in Macedonia. The mother claimed that Dragan came to see the child and said he was taking her for a walk and would bring her back at a particular time. She claimed that what in fact happened was Dragan brought the child from Macedonia to Australia where they arrived on 14 April 1998.

10 The mother then approached a court in Macedonia. That Court made orders for the return of the child and it was as a result of those orders and the approach of the Republic of Macedonia to Australian authorities to undertake proceedings in accordance with the Hague Convention that the Director-General commenced the Family Court proceedings.

11 As I have said, it was pursuant to the orders of the Family Court that the Commonwealth says the child was taken by representatives of the Australian Federal Police. The orders required her to be, and she was, delivered to a named person at the Department of Community Services. Shortly after that time she was taken back to Macedonia and reunited with her mother.

12 Despite what appears in the Further Amended Statement of Claim filed by the Plaintiffs on 23 July 2009 (a matter to which I will return presently) the Plaintiffs say in response to the Commonwealth’s assertions that:

(a) There were never proceedings in the Family Court commenced by the Director-General;

(b) There were never orders made by the Family Court which authorised the taking of the child by the Australian Federal Police or anybody else;

(c) The child was not taken by members or officers of the Australian Federal Police but illegally by other persons, who were paedophiles and predators for whom the Commonwealth is vicariously liable.

13 These assertions of the Plaintiffs go to the heart of a number of matters that I have to determine on the Notices of Motion before me, and they go to the heart of the substantive claim of the Plaintiffs. For that reason, and also because in the Notices of Motion before me the Plaintiffs seek to overturn and/or challenge parts of various judgments made by judicial officers in this Court in the proceedings, it is necessary to set out at some length the various pleadings filed by the Plaintiffs and the history associated with them.

History of the proceedings

14 The Statement of Claim in the matter was filed on 9 May 2001. The Claim, which was verified by both of the Plaintiffs in the usual form, was pleaded as follows:

The first and second plaintiffs plead their cause of action as follows:

1. At all material times the first defendant was liable to be sued in its own name under the Judiciary Act.

2. The first plaintiff and Mr. Dragan Markisic (further referred hereto as Dragan) are brothers and both are sons of the second plaintiff. The first and second plaintiffs at that material time lived and still live in the same house.

3. In July 1998 the officers of the first defendant initiated proceedings at the Family Court of Australia under the Hague Convention for the return of Dragan's daughter Elena Markisic, born 03.05.1997 to Macedonia (further referred hereto as child).

4. There was on 09.09.1998 an interim order of His Honour J Rowlands for the return of the child to Macedonia.

5. Dragan appealed to the Full Court of the Family Court against the decision of His Honour Justice Rowlands.

6. Due to the engagements with the Family Court case and in need of help with his child from his mother (the second plaintiff), Dragan moved with his child for a short time to live with his mother (the second plaintiff) and his brother (the first plaintiff). The second plaintiff at that material time was 64 years old. The first and second plaintiff were at that material time carers of the child.

7. On 29.09.1998 the first plaintiff and Dragan, due to the engagements with the appeal at the Full Court, left the child with the second plaintiff.

8. On the same day the first plaintiff, as a next friend, and Dragan attended the hearing of the appeal. The Full Court of the Family Court of Australia, consisting of His Honour Chief Justice Nicholson, His Honour J. Ray and His Honour J. O'Ryan dealt with the appeal in this order:

Dragan's application for extension of time and adjournment of the appeal on the grounds of the Dragan's health condition and of the short time to prepare the appeal was dismissed by the Full Court. The Full Court disregarded Dragan's medical certificate and Dragan's argument of speedy and unfair trials from the beginning of the court proceedings. His Honour Chief Justice Nicholson said to the effect that if Dragan is not in a condition to continue with the appeal then the Full Court will decide without him on basis of the material contained in the appeal book. Dragan seeing that he is not given a fair trial from the Full Court too, asked the Full Court to the effect he to be excused from the appeal and asked for permission to leave the Court to go to the High Court of Australia and there to lodge an appeal on the same grounds as in that appeal. His Honour Chief Justice then made submissions for the application for Warrant to take possession of the child for the Respondent in the appeal (the first defendant) and invited the Respondent in the appeal to make an oral application for Warrant to take possession of the child.

9. On invitation from His Honour, the Respondent in the appeal (the first defendant) made an oral application for the Warrant to take possession of the child and the Full Court issued the said Warrant to take effect forthwith.

10. Dragan not having any other option and in an attempt to avoid incoming harm to his child made an oral application for dismissal or stay of the Warrant issued on the grounds to the effect that that is not in accordance with the Family Law Act, not in the spirit of the Hague Convention and that the child is going to experience great deal of harm if separated from Dragan and asked the Court to consider the best interest of the child. But the Full Court refused all arguments and dismissed Dragan's oral application. Then His Honour Chief Justice made an application and submissions for the Respondent in the appeal (the first defendant) for care application and His Honour then made an order for care of the child.

11. Then the Full Court of the Family Court of Australia issued a Warrant to take possession of the child and the child to be delivered to the Manager of the St. George Community Services Centre Hurstville Mr. Tim McDonald and the child to be in care of the Director General of the DOCS of NSW pending any appeal to the High Court of Australia or pending her return to Macedonia.

12. His Honour Chief Justice then requested from Dragan to continue with his appeal or the Full Court will continue without him and on basis of the material contained in the appeal book.

13. Dragan was forced under very stressful conditions for him to continue with the appeal and being aware that that is the last and only chance to save his child from the coming harm. Dragan believed that if he wins the appeal that there would be no grounds the Respondent in the appeal (the first defendant) to take his child and with it to prevent the harm to the child and that was the only thing a father could do to save his daughter. Dragan collected the last remaining strength to proceed with his submissions.

14. When Dragan asked Their Honours in regards to his parental rights, His Honour replied to the effect "I do not want to talk about that".

15. At the end of the appeal the Full Court of the Family Court of Australia made the following orders:

a) appeal is dismissed

b) the child is placed in the care of the Director General of the DOCS of NSW pending determination of the application for special leave to appeal to the High Court of Australia

c) the order of His Honour J Rowlands is stayed for seven days to allow Dragan to lodge an application for special leave to appeal to the High Court

PARTICULARS 1

1) The officers of the first defendant (Ms. Carmel Niland, Mr. Roderick Best, Ms. Gina Vizza, Mr. David Wales, Ms. Doreen Muirhead, Ms. Nan Levett, Mr. John Mcginnes) knowingly acted in misfeasance in public office and in excess of statutory powers arising from Family Law (Child Abduction Convention) Regulations requesting from the Court, in oral application, a Warrant to take possession of the child causing the Court to issue the Warrant to take possession of the child and furthermore causing the AFP officers unjustifiably and out of authority execute the Warrant to take possession of the child failing to establish seriousness and urgency as required in the order 1. (iv) of the Orders of the Full Court, i.e., Warrant to take possession of the child, and knowingly and intentionally to inflict harm to the first and second plaintiffs, Ab Initio causing wrongdoings as particularised in PARTICULARS 3, as a result of which actions the first and second plaintiffs have suffered loss and damage as particularised in Particulars - injuries, losses and damages

PARTICULARS

PARTICULARS 3,

a) the child was not in need of care and there was no urgency or seriousness

b) the Director General of the DOCS of NSW has not established a standard of care for taking a child not in need of care and knowing that the Director General of the DOCS of NSW can not establish such a standard for such standard would be unauthorised by the Parliament of New South Wales

c) the Director General of the DOCS of NSW has not established a guidelines for accepting children into care in Hague Convention matters and knowing that the Director General of the DOCS of NSW can not establish such guidelines for such guidelines would be unauthorised by the Parliament of New South Wales

d) the DOCS of NSW does not have enough resources to properly care for the child

e) the child is closely tied to the first and second plaintiffs and the separation will result in harm of each of them

a) making submissions for the Respondent in the appeal for the Warrant to take possession of the child

b) inviting the Respondent in the appeal to apply for Warrant to take possession of the child

c) making application for the Respondent in the appeal for Warrant to take possession of the child

d) rectifying the requested order for Warrant to take possession of the child in the application of the Respondent in the appeal (application in the lower Court proceedings)

e) issuing Warrant to take possession of the child before the appeal has been heard

f) issuing Warrant to take possession of the child knowing that appeal to the said order is not available

g) issuing Warrant to take possession of the child without full and separate hearing of the matter to establish all the necessary conditions in relation to the care of the child

PARTICULARS 3

a) issued without due process of law

b) issued without statutory authority for enforcement of a civil claim of this nature

c) the Respondent in the appeal did not instituted cross appeal by filling a Notice of cross appeal to the said appeal, according to the Court Rules, and the said judicial officers by surprise to the Applicant in the appeal instituted the said cross appeal assuming orders of such a Notice of cross appeal should contain

d) issued in excess of powers under the Family Law (Child Abduction Convention) Regulations

e) issued knowingly out of jurisdiction in children care and protection matters - Commonwealth Powers (Family Law Children) Act, Children (Care and Protection) Act

f) issued knowingly out of jurisdiction in children care and protection matters - the child was not in need of care and there was no urgency or seriousness

g) knowingly out of jurisdiction - Family Court has no jurisdiction of wardship

h) the warrant in the form "Warrant to take possession of the child" is:

2h) contrary to the Part 3, Regulation 14 (5) of the Family Law (Child Abduction Convention) Regulations

2m) harming the child with separation from Dragan and the first and second plaintiffs

The first defendant is vicariously liable for the above actions of their respective officers and judicial officers.

As a result of the above actions of the first defendant the first and second plaintiffs have suffered loss and damage as particularised in Particulars - injuries, losses and damages

16. The Warrant to take possession of the child was forwarded to the AFP and the Federal agent Christopher Noble was responsible for execution of the same. The AFP entered the above Warrant to take possession of the child in their computer system as "Execution of Family Law Recovery Order".

17. On 29.09.1998, while the first plaintiff and his brother Dragan were in the Family Court and the appeal was pending, three AFP officers visited the first and second plaintiffs's home. They rang on the door, introducing themselves as AFP officers, presented the Warrant to take possession of the child, photos of Dragan and his child and wanted to take the child. The second plaintiff have shown the child to the AFP officers through the flyscreen door, the AFP officers to see there is no matter of seriousness or urgency in regards to the child, but after they insisted to enter the house, or they will break the door by force they were allowed to enter the house.

18. The child seeing them at the door started to cry and scream. Two of the said AFP officers entered and the third officer stayed outside. The second plaintiff told the AFP officers to the effect that she can not give the child without permission and presence of her son Dragan and that Dragan is at

that moment in the Court. The AFP officers said to the effect that they have a Warrant to take the child and they will take the child by force. The second plaintiff then rang her third son Neven Markisic to come and help her with dealing with the AFP officers due to her limited knowledge of English language, due to her age and because Neven, as a oversees qualified barrister, was better skilled at law. Mr. Neven Markisic arrived with his then 8-year old son Mario in 10-15 minutes.

19. The AFP officers requested from Neven Markisic to order to his mother (the second plaintiff) to give them the child, that they have a Warrant from the Family Court and that they will take the child by force in any case. Neven answered to them to the effect that he can not order that to his mother, that she was instructed from her son Dragan to look after his child till he comes back from the Court, that she is the child's grandmother, very attached to the child and that the paper being Warrant is issued for the human being in first place and not for a thing

20. The second plaintiff tried to ring her son Dragan again or her other son Oliver (the first plaintiff) on mobile phone, but one of the AFP officers stormed towards the second plaintiff, pulled out the phone handset from her hands, thrust her and the second plaintiff lost her balance still holding the child in the other hand. Then the AFP officer ripped the phone cord line. The second plaintiff was sitting on a sofa bed with the child in her arms while the same agent tried twice to take the child by force, but the child was running away from him constantly screaming and holding harder her grandmother (the second plaintiff).

21. When the second plaintiff asked for permission to go with the child in another room to change the nappies to the child, the AFP officers first declined It, but then allowed it. Then the second plaintiff again sat on the sofa bed with the child in her arms. The child being scared from the AFP officers cried and screamed all the time, from the time she saw them at the door. Then the AFP officers decided not to wait any longer and while one of them was keeping the second plaintiff's hands at her back, another officer took the child from her arms and run out of the house with the child in his hands, slamming the doors on the way out. The other two AFP officers followed him in the same manner running out of the house.

22. The child, being in panic and shock, cried and screamed more loudly at the moment they took her by force. In that action of taking the child by force the AFP officers ripped off one of the child's ear ring. The second plaintiff, Neven and

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his son Mario ran after them, crying, screaming, in big panic and shock. The child was screaming and crying deafeningly loud. The AFP officers put the child In a baby seat in their car, fasten the seat belt around the child while the child constantly cried and screamed after her grandmother and her brother Mario "Granny, Granny..." (in Serbian).

23. The whole family went out crying, screaming and begging the AFP officers not to take the child away. The second plaintiff then asked the AFP officers to allow her to kiss the child for the last time, but she was not allowed. The AFP officers left the scene very fast.

24. The three AFP officers scared, stressed and traumatised the second plaintiff, the child and other extended family members. The three AFP officers took the child in a condition of nervous chock, crying, screaming, very lightly dressed, without one shoe, hungry, without any food and clothes for changing. There was nowhere to be seen any female welfare officer to look after the child.

25. The three AFP officers left the scene leaving the second plaintiff and other family members devastated, in nervous shock, panic, fear, cry, anguish and worries.

26. The AFP officer Noble left a copy of the Warrant to take possession of the child and his business card for Dragan to call him. The three AFP officers delivered the child to Mr. Tim McDonald and Mrs. Lily Anthony at the St. George Community Services Centre Hurstville. Mrs. Lily Anthony took the child and placed the child in the care of "Centacare", with foster parents Christine and Mike Robertson.

27. The Australian Federal Police took the child knowing that the child was not in need of care, there was no urgency or seriousness and knowing that the child was properly looked by three families.

PARTICULARS 2

The first defendant is vicariously liable for the above actions of their respective officers. As a result of the above actions of the first defendant the first and second plaintiffs have suffered loss and damage as particularised in Particulars - injuries, losses and damages

28. When the first plaintiff and his brother Dragan left the Full Court of the Family Court, under lot of mental distress and trauma of everything what happened in the Court, the first plaintiff received a phone call from his family members. They in cry tried to explained to the first plaintiff and Dragan what happened while they were in the Court, that the Australian Federal Police took the child by force.

29. The first plaintiff and his brother Dragan both felt a big shock, big pain in their chest and in their soul disbelieving that it could have happened while Dragan was doing his submissions before the Full Court.

30. The first plaintiff and Dragan realised that Dragan was not even given a chance to finish his submissions for the appeal when the AFP officers took the child.

31. The first plaintiff, himself being in shock, somehow helped his brother Dragan to recover a little bit and to collect the power to come home. When the first plaintiff and his brother Dragan reached their home, they found the whole family in great mental distress, shock, panic and dismay. They all cried trying to explain to the first plaintiff and Dragan what happened. They did not know where the AFP officers took the child disbelieving that something like that could have happened to them in a free and democratic country like Australia.

32. The first and second plaintiff were in shock and panic for the child, in disbelieve, depressed; anxious of everything happened. The whole family was crying, did not know where the child was and in what condition. They felt that the child somewhere suffers, being hungry and in shock and emotional distress. The second plaintiff and Dragan took tranquillising pills to get through the night and through the following days.

33. Mrs. Lily Anthony entered the child in the DOCS of NSW computer system as:

a) child Elena Markisic (540335)

b) child entered in system 14.08.1998

c) assessment commencement date 17.08,1998

d) child who was not at risk

e) actual harm, criminality, high risk not confirmed

f) no safety, risk or well-being issue

PARTICULARS 3

The first defendant is vicariously liable for the above potions of their respective officers. As a result of the above actions of the first defendant the first and second plaintiffs have suffered loss and damage as particularised in Particulars - injuries, losses and damages.

34. The conduct of the officers of the first defendant caused and continue to cause pain, suffering and worries to the first and second plaintiffs and damage to the health to the second plaintiff. The second plaintiff as a result of the above misconduct of the officers of the first defendant developed a heart condition.

35. The first plaintiff claims from the first defendant damages, aggravated damages, exemplary damages, interest and costs.

36. The second plaintiff claims from the first defendant damages, aggravated damages, exemplary damages, future medical expenses, interest and costs.

PARTICULARS - INJURIES, LOSSES AND DAMAGES
PARTICULARS OF DAMAGES

The conduct of the officers of the first defendant caused:

a) the first and second plaintiffs be abused, oppressed, damaged and traumatised and consequently to suffer mental and nervous shocks, damaging the first plaintiff health and substantially damaging the second plaintiff health

b) the child to be abused, oppressed, damaged and traumatised and consequently to suffer mental and nervous shocks, damaging the first plaintiff health and substantially damaging the second plaintiff health

c) permanent separation of the first and second plaintiffs from the child, to whom child the first and second plaintiffs were carers, damaging the first plaintiff health and substantially damaging the second plaintiffs health

PARTICULARS OF INJURIES

PARTICULARS OF LOSSES

The conduct of the officers of the first defendant caused the first plaintiff to lose his enjoyment of life.

PARTICULARS OF DISABILITIES

PARTICULARS OF AGGRAVATED DAMAGES

PARTICULARS OF EXEMPLARY DAMAGES

In the removal of the child the first defendant acted with a conscious and contumelious disregard for the welfare and rights of the first and second plaintiff and the child or with a wanton cruel and reckless Indifference to the first and second plaintiff and the child's welfare and rights, thereby causing substantial distress to the first and second plaintiffs, humiliation and injury to their feelings, and the first and second plaintiffs are entitled to exemplary damages.

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15 The Plaintiffs then filed an Amended Statement of Claim on 5 June 2001 but from a pleading point of view it was in identical terms to the original Statement of Claim.

16 On 15 May 2001 the Commonwealth filed a Notice of Motion to strike out the Amended Statement of Claim pursuant to Pt 15 Rule 26 Supreme Court Rules and/or pursuant to Pt 13 Rule 5 SCR. That Notice of Motion was heard by Master Harrison (as her Honour then was), and in a judgment on 28 June 2001 (Markisic & Anor v Commonwealth [2001] NSWSC 533) she ordered that the Statement of Claims and the proceedings be dismissed on the grounds that the claims were hopeless and that they were an abuse of process.

17 The Plaintiffs appealed and the appeal came before Bell J (as her Honour then was in this Court). Her Honour partly upheld the appeal (Markisic & Anor v Commonwealth of Australia [2002] NSWSC 698) saying:

18 What her Honour did was to allow the appeal and to strike out the Amended Statement of Claim but she then made this order:

[46] … (3) Grant the plaintiffs leave to file a further amended statement of claim within twenty-eight days of today’s date limited to their claims arising out of the actions of members of the AFP in trespass and, with respect to the second plaintiff, in false imprisonment, assault and negligence.

19 Apparently pursuant to that order the Plaintiffs filed a Further Amended Statement of Claim on 24 September 2002 in which they again pleaded that the child was taken by 3 members of the AFP. There was no mention in this pleading about the Family Court proceedings. It was asserted that the warrant produced by the AFP was a false one and that the child was taken to a place unknown to the Plaintiffs and members of the family.

20 The Commonwealth filed a Motion on 7 February 2007 to strike out parts of the Further Amended Statement of Claim, it would seem on the basis that the pleading went beyond what Bell J permitted in her order. That Notice of Motion was heard by Patten AJ who delivered judgment on 9 March 2007 (Oliver Markisic & Anor v Commonwealth of Australia [2007] NSWSC 201) striking out those parts of the Statement of Claim which the Commonwealth said should be struck out. The actual order made by Patten AJ was Order 2 as follows:

Order as asked in paragraph 1 of Defendant’s Notice of Motion, filed in court 7 February 2007.

1. That the Statement of Claim entitled Further Amended Statement of Claim filed on 24 September 2002 be struck out in part as indicated in the attachment annexed to this Notice of Motion and marked “A”.

21 On 28 May 2008 Registrar Bradford ordered the re-engrossment of the Statement of Claim as altered by Patten AJ’s judgment.

22 On 18 July 2008 the Plaintiffs filed in the Registry a document entitled Further Further Amended Statement of Claim. The document was not simply a re-engrossing of the Statement of Claim as amended by Patten AJ but was a complete re-pleading of claims by the Plaintiffs. The document is a significant one for the issues that arose on the Notices of Motion before me and it is necessary to set it out in its entirety. It pleads the claims in this way:

RELIEF CLAIMED

The both Plaintiffs claim from the Defendant damages, aggravated damages, exemplary damages, future medical expenses, interest and costs

PLEADING AND PARTICULARS

The both Plaintiffs rely on the following facts and assertions

1. At all material times the Defendant is liable to be sued in its own name under section 56 of the Judiciary Act.

2. Defendant is vicariously liable for the torts done by its servants and agents as a joint tortfeasor.

3. First Plaintiff and Mr Dragan Markisic, father of the child Elena Markisic born 03 05 1997 (herein after referred to as the "father" and "child" respectively), are brothers and both are sons of the Second Plaintiff. The Second Plaintiff at the material time was 64 years old.

4. First and Second Plaintiffs at the material time lived in their rented house and the land at 17 Edward Street Arncliffe, NSW, 2205, jointly since 1997. At the material time the father and the child lived in the same house with the First and Second Plaintiffs.

5.

At the material time the First and Second Plaintiff had care, control, custody, parental responsibilities and all other powers under the law towards the child The First Plaintiff was master of the household.

6. At all the material time the First Plaintiff and the father were software developers. At the beginning of 1995 they commenced developing a Point of Sale System consisting of Point of Sale software ("InterPOS"), a computer system and point of sale equipment. In the beginning of 1996 they as partners registered a business name 'Markisoft International". The main business of Markisoft International" was production and sale of business oriented integrated computer systems and Point of sale systems.

7.

From second part of 1997 the First Plaintiff was running the business from his office located at his home in Arncliffe. In the period from April 1998 the First Plaintiff and the father were engaged with further development of the system and preparation of the system for the introduction from 01 07 2000 of GST (the new tax system in Australia).

8. 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.

9. On 29.09.1998 early in the morning the First Plaintiff and the father left their home to attend the hearing of the father's appeal at the Full Court of the Family Court of Australia (herein after referred to as "Full Court"). They left the child in the custody and care of the Second Plaintiff.

10. The above appeal was an appeal from a fabricated decision, fabricated by the organisers and some other certain Commonwealth's public officers and its agents and after that sent to the father as if issued by the court. They fabricated the said decision to enable them to (unlawfully) gain possession and control of the child from the possession and custody of the child by the Plaintiffs.

11. During the hearing of the above appeal the organisers with the assistance of certain Commonwealth's public officers and agents fabricated another two documents: orders in relation to the arrest and possession of the child ("possession orders") and orders for care of the child ("care orders"). The organisers fabricated the said orders as if issued by the Full Court with a purpose to enable them to (unlawfully) enter the Plaintiffs' land and house and gain possession and control of the child from the possession and custody by the Plaintiffs.

12. The organisers gave the "possession orders" to a group of men (herein after referred to as "executors"). They advised the executors that the said documents are false. They ordered them to raid the Plaintiffs' home, to present themselves as the Australian Federal Police, to present the "possession orders" as a warrant of the Full Court, to enter the Plaintiffs' land and house and to abduct the child from the Plaintiffs by deceit and by use of force.

13. The organisers, executors and the Commonwealth's public officers and agents who assisted them are herein after referred to as "abductors".

14. The organisers are jointly and severally liable with the executors, the Commonwealth's public officers and agents for all unlawful acts and/or omissions they have done towards the Plaintiffs and the child as causing them directly or indirectly.

15. On 29 09 1998, at or about 14.30h the executors raided the Plaintiffs home. The First Plaintiff and the father were not yet returned home.

16. The executors behaved at the front of the house aggressively and violently. They rang on the door and told to the occupants that they are the Australian Federal Police. They presented a paper claiming that it was a warrant, presented photos of the father and the child and demanded the child to be handed over to them. They were slamming on the door demanding the door be unlocked and the child be given to them threatening to break the door and take the child by force.

17. The Second Plaintiff believed, as been so deceived by the executors, that they are police but she did not permit them to enter the house. The Second Plaintiff in fear from the executors' threats and in order to save the child from any harm has shown the child through the fly screen door the executors to see the child and to see that there is no matter of seriousness or urgency in regards to the child.

18. Upon seeing the executors at the door, upon hearing that they demanded hand over of the child, upon hearing that they made threats that they will break the door, upon hearing that they had made threats that they will take the child by force, and upon seeing and hearing their aggressive and violent conduct at the front door the Second Plaintiff suffered nervous shock.

19.

Because of the threats the door's lock was unlocked and the executors pushed the door open and entered the house. Two of them executors entered the house and then the room where the Second Plaintiff was with the child and one stayed outside to prevent anyone from leaving or entering the house.

20. At the time the executors knew that they do not posses a judicial warrant to enter the Plaintiffs land and house and to take possession of the child but despite that they unlawfully entered the Plaintiffs' land and house and committed trespass. The organisers who have sent and directed the executors to enter the Plaintiffs' land and house trespassed the Plaintiffs' land and house as well. By entering the house and one staying at the front door to prevent entry or exit of any other person, the executors also wrongfully arrested and imprisoned the Second Plaintiff and the child and trespassed the Second Plaintiff and the child.

21. The executors continued with their aggressive and violent conduct inside the house They were demanding the hand out of the child and making threats of using force and charging and prosecuting the occupants for obstructing the police The violent conduct of the executors frightened the Second Plaintiff and the child who started to cry and scream which aggravated the Second Plaintiff's mental condition

22. The Second Plaintiff told the executors, and also demonstrated that with her behaviour, to the effect that they are not welcome in her house and that she is not handing out the child to them.

23. The Second Plaintiff being traumatised by the inconsiderate conduct of the executors and in need of help to save the child from incoming harm rang her third son Neven to come. In about 10 to 15 minutes after her call Neven arrived with his then 8-year old son Mario.

24. The executors ordered to the Second Plaintiff to sit on the sofa and not to move away from the sofa. With the above act the executors wrongfully arrested and imprisoned the Second Plaintiff and the child and trespassed the Second Plaintiff and the child. The above act aggravated the Second Plaintiff's mental condition.

25. While the Second Plaintiff was sitting on the sofa with the child in her arms the executors twice physically attacked her and the child attempting by force to take the child from her hands. The child in fear was running away from the executors, screaming and holding harder into the Second Plaintiff. With the above act the executors committed assault and battery of the Second Plaintiff and the child and trespassed them. The above act aggravated the Second Plaintiff's mental condition.

26. When the Second Plaintiff tried to ring the First Plaintiff on his mobile phone one of the executors physically attacked her and the child again. He stormed towards her, pulled out the phone handset from her hands, thrusting her and ripping the phone cord line. As a result of thrusting the Second Plaintiff lost her balance while still holding the child in the other hand. With the above act the executors committed assault and battery of the Second Plaintiff and the child. The above act aggravated the Second Plaintiff's mental condition.

27. When the Second Plaintiff asked the executors for permission to be allowed to go with the child in another room to change its nappies the executors first declined it but upon insistence of other occupants they allowed it. Upon returning the Second Plaintiff was again ordered to sit on the sofa and not to move from there. With the above act the executors again wrongfully arrested and imprisoned the Second Plaintiff and the child and trespassed the Second Plaintiff and the child. The above act aggravated the Second Plaintiff's mental condition.

28. The child's condition of fear and constant cry and screaming further aggravated the Second Plaintiffs mental condition. The Second Plaintiff suffered from uncertainty and anxiety in relation to the child, her family and herself which further aggravated her mental condition.

29. After approximately one hour from their unlawful entry the executors decided not to wait any longer and to take the child immediately by force. They physically attacked the Second Plaintiff and the child. One by force twisted the Second Plaintiff's arms at her back while another seized the child from her breasts. With the above act the executors committed assault and battery of the Second Plaintiff and the child. After obtaining the physical possession of the child from the Plaintiffs' possession and custody the executors run out of the house with the child through the narrow corridors of the house with many doorsteps slamming the doors on the way out.

30. At the moment of twisting and holding the Second Plaintiff's arms the executors wrongfully arrested and imprisoned the Second Plaintiff. At the moment they took the child in their hands from the Second Plaintiff they wrongfully arrested and imprisoned the child. With the above acts the executors trespassed the Second Plaintiff and the child. By using unlawful force and unlawfully obtaining possession, custody and control of the child the executors abducted the child from the Plaintiffs custody and house.

31. Upon suffering the above assault and battery; upon seeing the executors assaulting and battering the child at front of her; upon realizing that the executors took the child from her and upon seeing the executors running out of the house with the child in their hands, through narrow corridors with many doorsteps in the house, slamming the doors on the way out, the Second Plaintiff suffered another nervous shock.

32. All three above nervous shocks suffered by the Second Plaintiff and described in preceding paragraphs were caused by unlawful acts committed by the executors and organisers. They had an intention to produce a harm to the Second Plaintiff with the result of their particular act or omission as described above or they were recklessly indifferent as to the risk that the particular act or omission could inflict nervous shock and could produce a harm to the Second Plaintiff which could result from their act or omission.

33. Consequently to the above unlawful acts or omissions as described in the paragraphs above resultant nervous shocks and further impacts on the nervous system together with condition of uncertainty and anxiety were sustained directly by the Second Plaintiff and the Second Plaintiff suffered recognised psychiatric injury and illness flowing directly from such nervous shocks, other impacts on the nervous system and the uncertainty and anxiety.

34. During the above assault and battery the executors ripped off one of the child's ear rings. The child now cried and screamed more loudly, frightened from the executors and from the physical pain, which further aggravated the Second Plaintiffs mental condition.

35. The Second Plaintiff, Neven and Mario in panic and shock ran after the executors out of the house, crying, screaming and begging them not to take the child away.

36. The Second Plaintiff asked the executors to permit her to kiss her grand-daughter for the last time but they denied it. The executors put the child in a baby seat in their car, fasten the seat belt around her while the child cried and screamed. The above acts further aggravated the Second Plaintiff's mental condition.

37. The executors left the scene very fast taking the child with them to an unknown destination. The child was taken in a condition of nervous shock, crying, screaming and very lightly dressed, without one shoe, hungry, without any food. The Second Plaintiff was left without her grand-daughter, devastated, traumatised, in panic, fear, cry, anguish and worries, in physical and emotional suffering. Because of the above the Second Plaintiff suffered from uncertainty and anxiety in relation to the child, her family and herself which further aggravated her mental condition.

38. The executors delivered the child to the organisers at an unknown destination and handed out the child into their possession, custody and control. The organisers by unlawfully obtaining possession, custody and control of the child from the executors continued with the abduction of the child from the Plaintiffs custody and home.

39. The same day at or about 4.30pm the First Plaintiff received a phone call from his home from his family members. They through cry explained to him what happened in his house that afternoon while he was absent. Upon hearing that the executors entered his house by force; upon hearing that they assaulted and battered the Second Plaintiff and the child; upon hearing that they seized the child by force and upon hearing that they took the child to an unknown destination the First Plaintiff suffered trauma and nervous shock.

40. On a way to his home the First Plaintiff suffered from uncertainty and anxiety in relation to the child, his family and himself which further aggravated his mental condition.

41. At or about 5.30pm the First Plaintiff and the father returned home. The First Plaintiff found the whole family traumatised, mentally distressed, in shock, panic and dismay. They all through cry explained to him what happened that afternoon while he was absent. Upon not finding the child at his home; upon hearing how the child and the Second Plaintiff were assaulted battered and abused by the executors; upon hearing how the child was seized by force, upon hearing that the child was taken to unknown destination and in a condition as explained above; upon seeing the traumatic condition of his family and how deeply his whole family was traumatised and in particular how distressed was the Second Plaintiff as a result of the mistreatment by the executors the First Plaintiff suffered another nervous shock.

42.

The above two nervous shocks described in preceding paragraphs were caused by unlawful acts of the organisers and the executors as described above. They had an intention to produce such harm to the First Plaintiff with the result of their particular act or omission or they were recklessly indifferent as to the risk that their particular act or omission will inflict nervous shock to the First Plaintiff and could produce a harm to the First Plaintiff which could result from their act or omission.

43. Consequently to the above unlawful acts or omissions as described in the paragraphs above resultant nervous shocks and further impacts on the nervous system together with condition of uncertainty and anxiety were sustained directly by the First Plaintiff and the First Plaintiff suffered recognised psychiatric injury and illness flowing directly from such nervous shocks, other impacts on the nervous system and the uncertainty and anxiety.

44. During the following hours the both Plaintiffs were suffering from uncertainty and anxiety not knowing the whereabouts and well-being of the child and fearing that the child somewhere suffers being traumatised further assaulted and abused, which further aggravated their mental condition. The Second Plaintiff took tranquillising pills to get her through the night and through the following days.

45. When the executors committed the above acts of wrongful arrest, imprisonment, assault, battery and abduction towards the child as described in preceding paragraphs they unlawfully interfered with the domestic relations between the First Plaintiff and the child and interfered with the future performance of services of the child for the First Plaintiff causing loss of service to the First Plaintiff from the child.

46. When the executors committed acts of wrongful arrest, imprisonment, assault and battery towards the Second Plaintiff as described in preceding paragraphs they unlawfully interfered with the domestic relations between the First Plaintiff and the Second Plaintiff and interfered with the performance of services of the Second Plaintiff for the First Plaintiff causing loss of service to the First Plaintiff from the Second Plaintiff.

47. When the executors committed acts of wrongful arrest, imprisonment, assault battery and abduction towards the child as described in preceding paragraphs they unlawfully interfered with the domestic relations between the Second Plaintiff and the child and interfered with the future performance of services of the child for the Second Plaintiff causing loss of service to the Second Plaintiff from the child.

48.

When the First Plaintiff returned home he found a paper with the "possession orders" left by the executors. The First Plaintiff had no prior knowledge of the existence and content of that paper.

49 The abductors kept the child in wrongful imprisonment and harbouring. For about 10 days the organisers had actual possession and control of the child. They permitted the Plaintiffs to have about three supervised visit to the child, an hour each visit.

50. The organisers directed the Commonwealth's public officers and agents who were assisting that when coming into contact with the Plaintiffs they not to disclose any information of the whereabouts of the child and to deceive the Plaintiffs by falsely presenting to them as if the child is in the care of the DOCS of NSW. To further support the above deceit the organisers were organizing contact with the child through the DOCS where at the contact one woman was bringing the child at the DOCS's premises falsely presenting herself as if she is the child's foster carer.

51. The abductors by keeping the child in wrongful imprisonment breached the law, breached their statutory duties and obligations and common law duties of care towards the Plaintiffs and the child, interfered with the domestic relations of the Plaintiffs, trespassed the child, unlawfully deprived the Plaintiffs of the custody of the child and consequently caused to the Plaintiffs losses and damages as set herein below.

52. On the first visit the Plaintiffs found the child in great degree of trauma, depression and anxiety, mentally distressed, hungry, thirsty, distant and under the influence of illicit drugs. The child did not recognise the Plaintiffs. The mouth of the child was stinking of acetone as a result of malnourishment. The child was unstable, loosing balance and was very weak on it's legs. The child appeared as being lost a lot of weight for just of few days in imprisonment. The child had marks and scratches on her body. The child behaved disoriented, distraught, running from one to other end of the room, hitting her head against the wall crying, screaming and trying to find a way out to escape from abuse, scratching and fighting around. The Plaintiffs feared that the child's life will end up in the imprisonment.

53. Upon witnessing the above described child's condition the both Plaintiffs suffered nervous chock and they still suffer from that trauma.

54. The above nervous shock was caused by unlawful acts committed by the abductors. They had an intention to produce harm to the Plaintiffs with the result of their particular act or omission as described above or they were recklessly indifferent as to the risk that their particular act or omission will inflict nervous shock to the Plaintiffs and could produce harm to the Plaintiffs which could result from their act or omission.

55. Consequently to the above unlawful acts or omissions as described in the paragraphs above resultant nervous shocks and further impacts on the nervous system together with condition of uncertainty and anxiety were sustained directly by the Plaintiffs and the Plaintiffs suffered recognised psychiatric injury and illness flowing directly from such nervous shocks other impacts on the nervous system and the uncertainty and anxiety.

56. During the child's wrongful imprisonment the organisers have dealt with the child with cruelty and heartlessness. The child was not provided with reasonable care and living conditions as: it was physically and mentally abused and neglected, it was not provided with adequate food and drinks, it was not allowed to sleep, urinate or defecate. The child was dressed inappropriate for her age (for two year old girl) and was intentionally dressed by organisers to look older and provocative.

57. During the child's wrongful imprisonment the Plaintiffs were also subjected to mental suffering witnessing on each visit that the child's condition was the same as explained above and witnessing the results of the child's assault, physical and mental abuse and neglect. The Plaintiffs suffered from uncertainty and anxiety in relation to the child's well-being which further aggravated their mental condition.

58. On 09.10.1998 it was the last visit to the child. In the period immediately after 09.10.1998 (before 12.10.1998) the child vanished. The organisers directed the Commonwealth's public officers and agents who assisted them that when coming into contact with the Plaintiffs they not to disclose any information in relation to the whereabouts of the child.

59. Upon realising that the child vanished forever; upon realising that the child was permanently removed from the Plaintiffs' custody, control and life; upon realising that the child stayed permanently in mercy of her abusers in such poor condition without any protection of the Plaintiffs the Plaintiffs suffered nervous shock.

60. The above nervous shock was caused by unlawful acts of the abductors as described above. They had an intention to produce a harm to the Plaintiffs with the result of their particular act or omission or they were recklessly indifferent as to the risk that their particular act or omission will inflict nervous shock to the Plaintiffs and could produce a harm to the Plaintiffs which could result from their act or omission.

61. Consequently to the above unlawful acts or omissions as described in the paragraphs above resultant nervous shocks and further impacts on the nervous system together with condition of uncertainty and anxiety were sustained directly by the Plaintiffs and the Plaintiffs suffered recognised psychiatric injury and illness flowing directly from such nervous shocks, other impacts on the nervous system and the uncertainty and anxiety.

62. From 09.10.1998 the First Plaintiff never again saw the child. For years the Plaintiffs feared that the child either died in detention or was given for adoption somewhere in Australia for the Plaintiffs to never find her.

63. In the period immediately after 09.10.1998 (before 12.10.1998) the abductors took the child out of Australia in secrecy on one of Commonwealth Government's vessel. The child was transported out of Australia without company of any of her relatives. The child was deported and exiled from Australia and the State of NSW regardless of her Australian citizenship. The abductors did not have lawful justification to take the child out of Australia.

64. The child was taken out of Australia in breach of provisions of the Family Law Act which prohibited the child be taken out of Australia at the middle of instituted custody proceedings. The persons involved in the taking of the child out of Australia failed to discharge their statutory obligations as imposed by s.65Z of the Family law Act 1975 which applied after the father instituted in the Family Court custody proceedings.

65. From 09.09.1998 till today the Plaintiffs are in constant grief, pain and worries for the child. The Plaintiffs suffer from uncertainty and anxiety in relation to the child's well-being and whereabouts, in relation to their family and themselves which further aggravated their mental condition.

66. From 29.09.1998, the First Plaintiff and the father, as result of the unlawful acts committed by the abductors as described in all preceding paragraphs, became unfit to work in their profession. They became unable, adequately or at all, to attend to the software development of "InterPOS" and to run the business of "Markisoft International". As a consequence, their business, which relied on both of them, failed to establish in the retail market and capture the expected market share in the promising new economic opportunity climate, ceased to operate and consequently caused to the Plaintiffs injuries, losses and damages as particularised hereinafter.

67. The unlawful acts or omissions, as described in all above paragraphs, were committed by the abductors (organisers, executors and Commonwealth's public officers and agents who assisted them) in misfeasance in public office. When committing the said acts the public officers and their agents abused their power given to them by statute.

68. The public officers and their agents committed the above mentioned acts or omissions maliciously, with intent to oppress and to cause harm or they performed them in negligence or in reckless indifference as to the Plaintiffs' and the child's welfare and rights. Furthermore at the time of committing the said unlawful acts the public officers and their agents had knowledge of the illegality of their particular act or omission or they were recklessly indifferent as to the illegality.

69. In performing the said illegal acts and/or omissions the public officers and their agents acted in bad faith toward the Plaintiffs and the child. They knew or must have known that their particular act or omission could probably injure the Plaintiffs and/or the child or they were recklessly indifferent as to the risk of injury to the Plaintiffs and the child and as to the probability of damage or loss to the Plaintiffs.

70. As a consequence of their misfeasance the Commonwealth's public office and agents committed various torts and other wrongdoings as referred to in all above paragraphs and consequently caused to the Plaintiffs injuries, losses and damages as particularised hereinafter.

71. The both Plaintiffs as a result of all above unlawful and/or negligent acts or omissions of the abductors as described in all preceding paragraphs developed heart condition. In 2000 it was performed a surgery of coronary angioplasty on the Second Plaintiff's heart at St George Hospital Kogarah, NSW. In 2008 the First Plaintiff suffered a heart attack and it was performed a surgery of coronary angioplasty on the his heart at St George Hospital Kogarah, NSW.

72.

On 29.09.1998 the abductors (executors, presenting themselves and behaving as if police) unlawfully caused damage to the Plaintiffs' reputation when the neighbours witnessed the executors:

a) came to the Plaintiffs' house

b) forcefully entered the Plaintiffs' house

c) blocked the entry to the house

d) ran out of the house with the child in their hands

e) left the scene fast with the child in their car and the child being in condition of nervous shock

and caused the neighbours to think less of the Plaintiffs i.e.

i) that the Plaintiffs are criminals

ii) that the Plaintiffs are abusive or neglective carers of the child such that the child's life is endangered if the child is not removed immediately

iii) that the Plaintiffs are bad relatives of the child such that the child's life is endangered if the child is not removed immediately

73.

The abductors (executors, presenting themselves and behaving as if police) unlawfully caused damage to the Plaintiffs' reputation when the community learned about the coming of the executors to the Plaintiffs house, forceful entry into the Plaintiffs' house, blocking of the Plaintiffs' house and forceful taking of the child from the Plaintiffs' custody and house and taking the child with them and caused the members of the community to think less of the Plaintiffs i.e.

i) that the Plaintiffs are criminals

ii) that the Plaintiffs are abusive or neglective carers of the child such that the child's life is endangered if the child is not removed immediately

iii) that the Plaintiffs are bad relatives of the child such that the child's life is endangered if the child is not removed immediately.

74. The abductors caused to the both Plaintiffs losses and damages as particularised in Particulars - injuries, losses and damages.

75.

The both Plaintiffs claim from the Defendant damages, aggravated damages, exemplary damages, future medical expenses, interest and costs.

PARTICULARS - INJURIES, LOSSES AND DAMAGES
PARTICULARS OF INJURIES

PARTICULARS OF LOSSES

PARTICULARS OF DISABILITIES

PARTICULARS OF AGGRAVATED DAMAGES

79. In relation to the aggravated damages the Plaintiffs rely upon the matters and facts alleged in all of the preceding paragraphs.

a) the abductors acted in all of the above preceding paragraphs with a conscious and contumelious disregard for the Plaintiffs' and the child's welfare and rights or with a wanton cruel and reckless indifference to the Plaintiffs' and the child's welfare and rights which consequently caused to the Plaintiffs damage to their health, substantial distress, humiliation and injury to their feelings

b) the abductors took the child to some undisclosed destination and then out of Australia causing to the Plaintiffs to be permanently separated from the child which caused to the Plaintiffs substantial distress, humiliation and injury to their feelings

c) the Commonwealth never investigated the allegations and circumstances of the child abduction from the Plaintiffs custody and home, unlawful imprisonment of the child, the allegations of physical, sexual and mental abuse and neglect of the child, the allegations of mental abuse of the Plaintiffs, allegations of unlawful deportation of the child from Australia etc.

d) the Commonwealth never disclosed any official information on well-being and whereabouts of the child and never expressed any apology, retraction or compassion towards the Plaintiffs

e) the Commonwealth failed to provide any counselling to the Plaintiffs

f) the Commonwealth caused long term pain (the Plaintiffs' lifetime), suffering and worries from the mental and physical harm inflicted upon them and the child by unlawful acts and misconduct of its public officers and agents

g) substantial number of the Commonwealth's public officers and agents involved in the committal of unlawful acts towards the Plaintiffs and the child were persons of legal profession who were supposed to uphold and respect the law and to respect the Plaintiffs' and the child's rights and freedoms

h) the Commonwealth acted during these court proceedings with a conscious and contumelious disregard for the Plaintiffs' and the child's welfare and rights or with reckless indifference as to the Plaintiffs and the child's welfare and rights despite being aware of the Plaintiffs' damaged health consequently causing to the Plaintiffs further mental distress, humiliation and injury to their feelings which all of it resulted in further damage to the Plaintiffs' health

PARTICULARS OF EXEMPLARY DAMAGES

81. In relation to the exemplary damages the Plaintiffs rely upon the matters and facts alleged in the preceding paragraphs.

8. We put you on notice that, if we do not receive the re-engrossed Statement of Claim by 2:00pm on Wednesday 23 July 2008, we shall file a Notice of Motion seeking an order that the proceedings be dismissed for want of prosecution with costs. We shall also seek special orders as to the cost of the Notice of Motion, the costs thrown away and we shall seek an order that the proceedings be stayed pending the satisfaction of costs orders.

9. We specifically draw your attention to Markisic v Department of Community Services (2006) NSWCA 106 and to various orders made in Supreme Court proceedings number 20286 of 2004 by Justice Latham and Justice Nicholas and the unsuccessful application for leave to appeal heard by the Court of Appeal on 6 July 2007.

2:00pm on 23 July 2008.

158 The matter came back before Registrar Bradford on 24 July 2008. The Registrar ascertained that the Plaintiffs had not filed a Statement of Claim in accordance with the amendments made by Patten AJ. The Registrar gave leave to the Commonwealth to file a Notice of Motion and supporting affidavit which it proceeded to do. That Notice of Motion, the amended form of which I am now dealing with, sought the orders now sought except for the orders restraining the Plaintiffs from filing or making further applications in the proceedings. In particular, the Motions sought that the proceedings be dismissed for want of prosecution and that the Plaintiffs should pay the costs thrown away by reason of the non-compliance with the Courts orders. The Notice of Motion sought that the costs be assessed and payable in the sums of $8000 and $13,000 as in the present Amended Notice of Motion.

159 Despite what the Registrar said on 24 July 2008 and despite the filing of the Commonwealth’s Notice of Motion the Plaintiffs did not comply with the Registrar’s order until 23 July 2009.

160 In the meantime, they filed their Motion on 25 July 2008 which sought orders in relation to the Further Further Amended Statement of Claim that they wished to proceed on. Why it took from 25 July 2008 until 19 October 2009 for the Motion to be brought on for hearing was not explained. However, it is apparent that the hearing before Hislop J in respect of which he delivered his judgment of 24 April 2009 was at least part of the reason for that. It will be recalled that Hislop J dealt with an application to issue 23 subpoenas to witnesses to attend to give evidence at the hearing of one of the orders in that Notice of Motion being the order to set aside the judgment of Patten AJ of 1 March 2007. The setting aside of that judgment was (as was made clear before me and is apparent from Hislop J’s judgment) a preliminary aspect to the Plaintiffs’ request to file the Further Further Amended Statement of Claim.

161 Nevertheless, the fact remains that the Plaintiffs failed to comply with the order of Registrar Bradford made 28 May 2008 until 23 July 2009. In addition, they did nothing to advance the prosecution of the proceedings from the date of Patten AJ’s judgment on 9 March 2007, although it can be accepted that they sought leave to appeal against Patten AJ’s judgment.

162 There can be no doubt about the appropriateness of the Commonwealth having filed its Notice of Motion on 24 July 2008 when there had been no compliance with the order of Registrar Bradford of 28 May 2008 and his subsequent order of 11 July 2008 extending the time for compliance with the earlier order. Moreover, it is clear from a perusal of the transcripts of 28 May, 11 July and particularly 24 July 2008 that the Plaintiffs did not intend to comply with Registrar Bradford’s orders because they were fixated on the new case that they wished to bring set out in the Further Further Amended Statement of Claim. The Plaintiffs’ Motion of 25 July 2008 and the application before Hislop J is further clear evidence of this.

163 In addition, the Plaintiffs were put on clear notice by the letter from the AGS of 22 July 2008 that if they did not serve the re-engrossed Statement of Claim by a further deadline nominated by the Commonwealth (a deadline beyond the last expiry date that Registrar Bradford had allowed) a Notice of Motion would be filed seeking the orders that it ultimately did.

164 Further, to put the matter beyond any doubt, the AGS drew attention to 4 decisions with which the Plaintiffs would have been very familiar being other proceedings commenced by the Plaintiffs and/or members of their family in respect of the same events. Two of these judgments, being Dragan Markisic & Anor v USA and Anor (unreported, Latham J, 19 September 2006) and (unreported, Nicholas J, 12 December 2006) concerned situations where the AGS had written to the Plaintiffs noting that they were obliged to comply with some order or direction and threatening that if they did not do so costs orders would be sought including orders that costs be paid forthwith. In both cases those Judges assessed a lump sum for the costs and ordered them to be paid forthwith. In doing so, they followed the approach of the Court of Appeal in Markisic v Department of Community Services of NSW & Ors [2006] NSWCA 106.

165 Mr Robinson informed me that in the matters before Latham J and Nicholas J both those Judges had evidence from Gregory Kathner, the Solicitor of the AGS who is the Team Leader of the Civil Litigation Team having overall responsibility for the cases brought by the Plaintiffs against the Commonwealth. I similarly have evidence from Mr Kathner estimating the costs of the Commonwealth but this evidence was objected to by the Plaintiffs on the basis that it should not be admitted unless they were permitted to cross-examine Mr Kathner. I gave reasons in 2 interlocutory judgments delivered on 29 October 2009 for not permitting the Plaintiffs to cross-examine Mr Kathner. These included the fact that he was absent overseas on a holiday that had long been arranged before the Motions were fixed for hearing before me. Those reasons also relied on the fact that, in the absence of the Plaintiffs having any specialised knowledge of legal costs and having no contrary evidence about those costs, there could be no sensible or meaningful cross-examination about those costs by them.

166 However, it is apparent from a reading of the judgment of Markisic in the Court of Appeal that it is not necessary for specific evidence to be given because the Court itself is regarded as having sufficient knowledge to be able to make an assessment.

167 Mr Kathner’s affidavit says that the total costs thrown away by the Commonwealth as a result of the Plaintiffs’ failure to comply with orders made by Registrar Bradford in relation to the Statement of Claim would be not less than $8000. He summarises the work that was involved leading to that assessment.

168 He further gives evidence that the additional costs incurred by the Commonwealth in bringing a Notice of Motion seeking the orders that it does would not be less than $5000.

169 In my opinion, it is appropriate to make a costs order in favour of the Commonwealth by reason of the failure of the Plaintiffs to comply with the orders of Registrar Bradford. In my opinion, those costs, in part, will be inextricably linked with the costs of the Notice of Motion. The Commonwealth was forced into the position of having to file a Notice of Motion in an endeavour to secure compliance with Registrar Bradford’s orders. The Plaintiffs were put on clear notice that their failure to comply was likely to result in the filing of the Notice of Motion together with costs being sort. In the light of the decisions of Latham J, Nicholas J and the Court of Appeal, they could scarcely have been in any doubt that a failure to comply was likely to result in costs orders and that those costs orders were likely to be ordered to be payable forthwith and that the proceedings were likely to be stayed until that had been done.

170 An examination of the 3 judgments concerned shows that the Court has in each case assessed the costs in a relatively modest sum. I do not have evidence of what figures were put to the Court in each case whether by way of the evidence of Mr Kathner or (in the case of the Court of Appeal) in statements from the bar table. Because of the summary nature of the assessment I consider that I should err in relation to any uncertainty in favour of the Plaintiffs. It would also be unrealistic of me not to take into consideration the fact that it is most unlikely that anything but a small portion of any costs assessed will ever be paid by the Plaintiffs.

171 In relation to the costs thrown away by reason of the failure of the Plaintiffs to comply with the orders of Registrar Bradford (and excluding the costs of the present Notice of Motion brought by the Commonwealth) I would assess the costs payable in the sum of $3000.

172 In relation to the Notice of Motion it seems to me appropriate to assess the costs bearing in mind that the Commonwealth should be entitled to an order for indemnity costs on the Motion. The behaviour of the Plaintiffs in not complying with orders of Registrar Bradford made on 2 separate occasions was conduct of an unreasonable kind and demonstrates the sort of relevant delinquency in the conduct of the proceedings referred to in Oshlack v Richmond River Council (1998) 193 CLR 72 at [44]; see also Mead v Watson [2005] NSWCA 133 at [8] - [10].

173 The Commonwealth gave the Plaintiffs the further opportunity to comply with the orders and made it clear that if they did not a Notice of Motion would be filed with the costs consequences identified in the letter. In those circumstances I consider it appropriate to assess the costs of the Notice of Motion to be payable by the Plaintiffs at $5000.

174 The next question that arises is what part each such amount should be ordered to be paid forthwith failing which there will be a stay of proceedings. The Court of Appeal in Markisic at [20] made it clear that it would not be a proper exercise of discretion to order the whole of sums such as I have assessed to be paid forthwith where it is clear that the Plaintiffs are impecunious. Giles JA said:

[I]t seems to me that the Court should not do nothing, but should at least mark the necessity for acting “carefully in a measured way” by requiring payment forthwith of a sum which, while not stultifying the proceedings, will at least ensure that the claimant does not continue with the proceedings on the basis that, as an impecunious person, costs are not a factor in his consideration.

175 The Court of Appeal went on to order payment of a sum of $250 to each of the 3 opponents.

176 In the Motion before Latham J she required payment of the sum of $2000 forthwith failing which a stay would be granted.

177 In the matter before Nicholas J he required payment of the sum of $1000 to each of the Defendants.

178 But for the order I intend to make permanently staying the proceedings generally (discussed in the next section of this judgment) I would have considered it appropriate to order that of the sums assessed by me the Plaintiffs should pay the sum of $1500 forthwith failing which the proceedings would be stayed until such payment.

179 The other matter for consideration on the Commonwealth Motion is the request that the Plaintiffs be restrained from making any further applications in any form without the leave of a judge of the Court. I consider it appropriate to make this order. I can briefly state my reasons without encumbering this judgment with a full history of all interlocutory applications made by the Plaintiffs since the proceedings commenced.

180 There have undoubtedly been a vast number of interlocutory applications which have taken up a considerable amount of Court time. The File Enquiry Record of 17 August 2009 contains 28 full pages of the history of the proceedings.

181 As I identified earlier I have been dealing with 5 Motions filed by the Plaintiffs, a number of which seek the same orders as are sought in others.

182 At least since the hearing before Patten AJ in early 2007 the various applications and Notices of Motion filed by the Plaintiffs in substance deal with the changed case they now wish to present, a case which I have found has no evidentiary basis.

183 During the hearing before me the Plaintiffs handed up a further Notice of Motion they wished to proceed on which included an application for subpoenas to be issued to a list of persons that included judges of the Family Court and also Doreen Muirhead who, despite the existence of her death certificate, the Plaintiffs refused to accept was dead. The Notice of Motion also sought to obtain leave to prosecute Ms Wikramanayake for perjury.

184 On the 4^th day of the hearing before me, I was asked to let the Plaintiffs file an application to have Mr Robinson SC punished for contempt of Court and for attempting to pervert the court of justice. This was because he had read affidavit evidence, particularly that of Ms Wikramanayake, that the Plaintiffs consider is false.

185 I refused to permit the Plaintiffs to make these applications.

186 As mentioned earlier, the Plaintiffs made 9 applications during the course of the 8-day hearing for me to disqualify myself, none of which applications had any merit at all. Considerable amounts of time, in particular, were taken up by the applications for disqualification.

187 In related proceedings brought by Dragan Markisic against the Department of Community Services and others, including the Commonwealth (Dragan Markisic v Department of Community Services of NSWand Ors [2007] NSWCA 30) Bryson JA said at [2]:

Wentworth v Graham & Anor

Hillston v Bar-Mordecai

188 Bearing in mind those principles and in the light of the history of the matter I consider that it is appropriate to make the orders that the Commonwealth asks in this regard. What Bryson JA went on to say in paras [30] – [31] of that judgment and what Harrison J said in Markisic v Middletons Lawyers [2007] NSWSC 1147 at [34] is equally applicable in the present proceedings.

189 In my opinion, even though I intend to stay the proceedings generally, I consider it necessary to require the Plaintiffs to seek leave from a judge of the Court before any application is made whether orally or by Notice of Motion.

Abuse of process

190 A further and significant matter for the future of the proceedings is raised by reason of the failure or refusal of the Plaintiffs to verify the existing form of the Statement of Claim in the manner required by the Rules of Court. I raised this issue with Mr Robinson to ascertain if he was seeking a stay of the proceedings based on that failure or refusal but he informed me that he was not.

191 I also raised the issue with the Plaintiffs and they made some submissions on the matter.

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.

194 Although it might be said on behalf of the Plaintiffs in the present proceedings that verification is only required in respect of that part of the Statement of Claim that deals with trespass to the land, the repeated assertions by the Plaintiffs during the hearing of these Notices of Motion that they do not believe in a number of the principal allegations made in the existing Further Amended Statement of Claim and, that they will, in effect, be seeking to prove the opposite of those allegations (namely, that there were no orders of the Family Court, that the AFP were not involved, and that the child was not taken afterwards to DOCS) squarely raises the issue of abuse of process by the Plaintiffs in continuing with the present proceedings.

195 Although the Plaintiffs wished to alter the pleading of the Statement of Claim, for the reasons I have given earlier in this judgment, they produced no evidence of any significance to justify that course. The present form of pleading (the existing Further Amended Statement of Claim set out in para 30 above) is the case the Plaintiffs must prove to succeed in their claim. However, they have made it very clear that they will not attempt to prove the matters set out in that Statement of Claim because they no longer believe that they are true. The case they wish to bring is a case that I have held they are not permitted to bring because it is not based on evidence that should be allowed to go to trial. The position is not in any doubt in this regard, not only because of what the First Plaintiff said in his submissions (set out in para 84 above) but also because of the evidence filed by both Oliver and Dragan Markisic on the present motions. The Plaintiffs made it perfectly clear that that is the case they wish to present at trial.

196 Although the Commonwealth has not asked for a permanent stay there can be no doubt that the Court has the power to act if it is of the opinion that the proceedings constitute an abuse of process. Section 67 provides a statutory power to stay proceedings permanently but, in any event, the Court has an inherent power to control proceedings and such inherent power also extends to staying proceedings permanently on the basis that they are an abuse of process.

197 In Aon Risk Services Australia Ltd the Court was concerned with a late amendment application and the correctness of the High Court’s earlier decision in Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146. JL Holdings had distinguished Sali v SPC Limited (1993) 67 ALJR 841, a case which had emphasised proper principles of case management and how those principles impacted on the way individual proceedings were to be treated in terms of amendment and adjournment. Although JL Holdings did not overrule Sali, the emphasis on case management and the effect of amendments and adjournments on other litigants was certainly considered to have been diminished by the decision in JL Holdings.

198 Whilst the High Court in Aon did not expressly overrule JL Holdings it is made clear that the approach in JL Holdings is not to be at least generally regarded as the approach to be followed. So, for example, the plurality judgment said at [111]:

J L Holdings

199 French CJ quoted with approval passages from the judgment in Sali which emphasised the importance of other litigants and the administration of justice generally. He referred to the joint judgments of Brennan, Deane and McHugh JJ where they said at 844:

What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources.

200 Toohey and Gaudron JJ said (at 849):

The contemporary approach to court administration has introduced another element into the equation or, more accurately, has put another consideration onto the scales. The view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard are pressing concerns to which a court may have regard.

201 French CJ also referred to what King CJ had said in Dawson v Deputy Commissioner of Taxation (1984) 71 FLR 364 at 366, that it was:

… the responsibility of judges to ensure, “so far as possible and subject to overriding considerations of justice", that the limited resources which the State commits to the administration of justice are not wasted by the failure of parties to adhere to trial dates of which they have had proper notice.

202 French CJ himself made reference to the fact that the Judicature Act Rules and what he referred to as “various Australian offspring” generally left the progress of proceedings to the parties because that was seen as an aspect of the adversarial system. He went on to say at [23]:

In this respect, however, the adversarial system has been qualified by changing practices in the courts directed to the reduction of costs and delay and the realisation that the courts are concerned not only with justice between the parties, which remains their priority, but also with the public interest in the proper and efficient use of public resources.

203 I acknowledge that the various statements in the cases to which I have referred have principally been concerned with amendment and adjournment. There is nothing in the passages, particularly from Sali and Aon, which confines those statements to such considerations. If there is a public interest in the proper and efficient use of public resources and if there is a concern about the failure of the limited resources provided for the administration of justice, those principles must be equally applicable to a situation such as the present.

204 A history of these proceedings shows the extent to which public resources within the Court have been put to enable the present proceedings to have advanced (if that is really the appropriate word) to the point that they have. If almost 9 years after these proceedings commenced the Plaintiffs are only in the position where they wish, in effect, to start again by the making out of a fundamentally different case in respect of which they have provided no credible evidence, it seems to me that the point has been reached where the Court must step in and say that the present proceedings constitute an abuse of process that is resulting in the limited resources provided to the administration of justice being squandered.

205 Whilst every regard must be given to impecunious litigants to pursue cases arising out of legitimate grievances notwithstanding their inability to pay the Court fees, not to mention legal costs of the other party where appropriate, the Court must now also have regard to the abuse of its generosity in permitting these Plaintiffs to have conducted the proceedings in the way they have throughout those almost 9 years.

206 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.

207 It is not, however, appropriate that the proceedings should progress any further in the present circumstances. The Plaintiffs will be at liberty to apply to have the permanent stay lifted but only in the event that they are prepared to prosecute the case set out in the Further Amended Statement of Claim filed on 23 July 2009, and they will seek leave in accordance with paras (5) and (6) of the Orders which follow.

208 If no attempt is made by the Plaintiffs to take that course it will obviously be open to the Commonwealth at some appropriate time to apply to have the proceedings dismissed.

Costs of the Plaintiffs’ Notices of Motion

209 The Plaintiffs have been wholly unsuccessful on their Notices of Motion and there is no reason why they should not be ordered to pay the Commonwealth’s costs of those Notices of Motion.

Conclusion

210 I therefore make the following orders:

(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.

(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).

(10) The Defendant’s Amended Notice of Motion is otherwise dismissed.

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Citations

Markisic v Commonwealth of Australia [2010] NSWSC 24

Most Recent Citation

Cases Citing This Decision

6

Markisic v Commonwealth of Australia [2010] NSWCA 273

Attorney General in and for the State of New South Wales v Markisic [2013] NSWSC 1212

Markisic v Department of Community Services [2012] NSWSC 1197

Cases Cited

25

Statutory Material Cited

7

Markisic v Commonwealth [2001] NSWSC 533

Markisic v Commonwealth of Australia [2002] NSWSC 698

Oliver Marksic v Commonwealth of Australia [2007] NSWSC 201

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CITATION:	Markisic v Commonwealth of Australia [2010] NSWSC 24
HEARING DATE(S):	19/10/2009; 21-23/10/2009; 26-29/10/2009.
JUDGMENT DATE :	25 February 2010
JUDGMENT OF:	Davies J
DECISION:	(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). (10) The Defendant’s Amended Notice of Motion is otherwise dismissed.
CATCHWORDS:	PROCEDURE - judgments and orders - amending, varying and setting aside - whether given or entered irregularly, illegally or against good faith. PROCEDURE - pleadings - verification of pleadings - who can verify. PROCEDURE - amendment of pleadings - late application for amendment - no evidentiary basis for proposed amended pleading. PROCEDURE - courts and judges - disqualification for apprehended bias. PROCEDURE - abuse of process - limited resources of courts - Plaintiffs' desire to pursue futile claims - proceedings stayed. COSTS - costs thrown away by failure of Plaintiffs to comply with Court orders - summary assessment of costs by Court - direction that costs to be paid forthwith or proceedings stayed.
LEGISLATION CITED:	Australian Federal Police Act 1979 (Cth) Civil Procedure Act 2005 Evidence Act 1995 Legal Profession Act 1987 Legal Profession Act 2004 Supreme Court Act 1970 Uniform Civil Procedure Rules
CATEGORY:	Procedural and other rulings
CASES CITED:	Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 83 ALJR 951 Applicants A1 and A2 v G E Brouwer (No. 2) [2007] VSCA 269 Dawson v Deputy Commissioner of Taxation (1984) 71 FLR 364 Dragan Markisic v Department of Community Services of NSW (No. 2) [2006] NSWCA 321 Dragan Markisic & Anor v USA & Anor (unreported, Latham J, 19 September 2006) Dragan Markisic & Anor v USA & Anor (unreported, Nicholas J, 12 December 2006) Ebner v Official Trustee in Bankruptcy [2000] HCA 6; (2000) 205 CLR 337 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Livesey v NSW Bar Association (1983) 151 CLR 288 Markisic v Commonwealth of Australia [2009] NSWSC 284 Markisic & Anor v Commonwealth [2001] NSWSC 533 Markisic & Anor v Commonwealth of Australia [2002] NSWSC 698 Markisic v Department of Community Services of NSW & Ors [2006] NSWCA 106 Markisic v Department of Community Services of NSW and Ors [2007] NSWCA 30 Markisic v Middletons Lawyers [2007] NSWSC 1147 Mead v Watson [2005] NSWCA 133 Oliver Markisic & Anor v Commonwealth of Australia [2007] NSWSC 201 Oshlack v Richmond River Council (1998) 193 CLR 72 Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 Sali v SPC Limited (1993) 67 ALJR 841 State of NSW v Lepore [2003] HCA 4; (2003) 212 CLR 511 Webb v R (1994) 181 CLR 41 Wentworth v Rogers (No. 5) (1986) 6 NSWLR 534 Wentworth v Wentworth (unreported – Santow J – 6 February 1998)
TEXTS CITED:	Balkin & Davis, Law of Torts (4th ed) LexisNexis Butterworths, 2009
PARTIES:	Oliver Markisic (First Plaintiff) Marika Markisic (Second Plaintiff)
FILE NUMBER(S):	SC 20369/01
COUNSEL:	In Person (Plaintiffs) D P Robinson SC (Defendant)
SOLICITORS:	Australian Government Solicitor (Defendant)