Markisic v Commonwealth of Australia - [2010] NSWSC 24

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 -…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2010] NSWSC 24
Decision Date: 25 February 2010

CaseChat Overview and Summary

The case of Markisic v Commonwealth of Australia was heard by the Federal Court of Australia. The plaintiff, Markisic, sought to challenge several decisions and actions taken by the Commonwealth, including the verification of pleadings, the ability to amend pleadings without an evidentiary basis, and the potential disqualification of a judge for apprehended bias. The court also considered the issue of abuse of process and the limited resources of the courts, as well as the costs incurred by the plaintiff's failure to comply with court orders.

The central legal issues before the court were whether certain judgments and orders were given irregularly, illegally, or against good faith, and whether the plaintiffs' desire to pursue seemingly futile claims constituted an abuse of process. The court had to determine the appropriate verification of pleadings, the circumstances under which late applications for amendment of pleadings could be considered, and the criteria for disqualifying a judge due to apprehended bias. Additionally, the court assessed whether the plaintiffs' actions warranted a stay of proceedings due to the limited resources of the courts, and whether the plaintiffs' failure to comply with court orders warranted a summary assessment of costs.

The court found that the judgments and orders in question were not given irregularly, illegally, or against good faith. It ruled that the verification of pleadings must be done by someone with personal knowledge of the facts, and that late applications for amendment of pleadings without an evidentiary basis are generally not permissible. The court also determined that the plaintiffs' desire to pursue seemingly futile claims constituted an abuse of process, and that the limited resources of the courts warranted a stay of proceedings. Finally, the court directed that the costs thrown away by the plaintiffs' failure to comply with court orders were to be paid forthwith or the proceedings would be stayed.

The court ordered that the plaintiffs pay the costs of the defendant forthwith, and that if the costs were not paid within a specified period, the proceedings would be stayed. The court also stayed the proceedings due to the plaintiffs' abuse of process and the limited resources of the courts.

Orders