Markisic v Commonwealth of Australia - [2002] NSWSC 698

CITATION: Markisic & Anor v Commonwealth of Australia [2002] NSWSC 698

FILE NUMBER(S): SC 20369/01

HEARING DATE(S): 10/7/02

JUDGMENT DATE: 13 August 2002

PARTIES :

Oliver Markisic (1st Plaintiff)
Marika Markisic (2nd Plaintiff)
Commonwealth of Australia (Defendant)

JUDGMENT OF: Bell J at 1

LOWER COURT
JURISDICTION : Supreme Court

LOWER COURT
FILE NUMBER(S) : 20369/01

LOWER COURT
JUDICIAL OFFICER : Master Harrison

COUNSEL : Oliver Markisic (Plaintiff in person)
D.P. Robinson (Defendant)

SOLICITORS: Oliver Markisic (Plaintiff in person)
Australian Govenment Solicitor (Defendant)

LEGISLATION CITED: Australian Federal Police Force Act 1979
Supreme Court Act 1970
Supreme Court Rules 1970

CASES CITED: Air Services Australia v Zarb (Unreported, Rolfe AJA, NSWSC, 26 August 1998
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125
Janesch v Coffey (1984) 155 CLR 549
Maharaj v Attorney General of Trinidad & Tobago (No 2) [1979] AC 385
Markisic and Anor v Commonwealth [2001] NSWSC 533
Moll v Butler (1985) 4 NSWLR 231
Morgan v Tame (1999) 49 NSWLR 21
Myer Stores Ltd v Soo [1991] 2 VR 597
Rajski v Powell (1987) 11 NSWLR 522
Sirros v Moore [1974] 3 All ER 776
Trobridge v Hardy (1995) 94 CLR 147
Webster v Lampard (1993) 177 CLR 598

DECISION: Appeal allowed; Orders made by Master Harrison on 28 June 2001 set aside; Pursuant to Pt 15 r 26(1) of the SCR plaintiff's amended statement of claim filed on 5 June 2001 struck out; Leave granted to the plaintiffs 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 for trespass and, with respect to the second plaintiff, for false imprisonment, assault and negligence; No order as to costs

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Tuesday 13 August 2002
20369/01 MARKISIC & Anor v COMMONWEALTH OF AUSTRALIA

JUDGMENT

1 BELL J: This is an appeal from a decision of Master Harrison [2001] NSWSC 533 made on 28 June 2001 summarily dismissing proceedings on the amended statement of claim of the first and second plaintiffs filed on 5 June 2001 (“the SOC”).

2 An appeal from the Master’s order lies to the Court constituted by a judge under Pt 60 r 10 of the Supreme Court Rules 1970 (“the SCR”). Section 75A(5) of the Supreme Court Act 1970 (“the Act”) provides that the appeal is by way of rehearing.

3 By their SOC the plaintiffs seek damages, aggravated damages and exemplary damages from the defendant for injuries sustained by the plaintiffs as a result of the actions of three groups of persons for whom it is said that the defendant (“the Commonwealth”) is vicariously liable; (i) the then Director-General of the Department of Community Services of New South Wales (“DOCs”), employees of DOCs and persons acting upon the instructions of the Director-General or her delegates in connection with certain proceedings before the Family Court of Australia (“the Family Court”);…

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: [2002] NSWSC 698
Decision Date: 13 August 2002

CaseChat Overview and Summary

The case of Markisic & Anor v Commonwealth of Australia involved an appeal by the plaintiffs, Oliver Markisic and Marika Markisic, against a decision made by Master Harrison on 28 June 2001. The plaintiffs sought damages from the Commonwealth for injuries sustained as a result of the actions of various persons, including the Director-General of the Department of Community Services, employees of the Department, judges of the Family Court, and members of the Australian Federal Police (AFP). The plaintiffs alleged that these injuries occurred during the removal of the child, Elena Markisic, from the family home on 29 September 1998. The appeal was heard by Justice Bell on 10 July 2002 and the judgment was delivered on 13 August 2002.

The primary legal issues the court had to decide included whether the plaintiffs had correctly identified the individuals and entities liable for their claimed injuries, and whether the claims against the Commonwealth were so obviously untenable that they could not possibly succeed. The court also had to determine whether the plaintiffs were entitled to replead their claims.

Justice Bell found that the plaintiffs had not succeeded in showing that the Master erred in dismissing the claims against the Commonwealth for the actions of the Director-General and employees of the Department of Community Services, as well as the judges of the Family Court. However, the court was persuaded that the Master erred in concluding that the claims against the Commonwealth arising out of the actions of members of the AFP were so obviously untenable that they could not possibly succeed. Specifically, the court found that claims for trespass, false imprisonment, assault, and negligence (in relation to the second plaintiff's claim for psychiatric injury) were not manifestly groundless.

Accordingly, the court allowed the appeal, set aside the orders made by Master Harrison on 28 June 2001, and struck out the plaintiff's amended statement of claim filed on 5 June 2001. The court granted the plaintiffs leave to file a further amended statement of claim within 28 days of the date of the judgment, limited to their claims arising out of the actions of members of the AFP for trespass and, with respect to the second plaintiff, for false imprisonment, assault, and negligence. No order was made as to costs.

Orders