Markisic v Department of Community Services of New South Wales - [2005] NSWSC 1373

CITATION:
Markisic v Dept of Community Services of New South Wales & Ors [2005] NSWSC 1373
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 3 February 2005

JUDGMENT DATE :

31 May 2005

JUDGMENT OF:
Smart AJ at 1

DECISION:
See paragraphs 182-184

LEGISLATION CITED:
Civil Liability Act 2002 (NSW)
Crown Proceedings Act 1988
Family Law Act
Family Law (Child Abduction Convention) Regulations

CASES CITED:
Annetts & Anor v Australian Stations Pty Limited, Tame v New South Wales, (2002) 211 CLR
Balkin v Davis, 3rd Ed 2004 Law of Torts
Clerk & Lindsell on Torts 16 ed 99,189 London
Coco v The Queeen (1994) 179 CLR
Crofter Hand Woven Tweed Co v Veitch [1942] AC
Hall v Hollander (1825) 107 ER
Lonhro Ltd v Shell Petroleum Co Ltd (No 2) 1982 AC
MacIntosh v Lobel (1993) 30 NSWLR
Markisic v Vizza & Ors [2001] NSWSC 115
Markisic v Vizza & Ors [2002] NSWCA 384
Munnings v AGS (1994) 118 ALR
PLC v Fayed (No 5) [1993] 1 WLR
Ratcliffe v Evans 1892 2 QB
Richel v Magrath 14 AC 665
Rippon v Chilcoten Pty Limited (2001) NSWLR 198
Rogers v The Queen (1994) 181 CLR
State Bank of New South Wales Ltd v Stenhouse
(1997) Aust Torts Reports 64,077
Sullivan v Moody & Ors, Thompson v Connon & Ors; 207 CLR 562
TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR
Walton v Gardner (1993) 177 CLR

PARTIES:
Dragan Markisic v Department of Community Services of New South Wales, State of New South Wales, Commonwealth of Australia, The Trustees of The Roman Catholic Church of The Archdiocese of Sydney and Qantas Airways

FILE NUMBER(S):
SC 20698/00

COUNSEL:
(P) In Person (with Mr O Markisic)
(D1-D2) Ms V Hartstein
(D3) Mr D P Robinson SC
(D4) Mr A Kohn (solr)
(D5) Mr J Young

SOLICITORS:
(P) N/A
(D1& 2) State Crown Solrs
(D3) Aust Govt Solicitor
(D4) Mr A Kohn (Makinson & D'Apice)
(D5) K Williams (Qantas)
Mr G Kathner (Comm AG & Ors subpoenas]

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SMART AJ

JUDGMENT

20698/00:

Dragan MARKISIC v DEPARTMENT OF COMMUNITY SERVICES OF NEW SOUTH WALES, STATE OF NEW SOUTH WALES, COMMONWEALTH OF AUSTRALIA, THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE ARCHDIOCESE OF SYDNEY and QANTAS AIRWAYS LTD

______________________________________________________

1. On 20 December 2000 Dragan Markisic filed a statement of claim against various defendants which was wide ranging in its scope and not able to be supported. Each of the defendants applied to strike it out. On 19 April 2001 after a contested hearing in which the plaintiff represented himself with his brother assisting him, the brother making most of the submissions, Master Malpass struck out the statement of claim "because of pleading deficiencies". The Master did not grant the plaintiff leave to amend but told him that he could apply to be allowed to file an amended statement of claim. Master Malpass had in mind that leave to file an amended statement of claim would only be granted if it disclosed tenable causes of action. Given the history of this matter that was prudent. Master Malpass ordered the plaintiff to pay the costs of the application.

2. On 15 August 2003 the plaintiff filed a motion seeking that leave be granted to him to file as an amended statement of claim) a document in the terms of the draft attached to his affidavit of 14 August 2003. Pursuant to directions by the list judge each of the defendants filed an outline of submissions setting out why leave should not be granted. The plaintiff filed detailed submissions in reply.

3. The initial statement of claim specified "Glebe Centacare" as the fourth defendant but the correct defendant was The Trustees of the Roman Catholic Church for the Archdiocese of Sydney, Glebe Centacare coming under the jurisdiction of the Archdiocese.

4. The plaintiff has added some new defendants to his proposed amended statement of claim (AS0C), namely Justice Robyn Flohm (then counsel for the applicant before the Family Court), Chief Justice Alistair Nicholson who presided at a sitting of the Full Court and Justice A R Rowlands, the primary judge in the Family Court. There is no sufficient basis for adding these three persons to the proceedings and the proceedings against them are dismissed.

5. The proposed ASOC is a lengthy document extending over some 45 pages of relatively small single spaced typing. It is somewhat discursive and spreads its fire far and wide.

The Background

6. The plaintiff's many claims arise out of actions taken by various bodies to give effect to the request of the Macedonian Authorities to ensure that a child who was brought to Australia by the plaintiff was returned to Macedonia and to her mother.

7. Elena Markisic was born on 3 May 1997 in Macedonia. As the reasons for judgment of the Full Family Court reveal there was a considerable dispute as to the circumstances in which Mr and Mrs Markisic were living in Macedonia and how the plaintiff came to have Elena. It is clear, however, that the plaintiff left Macedonia about 12 April 1998 and brought his daughter to Australia. His wife maintained that he did this without her consent. She approached the welfare authorities in Macedonia on 13 April 2998 and a Court in Macedonia made an order, ex parte, confirming the earlier decision of a welfare agency that, pending the resolution of matrimonial and custody proceedings, the child should remain with the mother. That is not surprising given the tender age of the child. The Macedonian Authorities sought the assistance of the Australian Authorities under arrangements akin to those under the Hague Convention.

8. On 17 August 1998 Judicial Registrar Johnston in the Family Court ordered the return of Elena to Macedonia. Judicial review was sought by the plaintiff and on 9 September 1998 Rowlands J in the Family Court dismissed the application for review.

9. On 29 September 1998 the Full Court of the Family Court heard an appeal from Rowlands J. During the hearing of the appeal the Full Court refused the plaintiff's application to adjourn the hearing. The Full Court subsequently directed, when the plaintiff complained of disabling ill health, that the hearing proceed. The Full Court thought that the plaintiff was trying to put off or delay the hearing. The child had been staying with her father, paternal grandmother and his family. The Full Court believed that if the plaintiff saw that the proceedings were running against him there was a real risk that he would remove the child from her present address either to other parts of Australia or elsewhere.

10. The Full Family Court ordered that a warrant issue authorising and directing the Marshal and Deputy Marshal of the Family Court and all officers of the Australian Federal Police to take possession of Elena and deliver such child to the Manager, St George CSC Department of Community Services (DOCS), Hurstville.

11. The Full Family Court also made ancillary orders. The main order was carried out that day when officers of the Australian Federal Police took possession of the child from the plaintiff's mother in the absence of the plaintiff at the house at which she was living with the child and other family members. It seems that no warrant was issued and that the Australian Federal Police treated the engrossed and sealed orders as akin to a warrant and sufficient authority to justify the police taking possession of the child and delivering her as specified in the order.

12. The Full Family Court, on 29 September 1998 dismissed the appeal but granted a stay for seven days of the order that Elena be returned to Macedonia to enable an application for a stay to be made to a single justice of the High Court. Such an application was made and refused on 13 October 1998 An application for special leave to appeal was also filed.. On 14 October 1998 the child was removed from Australia by a Qantas aeroplane flight bound for Frankfurt. Elena was in the care of her mother who had journeyed to Australia to collect her. Once the child had been removed from Australia there was no point in proceeding with the special leave application and it was later withdrawn.

Proposed ASOC

13. This document purports to set out the responsibilities of the various defendants and the officers allegedly responsible for some of the acts and omissions under challenge. It alleges many conspiracies, some unlawful agreements and decisions, a false or fraudulent representation, wrongful or unjustified civil proceedings or malicious prosecution and/or abuse of process, interference with the plaintiff and interference with the domestic relations of the plaintiff, intentional infliction of nervous shock to the plaintiff, misfeasance in public office, breach of statutory/common law duties by the Minister for Community Services of NSW, breach of statutory/common law duties by the Director General and the DOCS Protection Officers breach of statutory/common law duties by Centacare Protection Officers and Foster Carers, breach of statutory or common law duties of other public officers or officers, a defamation claim with particulars of defamatory imputations and particulars of aggravation. There follow particulars of injuries, losses and damages.

14. The first conspiracy allegedly began about May 1998 when the Commonwealth Attorney-General's Department (AGD) solicitors allegedly unlawfully received the first application under the Hague Convention for the return of the child to Macedonia from the plaintiff's ex-wife and the Macedonian Authorities. It is alleged that they (the AGD solicitors) "either urged or in reckless indifference as to the consequences of the following by the Commonwealth Central Authority and/or other unknown public officers [of the Commonwealth] made an agreement between themselves to wrongfully return the child to Macedonia and to deprive the plaintiff of the child and/or his rights towards the child by fraud. It is alleged that in furtherance the officers agreed to misrepresent themselves to the plaintiff and to the public officers of the State of New South Wales and the Commonwealth of Australia as the Commonwealth Central Authority with the intention of deceiving such officers to believe that the Attorney General's solicitors had the powers of the Commonwealth Central Authority. It is alleged that thereafter the AGD solicitors misrepresented themselves to the public officers of the State of NSW and the Commonwealth as the Commonwealth Central Authority and deceived them. It is further alleged that the Convention application contained defects and that the AGD solicitors returned the Convention application urging the ex wife of the plaintiff to rectify the defects and to provide a new application. It is alleged that in June 1998 the AGD solicitors unlawfully received the second Convention application misrepresenting themselves as the Commonwealth Central Authority. It is hard to see how the receipt of documents by AGD solicitors could have been unlawful.

15. There is a copy of the official Government Gazette Notification appointing the Secretary to the Commonwealth Attorney-General's Department as the Commonwealth Central Authority and the Director-General of DOCS as the State Central Authority for New South Wales. The Director-General delegated her functions under the Family Law (Child Abduction Convention) Regulations to take all appropriate steps to secure the return of children to whom the Convention applies to certain legal officers being solicitors with DOCS. In practice when the Commonwealth Central Authority receives an application in accordance with the Hague Convention for the return of a child, it forwards that application to the State Central Authority for the State in which it believes the child is living. The State Central Authority then files an application under the Regulations in the Family Court of Australia.

16. It would not be impermissible for the AGD solicitors to act at the direction of the Secretary to the Attorney General's Department, the Commonwealth Central Authority and on the Secretary's behalf. That is to be expected. Nor can any legitimate complaint be raised to AGD solicitors advising that the application and papers received from overseas should be correct as to form and pointing out any perceived defects.

17. The Second Conspiracy alleged that in about June 1998 the AGD and the DOCS solicitors and possibly other unknown officers, made an agreement to wrongfully return the child to Macedonia and to deprive the plaintiff of the child and/or his rights towards the child by fraud.

18. It was alleged that about June/July 1998 the SCA unlawfully delegated her powers as the SCA to the DOCS solicitors unlawfully appointing them to act as the SCA. It was also alleged that AGD solicitors unlawfully forwarded the second Convention application to the DOCS solicitors urging them to commence proceedings against the plaintiff and that the DOCS solicitors unlawfully accepted the Convention Application from the AGD solicitors.

19. The Third Conspiracy alleged that in July 1998, to effect the first and second conspiracy the DOCS and the CSO (State Crown Solicitor's Office) solicitors and counsel made an agreement that the CSO solicitors act for the DOCS solicitors and commence court proceedings against the plaintiff and to achieve possession of the child as quickly as possible, including conducting the proceedings in specified impermissible ways – in intimidatory, hostile and belittling ways.. It was alleged that the DOCS solicitors unlawfully forwarded the Convention Application to the CSO solicitors who unlawfully accepted the Convention application.

20. It was permissible and usual for DOCS solicitors to instruct the CSO solicitors in a litigious matter in the Family Court. It was not and is not objectionable for DOCS solicitors to forward documents to CSO solicitors when the CSO solicitors are acting for DOCS.

21. It was alleged that about 21 July 1998, to effect the Third Conspiracy, the DOCS and CSO solicitors without lawful justification commenced proceedings against the plaintiff in the Family Court under the Hague Convention for the return of the child to Macedonia. The allegation that the proceedings were commenced without lawful justification is patently unsustainable. The plaintiff pleaded the ex parte orders made by Judicial Registrar Knibbs.

22. The plaintiff complained that at the time of commencing proceedings the Commonwealth Central Authority , the State Central Authority, the AGD, DOCS and CSO solicitors and Counsel knew or ought reasonably to have known that the plaintiff was running his computer business and that the various officers "with intent to oppress, maliciously or negligently or recklessly indifferent to the welfare and rights of the plaintiff and in breach of the duty of care owed to the plaintiff failed to appreciate that with their actions (as set out therein) the plaintiff's business can be damaged, disrupted or destroyed resulting in damage to the plaintiff". These claims are in their totality unsustainable. The institution of Convention proceedings does not give rise to the claims made.

23. The Fourth Conspiracy alleges that in about July 1988 to effect the Third Conspiracy, either a solicitor of the AGD and/or of DOCS and/or of the CSO and/or the Counsel and/or other unknown officers of the State and/or the Commonwealth made an agreement with either Mr Steven Stewart and/or other unknown officers of the Legal Aid Commission to obstruct the plaintiff from obtaining funded legal assistance for the Hague Convention proceedings. Consequently the Legal Aid Commission rejected the plaintiff's application for legal assistance. Legal Aid is not usually granted for proceedings of that kind. It is quite common for opposing parties to submit that Legal Aid should not be granted. That is not wrongful.

24. The plaintiff alleged that to effect the Third Conspiracy counsel for DOCS before the commencement of the first hearing at the Family Court and in the court room "intimidated and put the plaintiff under duress to the effect that if the plaintiff did not bring his child on the next court hearing and surrender the child to the counsel then the counsel will take the child from the plaintiff by force." That matter goes to the integrity of the Family Court proceedings and should, if true, have been raised with the Family Court. It is not justiciable in this Court.

25. The Fifth Conspiracy alleges that between 31 July 1998 and 11 August 1998 (between the first and second hearing in the Family Court) to effect the First, Second and Third Conspiracy either a solicitor of the AGD, and/or a solicitor of DOCS and/or a solicitor of CSO and/or Counsel and/or other unknown officers of the State and/or the Commonwealth made an unlawful agreement either with the Ambassador of the Embassy (country not specified) and/or with Ms Maloparac, an officer with the Australian Embassy in Belgrade, and/or with other unknown officers of the Commonwealth to issue an expert report on the political and military situation in Macedonia. Ms Maloparac issued a report which was used in the Family Court proceedings. The plaintiff alleged that Ms Maloparac was not expert in the areas mentioned and that the facts in her report were false or misleading.

26. The plaintiff alleged that the Family Court was misled into accepting the report and rejected that there was a grave risk for the child when returned to Macedonia.

27. This matter is not justiciable in this Court. It was for the Family Court to consider and rule on the matter.

28. The Sixth Conspiracy alleges that between 11 and 17 August 1998 (the second and third hearing) to effect the First, Second and Third Conspiracy, the AGD, the DOCS and the CSO solicitors and the Counsel and/or with other unknown officers of the State and Commonwealth, to achieve the physical possession of the child, made an unlawful decision and agreement to place the child in protective custody of the Director General (NSW). While the application made to the Court on 16 July 1998 sought an order and a warrant for possession of the child and delivering her to DOCS no such order was made until 29 September 1998 when the Full Court invited the applicant to seek such an order because of the real risk it entertained as to the plaintiff's conduct.

29. It was alleged that thereafter either a DOCS solicitor and/or other unknown officer of the State made an agreement with an officer of DOCS and Centacare to place the child in foster care of Centacare when the child was taken from the plaintiff. It was also alleged that the agreement was designed to enable those mentioned to immediately secure the wrongful removal or abduction of the child out of Australia.

30. The plaintiff further alleged that two senior district officers visited the plaintiff's home and the child and issued a favourable family report about 25 August 1998 that the child was well looked after by the plaintiff and by other family members and that there were no concerns for the wellbeing of the child and recommended that it was for the benefit of the child to remain in Australia. The plaintiff alleged that thereafter DOCS solicitors, misrepresenting themselves as the Director General, urged either by the AGD and/or the CSO solicitors and/or Counsel, interfered with the due performance of the duties of the two senior district officers, directing them to act contrary to their statutory duties. The two district officers were not charged with making the ultimate decision.

31. These claims are not justiciable in this Court. They were matters for the Family Court.

32. The Seventh Conspiracy alleges that in about September 1998 either a solicitor of the AGD and/or a solicitor of DOCS and/or a solicitor of CSO and/or Counsel and/or other unknown officers of the State and/or the Commonwealth made an agreement out of the court room with Justice Rowlands that he would assist them to wrongfully return the child to Macedonia and to deprive the plaintiff of the child and/or of his rights towards the child by fraud. This scandalous allegation should be struck out. This is a matter that lay within the jurisdiction of the Family Court and especially the Full Court. This is not a matter for this Court.

33. The plaintiff alleged that about 7 September 1998 at the hearing before Justice Rowlands he refused an adjournment disregarding a medical certificate and directed the plaintiff to write and FAX his submissions in one day and to respond in the proceedings from his home over a telephone link. The plaintiff alleged that he was forced by Justice Rowlands to continue with the proceedings and to comply with the judge's directions. These are not matters for this Court. They should have been litigated in the Family Court, and, in particular, the Full Family Court.

34. The plaintiff alleged that he heard over the telephone link from his home Justice Rowlands delivering his orders dismissing the plaintiff's application for review of the Judicial Registrar's decision. On the plaintiff expressing his intention to appeal, Justice Rowlands ordered the plaintiff to file his appeal in seven days instead of the usual statutory period of 28 days. The plaintiff complained that Justice Rowlands assisted by unknown officers speeded up the appeal process, thus denying the plaintiff his legal rights and natural justice.

35. The plaintiff complained that the Director General declined to see him and ignored his complaint.

36. These claims are not justiciable in this court. It is usual for the appeal process to be expedited in Convention cases.

37. The Eighth Conspiracy alleges that between 16 and 29 September 1998 to effect the First, Second and Third Conspiracy either an AGD solicitor and/or a DOCS solicitor and/or a CSO solicitor and/or the counsel and/or Justice Rowlands and/or either unknown officers of the State and/or the Commonwealth out of the court room made an agreement with Chief Justice Nicholson to assist to wrongfully return the child to Macedonia and to deprive rhe plaintiff of the child and/or his right towards the child by fraud. That scandalous allegation should be struck out. The matter is not justiciable in this Court. The plaintiff alleged that it was further agreed that Chief Justice Nicholson would direct the appeal be listed as soon as possible. The plaintiff was to be given the least possible time to prepare the appeal. The plaintiff further alleged that it was agreed by the earlier mentioned solicitors and officers with Chief Justice Nicholson that he would further assist to defraud the plaintiff of the child and custody of her. The plaintiff further alleges that to make an illusion of legality, in effecting the aforesaid agreement it was agreed that Chief Justice Nicholson would accuse the plaintiff of intention to abscond with the child and then, in order to "protect" the child issue an order for a warrant to issue for possession of the child and afterwards to issue a care order for the child to remain in the care of the Director-General. These latter two allegations are scandalous and should be struck out. They are not justiciable in this Court.

38. The plaintiff alleges that between 20 and 26 September 1998 the appeals Registrar of the Family Court notified the plaintiff that Chief Justice Nicholson, out of the court room, on a request, directed that the appeal be listed for hearing on 29 September 1998 and that he was subsequently told by the Registrar that he could address his complaints to the Full Court.

39. On 22 September 1998 the plaintiff filed an application for an interim custody order in the Family Court Registry.

40. On 25 September 1998 the plaintiff filed an application for leave to commence divorce proceedings.

41. The plaintiff further alleged that on 25 September 1998 the Registrar of the Family Court granted an interim stay of the plaintiff's applications pending the resolution of the Convention Application.

42. The Ninth Conspiracy alleges that about 26 September 1999 to effect the First, Second and Third Conspiracy either an AGD solicitor and/or a DOCS solicitor and/or a CSO solicitor and/or the Counsel and/or other unknown officers of the State and/or Commonwealth made an agreement with the Commissioner of Police and/or with the Deputy Commissioner and/or with other unknown member(s) of the AFP and/or with other unknown officers of the State and/or the Commonwealth for the AFP members to remove the child from the plaintiff and to deliver the child to DOCS protection officers.

43. The plaintiff alleged that on 29 September 1998 he attended with his brother Oliver to assist him before the Full Court. The child was left with his mother. Chief Justice Nicholson refused the plaintiff's application for an adjournment based on the plaintiff's health condition and the short time given to the plaintiff to prepare the appeal. It was alleged that the other members of the Court, being influenced by the authority of the Chief Justice, agreed. That scandalous allegation must be struck out. The Chief Justice told the plaintiff that if he was not in a condition to continue with the appeal then the Full Court would decide the appeal without him. The Chief Justice warned the plaintiff that if he left the Full Court to go to the High Court as intimated, the Full Court would continue and decide the appeal in his absence. This forced the plaintiff to give up going to the High Court.

44. The plaintiff alleged that Chief Justice Nicholson, on his own motion and before the appeal had been heard, invited counsel to apply for an order for the issue of a warrant for the possession of the child on the basis that the plaintiff might remove the child from her then address to another part of Australia or elsewhere. Chief Justice Nicholson dismissed an oral application for a stay of the order for a warrant to issue. The other judges agreed, being influenced by the authority of the Chief Justice. That scandalous allegation must be struck out. The plaintiff alleged that the order for the issue of the warrant was unlawful.

45. The plaintiff further alleged that Chief Justice Nicholson, on his own motion, made a care order for the child, ordering the child to remain in the care of the Director-General pending her return to Macedonia or any appeal to the High Court.

46. The plaintiff challenged the various steps taken as unlawful and complained that he had been denied natural justice. The plaintiff charged that Chief Justice Nicholson had acted with intent to oppress the plaintiff, maliciously and knowingly erroneously at law. That scandalous allegation must be struck out.

47. The plaintiff alleged that Chief Justice Nicholson forced the plaintiff to continue with the appeal under very stressful conditions for him.

48. The plaintiff also alleged that Chief Justice Nicholson, to thwart him, made an order granting only seven days for filing an application for leave to appeal to the High Court and an application for the stay of the order for the return of the child.

49. The plaintiff further alleged that while the appeal was pending before the Full Court the order for a warrant to issue for possession of the child was forwarded to the Commissioner or Deputy Commissioner and/or other unknown AFP officers and that Chief Justice Nicholson and/or other unknown officers of the State urged the AFP to take possession of the child while the plaintiff was at Court. The plaintiff alleged that after receiving the order for a warrant to issue to take possession of the child either the Commissioner and/or the Deputy Commissioner and/or other unknown AFP member unlawfully directed AFP members to raid the plaintiff's home at Arncliffe, to enter the plaintiff's land and home to take the child by fraud and/or by force and to deliver the child to the DOCS protection officers.

50. The plaintiff further alleged that the Commissioner, Deputy Commissioner and/or other members knew or ought reasonably to have known that they did not possess a warrant to enter the plaintiff's land and home as a lawful justification for the entry.

51. The proposed amended statement of claim sets out in considerable detail the events which occurred at the home and the actions of the Federal Police from the time they arrived at the Arncliffe house about 1430 hours until the AFP members took the child away. About 1630 hours, after the finish of the appeal in the Full Court the plaintiff was advised by family members of the removal of the child by AFP members. The plaintiff claims that he suffered trauma and nervous shock.

52. The Tenth Conspiracy alleges that an airway company became an essential element in the wrongful removal of the child and that either an AGD solicitor and/or a DOCS solicitor and/or a CSO solicitor and/or the Counsel and/or other unknown officers of the State and/or the Commonwealth made an agreement with an unknown officer(s) of Qantas for Qantas to assist them in taking the child in secrecy out of Australia. The plaintiff alleges that it was further agreed that Qantas would assist with their agent in Skopje, Macedonia, in bringing the ex wife immediately and secretly from Macedonia to Australia. It is not tortious for an airline to maintain the confidentiality of its passengers.

53. There is no eleventh conspiracy pleaded as such. Under the heading The Twelfth Conspiracy the plaintiff alleges that after the wrongful removal of the child out of Australia, the AGD, the DOCS and the CSO solicitors and the counsel, the DOCS AND Centacare protection officers, some officers of DFAT, some officers of the Sydney Registry of the Family Court and some AFP members agreed to obstruct the plaintiff in obtaining any information relevant to the wrongful removal of the child out of Australia. The alleged purpose of the agreement was to prevent the plaintiff's future legal action or any investigation being carried out. Various instances of obstruction are given.

54. As appears earlier in these reasons the plaintiff has relied on many separate causes of action.

55. The proposed ASOC is bad as to form and leave to file it should not be granted. In its current form the proposed ASOC is embarrassing and a defendant would not be able to plead to it. It does not comply with SCR Pt 13, r 5, Pt 15, r 6, 7, 8 and 26. Nor does it comply with Pt 16, r 2 by supplying the requisite particulars. The defendants contend that the document is bad in substance as it does not plead a tenable cause of action. It was correctly submitted that the proposed ASOC was productive of prejudice and delay.

56. It was pointed out that the first defendant (DOCS) is not a proper defendant: Crown Proceedings Act 1988 s 5. This is correct and accordingly it should be struck from the proposed ASOC.

The Conspiracy Counts

57. These affect the State of New South Wales and the Commonwealth of Australia. I will deal with The Trustee of The Roman Catholic Church For The Archdiocese of Sydney (Centacare) and Qantas Airways Ltd (Qantas) separately.

58. The State submitted that the proposed ASOC was an abuse of process as it attempted to re-litigate issues which were decided expressly or impliedly by the Family Court. The conspiracy counts are a collateral attack on the Family Court proceedings. The plaintiff has launched an attack on virtually every step taken leading to the institution of the Family Court proceedings and virtually every step taken in those proceedings.

59. The courts of virtually every country that applies the Hague Convention, and the Australian courts deal with applications for the return of children to the requesting parent and country expeditiously and as a matter of urgency. A serious view is taken of those who move children to other countries against the wishes of the parent having de facto custody. Elena was 11 months old when she was removed from Macedonia to Australia.

60. The Australian Authorities, both Federal and State, implemented the Convention procedures and that was their duty. The Family Court followed well settled procedures and attempted to discharge its duties.

61. The multitude of complaints of the plaintiff raised in the conspiracy counts against DOCS, the State and the Commonwealth were resolved by the proceedings in the Family Court. The High Court of Australia refused the application for a stay of the order for the return of the child to Macedonia and the plaintiff withdrew his application for special leave to appeal. Admittedly, on the refusal of the stay of that application became of little or no practical use.

62. In Rippon v Chilcoten Pty Limited (2001) 53 NSWLR 198 at 201, Handley JA, with whom Mason P and Heydon JA agreed, adopted this statement of principle in Richel v Magrath (1889) 14 App Cas 665 of Lord Halsbury LC at 668.

"… it would be a scandal to the administration of justice if some question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again … there must be an inherent jurisdiction in every Court of Justice to prevent such an abuse of procedure …"

63. Handley JA pointed out that Richel v Magrath had been followed by the High Court: Walton v Gardner (1993) 177 CLR 378 at 393 and Rogers v The Queen 1994) 181 CLR 251 at 287-288.

64. Handley JA at 203 described the proceedings in Rippon as "… an attempt to litigates or re-litigate issues which were either decided on or barred by the earlier proceedings."

65. At 204 Handley JA referred to the judgment of Giles CJ Comm D in State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 64,077 at 64,080, another case involving abuse of process in seeking to re-litigate issues, in which it was said:

"… The guiding considerations are oppression and unfairness to the other party in the litigation and concern for the integrity of the system of the administration of justice."

66. Giles CJ Comm D set out matters to which regard may be had. These included an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.

67. During the course of the hearing and particularly while Mr Oliver Markisic was addressing the Court with the frequent and many prompts of the plaintiff it was evident that there was great intensity on the part of the members of the Markisic family and that they felt that, as the father, the plaintiff's wishes should prevail.

68. At the hearing before the Full Family Court Kay J remarked, when giving judgment agreeing with Nicholson CJ:

"The only thing I add is in the father's own material he indicates 'I was waiting for 37 years of my life for this baby to be born, and I was not going to give up on her at any cost'."

69. The conspiracy counts are an abuse of process.

70. The tort of conspiracy is committed when two or more persons act in concert for the purpose of causing injury to the plaintiff and as a result the plaintiff suffers injury. See Crofter Hand Woven Tweed Co v Veitch [1942] AC 435.

71. In McKernan v Fraser (1931) 46 CLR 343 at 362 Dixon J said:

"It appears now to be settled that, for a combination or acts done in furtherance of the combination to be actionable in such circumstances, the parties to the alleged conspiracy must have been impelled to combine, and to act in pursuance of the combination, by a desire to harm the plaintiff, and that this must have been the sole, the true, or the dominating, or main purpose of their conspiracy."

and:

"To adopt a course which necessarily interferes with the plaintiff in the exercise of his calling, and thus injures him, is not enough. Nor is it enough that this result should be intended if the motive which actuates the defendants is not the desire to inflict injury but that of compelling the plaintiff to act in a way required for the advancement or for the defence of the defendants' trade or vocational interests."

At 408 Evatt J held that each member of the alleged conspiracy had to have the requisite intention or motive to harm the prospective plaintiff.

72. In the Law of Torts by Balkin & Davis (2nd Ed) at p623 these principles are formulated. The civil tort of conspiracy is committed when two or more persons combine together either -

(a) to commit an unlawful act with the intention (actual or constructive) of harming the plaintiff's trade, business or other economic interests (described as "conspiracy by unlawful means") or

(b) to perform an act which, if carried out by a single person would not be unlawful, with the predominant object of so harming the plaintiff (described as "conspiracy by lawful means")

73. The tort of conspiracy arises in an economic context. See Balkin & Davis at p623 and Lonhro Ltd v Shell Petroleum Co Ltd (No 2) 1982 AC 173 at pp 188-9 where Lord Diplock gave this explanation:

"The gist of the cause of action is damage to the plaintiff; so long as it remains unexecuted the agreement … causes no damage."

At 189 his Lordship continued:

"The civil tort of conspiracy to injure the plaintiff's commercial interests where that is the predominant purpose of the agreement between the defendants and of the acts done in execution of it which caused damage to the plaintiff, must I think be accepted by this House as too well established to be discarded however anomalous it may seem to-day."

74. As the State pointed out each of the conspiracies alleged against the State – and I would add the Commonwealth – involves persons or organisations acting pursuant to duties imposed upon them by treaty, statute or contract.

75. The conspiracy counts against DOCS, the State and the Commonwealth are untenable.

76. Before dealing with the remainder of the counts involving DOCS, the State and the Commonwealth I shall deal with those against The Trustees of The Roman Catholic Church for the Archdiocese of Sydney and Qantas Airways Limited.

77. The Trustees of The Roman Catholic Church submitted that leave should not be granted to the plaintiff to file the proposed ASOC because it would be futile to do so and that an arguable cause of action was not disclosed. That document substantially repeats the allegations and claims made against Centacare in the original statement of claim which was struck out by the Master. Centacare is an organisation of the Roman Catholic Church. The Trustees submitted:

"6. Centacare's involvement in this unhappy saga (relating to the separation between the Plaintiff and his daughter Elena) is that it placed Elena with foster parents for a period of 14 days (29 September 1998 – 13 October 1998). Centacare did so pursuant to a request from the First Defendant following Orders made by the Full Court of the Family Court on 29 September 1998. The Fourth Defendant returned Elena into the care of her mother and both left Australia on 14 October 1998 following the plaintiff's application for a stay being dismissed by the High Court the previous day.

7. The Fourth Defendant submits that the Plaintiff's allegations against it in the proposed Amended Statement of Claim, so far as those allegations can be discerned, are misconceived. Amongst other things, Centacare may have owed a duty of care to the child Elena but, it is submitted, owed no duty of care to Mr Markisic. Centacare (and its employees) accepted the child following a Court order and handed the child back to the relevant authorities following a Court order.

8. The other alleged causes of action against the Fourth Defendant in the proposed Amended Statement of Claim are bald allegations unsupported by appropriate pleading elsewhere in the Amended Statement of Claim.
9. The proposed Amended Statement of Claim could not possibly succeed against the Fourth Defendant in light of its limited role in this matter. It would therefore be futile to grant the Plaintiff leave to amend the Statement of Claim."

78. The Sixth Conspiracy to which Centacare was an alleged party was that it entered into an agreement between 11 and 17 August 1998 with either a DOCS solicitor and/or other unknown officers of the State to place the child in foster care of Centacare when the child was taken from the plaintiff.

79. Centacare was entitled to assume that it would be called upon to assist in the event of the Family Court making an order placing the child in the care of the Director-General and that officer authorising the child to be placed with Centacare for fostering by appropriate foster parents.

80. There is nothing which gives rise to a tenable count in conspiracy.

81. Scattered throughout the plaintiff's proposed ASOC are other references to Centacare. In para 102 it is alleged that a DOCS officer unlawfully placed the child in the care of Centacare with foster carers and without lawful justification kept the child in foster care for about two weeks. There were sundry other complaints about Centacare, its officers and the foster carers. The plaintiff complained that the address of the foster carers was not disclosed to the plaintiff and that from 30 September 1998 to 9 October 1998 he and his family were allowed only four supervised access visits to the child.

82. The plaintiff complained about the conditions in which he found the child. The plaintiff asserted that he made numerous complaints to the DOCS and Centacare protection officers in relation to the abuse and neglect of the child while in their care (para 117) and requested medical examination of the child.

83. The plaintiff made an application to the Family Court for the child to be removed from the care of the Director-General or for more and longer visits. Rowlands J dismissed the application.

84. While Centacare probably owed a duty of care to the child, it is hard to see how they owed a duty of care to the father when Centacare was acting in accordance with the Court's order and assisting the Court and the Director-General (NSW). The plaintiff had himself brought about the situation where the Court thought that there was a real risk of him removing the child from his mother's home at Arncliffe to another part of Australia or elsewhere.

85. The plaintiff has no tenable cause of action against Centacare and the Trustees of the Roman Catholic Church For the Archdiocese of Sydney.

Qantas

86. Qantas relied on the history of the plaintiff's pleadings.

(a) Original statement of claim filed 20 Dec 00

(b) Qantas' motion seeking striking out and summary dismissal of plaintiff's claim 23 Feb 01

(c) Master Malpass ordered plaintiff's claim be struck out 19 Apr 01

(d) Qantas served with draft amended statement of claim and document headed "Particulars – Common Law"
Plaintiff provided a further amended version of these documents
(On this day the plaintiff's application to file this originating process fixed for hearing on 6 Jul 01)
28 May 01

(e) Plaintiff's application for leave to file amended originating process adjourned pending receipt of court appointed legal assistance 6 July 01

(f) Legal assistance terminated as plaintiff declines to accept legal advice given

(g) Present motion supported by plaintiff's affidavit of 14 Aug 03 annexing further draft amended statement of claim 15 Aug 03

87. When Master Malpass struck out the plaintiff's original statement of claim, pleadings had closed, SCR Pt 15, r 22(1) and the plaintiff therefore required leave to amend his claim including by the filing of an ASOC.

88. Qantas submitted that the proposed ASOC was defective in its form, did not comply with the Rules and alleged causes of action unknown to the law.

89. I have earlier briefly summarised the Tenth Conspiracy. Qantas submitted that even if the allegations in para 116 of the proposed ASOC were established they do not amount to a tortious conspiracy. This was said to be especially so in the absence of any identification as to how the alleged agreement to bring the plaintiff's ex wife to Australia or to take his daughter out of Australia secretly is itself unlawful (so as to amount to a conspiracy by unlawful means). Qantas also pointed to the necessary absence of any allegation in paras 116-142 of the participation of Qantas in the alleged agreement with the intent of harming the plaintiff (so as to amount to a conspiracy by lawful means).

Unlawful Agreement

90. Qantas pointed out that the allegations in para 116 are repeated for the purposes of para 173 under the heading "Unlawful Agreements and/or Decisions". Qantas correctly submitted that the allegation in para 116 does not amount to an "unlawful decision". Apart from the tort of conspiracy, there is no separate cause of action for "unlawful agreement" known to the law.

91. As Qantas pointed out, if the claim in para 173 is actionable in respect of the allegations in para 116, it is only actionable as the tort of conspiracy and can rise no higher than the alleged Tenth Conspiracy. As the allegations in para 116 are not sufficient to amount to a conspiracy by unlawful means (for the reasons earlier given) they do not give rise to any separate alleged claim for "unlawful agreement".

92. Objection was taken to the rolled-up allegation in para 173. It is pleaded that all of the defendants in making all of the decisions and agreements in the 28 paragraphs listed in para 173 (including para 116) did so, amongst other things, "maliciously with intent to oppress and defraud the plaintiff of his rights toward the child". There are no particulars or identification of facts which would support such a broad and far-reaching rolled-up allegation being made against, amongst others, the "unknown officer(s) of Qantas" who are said by the plaintiff (in para 116) to have entered into this unlawful agreement to keep the entry of the plaintiff's ex wife into Australia and her departure with the plaintiff's daughter from Australia a secret. Nor are there facts otherwise pleaded in the proposed ASOC which are capable of sustaining the conclusion that the predominant purpose of all the participants of this alleged agreement, including relevantly the unknown officer(s) of Qantas, was the particular intent pleaded.

93. I agree with Qantas' submission that, in its current rolled-up form, the allegation as to intent in para 173, made against the defendants including Qantas and in the context of all the alleged unlawful agreements and decisions said to be contained in the 28 paragraphs of the proposed ASOC listed in para 173 (of which only para 116 is relevant to the plaintiff's claim against Qantas) is embarrassing and defective.

94. Qantas submitted that the intent pleaded in para 173 is not sufficient to give rise to the tort of conspiracy, it not being an intent to injure the plaintiff. That is arguable Qantas also relied on the intent in para 173 not being directed at the plaintiff's economic interests. The authorities including Lonhro No 5 at 188-189 and the cases there cited support Qantas' contention which I uphold.

95. On further analysis, Qantas pointed out that even if it had entered into the unlawful agreement alleged in para 116 "negligently and with reckless indifference as to the plaintiff's … welfare" as the plaintiff has claimed in para 173, that too would not be sufficient to give rise to an actionable tortious conspiracy, in particular one actionable by the plaintiff.

96. In para 173 the plaintiff alleges that Qantas entered into , amongst other things, the unlawful agreement alleged in para 116 "negligently and in breach of duty of care owed to the plaintiff". It is not stated in the proposed ASOC that Qantas owed a duty of care to the plaintiff as to the carriage of the plaintiff's former wife and their child on a Qantas flight nor as to its commercial dealings with the plaintiff's former wife. There are no facts in the proposed ASOC from which it could be inferred that Qantas owed such a duty to the plaintiff nor could any be legitimately alleged. There is no such duty. In the absence of a duty of care and the existence of facts which would support such a duty, the assertion of negligence fails both as a matter of pleading and substance.

Alleged abduction and wrongful removal of the child from Australia

97. In paras 148 to 150 of the proposed ASOC the plaintiff alleged that Qantas assisted in the abduction and wrongful removal of the plaintiff's daughter from Australia by smuggling the child in secrecy through the corridors of Sydney Airport to the Qantas plane inducing her to enter the aircraft and by transporting her from Sydney to Frankfurt.

98. Qantas pointed out that unlike the criminal law which regards a conspiracy as being constituted by the agreement alone, liability in tort for conspiracy arises only where the agreement is put into effect (Munnings v AGS (1994) 118 ALR 385 at 389-390, Lonhro (supra) at 188, Balkin & Davis at 626). Accordingly the conspiracy alleged in para 142 (the AGD, the DOCS and the CSO solicitors and counsel were organising immediate abduction or wrongful removal of the child out of Australia and succeeded in obtaining all the necessary assistance from, amongst others, the officers of Qantas) of the proposed ASOC is not actionable until it is put into effect and concerted action taken pursuant to it. The conspiracy alleged in para 142 appears from the surrounding paragraphs to relate to the period 8 to 12 October 1998, that is, before the mother and child boarded the plabe on 14 October 1998. Qantas submitted that the allegation in para 142 can rise no higher than the allegations in paras 148 to 150 in the proposed ASOC (just summarised). Paragraphs 148 to 150 appear to contain the particulars of the implementation of the arrangements referred to in para 142. As the plaintiff's claim based on paras 148 to 150 failed, so too must the claim based on para 142.

99. I agree with Qantas' submission that the plaintiff's assertion that his daughter was abducted, in particular by or with the assistance of Qantas is scandalous and vexatious and should be struck out. The materials refute such an allegation. In support of this submission the plaintiff also relied on proposed annexures A6, A11, A12 and A14 to the proposed ASOC.

100. Qantas pointed out that insofar as it is asserted that the removal of the plaintiff's child from Australia was wrongful or unlawful, no basis is pleaded or otherwise identified in paras 145 to 152 of the proposed ASOC in support of this assertion. To the extent that the child's departure from Australia is claimed to have been in contravention of orders of the Family Court, that forms the basis of a separate claim by the plaintiff pleaded in paras 153 to 157 of the proposed ASOC. If the alleged contravention of those orders is also said to be the unlawful act underpinning the allegations in paras 148 to 150 of the proposed ASOC, then the appropriate remedy lies in the Family Court and not this Court or an action for the tort of conspiracy.

101. On 9 September 1998 Rowlands J made the following orders:

"1. That the appeal is dismissed.

2. That the child Elena Markisic born 3 May 1997 be returned to Macedonia forthwith in the company of such person or upon such conditions as the Court deems necessary pursuant to the provisions of the Hague Convention on the Civil Aspects of International Child Abduction.

3. That leave be granted to both parties to relist these proceedings before me on 24 hours notice in relation to the necessary conditions of return.

4. That pending the return of the child to Macedonia the father make the child available on a daily basis for a visit from an officer of the Department of Community Services at a time to be arranged between the Department and the father, such contact to take place at the father's home.

5. That leave be granted to both parties to relist these proceedings on 24 hours notice before me in relation to the implementation of these orders.

6. That Order 2 hereof is stayed until 4.00 pm on 22 September 1998.

102. The Court noted:

"1. That the father will on 21 September 1998 make an application to the Full Court of the Family Court to extend the stay referred to in Order 6 hereof

103. The plaintiff filed his Notice of Appeal to the Full Court on 16 September 1998. On 29 September 1998 the Full Family Court discharged Order 4 made by Rowlands J, but otherwise dismissed the appeal. The Court further ordered that the child remain in the care of the Director-General of DOCS pending her return to the Former Yugoslav Republic of Macedonia. The Court, as previously mentioned, ordered that the plaintiff's application for a stay of these orders pending his making an application for leave to appeal to the High Court be dismissed, save that para 2 of the order of Rowlands J made 9 September 1998 be stayed for seven days to permit the appellant to make an application to a single justice of the High Court of Australia for a further stay of that order.

104. On 20 July 1998 the Court by Judicial Registrar Knibbs, had made some exparte orders on the application of the Director-General of DOCS to ensure that the child was not removed from Australia and adjourned the matter until 31 July 1998. The orders made included that the child not be removed from Australia until further order of the Family Court, that until further order the plaintiff surrender forthwith to the Registrar of the Family Court all current passports relating to himself and the child, that the plaintiff's name and that of the child be placed upon the Airport Watch List at all International Airport Terminals within Australia and until further order the Australian Federal Police restrain the plaintiff and the child from leaving Australia. The orders made on 9 and 29 September 1998 amounted to a further order that the child be removed from the jurisdiction to Macedonia and superseded the orders of Judicial Registrar Knibbs.

105. On 6 November 1998, on the application of the Director-General, DOCS, and by consent, the Family Court, vacated the orders of Registrar Knibbs of 20 July 1998 that the plaintiff surrender all current passports relating to himself and the child and those placing their names upon the Airport Watch List, and that until further order the Australian Federal Police restrain the plaintiff and the child from leaving Australia. The Family Court further ordered that their names be removed from the Airport Watch List and the plaintiff have his passport returned to him forthwith upon a request being made by him to the Registry in writing.

106. I have referred to the terms of the various Court orders to show that, apart from the pleading deficiencies, there is no substance in the assertions that Qantas acted in contravention of the Court's orders. The orders made on 20 July 1998 were interlocutory orders designed to hold the position until the Court had an opportunity to hear both parties and resolve the disputes. The intent and the terms of the orders of Rowlands J and the Full Family Court were clear and once the High Court refused to grant a stay the child was to be returned forthwith to Macedonia. The earlier orders, to the extent that they were inconsistent with the orders of Rowlands J and the Full Court, had been superseded. The suggestion that the child was removed without lawful justification is without substance. Even if the taking of the child by the AFP officers in reliance upon the terms of the Court's order of 29 September 1998 is relied upon, that was a matter that should have been raised in the Family Court or the High Court.

107. In the absence both of adequate identification in the proposed ASOC of a basis for asserting that the departure of the plaintiff's daughter from Australia on board a Qantas aircraft with her mother was unlawful and further, the materials strongly establishing that such departure was not an unlawful act, there is no basis for alleging a tortious conspiracy by unlawful means and that allegation should not be pursued.

108. The allegation in para 148 that unknown Qantas officers assisted in the alleged abduction and unlawful removal of the plaintiff's child "with intent to oppress and maliciously or recklessly indifferent to the plaintiff's welfare and rights or negligent in the discharge of their duties", is unsustainable for the reasons earlier given when dealing with similar allegations in para 173.

109. The materials annexed to the proposed ASOC established that to the extent that Qantas assisted with the departure of the child from Australia, it did so pursuant to a contractual obligations as a carrier by air under a booking by the plaintiff''s ex wife and upon payment of the appropriate fare and not under an alleged conspiratorial or unlawful agreement with the other defendants.

110. As previously mentioned paragraph 148 alleges a malicious intent on the part of Qantas officers associated with the flight on which the plaintiff's child left Australia. This allegation is not supported by the documents annexed to the proposed ASOC. The officers are not identified. Qantas pointed out that no facts have been pleaded which would support the intent alleged (especially in view of what appears in Annexures A6, A11, A12 and A14 to the proposed ASOC).

111. The Court will not permit this claim of malicious intent against Qantas to proceed merely on a bare assertion to this effect and the absence of supporting particulars and facts. The terms of the annexures to the proposed ASOC are inconsistent with the allegation being made. Not only is this pleading markedly deficient but the plaintiff's claim that Qantas participated in a conspiracy by lawful means to remove the plaintiff's child from Australia with intent to injure the plaintiff is futile and bound to fail. Qantas, as a public carrier, was doing no more than making a seat available on a plane to the child's mother. The effect of doing this was to assist in the carrying out of a Court order.

112. Qantas correctly submitted that the tort of conspiracy is usually classed as a tort against a plaintiff's commercial or economic interests. Qantas also submitted, correctly, that damage is the gist of the action and that a plaintiff in a civil action for conspiracy to succeed must prove actual pecuniary loss: Lonrho, PLC v Fayed (No 5) [1993] 1 WLR 1489 at 1494B per Dillon LJ at 1501B-D per Stuart Smith LJ and at 1508 per Evans LJ. These are powerful judgments based on authorities of high standing. At 1501E Stuart Smith LJ said:

"Actual pecuniary loss is not the same as injury or damage which can be measured or compensated by a monetary award. The latter would include damages for personal injury or injury to reputation … Nor is it sufficient … to constitute the tort that the defendant's actions were merely calculated to cause pecuniary loss, unless they actually did so."

113. Stuart Smith LJ followed the earlier judgment of the Court of Appeal in Ratcliffe v Evans 1892 2 QB 524 at 532-533 as to what should be pleaded by way of damage. Actual pecuniary loss had to be alleged and particularised. See also per Evans LJ at 1508.

114. Qantas pointed out that particulars of the injuries, losses and damages were set out at paragraphs 213 to 218 of the proposed ASOC but the plaintiff had not identified what damage etc related to which causes of action and what claims for damages and losses related to the causes of action alleged against Qantas.

115. The particulars of damages focus on claims for nervous shock, mental distress and aggravated mental distress which damaged the plaintiff's health. It was contended that the plaintiff had been abused, oppressed and traumatised. The particulars of injuries suffered included post traumatic stress disorder, depression, anxiety, insomnia, fibromyalgia and pain. The particulars of losses suffered included loss of enjoyment of life, loss of contact with the child and loss of enjoyment of the child's company. They also included losses of "business, business opportunity, sense of achievement in business, future earnings from the business and the software, future earnings in his profession." No particulars of these losses have been given. They seem to be just several headings in a lengthy list. No relevant facts have been pleaded to sustain a permissible claim for actual pecuniary loss. None of the damages, injuries, disabilities or losses claimed amount to actual pecuniary loss sufficient to sustain a claim for the tort of conspiracy. I agree with Qantas' submission that the bare and unparticularised allegation of loss contained in the proposed ASOC is not sufficient to sustain a claim in conspiracy (Lonrho (No 5) at 1494D per Dillon LJ. This is especially true where that unparticularised loss is, as in the present case, claimed in a rolled-up fashion. What was supplied in the present case falls far short of the requirements outlined by Bowen LJ in his classic judgment in Ratcliffe v Evans 1892 2 QB 524 at 532-533.

Alleged Contravention of Orders of Family Court

116. In para 156 of the proposed ASOC the plaintiff seeks "against the persons involved in the denial of contact with the child and involved in the abduction or wrongful removal of the child out of Australia reparation for losses and expenses relating to the child under s 117A of the Family Law Act as particularised in 'Particulars – injuries, losses and damages'."

117. Section 117A(1) relevantly provides:

"(1) Where:

(a) a court has found, for the purposes of Division 13A of Part VII, that a person has, by taking a child away from another person or by refusing to deliver a child to another person, contravened:

(i) a residence order; or

(ii) a contact order;

(b) a person has been convicted of an offence against section 65Y or 65Z in respect of a child;

(c) a court has found, for the purposes of Division 13A of Part VII, that a person has, by taking a child away from another person or by refusing or failing to deliver a child to another person, contravened an injunction granted, or an order made, under section 114; or

(d) a person has been found to be in contempt of a court exercising jurisdiction under this Act by reason of having taken a child away from another person or having refused or failed to deliver a child to another person;

a court having jurisdiction under this Act may, subject to subsection (2):

(e) on the application of the Commonwealth …

(f) on the application of any other person – order the first-mentioned person to make reparation to that other person, by way of money payment or otherwise, in respect of any loss suffered, or expense incurred, by that other person in recovering the child and, if applicable, returning the child to a person."

(Subsection (2) does not apply in the present case).

118. As appears from s 117A(1) relief pursuant to that section is only available where there has been a finding or conviction in accordance with one of paras (a) to (d) above. There is no allegation in the proposed ASOC of such a finding or conviction or any evidence from the plaintiff of the existence of such a finding or conviction. This Court has no jurisdiction in these proceedings to make such a finding or record such a conviction.

119. The reparation being sought may be made by "a court having jurisdiction under this Act" (the Family Law Act). The Supreme Court does not have any jurisdiction under the Family Law Act: Markisic v Vizza & Ors [2001] NSWSC 115 and Markisic v Vizza & Ors [2002] NSWCA 384. Special leave to appeal was refused by the High Court on 14 November 2003. Nor does the Supreme Court have jurisdiction to entertain a claim that the alleged contravention by Qantas of Family Court Orders amounted to a contempt of court.

120. As previously mentioned the plaintiff seeks "…reparation for losses and expenses relating to the child as particularised in 'Particulars – injuries, losses and damage'." Paragraphs 213 to 218 contain no particulars of "losses and expenses relating to the child". These paragraphs do not contain claims which are the subject of reparation under s 117A(f) of the Family Law Act.

Interference with the plaintiff and the domestic relations of the plaintiff

121. In para 179 of the proposed ASOC the plaintiff has identified some 86 paragraphs on which he proposed to rely, including, as against Qantas paras 148 to 150, and alleges that all of the defendants, by themselves their officers and agents "intentionally interfered with the plaintiff and the plaintiff's domestic relations maliciously. I agree that in its current rolled up form para 179 is embarrassing.

122. If the allegations in paragraph 116 and paras 148 to 150 were made out they do not establish an interference with the plaintiff on the part of Qantas sufficient to be actionable in tort (beyond the causes of action already considered). Even if it could be established that by reason of the matters alleged in paras 116 and 148 to 150, Qantas intentionally interfered with the plaintiff's domestic relations as alleged in para 179, there is no such cause of action known to the law. It is true that in para 215 the plaintiff particularises as one of his losses:

"(f) services from the child"

123. After distinguishing the cases of seduction, enticement and harbouring, Balkin & Davis, 3rd Ed 2004 Law of Torts at p745 state that the action for loss of services which is available to an employer if an employee has been negligently injured by a third party may also be brought by a parent who, for the same reason has been deprived of the household services of a child. This action (unlike the other three earlier mentioned) is founded on the personal injury to the child,. At 745-6 Balkin and Davis write:

"Even from the earliest times, evidence that the injured child had in fact provided services to the parent, of which the latter had been deprived by reason of the injury, was reduced to little more than fiction. Nevertheless the loss of such services remained the gist of the action denying recovery where the child was only two years old at the time of the injury and thus clearly unable to have provided any services."

124. The authority cited is Hall v Hollander (1825) 107 ER 1206.

125. Paragraph 179, allowing for its incorporation of many other paragraphs of the proposed ASOC does not disclose a tenable cause of action.

126. The plaintiff's proposed ASOC in its current form is embarrassing and defective. Going beyond matters of form and concentrating on matters of substance it is evident that the plaintiff has no tenable sustainable or arguable cause of action against Qantas. I would refuse the plaintiff leave to file the proposed ASOC against Qantas.

127. The plaintiff should not be given any further opportunity to proceed against Qantas because of his lack of substantive merits as against Qantas. The plaintiff's claims against Qantas are doomed to failure. The plaintiff's proceedings as against Qantas are dismissed with costs.

Claims Against State of New South Wales

128. For the reasons previously given the conspiracy claims against New South Wales are embarrassing and defective and are bad in substance. The materials make it apparent that there is no tenable or arguable cause of action. They are dismissed.

Trespass to Land

129. This claim appears to relate to the entry of the AFP officers into the mother's home at 17 Edward Street, Arncliffe (sometimes referred to as Turrella) on 29 September 1998. The mother lived there with Oliver Markisic. The plaintiff usually lived at Unit 9, 16-20 Warialda Street, Kogarah. He claims that he moved into his mother's home temporarily. The mother played a major part in assisting with the care of the child who had been left with her while the plaintiff and Oliver Markisic attended at Court.

130. In TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 at 339 Spigelman CJ said:

"The tort of trespass is committed whenever there is interference with possession of land without lawful authority, or relevantly, the licence or consent of the person in possession."

131. The Chief Justice applied these remarks of Mason CJ, Brennan J, Gaudron J and McHugh J in their joint judgment in Coco v The Queen (1994) 179 CLR 427 at 435:

"Every unauthorised entry upon private property is a trespass, the right of a person in possession or entitled to possession of premises to exclude others from those premises being a fundamental common law right."

132. In the present case the issue is whether the plaintiff had sufficient possession to maintain an action of trespass.

133. In MacIntosh v Lobel (1993) 30 NSWLR 441 at 454 Kirby P pointed out "As it developed, the action of trespass to land vindicated only violations of actual possession of the land."

"Who may sue for trespass to land? The key to the tort is to be found in its purpose. That purpose is the protection of quiet possession of land. In

Clerk & Lindsell on Torts

, 16th ed (991989), London, the authors state (par 23-08 at 1309) that:

'… a person in possession can sue although he neither is the owner nor derives title from the owner, and indeed may be in possession adverse to the owner.

Possession means generally the occupation or physical control of land. The degree of physical control necessary to constitute possession may vary from one case to another, for "by possession is meant possession of that character of which the thing is capable".'

Mr MacIntosh pointed out that the same authors go on to stress (at par 23-15 at 1315) that mere occupation of premises by a servant or bailiff or any other person occupying land or buildings in a merely ministerial character, even where exclusive, does not amount to such 'possession' as will sustain an action for trespass to the land.

I take this qualification to be referring to a case of a claim separate from that of the employer who is entitled to possession. The cases cited by the authors to sustain their proposition confirm this …"

134. Kirby P at 455 said:

"But where, as here, there is a one-man company in undoubted physical possession and that company is nothing more than the alter ego of that director and principal employee an invasion of the company's 'possession' is also an invasion of that of such a director and employee."

135. Mahoney JA and Cripps JA held that Mr Lobel did not have a sufficient interest in the subject property entitling him to maintain an action for trespass to land. The view was taken that insofar as there was anyone in possession it was the company and that Mr Lobel was not himself in possession of the premises in law or de facto.

136. The proposed ASOC does not assert facts from which it could be concluded that the plaintiff had a sufficient interest in 17 Edward Street to maintain an action for trespass. The materials point strongly to the opposite conclusion. At best the plaintiff was allowed to use the premises known as 17 Edward Street. He did not enjoy exclusive possession of the whole or part of those premises. The premises 17 Edward Street could not accurately be described as the plaintiff's land and home.

137. Again the form of the pleading is embarrassing and defective. More importantly, the materials reveal that there is no tenable or arguable cause of action based on trespass to land. Leave to amend to rely on such a cause of action should be refused. The proceedings against the State should be dismissed so far as they purport to rely on a cause of action based on trespass to land.

Abduction or Wrongful Removal of Child

138. In para 101-25 of the proposed ASOC the plaintiff alleged that an unknown officer(s) of the Commonwealth and/or the State "either with intent to oppress, knowingly, maliciously and fraudulently or negligently or recklessly indifferent to the plaintiff's welfare and rights, unjustifiably and out of authority" urged and directed the AFP wrongfully or without warrant to take possession of the child by force from the plaintiff's home, or failed to prevent AFP members from so doing. In para 101-26 it was alleged that the actions mentioned with the intent mentioned were done with respect to the plaintiff's welfare and rights. Paragraph 101-27 alleges that the AFP members involved acted with the intent mentioned in wrongfully removing the child.

139. The State contends that no known cause of action is pleaded. Unfortunately, this is another example of a rolled-up allegation to which it is not possible for the State to plead. No identifiable or arguable cause of action is pleaded. It is not clear whether this material is intended to form part of the Ninth Conspiracy or is related to it. The standing and operation of paras 101-25 to 101-27 are not discernible nor the cause of action intended to be advanced.

Wrongful Removal of the Child's Name off the Airport Watch List

140. In para 145 of the proposed ASOC it is alleged that on or about 13 October 1998 to effect the Ninth Conspiracy the AFP members Jenny Hurst and Alison Barrette and/or other unknown AFP member(s), on urging by either an AGD solicitor and/or the counsel and/or CCA and/or the SCA and/or other unknown officer(s) of the State and/or the Commonwealth negligently in the discharge of their duties, without lawful justification changed the data on the AFP's computer system in relation to the plaintiff and the child, i.e., removed the child's name from the Airport Watch List and changed the data in relation to the Family Court Order which prohibited the removal of the child out of Australia and disregarded the said order. The plaintiff alleges that this permitted the wrongful removal of the child from Australia.

141. It was on 13 October 1998 that the High Court declined to grant a stay of the order of the Family Court providing for the return of the child forthwith to Macedonia. This involved a superseding of the earlier interlocutory orders of the Family Court. It could not be said that the removal of the child from Australia was wrongful once the High Court had declined the stay. Nor was it wrongful for members of the AFP to update the data on the computer to reflect the result of the High Court and Family Court proceedings. Para 146 is ancillary to cl 145.

142. The plaintiff is attempting to rely on a cause of action unknown to the law.

Contravention of Family Court Orders

143. This subject was dealt with when dealing with the claims against Qantas. For the reasons then given this Court has no jurisdiction in respect of the claims made as a result of the contravention of the Family Court's orders.

Trespass To The Plaintiff

144. Although this heading appears on p 17 of the proposed ASOC and immediately above para 101-28, the plaintiff appears to be relying on a trespass to land and the police taking possession of the child. There is no trespass or assault to the plaintiff pleaded.

Interference With Domestic Relations

145. The child was born on 3 May 1997 and so as at 29 September 1998 was almost 17 months old and as at 14 October 1998 was just over 17 months of age. She was too young to render services and thus the plaintiff has no action at common law for the loss of her services.

Nervous Shock to the Plaintiff

146. In paras 101-31 to 101-33 of the proposed ASOC the plaintiff claimed that sending unknown officers of the State and/or Commonwealth and/or AFP members "either with intent to oppress, knowingly, maliciously and fraudulently or negligently or with reckless indifference to the plaintiff's welfare and rights, unjustifiably and out of authority inflicted nervous shock, emotional distress and trauma to the plaintiff" when he heard over the phone about the abduction of his child, when he did not find the child at his home and heard that the child was abused by AFP members, seized by force and taken to some undisclosed destination, when he saw how deeply his whole family was traumatised and how distressed his mother was as a result of AFP mistreatment.

147. The State submitted that the plaintiff's child was not a victim either at common law or within the meaning of s 30(1) of the Civil Liability Act 2002 (NSW) and therefore no action for nervous shock was available to the plaintiff. The extent to which that Act applies may be a matter of debate as the removal of the child took place on 29 September 1998. That Act uses the word "victim". Section 30(1) and (2) provide:

"(1) This section applies to the liability of a person ( the defendant) for pure mental harm to a person ( the plaintiff ) arising wholly or partly from mental or nervous shock in connection with another person ( the victim ) being killed, injured or put in peril by the act or omission of the defendant.
(2) The plaintiff is not entitled to recover damages for pure mental harm unless:

(a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or
(b) the plaintiff is a close member of the family of the victim."

148. Section 30(2)(b) is the applicable provision.

149. Section 31 provides:

"There is no liability to pay damages for pure mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness."

150. Section 32 (1) and (2) provide:

(1) A person (the defendant) does not owe a duty of care to another person ( the plaintiff) to take care not to cause the plaintiff mental harm unless the plaintiff ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.

(2) For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following:

(a) whether or not the mental harm was suffered as the result of a sudden shock,

(b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril,

(c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril,

(d) whether or not there was a pre-existing relationship between the plaintiff and the defendant."

It is doubtful whether the child was a victim in the sense of being injured or put in peril by the act or omission of the defendant. The child would have been distressed by being taken.

151. Considering the matter at common law apart from statute reference should be made to these decisions of the High Court. In Sullivan v Moody and Thompson v Connon (2000) 207 CLR 562 the fathers of children who had been examined for evidence of sexual abuse by medical practitioners and social workers employed by the Department of Community Welfare, sued those persons and the State of South Australia for damages in negligence in the conduct of those examinations which resulted in reports that the children had been sexually abused. Those reports were apparently incorrect. The plaintiffs alleged that as a result of the negligent examination, diagnosis and reporting they had suffered shock, distress, psychiatric injury and consequential personal and financial loss.

152. It was held that it would be inconsistent with the proper and effective discharge of the professional or statutory responsibility of those involved in investigating and reporting upon allegations of sexual abuse for them to be subject to a legal duty to take care to protect persons who were suspected of being the causes of harm.

153. These casers are a reminder of the need to analyse whether the defendants were subject to a duty to take care to the plaintiff. In the present case the State and the Commonwealth were discharging, or attempting to discharge, the duties which arose under the Hague Convention. The order for the child to be taken into the care of the Director-General (NSW) was made by the Full Court of the Family Court because of the opinion formed by all three judges having regard to the history of the matter and the plaintiff's conduct in Court.

154. In Tame v New South Wales and Annetts & Anor v Australian Stations Pty Limited (2002) 211 CLR 317 the High Court again considered the question of the existence of a duty of care and when damages for psychiatric injury were available. In Tame the driver of a car involved in a traffic accident had a nil blood alcohol level. A police officer mistakenly recorded in his report that the driver had a blood alcohol level of 0.14. The error was subsequently noticed and corrected, but a copy of the uncorrected report was provided to the insurer who nevertheless admitted liability. Some time after the accident, the driver's solicitor told her about the entry concerning her blood alcohol level in the police report which had been given to the insurer. On further inquiry the police confirmed that the entry was wrong and apologised for the mistake. The insurer confirmed that liability for the accident was admitted. The driver became obsessed with the mistake and developed a psychiatric disorder. She sued the State claiming it was vicariously liable for the negligent conduct of the police officer. It was held that the police officer did not owe a duty to take reasonable care to avoid psychiatric injury to the driver. It was not reasonably foreseeable that a person in her position would sustain a recognisable psychiatric injury or illness as a result of the erroneous recording of her blood alcohol level in the accident report.

155. The majority held that the central question was whether, in all the circumstances, the risk of the plaintiff sustaining a recognisable psychiatric injury was reasonably foreseeable. By a majority of 6 to 1, it was held that the duties of an investigating police officer are potentially inconsistent with the existence of a duty to take reasonable care to avoid psychiatric injury to a person whose conduct is under investigation.

156. In Annetts a majority of the High Court held that the common law does not limit liability for damages for psychiatric injury to cases where the injury is caused by a sudden shock or where a plaintiff has directly perceived a distressing phenomenon or its immediate aftermath.

157. Tame and Annetts and Sullivan would have had even greater application if a warrant had been issued authorising the actions taken by the AFP. The alleged removal of the child without sufficient lawful authority may give rise to a greater degree of nervous shock and a more serious psychiatric illness than the removal of the child lawfully.

158. The State was not involved in the events at 17 Edward Street, Arncliffe on the afternoon of 29 September 1998 and cannot be held liable for the actions of the Australian Federal Police.

159. Putting aside questions of embarrassment and defective pleading, the plaintiff's claim for nervous shock against the State cannot succeed.

Damage To The Plaintiff's Reputation

160. In para 101-34 the plaintiff complains of damage to his reputation by the neighbours witnessing AFP members forcefully entering the house, running out of the house with the child who was in a distraught condition causing the neighbours to think that the plaintiff is a criminal and an abusive or neglectful parent. Para 101-35 is a complimentary paragraph raising much the same point.

161. This is not an independent cause of action. It flows from the purported execution of the Court's orders of 29 September 1998.

Breach of Statutory or Other Duty

162. I will later deal with the various paragraphs as to the AFP.

163. No actionable breach of statutory or other duties on the part of the State or the State's officers sounding in damages appears to have been pleaded.

164. I have earlier referred to Sullivan v Moody & Ors, Thompson v Connor & Ors, Tame v NSW and Annetts v Australian Stations. In their joint judgment in Sullivan v Moody at [27] the Court referred to -

"the incongruity of a proposition that, in deciding what precautions should be taken to protect a child from apprehended sexual abuse, decision makers owe a duty to protect a suspected abuser from emotional distress and other forms of harm."

165. The present case differs significantly on the facts from Sullivan v Moody. It is hard to see how steps taken to recover possession of the child would not distress the parent losing the child and the child, where the parent losing the child and his family strongly resist handing over the child and the child has to be taken by force and without adequate lawful authority.

166. At [62] in Sullivan c Moody the justices, after referring to the statutory scheme of protecting children which formed the background to the activities of the respondent continued:

"Their professional or statutory responsibilities involved investigating and reporting upon, allegations that the children had suffered and were under threat of serious harm. It would be inconsistent with the proper and effective discharge of those responsibilities that they should be subjected to a legal duty, breach of which would sound in damages, to take care to protect persons who are suspected of being the source of that harm."

167. It is one thing to complain that the procedures for taking the child were defective (and seriously so) in that the child was taken without a warrant and in apparent reliance upon an order of the Family Court, it is another to complain of sundry breaches of duty including negligence.

168. No relevant duty of care was owed by the State or its officers to the plaintiff.

Misfeasance In A Public Office

169. In para 183 the plaintiff alleges that the officers and agents of the defendant(s) and/or the responsible defendant(s) with their actions and/or omissions as described in "abovementioned paragraphs" performed misfeasance in a public office. The plaintiff also asserts that the acts or omissions of the aforesaid persons as described in the abovementioned paragraphs were illegal. The plaintiff has nominated some 75 paragraphs.

170. In para 184 it is alleged that the aforesaid persons abused the power given them by statute and that the acts or omissions of the aforesaid persons were performed maliciously with intent to oppress and defraud the plaintiff of his rights toward the child. The allegations pleaded in paras 183-185 are rolled up allegations and lack sufficient particularity. They are embarrassing and defective.

171. Further, there is no substance in the allegation of misfeasance in a public office. There is no arguable or tenable cause of action available of misfeasance in a public office.

Misrepresentation

172. In paragraphs 134, 139-140 of the proposed ASOC the plaintiff relies on alleged misrepresentations on the part of Mr Twohill, an officer with the Crown Solicitor's Office. In paras 175-177 the plaintiff relies upon allegedly false or fraudulent misrepresentations made in some 30 paras and asserts that "in making of each of the false or fraudulent misrepresentations [as described in those paras] the officers and agents of the defendant(s) and/or the responsible defendants maliciously, with intent to oppress, wrongfully to remove the child out of Australia and to defraud the plaintiff of his rights towards the child and/or negligently and/or with reckless indifference as to the plaintiff's and the child's welfare and rights."

173. Paragraph 176 continues and mixes in what appear to be other allegations, if not causes of action. The para is a confusing conglomeration of allegations. As to form the paragraphs contain many rolled up allegations, there is a lack of particularity as to what each officer did and precisely what is alleged. These paragraphs are embarrassing and defective.

174. As a matter of substance it is not possible to detect a tenable or arguable cause of action based on misrepresentation.

Defamation Claim

175. Through the Freedom of Information legislation the plaintiff was able to obtain copies of reports prepared by officers of DOCS and the AGD. They were critical of the plaintiff. He alleged that they bore imputations that he was a bad parent, a violent person and a dangerous person. There was a claim for absolute privilege extending to all preparatory steps taken with a view to judicial proceedings and in connection with judicial proceedings. It is not easy to see how the claim for absolute privilege can be surmounted. The defamation counts appear to be futile. It should not be overlooked that the reports containing the critical material were circulating between officers of the State and the Commonwealth who were engaged as part of their duties in the Hague Convention proceedings and the return of the child to Macedonia.

The Commonwealth

176. I turn now to the remainder of the pleading as it affects the Commonwealth.

Conspiracy Counts/Unlawful Agreement

177. It will be apparent from what I have earlier written that not only are these bad as to form, embarrassing and defective but they cannot stand as a matter of substance.

178. As to the allegations of trespass to land, abduction or wrongful removal of the child, wrongful removal of the child's name from the airport watch list, contravention of Family Court orders, Trespass to the Plaintiff, Interference with Domestic Relations, Loss of Child's Services, Nervous Shock to the Plaintiff, Damage to the Plaintiff's reputation, breach of statutory or other duty, Negligence, Misfeasance in a Public Office, Misrepresentation and Defamation, so far as they affect the Commonwealth these matters have been sufficiently covered by what I have earlier written.

179. Amongst the many claims one matter stands out. When the Full Court of the Family Court made its orders on 29 September 1998 authorising the taking of the child and the placing of her within the care of the Director-General (NSW) of DOCS, the Australian Federal Police were not issued with a warrant nor did they obtain a warrant. There is an arguable case that by taking the child without a warrant the AFP acted unlawfully. The plaintiff would have been distressed on being told, shortly after the finish of the Court proceedings on 29 September 1998, that AFP officers had forcibly taken his child and that distress would have been heightened by his belief that that was unlawful. The orders of 29 September 1998 envisaged a warrant being issued.

180. The plaintiff ought to be allowed to litigate his claim against the Commonwealth so far as it is based on the AFP wrongfully removing the child without a warrant. This encompasses the nervous shock allegedly suffered by the plaintiff as a result of the AFP's alleged negligence in doing so without a warrant and the trespass to the child. The plaintiff should not be allowed to litigate any of his other claims.

181. The plaintiff must pay the costs of each of the defendants of his application for leave to file the proposed ASOC attached to his affidavit of 14 August 2003.

182. I make the following orders:

1. Dismiss the plaintiff's application of 15 August 2003 for leave to file the proposed amended statement of claim in the terms attached to the plaintiff's affidavit of 14 August 2003.

2. Dismiss Department of Community Services of NSW from the proceedings.

3. Dismiss the proceedings as against the State of New South Wales, The Trustees of the Roman Catholic Church For The Archdiocese of Sydney and Qantas Airways, Justice Robyn Flohm, Chief Justice Alistair Nicholson and Justice A R O Rowlands.

4. Order the plaintiff to pay the costs of all defendants of his application of 15 August 2003.

5. Order the plaintiff to pay the costs of the proceedings of the Department of Community Services of NSW, the State of New South Wales, The Trustees of the Roman Catholic Church For The Archdiocese of Sydney and Qantas Airways Limited.
6. Grant the plaintiff leave to apply to amend his statement of claim limiting his claim to the removal (or unlawful removal) of the child from the possession of the plaintiff (via his mother) without a warrant for such removal and consequential damage, such application to be made by motion within 42 days and to be accompanied by a proposed amended statement of claim limited as mentioned and correct as to form and substance. This encompasses the nervous shock allegedly suffered by the plaintiff as a result of the AFP's alleged negligence in doing so without a warrant and the trespass to the child.

183. It is noted that there was no evidence of service upon Justices Flohm, Nicholson and Rowlands; the Court taking the view that there was no tenable or arguable cause of action against any of them and that in such circumstances and for the avoidance of unnecessary costs the better course was to dismiss the proceedings against them.

184. The plaintiff should not endeavour to enlarge, expand or vary his claim. This is the second hearing on pleading matters. If the plaintiff's third pleading of his case is not correct as to form and substance, he should not expect to be allowed a further opportunity to plead his case.

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03/05/2006 - Judgment not imported - Paragraph(s)

CITATION:	Markisic v Dept of Community Services of New South Wales & Ors [2005] NSWSC 1373 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	3 February 2005
JUDGMENT DATE :	31 May 2005
JUDGMENT OF:	Smart AJ at 1
DECISION:	See paragraphs 182-184

LEGISLATION CITED:	Civil Liability Act 2002 (NSW) Crown Proceedings Act 1988 Family Law Act Family Law (Child Abduction Convention) Regulations
CASES CITED:	Annetts & Anor v Australian Stations Pty Limited, Tame v New South Wales, (2002) 211 CLR Balkin v Davis, 3rd Ed 2004 Law of Torts Clerk & Lindsell on Torts 16 ed 99,189 London Coco v The Queeen (1994) 179 CLR Crofter Hand Woven Tweed Co v Veitch [1942] AC Hall v Hollander (1825) 107 ER Lonhro Ltd v Shell Petroleum Co Ltd (No 2) 1982 AC MacIntosh v Lobel (1993) 30 NSWLR Markisic v Vizza & Ors [2001] NSWSC 115 Markisic v Vizza & Ors [2002] NSWCA 384 Munnings v AGS (1994) 118 ALR PLC v Fayed (No 5) [1993] 1 WLR Ratcliffe v Evans 1892 2 QB Richel v Magrath 14 AC 665 Rippon v Chilcoten Pty Limited (2001) NSWLR 198 Rogers v The Queen (1994) 181 CLR State Bank of New South Wales Ltd v Stenhouse (1997) Aust Torts Reports 64,077 Sullivan v Moody & Ors, Thompson v Connon & Ors; 207 CLR 562 TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR Walton v Gardner (1993) 177 CLR
PARTIES:	Dragan Markisic v Department of Community Services of New South Wales, State of New South Wales, Commonwealth of Australia, The Trustees of The Roman Catholic Church of The Archdiocese of Sydney and Qantas Airways
FILE NUMBER(S):	SC 20698/00
COUNSEL:	(P) In Person (with Mr O Markisic) (D1-D2) Ms V Hartstein (D3) Mr D P Robinson SC (D4) Mr A Kohn (solr) (D5) Mr J Young
SOLICITORS:	(P) N/A (D1& 2) State Crown Solrs (D3) Aust Govt Solicitor (D4) Mr A Kohn (Makinson & D'Apice) (D5) K Williams (Qantas) Mr G Kathner (Comm AG & Ors subpoenas]

(a)	Original statement of claim filed	20 Dec 00
(b)	Qantas' motion seeking striking out and summary dismissal of plaintiff's claim	23 Feb 01
(c)	Master Malpass ordered plaintiff's claim be struck out	19 Apr 01
(d)	Qantas served with draft amended statement of claim and document headed "Particulars – Common Law" Plaintiff provided a further amended version of these documents (On this day the plaintiff's application to file this originating process fixed for hearing on 6 Jul 01)	28 May 01
(e)	Plaintiff's application for leave to file amended originating process adjourned pending receipt of court appointed legal assistance	6 July 01
(f)	Legal assistance terminated as plaintiff declines to accept legal advice given
(g)	Present motion supported by plaintiff's affidavit of 14 Aug 03 annexing further draft amended statement of claim	15 Aug 03