Markisic v Department of Community Services of New South Wales (No 2)

[2006] NSWCA 321

New South Wales

Court of Appeal

CITATION:	Markisic v Department of Community Services of New South Wales & Ors (No 2) [2006] NSWCA 321 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	1 May 2006, 8 & 9 November 2006
JUDGMENT DATE:	23 November 2006
JUDGMENT OF:	Giles JA at 1; Santow JA at 95; Ipp JA at 96
DECISION:	A. On the application for leave to appeal: (1) Refuse leave to appeal save as stated in order 2; (2) Grant leave to appeal limited to leave to apply to re-plead the defamation claims, and (2.1) allow the appeal in that respect; (2.2) set aside the orders made on 21 June 2005 dismissing the proceedings against State of New South Wales and Commonwealth of Australia but only so far as the defamation claims were dismissed; (2.3) enter the proceedings in the Defamation List in the Common Law Division; (2.4) grant leave to apply to a judge in the Defamation List for leave to file an amended statement of claim re-pleading the defamation claims; (2.5) direct that the application in 2.4 be made within 21 days of today’s date accompanied by the proposed amended statement of claim. B. On the application for leave to cross-appeal: (1) Grant leave to appeal and direct the filing of the notice of appeal within seven days; (2) Appeal allowed; (3) Set aside order 6 made on 21 June 2005; (4) Dismiss the proceedings against Commonwealth of Australia save as to the defamation claims. C. As to both applications and the appeal, order that Mr Markisic pay ninety per cent of the costs of the State of New South Wales, ninety per cent of the costs of Commonwealth of Australia and the whole of the costs of the other opponents. D. In these orders “the defamation claims” means the claims pleaded in paras [193]-[223] of MFI 1.
CATCHWORDS:	PLEADING - consideration of necessity to intelligibly state facts and enable opposite party to know case called upon to meet - proposed statement of claim deficient - save as to defamation claims, no error in refusing leave to apply to re-plead - CAUSES OF ACTION - collateral attack on extant orders of Family Court - allegations of wrongful conduct leading to making of orders - no cause of action for damage from making orders - allegations of wrongful conduct in implementing orders - any such conduct did not cause damage for which sued - in exercise of discretion leave to apply from refusal of leave to apply to re-plead refused - DEFAMATION - defamation claims said to be futile because publications attracted absolute privilege - insufficient submissions on that matter - should be argued before single judge in Defamation List - to enable that, leave to appeal and to apply to re-plead the defamation claims.
CASES CITED:	Ashrafi Persian Trading Co Ltd v Ashrafinia [2001] NSWCA 243; (2002) Aust Torts Rep 81-836; Atwood v Chapman (1914) 3 KB 275; Cabassi v Vila (1940) 64 CLR 130; Cachia v Westpac Financial Services Ltd {2005] NSWCA 239; Hall v Hollander (1825) 4 B & C 660; Kirby v Sanderson Motors Pty Ltd (2001) 54 NSWLR 135; Lincoln v Daniels (1962) 1 QB 237; Mann v O'Neill (1997) 191 CLR 204; Markisic v Department of Community Services NSW [2006] NSWCA 106; O'Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1; Trade Practices Commission v Australian Iron & Steel Pty Ltd (1990) 92 ALR 395.
PARTIES:	Dragan Markisic - Claimant Department of Community Services of New South Wales - First Opponent State of New South Wales - Second Opponent Commonwealth of Australia - Third Opponent The Trustees of the Roman Catholic Church for the Archdiocese of Sydney - Fourth Opponent Qantas Airways Ltd - Fifth Opponent Justice Flohm - Sixth Opponent Chief Justice Nicholson - Seventh Opponent Justice Rowlands - Eighth Opponent
FILE NUMBER(S):	CA 40739/05
COUNSEL:	Claimant in person V Hartstein - First and Second Opponents D P Robinson SC & J Horowitz - Third, Sixth, Seventh and Eighth Opponents A Kohn (Solicitor) - Fourth Opponent J Young - Fifth Opponent
SOLICITORS:	I V Knight, Crown Solicitor - First and Second Opponents Australian Government Solicitor - Third, Sixth, Seventh and Eighth Opponents Makinson & d'apice - Fourth Opponent Blake Dawson Waldron - Fifth Opponent
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 20698/00
LOWER COURT JUDICIAL OFFICER:	Smart AJ
LOWER COURT DATE OF DECISION:	30 May 2005, 21 June 2005, 14 July 2005
LOWER COURT MEDIUM NEUTRAL CITATION:	[2005] NSWSC 1373; [2005] NSWSC 1374; [2005] NSWSC 1375

CA 40739/05
SC 20698/00

GILES JA
SANTOW JA
IPP JA

Thursday 23 November 2006

MARKISIC v DEPARTMENT OF COMMUNITY SERVICES OF NEW SOUTH WALES & ORS

Judgment

1 GILES JA: These are applications for leave to appeal and leave to cross-appeal from the decision of Smart AJ on an application by the claimant, Mr Dragan Markisic, to file an amended statement of claim (Markisic v Department of Community Services of New South Wales [2005] NSWSC 1373, 1374, 1375). In the manner I will describe, the leave applications developed into consideration of a substantially different amended statement of claim on which Mr Markisic wished to rely. The leave applications were heard on full submissions, as if appeals, so that an appeal could be determined without a further hearing if leave were given.

2 I set out the background stated in the reasons of Smart AJ -

“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 1998 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.”

3 Mr Markisic made clear in this Court that he disputes that Elena’s mother journeyed to Australia to collect her.

4 On 20 December 2000 Mr Markisic filed a statement of claim to which the defendants were Department of Community Services of New South Wales (“DOCS”), State of New South Wales (“the State”), Commonwealth of Australia (“the Commonwealth”), Glebe Centacare and Qantas Airways Ltd (“Qantas”). At all material times in the conduct of the proceedings he has not been represented by a lawyer, and has acted for himself with the assistance of his brother Mr Oliver Markisic.

5 The person holding the office or position of Director-General of DOCS (“the Director-General”) was the State Central Authority appointed under the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”), authorised by s 111B of the Family Law Act 1975 (C’th) and giving effect to Australia’s accession to the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (“the Convention”). The Convention is the Hague Convention to which Smart AJ referred, and the Regulations provided for application by a Central Authority for a judicial order for the return of an abducted child. The application to the Family Court was made in the name of the Director-General, and a number of officers of DOCS and of the Commonwealth Central Authority were involved in the application and the return of Elena to Macedonia.

6 At least judging by the later versions of the statement of claim, the State and the Commonwealth were joined as vicariously liable for acts and omissions of a host of Ministers, solicitors, public servants, police officers and others, including the State and Commonwealth Central Authorities and DOCS, involved in the events leading to the return of Elena to Macedonia. Glebe Centacare (a misnomer later corrected) had the custody of Elena, using foster-carers, for most of the period from when the officers of the Australian Federal Police (“the AFP”) took possession of her until she left Australia on the Qantas flight.

7 Each of the defendants applied to strike out the statement of claim, and on 19 April 2001 Master Malpass (as his Honour then was) struck it out. The statement of claim and the reasons of the Master were not before us. Smart AJ said that the Master struck it out “because of pleading deficiencies”.

8 Smart AJ recorded -

“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.”

9 On 15 August 2003 Mr Markisic applied for leave to file an amended statement of claim in the terms of a draft attached to an affidavit. The draft amended statement of claim correctly named the Trustees of the Roman Catholic Church for the Archdiocese of Sydney (“the Trustees”) in place of Glebe Centacare. It also named as additional defendants Justice Flohm, who had been counsel for the applicant in the proceedings in the Family Court; Chief Justice Nicholson, who had presided in the Full Court of the Family Court; and Justice Rowlands. It was a lengthy document of 218 paragraphs over 45 pages, and Smart AJ engaged in under-statement when he said that it “is somewhat discursive and spreads its fire far and wide”.

10 Smart AJ described the amended statement of claim -

“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.“

11 In the course of his reasons Smart AJ held that the draft amended statement of claim was bad as to form and that leave to file it should not be granted, saying that it was embarrassing and that a defendant would not be able to plead to it and it did not comply with Pt 13 r 5, Pt 15 rr 6, 7 and 26 and Pt 16 r 2 of the Supreme Court Rules. Part 15 rr 6 and 7 and Pt 16 r 2 were concerned with the form and manner of pleading. Pt 13 r 5 and Pt 15 r 26 were concerned with summary dismissal of proceedings and striking out pleadings. His Honour plainly enough meant that the draft amended statement of claim was both bad in form and such that the proceedings would be dismissed or the draft amended statement of claim would be struck out if it were filed.

12 His Honour nonetheless sought at some length to discern in the draft amended statement of claim the causes of action alleged against the various defendants, and held that with one exception they were an abuse of process or untenable. In some instances he said that the cause of action alleged was unknown to the law, detailed further pleading deficiencies, and described portions of the pleading as embarrassing, and as to some matters he said that the draft amended statement of claim was scandalous or scandalous and vexatious.

13 The exception was that his Honour considered that there was an arguable case that the officers of the AFP took possession of Elena from Mr Markisic’s mother without a warrant, as distinct from under the authority of the order that a warrant issue, and thereby acted unlawfully. He said -

“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.”

14 With respect to the claims against Justice Flohm, Chief Justice Nicholson and Justice Rowlands, his Honour noted that there was no evidence of service upon them. They had not appeared on the application. His Honour said that, being of the view that there was no tenable or arguable cause of action against any of them, in those circumstances and for the avoidance of unnecessary costs the better course was to dismiss the proceedings against them.

15 His Honour concluded his reasons -

“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.”

16 Smart AJ published his reasons and made orders, it seems later treated as foreshadowed orders, on 31 May 2005. Mr Markisic applied by notice of motion for his Honour to “reconsider and set aside his judgment delivered on 31 May 2005 on the ground of bias and fraud of defendants” and “to disqualify himself from further hearing of the proceedings on the ground of bias”.

17 In reasons published on 21 June 2005 Smart AJ recorded that “[t]he object of the reconsideration was that I should allow the plaintiff to file his proposed amended statement of claim, or at least an amended statement of claim, in wider terms than envisaged by the orders foreshadowed on 31 May 2005”. After a full consideration of what had been put to him by Mr Markisic, his Honour rejected the allegation of bias and concluded that he should not reconsider the substance of the orders proposed in his judgment of 31 May 2005. He dismissed the notice of motion and made orders.

18 Smart AJ ordered that Mr Markisic’s application for leave to file the draft amended statement of claim be dismissed. He dismissed DOCS from the proceedings on the ground that it was not a proper defendant (see CrownProceedings Act 1988, s 5). He dismissed the proceedings against the State, the Trustees, Qantas, Justice Flohm, Chief Justice Nicholson and Justice Rowlands.

19 As to the Commonwealth, his Honour ordered -

“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 nervous shock allegedly suffered by the plaintiff involved in the trespass to the child.”

20 On a later occasion Smart AJ made orders for costs against Mr Markisic. It will be noted that his Honour did not grant leave to re-plead against the Commonwealth, but leave to apply to re-plead with a proposed amended statement of claim.

21 Mr Markisic applied for leave to appeal. In his draft notice of appeal, which had over 30 grounds with many more issues within the grounds, he asked that the orders of Smart AJ be set aside and “[t]he case be remitted to the Common Law Division of the Supreme Court of NSW for further clarification of issues between the parties with the purpose of the preparation of the case for trial and fixing a trial”. For reasons which will appear, it is sufficient to say that in the summary of argument filed in accordance with the Rules Mr Markisic contended that the judge had been biased, had denied him procedural fairness, and had comprehensively erred in ways said by Mr Markisic to vitiate his determination of the application to file the draft amended statement of claim. In that summary Mr Markisic said that he did not seek leave to appeal against the order dismissing DOCS; DOCS nonetheless remained named as a party in his leave application.

22 The Commonwealth applied for leave to cross-appeal from order 6 made by Smart AJ, on the ground that leave to apply to re-plead against the Commonwealth should not have been granted because the officers of the AFP owed no duty of care to Mr Markisic and there was no tenable cause of action against the Commonwealth.

23 The leave applications came on for hearing before us on 1 May 2006. Mr Markisic had not joined Justice Flohm, Chief Justice Nicholson and Justice Rowlands as opponents, or given them notice of his leave application. He said that he still wished to proceed against them as defendants in the proceedings. (Chief Justice Nicholson and Justice Rowlands had by this time retired; I will still refer to them by these honorifics, that being the manner they continued to be described in Mr Markisic’s leave application.) Mr Markisic also said at the commencement of the hearing that he wished to “re-plead certain parts of the statement of claim because some new facts came out – came to the knowledge of the claimant”, although he did not have a fresh draft amended statement of claim.

24 Mr Markisic’s explanation of the changes he wished to make went beyond changes to accommodate new facts. He said that he would not press any of the conspiracies in the amended statement of claim, and that -

“[t]he new causes of action will be misfeasance in public offices [sic] and interference with domestic relations, trespass to the child and trespass to the plaintiff with many unlawful orders and directions given by superiors”.

25 Mr Markisic agreed with Ipp JA’s description of this as an entirely different case. When it was suggested that there could not be a cause of action for misfeasance in public office against Qantas, he described a case he wished to re-plead against Qantas.

26 In the course of the ensuing submissions about what course the Court should take, some of the opponents opposing any adjournment for Mr Markisic to produce a fresh draft amended statement of claim and all being concerned as to costs, Mr Markisic referred in general terms to unlawfulness in the conduct of the defendants and proposed defendants. He appeared to accept that the draft amended statement of claim put before Smart AJ was not easy to understand, and said that the “new document … will be understandable to all parties involved and also will be understandable for the Court – better understandable … “.

27 For reasons then given (Markisic v Department of Community Services NSW [2006] NSWCA 106) the Court adjourned the leave applications, gave leave to amend Mr Markisic’s leave application by joining as opponents Justice Flohm, Chief Justice Nicholson and Justice Rowlands, and gave directions for service on the opponents of Mr Markisic’s fresh draft amended statement of claim. The Court directed that service of the fresh draft amended statement of claim be “accompanied by affidavit evidence showing that there are facts which probably can be proved which, if proved, would support the allegations in the revised statement of claim” (a course similar to that taken in, for example, Trade Practices Commission v Australian Iron & Steel Pty Ltd (1990) 92 ALR 395 at 413).

28 The leave applications came on again for hearing on 9 November 2006. Justice Flohm, Chief Justice Nicholson and Justice Rowlands had been joined as opponents. Mr Markisic had served a fresh draft amended statement of claim. He had also served affidavits pursuant to the Court’s order of 1 May 2006, with voluminous documentary exhibits and exhibiting eight DVDs.

29 As Mr Markisic’s leave application had developed, he no longer wished to rely on the draft amended statement of claim which he had sought leave to file before Smart AJ, and the Court was not required to consider whether the decision of Smart AJ was vitiated by bias or by error in refusing leave to file the draft amended statement of claim. It should be said, however, that there was no foundation for actual or ostensible bias on his Honour’s part, and that the draft amended statement of claim was manifestly bad in form and embarrassing.

30 Rather, and although not clearly raised in Mr Markisic’s draft grounds of appeal, the question was whether Smart AJ should have granted Mr Markisic leave to apply to re-plead more widely than he did, with this Court’s consideration focussed on the fresh draft amended statement of claim as the re-pleading on which he relied. There remained also the Commonwealth’s application for leave to cross-appeal, in the consideration of which the fresh draft amended statement of claim could be taken as Mr Markisic’s re-pleading for the purposes of the leave granted by Smart AJ (although complicated by the pleading against the other defendants and against the Commonwealth in other respects).

31 The fresh draft amended statement of claim is a document of 229 paragraphs over nearly 40 pages. It also well merits Smart AJ’s description of “somewhat discursive and spreads its fire far and wide”. It was not formally tendered or marked for identification, and I have caused a copy of it to be marked MFI 1 and placed with the Court papers.

32 There are found in the fresh draft amended statement of claim assertions that the defendants and many persons said to be servants and agents of the defendants owed to Elena and Mr Markisic diligence and good faith, owed to them common law duties of care and statutory duties, engaged in unlawful acts, engaged in abuse of process, committed unlawful acts or omissions, trespassed against Elena and towards Mr Markisic, interfered with Mr Markisic’s domestic relations (in context and as explained, by the removal of Elena), committed misfeasance in public office, and intentionally or negligently inflicted nervous shock on Elena and on Mr Markisic. Towards the end it alleges defamation in a number of communications between officers of the State and the Commonwealth involved in bringing the proceedings in the Family Court and the return of Elena to Macedonia, the publications said to be “circulating between officers and agents of” the State and the Commonwealth.

33 Sometimes detailed allegations of events are given and allegations of fact are made the relevance of which is not evident. There are generalised assertions of wrongfulness, rolled-up allegations, and allegations of a web of conspiracy and complicity (although not using those words). Frequent allegations of unlawfulness, fraud, malice, reckless indifference, denial of natural justice and acting “without or out of statutory powers” appear, and at least once an allegation of blackmail.

34 Under the UCP Rules, replacing the Supreme Court Rules to which Smart AJ referred but to the same effect, a pleading must contain only a summary of the material facts on which the party relies and not the evidence by which those facts are to be proved (Pt 14 r 7). There must be pleaded specifically any matter which, if not pleaded, may take the opposite party by surprise (Pt 14 r 14). A pleading must give all necessary particulars to enable the opposite party to identify the case the pleading requires him to meet (Pt 15 r 1), and in particular must give particulars of fraud or misrepresentation (Pt 15 r3). Where there are allegations of negligence or breach of statutory duty, the facts and circumstances constituting the alleged negligent act or omission or the alleged breach of statutory duty must be given, so far as possible separately for each alleged negligent act or omission or breach of statutory duty (Pt 15 r 5).

35 These are particular requirements, but more generally it is necessary that the pleading be intelligible and enable the defendant to know the case which the defendant is called upon to meet, to plead to it and to respond to it by evidence at a trial. That is essential if justice is to be afforded to the defendant, and underlies in part summary dismissal of proceedings and striking out pleadings for vexatiousness, failure to disclose a reasonable cause of action or tendency to cause prejudice, embarrassment or delay (the UCP Rules are Pt 13 r 4 and Pt 14 r 28).

36 It is often convenient, and may be appropriate in order to provide clarity and avoid surprise, to plead the effect in law of the facts pleaded, see Kirby v Sanderson Motors Pty Ltd (2001) 54 NSWLR 135 at [20]-[22] per Hodgson JA. Where that is done, as his Honour said at [22], the pleading “should convey just what cause or causes of action are being relied on”, and it follows that it should also enable it to be seen with clarity what facts are said to make out the cause or causes of action. It is not sufficient simply to assert conclusions of law, such as that a common law duty of care is owed; the pleading must intelligibly state the facts on which the plaintiff relies for the existence of the duty of care (see also Ashrafi Persian Trading Co Ltd v Ashrafinia [2001] NSWCA 243, (2002) Aust Torts Rep 81-836, in which Heydon JA says at [47] that it is not enough for the plaintiff “merely to mouth general phrases current in analysing the tort of negligence and leave it to the defendant to establish why those general formulae would be insufficient to bring the plaintiff success”.

37 In what follows I put aside for the present the defamation claims in the fresh draft amended statement of claim. It can be recognised that an unrepresented litigant will not necessarily bring to the preparation of a statement of claim the abilities which a lawyer would bring. The fresh draft amended statement of claim should not be viewed over-critically. With due recognition that Mr Markisic is unrepresented, the fresh draft amended statement of claim falls far short of a document which accords with what I have said above, and the opponents could not be expected to plead to it or to endeavour to respond to it by evidence at a trial. The deficiencies are such that they can not be cured, as Mr Markisic suggested, by leaving it to the defendants to ask for further particulars. For this reason alone, Mr Markisic should not be permitted to file the fresh draft amended statement of claim.

38 This Court is concerned with leave to appeal from Smart AJ, in the manner I have explained in particular with whether his Honour should have granted Mr Markisic leave to apply to re-plead more widely than he did. At times Mr Markisic suggested that he was applying to this Court for leave to file the fresh draft amended statement of claim, which is not correct, although if that were the issue for this Court leave should in my opinion be refused. Leave to appeal should not be granted to enable Mr Markisic to contend that he should have been granted leave to apply to re-plead more widely, because the fresh draft amended statement of claim shows that the result would again be a defective pleading.

39 There is a further reason why, still putting aside for the present the defamation claims, leave to appeal from Smart AJ’s failure to grant Mr Markisic leave apply to to re-plead more widely than he did should be refused. It is linked with determination of the Commonwealth ‘s application for leave to cross-appeal.

40 It is difficult, in the state of the fresh draft amended statement of claim, to address whether it discloses tenable causes of action. The opponents put submissions to the effect that tenable causes of action were not disclosed, and Mr Markisic responded to them. A deal of what Mr Markisic said in the course of his response served to point up the deficiency of the pleading in form. It was not always easy to understand what Mr Markisic had in mind, but as to a number of matters the way in which he appeared to wish to put claims against defendants was found in the pleading only in a generalised assertion of unlawfulness, when facts sufficient to enable opponents to understand the cases against them should have been pleaded, or otherwise was not expressed with any clarity.

41 Important to Mr Markisic’s litigation is his contention that possession of Elena was taken from his mother, and Elena was returned to Macedonia, pursuant to flawed proceedings in the Family Court and flawed implementation of its orders.

42 As I have indicated, under the Regulations the appointed State Central Authority was the person for the time being holding the office or position of Director-General of DOCS. The Regulations provided for applications to a court by the responsible Central Authority. The flaw in the proceedings, in Mr Markisic’s contention, was that the proceedings in the Family Court should have been brought by the Director-General as the appointed State Central Authority, but they were brought by a person or persons other than the Director-General herself. The fresh draft amended statement of claim referred in that respect to the Australian Government Solicitor, the (Commonwealth) Attorney-General’s Department, DOCS, the (State) Crown Solicitor and a number of solicitors, all alleged to be following the orders of the (Commonwealth) Attorney-General, but also specifically to Mr David Wells. The allegations included that all these persons fraudulently misrepresented themselves as the Commonwealth Central Authority and the State Central Authority, although the requisite particulars of fraud were not given.

43 The Director-General was named as the applicant in the proceedings in the Family Court. Her solicitor was identified as the (State) Crown Solicitor. The body of the application expressed that Mr Wells of DOCS “whose occupation is solicitor and who represents the Responsible Central Authority” applied for orders. It is plain that the Director-General was acting through Mr Wells, an officer of her Department, and solicitors. She was not required to do everything personally (see for example O’Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1 at 31 per Wilson J). The Regulations themselves, giving the Director-General all the powers of a Central Authority under the Convention (reg 5(2), 9), gave her the power stated in the Convention to initiate judicial proceedings with a view to obtaining the return of a child either directly or “through any intermediary” (Article 7). The evidence before Smart AJ included a written delegation by the Director-General to Mr Wells and others of her function under the Regulation to take all appropriate steps to secure the return of children to whom the Convention applied, but quite apart from that document the proceedings could be brought by the Director-General acting through Mr Wells and solicitors. The proceedings were not flawed in their initiation, and there is no basis for the misrepresentation alleged.

44 Further, Mr Markisic did not in his proceedings seek to set aside the orders of the Family Court in relation to Elena’s possession and return to Macedonia. (I do not suggest that there is power in the Supreme Court to do so.) His complaint, at least in relation to the making of the orders as distinct from what was done in their implementation, was that conduct leading to the making of the orders had been wrongful as regards him, and he claimed that the harm which he suffered from the implementation of the orders whereby he suffered the loss of Elena was caused by the wrongfulness. Here and later I refer imprecisely to wrongfulness to encompass whatever may have been Mr Markisic’s intended causes of action, such as breach of duties of care and statutory duties, misfeasance in public office and infliction of nervous shock, see earlier in these reasons.

45 The orders of the Family Court were valid unless and until set aside, and if what was done was authorised by the orders Mr Markisic could not collaterally attack them by complaining of conduct whereby they were obtained, or say that any harm he suffered was caused by wrongfulness in the conduct leading to the making of the orders.

46 In Cabassi v Vila (1940) 64 CLR 130 a magistrate found that Ferrando did not assault Cabassi by striking her on the jaw, as she had alleged in a claim for damages for assault, and gave judgment for Ferrando. Cabassi had given evidence of the striking; Ferrando, Aracil and Vila had given evidence that it did not occur. Cabassi then brought proceedings against Ferrando, Aracil and Vila alleging that they conspired to give false evidence and to fraudulently mislead the magistrate, and claiming damages. A demurrer to the statement of claim was upheld, because action would not lie in respect of evidence given by witnesses in judicial proceedings but relevantly also because the action could not be maintained unless and until the judgment in favour of Ferrando was set aside: see per Rich ACJ at 139, Starke J at 141 and Williams J at 148.

47 Williams J said at 148 -

“When the statement of claim was filed there was in existence a binding judgment against the appellant in favour of Ferrando. Until rescinded the appellant could not have taken any civil proceedings against Ferrando which impugned the judgment except to challenge its validity. The appellant claims to have suffered damage because the judgment was procured by the false evidence of the defendant and his witnesses, but it is a maxim that actus legis nemini facit injuriam . While the judgment stood no averment could be permitted against it, otherwise the judgment would be "blowed off by a side wind".

The decision of the Court of Appeal in Bynoe v. Bank of England shows that third parties such as the other two defendants could not be in a worse position than Ferrando.” (citations omitted)

48 Rich ACJ concurred with Williams J, and his additional remarks at 139 included -

“A proceeding of this kind is an attempt to re-examine the merits of a judgment in a collateral suit between the same parties. Reasons of public policy and uniform authority forbid the attacking and impeachment of a judgment in this way. The plaintiff's only remedy is an equitable proceeding to set aside the judgment, or a petition for a new trial under the statute.”

49 See also the explanation by Hodgson JA in Cachia v Westpac Financial Services Ltd [2005] NSWCA 239, in which damages were claimed for procuring by fraud a judgment in the Federal Court, being the loss of value of the Federal Court cause of action, the costs ordered to be paid, and aggravated punitive and exemplary damages; his Honour said -

“2 The claimant says the Master was mistaken in his reasons for dismissing the proceedings, because the Master said incorrectly that he was attacking the Federal Court decision whereas he was not doing so. However, the difficulty with that submission is that the claimant cannot obtain damages on the basis that he has lost the value of his Federal Court cause of action or that he should not have been ordered to pay the costs of those proceedings, without having the Federal Court decision set aside, because unless and until that decision is set aside it conclusively establishes that his cause of action had no value and that he was properly ordered to pay costs. Furthermore, aggravated punitive and exemplary damages cannot be recovered in a cause of action for fraud unless some ordinary compensatory damages are established.”

50 Mr Markisic did not claim as damages the loss of the value of a cause of action, but the damages he claimed all came back to his loss of Elena; and that loss, if authorised by the orders of the Family Court (and subject to their proper implementation), is not a loss of which he can complain. A cause of action for breach of a duty of care or statutory duty or other alleged wrongfulness in the conduct leading to the making of the orders can not be maintained while the orders remain.

51 The second flaw calls for some expansion of the background.

52 The proceedings in the Family Court were brought on 16 July 1998, with Mr Markisic as respondent. After a contested hearing, on 17 August 1998 Judicial Registrar Johnston made an order for the return of Elena to Macedonia. Mr Markisic applied for review of that decision, and on 9 September 1998 Rowlands J was satisfied “that it is appropriate to dismiss the appeal and make orders in terms similar to those of Judicial Registrar Johnston”. His Honour made the orders -

“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.”

53 Mr Markisic appealed to the Full Court. The hearing of the appeal took place on 29 September 1998. In the course of the hearing application was made for the orders next mentioned. In their reasons for making the orders the Court expressed the view that there was a significant risk that, if Mr Markisic saw the proceedings as running against him, he might take steps to remove Elena from her then address to other parts of Australia or elsewhere. The orders were made -

“IT IS ORDERED
1. That until further order a warrant issue authorising and directing the Marshal and Deputy Marshal of the Family Court of Australia and all officers of the Australian Federal Police and all officers of the Police Forces in the Commonwealth of Australia to take possession of the child ELENA MARKISIC born 3 May 1997 and deliver such child to TIM McDONALD, MANAGER ST GEORGE CSC DEPARTMENT OF COMMUNITY SERVICES, 390 FORREST ROAD HURSTVILLE and that for the purposes of the exercise of the foregoing powers and with such assistance as is necessary and reasonable by force, to:
i) stop, enter and search any vehicle, vessel or aircraft; or
(ii) enter and search any premises or place.
If the person executing the warrant reasonably believes that:

iii) the child is in or on the vehicle, vessel, aircraft or premises; and

(iv) the entry and search is made in circumstances of such seriousness or urgency as to justify search and entry under the warrant where the said child may be or where there is any reasonable cause to believe the said child may be.
2. That sealed copies of these orders be served upon:

a) The Commissioner, Australian Federal Police;

b) the Commissioners of State and Territory Police Forces of the Commonwealth of Australia.
3. That the engrossing and service of these orders be expedited forthwith.”

54 The orders were engrossed. Officers of the Australian Federal Police attended at Elena’s then address, where she was in the care of Mr Markisic’s mother, and took possession of Elena. It appears that the officers of the AFP acted on the engrossed order of the Court, and that a warrant was not issued in the terms of order 1; at the least, there is a basis in fact for that position.

55 The hearing before the Full Court continued, and at its conclusion on 29 September 1998 the Court ordered that the appeal from Rowlands J be dismissed and -

“ FURTHER ORDER

2. That the child ELENA MARKISIC born 3 May 1997 remain in the care of the Director-General of the Department of Community Services pending her return to the Former Yugoslav Republic of Macedonia.”

56 Whether the lastmentioned order was made before or after the officers of the AFP took possession of Elena was unclear, and was potentially in dispute.

57 The flaw in the implementation of the orders, in Mr Markisic’s contention, was that in the absence of a warrant the conduct of taking possession of Elena was wrongful; and Mr Markisic contended that there were thereby trespasses to property and to persons and that the wrongfulness provided ingredients of various other causes of action, and as I understand him that all which thereafter occurred when Elena was placed in the care of the Director-General, was in the custody of Glebe Centacare, and was then conveyed by Qantas under arrangements made by DOCS back to Macedonia was also wrongful. Smart AJ recognised a possible case founded on the absence of a warrant in the limited leave to apply to re-plead against the Commonwealth.

58 The Commonwealth submitted, the other opponents adopting its position, that at least for any claim by Mr Markisic (as distinct from, for example, his mother) the absence of a warrant did not matter. It submitted that Mr Markisic was a party to the proceedings in the Family Court; that he was present when the order concerning taking possession of Elena was made on 29 September 1998; that read with the Court’s reasons, which Mr Markisic heard, there was no doubt that the Court intended that possession should be taken of Elena lest Mr Markisic take her elsewhere; and that although a warrant might have been necessary to authorise conduct of the officers of the AFP towards third parties, it was not necessary to authorise their conduct towards Elena or Mr Markisic. It was submitted that the operation of the order as against Mr Markisic was supported by the words “until further order” at the commencement of order 1, and by the reference in order 2 to service of the orders (as distinct from any warrant) on the Police Commissioners. As against Mr Markisic, therefore, the conduct of taking possession of Elena was not wrongful.

59 There is force in the submission. However, order 1 was in terms of the issue of a warrant, and in my opinion it remains arguable that as against Mr Markisic the intention that a warrant issue governed the operation of the order; and I do not think the construction and operation of the order can be safely determined on an interlocutory basis absent evidence of the full circumstances in which the order was made.

60 For reasons to which I will shortly come, that does not mean that any wrongful taking possession of Elena on 29 September 1998 supports the claims Mr Markisic wishes to make, as best they can be understood from the fresh draft amended statement of claim. First, however, I address two further matters which emerged in submissions in relation to the authority conferred by the orders of the Family Court, neither of which was clear from the fresh draft amended statement of claim.

61 First, Mr Markisic submitted that subpara (iv) of the order in relation to taking possession of Elena made on 29 September 1998 made taking possession of her conditional upon the officers of the AFP reasonably believing that there were circumstances of seriousness or urgency, which in his submission there were not or at least there would be factual dispute; so there was in any event arguable wrongfulness, with the consequences for which he contended.

62 I do not think that is a tenable position. The reasonable belief of the person executing the warrant only came into it if there was a question of entry and search to ascertain the whereabouts of Elena. There was not.

63 Secondly, Mr Markisic submitted that the order for the return of Elena to Macedonia made by Rowlands J was for her return “in the company of such person or upon such conditions as this Court deems necessary”, with liberty to apply in that respect, and that the Family Court had never determined the person or the conditions. He said that the order was conditioned upon its doing so, and had no effect until that had occurred; so that again there was in any event wrongfulness, with the consequences for which he contended.

64 Again, I do not think that is a tenable position. The Convention provided that Central Authorities should, amongst other things, “provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child” (Article 7(h)). By reg 15(1) of the Regulations the Court could make such orders as it considered appropriate to give effect to the Convention, including conditional orders, but it is clear that the Central Authority was to make arrangements and it was not incumbent on the Court to do so or to approve the arrangements. The Court could have been asked to determine the person and the conditions, but if it was not asked to do so it was left to the Central Authority to make appropriate arrangements.

65 The Commonwealth submitted, the other opponents again adopting its position, that even if there were wrongful taking possession of Elena on 29 September 1998 because of the absence of a warrant, authority for the care of Elena and Elena’s return to Macedonia was provided by the orders made at the conclusion of the hearing on 29 September 1998. The appeal to the Full Court was dismissed, and the order for Elena’s return to Macedonia was in force subject to a limited stay which expired before her return to Macedonia. The order that Elena remain in the care of DOCS was not dependent upon her having been placed in the care of DOCS pursuant to a warrant, and it was the plain intention of the Court in the orders made on 29 September 1998 that Elena should be placed in and remain in the care of DOCS. The order that Elena remain in the care of DOCS would have taken effect if; for example, she had been voluntarily given into the care of DOCS. It began from Elena coming into the care of DOCS in accordance with the Court’s intention, and the issue of a warrant was a means of giving effect to the intention but subsidiary to the result; and Elena had come into the care of DOCS.

66 In my opinion this submission, which does not appear to have been made to Smart AJ, should be accepted. I do not think that any other view of the order made at the conclusion of the hearing is tenable, and the result is that any wrongfulness can at best sound in damages in respect of a brief period on 29 September 1998 – perhaps no period at all – when the officers of the AFP took possession of Elena and gave her into the care of DOCS.

67 Regard should then be had to the harm which Mr Markisic alleges he suffered. The particulars of damages in the fresh draft amended statement of claim are of psychological injury and of loss of Elena with consequential psychological injury and injury to health. There is reference also to damage to reputation causing damage to health. Apart from loss of Elena’s services, business losses from the effect of the psychological injury on the conduct of Mr Markisic’s business are alleged.

68 Mr Markisic was not told of the attendance of the officers of the AFP taking possession of Elena until after court on 29 September 1998. By that time he knew of both sets of orders made on that day.. Whatever the effect on his psychological condition of the taking possession of Elena and the loss of Elena, he knew when he left court on that day that Elena was to be placed in the care of DOCS and, subject to any further appellate endeavours, returned to Macedonia. It is hollow to regard him as having suffered any real harm of the kind alleged because (if it be the case) taking possession of Elena on 29 September 1998 required a warrant and there was no warrant. If he suffered the psychological injury alleged, it was in consequence of matters fully authorised by orders of the Family Court. There is no claim for loss of Elena’s services. She was under two years old at the time (see Hall v Hollander (1825) 4 B & C 660; 107 ER 1206), and Mr Markisic’s submission that he could recover for loss of her services when she grew up, apart from having no support in law, does not accommodate that under due authority she was returned to Macedonia.

69 If leave to appeal from Smart AJ’s failure to grant Mr Markisic leave to apply to re-plead more widely than he did were in consideration, contrary to the view which I have already expressed, in my opinion it should not be granted. There is a discretion to grant leave to appeal, and in the exercise of the discretion there are considerations beyond the possibility – in my view not a real one – that Mr Markisic might produce a statement of claim sufficient in form. Any basis tenable in law for claiming damages does not remotely support the damages Mr Markisic claims, and it is difficult to see any damages. He has had three opportunities properly to plead a statement of claim (the documents before Master Malpass, before Smart AJ and put before this Court), but the third statement of claim is as defective as the second. The opponents have been put to considerable trouble and expense – some days before Smart AJ, three days hearing in this Court, with concomitant out of court attention. I do not think the discretion should be exercised in favour of Mr Markisic when the result, even if somehow a statement of claim in proper form was produced, would be a continuation of proceedings with little discernable substance at the cost of considerable further trouble and expense to the opponents.

70 Turning then to the Commonwealth’s application for leave to appeal, it does not appear that Smart AJ had the benefit of the closer examination of the significance to Mr Markisic’s claims of the absence of a warrant which this Court has had. For the reasons I have given, Mr Markisic’s claim for removal of Elena without a warrant could not bring the damages particularised. Smart AJ’s exercise of discretion miscarried because, not through any fault of his Honour, he proceeded on the incorrect basis that the claim which he gave leave to apply to re-plead could encompass the nervous shock allegedly suffered by Mr Markisic. The reasons last given for declining to exercise the discretion to grant leave to appeal in favour of Mr Markisic, applied to the position of the Commonwealth and the claim for removal of Elena without a warrant, in my opinion call for the grant of leave to appeal to the Commonwealth and re-exercise of Smart AJ’s discretion against the grant of leave to apply to re-plead.

71 I come to separate consideration of the defamation claims. They were discrete within the draft amended statement of claim and the fresh draft amended statement of claim, and were substantially the same in both documents.

72 The pleading of the defamation claims in the draft amended statement of claim was deficient in apparent extraction of the defamatory imputations from the collective publications, although particulars suggested that each imputation was linked with a particular publication, and in rolled-up claims against the State and the Commonwealth. Although these deficiencies were repeated in the fresh draft amended statement of claim, it does not appear that they were the subject of particular complaint before Smart AJ. It is not clear that Smart AJ’s strictures on the form of the draft amended statement of claim were directed to the defamation claims, and I rather think that they were not, but if they were the deficiencies could readily enough be rectified.

73 As I understand his reasons, Smart AJ declined leave to apply to re-plead the defamation claims because he considered that they were protected by absolute privilege and were therefore futile. His Honour said -

“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.”

74 Although Smart AJ did not identify it in this passage, there was cited to his Honour and he evidently acted upon Mann v O’Neill (1997) 191 CLR 204 for the absolute privilege. The State and the Commonwealth relied on that case in this Court. They did not go further, or engage in exposition of the case, reference to other cases or analysis of the application of Mann v O’Neill to the fifteen separate publications on which Mr Markisic relied.

75 The first in time of the publications on which Mr Markisic relied was a letter from a DOCS solicitor dated 13 July 1998 to the Crown Solicitor, giving instructions to bring the proceedings in the Family Court for the return of Elena to Macedonia. The letter included the statement that Elena was very young and was still being breastfed at the time of her abduction; it also drew attention to material enclosed as showing that Mr Markisic had violent tendencies. The imputations attributed to this publication were that Mr Markisic was a bad parent in that he selfishly removed his daughter while breastfeeding and that he had violent tendencies.

76 The subsequent publications were -

(a) a DOCS file note dated 17 August 1998 about finding a foster-carer for Elena;

(b) a DOCS fax dated 27 August 1998 to the Commonwealth Attorney-General’s Department about arrangements for the return of Elena to Macedonia;

(c) a DOCS file note dated 30 September 1998 of conversations with two persons involved in Elena’s care;

(d) a fax dated 30 September 1998 from the DOCS solicitor to DOCS officers about the then position in relation to Elena’s possession and care;

(e) a number of DOCS or Commonwealth Attorney-General’s communications or file notes dated from 7 October 1998 to 13 October 1998 about Elena’s care and arrangements for her return to Macedonia.

77 I have given very general descriptions of the subsequent publications, sufficient for present purposes, and there is no need to describe the imputations attributed to them.

78 In Mann v O’Neill an unsuccessful litigant wrote to the Attorney-General and the Minister for Justice questioning the magistrate’s mental capacity. It was held by Brennan CJ and Dawson, Toohey, Gaudron, Gummow and Kirby JJ that the letters were not published on occasions of absolute privilege as statements made in the course of judicial or quasi-judicial proceedings, because they were neither a further step in the proceedings before the magistrate nor a step in initiating further judicial or quasi-judicial proceedings. McHugh J dissented on a basis not material to the present case.

79 The reasons of Brennan CJ and Dawson, Toohey and Gaudron JJ included (at 211-4) -

“It is well settled that absolute privilege attaches to all statements made in the course of judicial proceedings, whether made by parties, witnesses, legal representatives, members of the jury or by the judge. It extends to oral statements and to statements in originating process, in pleadings or in other documents produced in evidence or filed in the proceedings. It is said that it extends to any document published on an ‘occasion properly incidental [to judicial proceedings], and necessary for [them]’ .

…

It is sometimes said that absolute privilege is founded on public policy considerations. It may be that, so far as concerns communications between officers of State in the course of their official duties, absolute privilege attaches by reason of broad considerations of public policy and convenience. However, a more precise basis was identified for that aspect of the privilege in Gibbons v Duffell , it being said in that case that absolute privilege attaches because it is ‘indispensable to the effective performance of ... official functions.’

Whatever the position with respect to communications between officers of State, absolute privilege attaches to statements made in the course of parliamentary and judicial proceedings for reasons of necessity. Thus, it has been said that absolute parliamentary privilege arises from ‘inherent necessity’. And absolute privilege attaches to statements made in the course of judicial proceedings because it is an indispensable attribute of the judicial process. It is necessary that persons involved in judicial proceedings, whether judge, jury, parties, witnesses or legal representatives, be able to discharge their duties freely and without fear of civil action for anything said by them in the course of the proceedings. Were civil liability to attach or be capable of attaching, it would impede inquiry as to the truth and justice of the matter and jeopardise the ‘safe administration of justice’.

It may be that the various categories of absolute privilege are all properly to be seen as grounded in necessity, and not on broader grounds of public policy. Whether or not that is so, the general rule is that the extension of absolute privilege is ‘viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated’.” (citations omitted; emphasis added)

80 Their Honours cited for the emphasised portion of this passage Gatley on Libel and Slander, 8th ed (1981) at para 412 referring to Attwood v Chapman (1914) 3 KB 275 at 287 (in fact referred to as Mann v Attwood, but the same case).

81 In Attwood v Chapman it was held that a notice of objection to renewal of an on-licence served on the police and the owners of the premises, although convenient and usual, was not required by the relevant legislation and, being unnecessary, did not attract absolute privilege. The case does not greatly elucidate what is properly incidental to or necessary for judicial proceedings.

82 In the current edition of Gatley on Libel and Slander, the 10th ed (2004), it is said at para 13.6 that the privilege will attach “to any matter incidental to the proceedings ‘practically necessary for the administration of justice’”, referring to Lincoln v Daniels (1962) 1 QB 237 at 263 where Devlin LJ said -

“I have come to the conclusion that the privilege that covers proceedings in a court of justice ought not to be extended to matters outside those proceedings except where it is strictly necessary to do so in order to protect those who are to participate in the proceedings from a flank attack. It is true that it is not absolutely necessary for a witness to give a proof, but it is practically necessary for him to do so, as it is practically necessary for a litigant to engage a solicitor. The sense of Lord Halsbury's speech [in Watson v McEwan (1905) AC 480] is that the extension of the privilege to proofs and precognition is practically necessary for the administration of justice; without it, in his view, no witness could be called.”

83 Returning to Mann v O’Neill, their Honours said (at 215) that a complaint part of an established procedure to set in motion disciplinary proceedings is properly regarded as a step in those proceedings describing it as incidental to those proceedings and necessary for them with the same reference to Gatley on Libel and Slander. That, however, was not the position of the unsuccessful litigant’s letters.

84 While McHugh J dissented, his Honour’s discussion of the basis of absolute privilege is valuable. He said (at 221-2) -

“The defence of absolute privilege is available, in limited circumstances, in respect of communications made for the purpose or in the course of judicial, executive and parliamentary proceedings. It is available when its absence would hamper ‘the efficient functioning of our governmental institutions: legislative, executive and judicial’. A person seeking to rely upon the defence has the onus of proving that it applies to the circumstances of the case. Furthermore, that person must demonstrate that its application is necessary in such cases if the relevant governmental institution is to work effectively. As Gavan Duffy CJ, Rich and Dixon JJ stated in Gibbons v Duffell :

‘The truth is that an indefeasible immunity for defamation is given only where upon clear grounds of public policy a remedy must be denied to private injury because complete freedom from suit appears indispensable to the effective performance of judicial, legislative or official functions. The presumption is against such a privilege and its extension is not favoured ( Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson ). Its application should end where its necessity ceases to be evident.’


In Gibbons , this Court rejected the availability of the defence for a report made in the course of duty by a police inspector to his superior officer and which contained defamatory statements about the plaintiff.

In the few cases where the common law permits the defence in respect of communications made in the course of judicial or quasi-judicial proceedings, it is because the policy of the law requires the court to look beyond the immediate motives and interests of the parties to the wider interests of the proper functioning of the administration of justice. Thus, the evidence of witnesses in courts of justice is absolutely privileged although no doubt some witnesses give false evidence and may sometimes do so maliciously. But absolute privilege exists because the courts presume that it will encourage a greater number of witnesses to speak in a freer and more informative manner — which clearly serves the interests of justice — than would be the case if they had only the protection of qualified privilege. As Pearce LJ stated in Addis v Crocker :

‘absolute privilege is given to proceedings in courts of law in order that judges, advocates and witnesses may perform their respective parts free from a deterrent fear of actions for defamation. This privilege can create hardship for some persons in particular cases, but it is on balance an advantage to the community’.” (citations omitted)

85 In Lincoln v Daniels at 260 Diplock LJ thought that absolute privilege “might well” cover, in addition to a witness’ proof, instructions given by a party to his solicitor for the preparation of a statement of claim or like document. There is a sound basis for the letter of 13 July 1998 attracting absolute privilege, because instructing a solicitor to bring the proceedings is incidental to and necessary for their commencement.

86 The cases provide less guidance material to the subsequent publications, which were not concerned with obtaining the orders of the Family Court but in different ways with giving effect to them. Giving effect to orders made by courts can be said to be practically necessary for the administration of justice, but again whether absolute privilege attaches to the subsequent publications, and what was said in them, was not the subject of submissions. Assistance from submissions is desirable, particularly given the High Court’s reference to viewing the extension of absolute privilege with jealous suspicion.

87 It may also be that there is a wider basis for absolute privilege within which the publications fall, that referred to in Gibbons v Duffell (1932) 47 CLR 520 at 528 and noted in the reasons of Brennan CJ, and Dawson, Toohey and Gaudron JJ, that absolute privilege for communications between officers of State in the course of their official duties is “indispensable to the effective performance of … official functions”. The submissions before Smart AJ did not engage in any depth with the relevant law, or so far as appears consider possibly different positions of the different publications. His Honour did not express firm conclusions: he said that it was “not easy to see” how the claim for absolute privilege could be surmounted, and that the defamation claims “appeared to be” futile.

88 Without closer attention to the law and its application to the occasions of publication of the separate publications, which did not occur in the hearing of Mr Markisic’s leave application in this Court, Smart AJ’s disposal of the defamation claims should in my view be reviewed; but in the absence of proper submissions I do not think that this Court should decide whether, to the level of arguability appropriate to leave to apply to re-plead the defamation claims, absolute privilege attaches or does not attach to the occasions of the publications and, if the publications are in different positions, to which ones. This Court should not embark on that task without the assistance of proper submissions, nor would it be fair to the parties to do so; and the task is better undertaken by a judge at first instance, with the benefit of proper submissions.

89 The defamation claims, if they can be supported in fact and law and entitle Mr Markisic to damages for injury to his reputation, can not be regarded as trivial. They are brought against the State and the Commonwealth, on allegations that the publications were published by their officers and agents. They are not dependent on flaws in the proceedings in the Family Court or in the implementation of the orders of that Court. In my opinion, leave to appeal from Smart AJ’s decision should be granted so far as his Honour refused leave to apply to re-plead the defamation claims, and the appeal should be allowed; not with a holding in this Court adverse to absolute privilege, but in order that in the application to re-plead the defamation claims there can be considered, if the State and the Commonwealth oppose the application on that basis, whether the application should be refused because the defamation claims are futile.

90 Allowing the appeal to this extent means the grant of leave to apply to re-plead the defamation claims, but the leave does not permit Mr Markesic to add to the publications on which he relies or to the imputations attributed to the publications. The re-pleading will only be to put in proper form the substance of the defamation claims in the fresh draft amended statement of claim. Nor does anything I have said restrict the State and the Commonwealth in the grounds on which they may oppose the grant of leave to re-plead.

91 The leave to apply to re-plead is only as to the defamation claims. The orders of Smart AJ otherwise dismissing the proceedings against the State, and dismissing the proceedings against the Trustees, Qantas, Justice Flohm, Chief Justice Nicholson and Justice Rowlands remain, and save as to the defamation claims the proceedings against the Commonwealth are dismissed. Since all that potentially remains of Mr Markisic’s proceedings is the defamation claims, the proceedings should be entered in the Defamation List and come before a judge in that List.

92 It is not necessary to go to the affidavits served by Mr Markisic in compliance with the Court’s order of 1 May 2006.

93 While Mr Markisic may be able to continue with the defamation claims, they occupied very little of the written or oral submissions. Mr Markisic has in real terms failed on the application for leave to appeal and the application for leave to cross-appeal, and in the disposition of costs no more than a small alleviation of the costs payable to the State and the Commonwealth is appropriate.

Orders

94 I propose the orders -

A. On the application for leave to appeal -


1. Refuse leave to appeal save as stated in order 2;

2 Grant leave to appeal limited to leave to apply to re-plead the defamation claims, and
2.1. allow the appeal in that respect;

2.2 set aside the orders made on 21 June 2005 dismissing the proceedings against State of New South Wales and Commonwealth of Australia but only so far as the defamation claims were dismissed;

2.3 enter the proceedings in the Defamation List in the Common Law Division;
2.4 grant leave to apply to a judge in the Defamation List for leave to file an amended statement of claim re-pleading the defamation claims;

2.5 direct that the application in 2.4 be made within 21 days of today’s date accompanied by the proposed amended statement of claim.

B. On the application for leave to cross-appeal -


1. Grant leave to appeal and direct the filing of the notice of appeal within seven days;

2. Appeal allowed;

3. Set aside order 6 made on 21 June 2005;

4. Dismiss the proceedings against Commonwealth of Australia save as to the defamation claims.


C. As to both applications and the appeal, order that Mr Markisic pay ninety per cent of the costs of the State of New South Wales, ninety per cent of the costs of Commonwealth of Australia and the whole of the costs of the other opponents.

D. In these orders “the defamation claims” means the claims pleaded in paras [193]-[223] of MFI 1.

95 SANTOW JA: I agree with Giles JA.

96 IPP JA: I agree with Giles JA.

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23/11/2006 - spelling error - Paragraph(s) cover sheet