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

The case of *Markisic v Department of Community Services of New South Wales (No 2)* concerned an application for leave to appeal and a cross-appeal arising from a dispute between Mr Markisic and the Department of Community Services of New South Wales, as well as the State of New South Wales and the Commonwealth of Australia. The core of the dispute involved allegations of wrongful conduct by the Department in relation to Family Court orders, and claims of defamation.

The legal issues before the court included whether the proposed statement of claim intelligibly stated facts sufficient to enable the defendants to know the case they were called upon to meet, particularly concerning allegations of wrongful conduct in the implementation of Family Court orders and the subsequent damage allegedly suffered. The court also had to consider whether the defamation claims were futile due to absolute privilege and whether leave should be granted to re-plead these claims.

The Court of Appeal, comprising Giles JA, Santow JA, and Ipp JA, reasoned that the proposed statement of claim was deficient in its pleading of causes of action related to the implementation of Family Court orders, finding that any such conduct did not cause the damage for which Mr Markisic sued. Furthermore, the court determined that the submissions regarding absolute privilege for the defamation claims were insufficient to conclude they were futile, and that these matters should be argued before a judge in the Defamation List. Consequently, the court refused leave to appeal on most grounds but granted leave to appeal limited to the defamation claims, allowing the appeal in that respect and setting aside the dismissal of those claims against the State of New South Wales and the Commonwealth of Australia. The proceedings were to be entered in the Defamation List, with leave granted to apply for leave to file an amended statement of claim re-pleading the defamation claims within 21 days. The court also made orders regarding costs, with Mr Markisic ordered to pay a significant proportion of the costs of the other parties.