Markisic v Department of Community Services of NSW & Ors

[2007] HCATrans 111

[2007] HCATrans 111

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S476 of 2006

B e t w e e n -

DRAGAN MARKISIC

Applicant

and

DEPARTMENT OF COMMUNITY SERVICES OF NEW SOUTH WALES

First Respondent

STATE OF NEW SOUTH WALES

Second Respondent

COMMONWEALTH OF AUSTRALIA

Third Respondent

TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE ARCHDIOCESE OF SYDNEY

Fourth Respondent

QANTAS AIRWAYS LIMITED

Fifth Respondent

MS JUSTICE ROBYN FLOHM

Sixth Respondent

MR JUSTICE ALISTAIR NICHOLSON

Seventh Respondent

MR JUSTICE ALWYNNE ROWLANDS

Eighth Respondent

Application for reinstatement of a special leave application

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 5 MARCH 2007, AT 9.33 AM

Copyright in the High Court of Australia

__________________

MR D. MARKISIC appeared in person.

MS V.A. HARTSTEIN:   May it please the Court, I appear for the first and second respondents.  (instructed by Crown Solicitor’s Office)

MR D.P. ROBINSON, SC:   I appear for the third, sixth, seventh and eighth respondents.  (instructed by Australian Government Solicitor)

MR A. KOHN:   I appear for the fourth respondent.  (instructed by Makinson & d’Apice)

MR J.J. YOUNG:   If the Court pleases, I appear for the fifth respondent.  (instructed by Blake Dawson Waldron)

HIS HONOUR:   Mr Robinson, you oppose this summons?

MR ROBINSON:   On the basis of futility.

HIS HONOUR:   Mr Kohn, what is your position?

MR KOHN:   Yes, the same, your Honour.

HIS HONOUR:   Mr Markisic, I have read your summons and I have read your affidavit.  Do you have a copy of the draft notice of appeal that you want to file?

MR MARKISIC:   Yes, I have got.

HIS HONOUR:   Have the other parties seen that?

MR MARKISIC:   No, because of the court rules.  I am not obliged to serve until the Justice of the Court give directions.

HIS HONOUR:   Very well.  How many copies of it do you have?

MR MARKISIC:   I have got enough copies to be filed.

HIS HONOUR:   If you can hand one up to me and give one to the other parties each.

MR MARKISIC:   Your Honour, at the same time I would like to give to your Honour additional two documents.  I already served on the other parties.  One copy is applicant changes in paragraph in his affidavit sworn on 25 January 2007 and the other document is applicant chronology in answer to the document chronology I receive from the first and second respondent on Friday.

HIS HONOUR:   Yes, thank you.  I have those documents.  Now, this notice of appeal.

MR MARKISIC:   May I hand up, your Honour.

HIS HONOUR:   Thank you.  Yes, Mr Markisic, do you have a copy of the draft statement of claim that you prepared for use in the Court of Appeal and which the Court of Appeal discussed in its judgment in November?

MR MARKISIC:   I have got with me only the original – to ask your Honour whether I understood your Honour question properly.  Your Honour is asking for the statement of claim which was before the primary judge?

HIS HONOUR:   There was a statement of claim before the Master, Master Malpass.  Then there was a second statement of claim before Justice Smart.

MR MARKISIC:   It was the second one before Justice Smart.

HIS HONOUR:   Justice Smart, yes.  Then in the Court of Appeal attention was not directed so much to Justice Smart’s statement of claim, but a new statement of claim which you prepared for the Court of Appeal to look at afresh.  Do you have a copy of that third one?

MR MARKISIC:   Your Honour, at the time of hearing of the appeal the Court of Appeal was dealing with the application for leave to appeal from Justice Smart.

HIS HONOUR:   Yes, I know that.

MR MARKISIC:   The Court of Appeal was not dealing with the issue of leave to file the revised statement of claim.

HIS HONOUR:   Yes, I know that as well, but Justice Giles directed his reasoning to the third statement of claim with a view to seeing whether Justice Smart erred in not granting you wider leave to replead your statement of claim.  In order to understand Justice Giles’ reasoning I need to look at that third statement of claim.

MR MARKISIC:   I brought, your Honour, only one copy, my own copy.  I was not prepared to ‑ ‑ ‑

HIS HONOUR:   No, if you hand it up to me I will just read through it and then I will hand it back.

MR MARKISIC:   Yes, and I would like to introduce your Honour to some new developments after the Court of Appeal hearing.

HIS HONOUR:   No thanks, new developments do not matter.  Let me just look through this.

MR MARKISIC:   Yes, your Honour.

HIS HONOUR:   I take it the respondents may not have a copy of this now, but they would have had a look at it at some earlier time?

MR ROBINSON:   It was marked MFI 1, I think, before Justice Giles if we are talking about the same document.

HIS HONOUR:   The one I have is 38 pages in length.

MR ROBINSON:   That is probably it, your Honour.  They are usually lengthy documents.

HIS HONOUR:   It has 229 paragraphs.

MR ROBINSON:   Apparently it is, your Honour.

MR MARKISIC:   Your Honour, that is a copy which I served to other parties, exactly the same copy.

HIS HONOUR:   Yes, I will give you that back, Mr Markisic.

MR MARKISIC:   Thank you.

HIS HONOUR:   I have read everything that has been filed, Mr Markisic.  Is there anything you want to say as to why your application for reinstatement of your special leave application should be made in addition to what already appears and what has been filed?

MR MARKISIC:   Your Honour, I provided in support of the application, in support of summons for reinstatement of my special leave to appeal application to the High Court, I provided an affidavit.  I sworn that affidavit on 25 January 2007.  In support of that affidavit, attached to that affidavit I exhibited two documents, that is exhibit A and exhibit B to the affidavit.  I would like to explain to your Honour what are the exhibits.  Exhibit B is certificate from my treating doctor.

HIS HONOUR:   Yes, I have read that.

MR MARKISIC:   Who is my treating doctor from 1995, for 12 years.

HIS HONOUR:   Mr Markisic, maybe it will shorten things if I say this.  The only basis on which the respondents are opposing your application is what Mr Robinson called futility.  They are contending that even if it were reinstated there is no chance of two Justices of this Court granting special leave to appeal and no chance, even if they did, of any appeal being allowed.  In other words, they are accepting that if all that mattered was that you were one day late in filing your draft notice of appeal and that you have partly medical reasons and partly general reasons to explain that delay, they take no point about that.  Their only point is that there is simply no utility to be served in reinstating your application because the Court of Appeal was completely correct in its reasoning.

MR MARKISIC:   I hear what your Honour said about the parties on which ground they oppose my application and in response to the opposition of the other parties to reinstate my application, I will submit to your Honour that in the leave to appeal there are involved very important question of law, very important question of public interest where this Court is involved to decide on very important question affecting the rights of the residents of this State and public in the whole of Australia.  As I said in my application for leave to appeal why the leave to appeal should be granted, I stated grounds, your Honour.

Your Honour can find in Part 4 of my leave to appeal application where I stated in my application why application for leave to appeal should be granted and I stated that it should be granted because of the involvement in the appeal of very important questions and public interest and concern and questions affecting the…..rights and freedoms, that it is of great public interest and concern the involvements of issues involving a treaty or convention, in this particular case, Hague Convention Civil Aspect of International Child Abduction Convention and Family Law (Child Abduction Convention) Regulations 1986 and incorporation of that convention in Australian law being section 111B of the Family Law Act and the relevant regulations implementing the Convention in the Australian law.  Another grounds would be involvement of State, State of New South Wales, involvement of the Commonwealth of Australia, one foreign country being Macedonia and residents from State of New South Wales and from foreign country.

My allegations in the statement of claim of unlawful conduct of a number of public officers of both State and Commonwealth and public authorities towards individuals and, in particular, allegations of fraud, abuse of a child, abuse and neglect in the government detention, mental abuse and infliction of intentional nervous shocks to the child and to father, blackmail of the father.  The most important question, your Honour, for this Court to decide is whether police in this country, being Australian Federal Police, whether need a warrant for entry into the party property and whether Australian Federal Police needs warrant to arrest the child and to imprison the child.

Next question would be whether it can be asked for warrant for possession and whether possession as a term can be used and the State can request possession of a child and whether the State can request to have a child in circumstances when there is no involvement of welfare or whether they can request to have the child when the welfare issue is not of any concern.  In my submission, that question should be decided by this Court because, in my opinion, if the welfare is not an issue the State has no right to request to have the child in the care or to have possession of the child.  It is not only of my concern.  I am not only the one affected person, your Honour.

If the reasoning of the Court of Appeal stays that the police does not need – I will correct myself, your Honour.  The question for possession, that question was not decided by the Court of Appeal.  That question was not before the Court of Appeal.  The most important part of the judgment affecting me, your Honour, of the Court of Appeal is the paragraph 58 and 59 of the judgment of the Court of Appeal.  In paragraph 58 the Commonwealth of Australia is given submissions to their Honours in relation to the question whether warrant is needed for a party in the proceedings and in 58 the Commonwealth is explaining to their Honours that warrant is not necessary to be issued for the party and the AFP can execute only the intention of the court and can arrest the child without warrant. 

In 59 his Honour Justice Giles, but the other two judges adopted the judgment of his Honour and I say in the judgment of their Honours, in 59 they are accepting the submissions from the Commonwealth.  Those two paragraphs are of the most great concern in this appeal and they are affecting me the most, your Honour.  If this reasoning of their Honours’ stays, it is of great concern for the public in State of New South Wales and in Australia.

Your Honour, this submission of the Commonwealth, it was raised for first time at the appeal on surprise to myself, to the claimant or appellant in the lower court, and I was not ready to respond at the time because it was raised on spot and I was not given any time to think about that at all and this submission just passed without any attention of myself or any proper response to that submission.

I would like this Court to take into consideration and to give me an opportunity to properly raise argument in relation to this submission.  I tried to raise this question before the Court of Appeal again.  I filed a notice of motion for slip rule and notice of motion to set aside the judgment of the Court of Appeal on the grounds of obtaining the judgment of the Commonwealth by fraud or by misrepresentation of truth to the Court of Appeal and judgment given against good faith, your Honour.  I was not given any opportunity to argue that notice of motion and to put any more submissions in relation to those two paragraphs.

Also, I appealed before his Honour Justice Bryson in the Court of Appeal.  Justice Bryson dismissed my notice of motion and gave a judgment stating that the rights of the parties are not – and his Honour made an order prohibiting me from any further filing any notice of motion in the Court of Appeal.  So I was precluded from clarifying this issue, your Honour.

Also, the Commonwealth said to their Honours from Bar table, submitted that the AFP, the Australian Federal Police, executed process of the court and they actually – Mr Robinson put a submission before their Honours and their Honours accepted that submission that AFP was acting in the execution of the process of the court on direction probably, as I understood, directly from the Chief Justice at the time, Chief Justice of the Family Court, his Honour Alistair Nicholson. Mr Robinson, the counsel for the Commonwealth, omitted to put a submission at the time of putting his submissions that the process of the court is directed to the marshal of the Family Court under section 38P of the Family Law Act. The process of the court needed in accordance with section 38P where marshal is the person who is executing all the processes in court which are directed to himself.

Court of Appeal omitted to take into account the relevant section of the Family Law Act which defines the procedure, how the process of the court is executed.  If the marshal of the Family Court is not involved and is directed to be responsible for the execution of the process of the court and, in my submission, the Court of Appeal should have taken into account that the condition to be accepted as a process of the court, need marshal to be present at the execution of the process and marshal to be responsible person for the execution of the process.  Without marshal that is not valid execution of the process of the court.

In addition to my submission that warrant was not in existence at that particular time, warrant was never issued and should have been issued, in my submission, and the warrant was needed for the party in the proceedings.  In my submission, Court of Appeal omitted to take into account that the party in the proceedings is the most interested person, not only the proceedings, but interested person to know what is the last step in the proceedings and what is the last decision of the court.

In my submission, the Court of Appeal did not take into account that the last step and last decision of the Family Court is not what Chief Justice said in the courtroom for order for warrant to be issued and to be served on the Australian Federal Police with, in my submission, as the AFP is claiming they understood for execution, but the last step was for the registrar of the Family Court to issue that warrant in some prescribed form. But, in my submission, at the relevant time, on 29 September 1998, there was no prescribed form in Family Law (Child Abduction Convention) Regulations.

The Form 2C came into existence with amendment of the relevant regulations in December 1998 and that is the first time the regulations to have Form 2C which is schedule to the regulation.  On 29 September the registrar of the Family Court, who was the responsible person to issue the warrant in accordance with the order for the warrant to issue from the Full Court of the Family Court, the registrar was not in a position to issue and that warrant should have never been issued because prescribed form was not in existence.  The last decision of the Family Court should have been the decision of the registrar of the Family Court which will the client to issue warrant which is not in prescribed from which is not accepted in any form at that relevant time by the Parliament or the Commonwealth of Australia.  Chief Justice was ‑ ‑ ‑

HIS HONOUR:   I understand these points you are making.  Is there any additional point you want to make?

MR MARKISIC:   Your Honour, there is one other in paragraph 58.  If it please your Honour to look at the paragraph 58 your Honour can see that it is not clarified a couple of things.  First, it is not known what application their Honours are referring I was party to.  I was party in the proceedings, but I was not a party to the application for order for warrant to issue.  I was only present in the courtroom as a party to the proceedings to the notice of appeal.  I was a party in the appeal.  But the application was made ex parte, was made between the counsel for the State Central Authority – it was application between the State and the Family Court.  In my understanding, as my brother is correcting me, it was an application between the State Central Authority and the child where the application was actually for the arrest of the child and I was not respondent or I was not a party to that application and the child was not represented at the time.

The applicant to the application in the Full Family Court should have been considered at the time of the application, the child to be represented, to be appointed child representative and to be considered best interests of the child because the application for the arrest of the child under the Family Law Act should have been considered under Division 10, should have been considered, a representation of the child because the child’s interests is affected and the child’s welfare, and should have been appointed a child representative.

HIS HONOUR:   Yes, I follow that.  Is there any additional point you want to make?

MR MARKISIC:   In my belief, your Honour, it is not clarified who is the party and for which party in which application of proceedings there is no need for warrant to be in existence. 

HIS HONOUR:   Mr Markisic, you are sort of descending into minute detail.  I do understand the general point you want to make about the importance of this warrant question, but is there any other point you want to make?

MR MARKISIC:   Your Honour, as I said to your Honour, this question of the warrant, whether the warrant is necessary for the party in the proceedings and for the child and which party is very important to myself to be resolved because it is not resolved in the lower court, to be resolved by the High Court, because I am aware, according to the judgment of ‑ ‑ ‑

HIS HONOUR:   Mr Markisic, I think I have to be frank with you.  The decisive consideration in the appeal to Justice Giles was this.  Even if there was some legal problem with what has happened in the past, he saw no point in granting leave to replead your claims because there is no prospect that you will ever successfully be able to do so in a form that conforms with the rules about pleading, paragraph 69, for example, of his reasons for judgment.  I just do not see any answer to that reasoning on his part.

A second point I should make is this.  The question of whether pleadings are in a satisfactory form is a matter for primary judges in charge of matters of practice and procedure, like Master Malpass or Justice Smart.  You appealed, or sought leave to appeal, and only to a small extent succeeded in relation to Justice Smart.  This Court virtually never concerns itself with matters of practice and procedure of that kind.  In the circumstances, the prospects of getting special leave to appeal out of two judges appear to me to be nil, subject to anything further you have to say.  Is there anything more you want to say?

MR MARKISIC:   I understood what your Honour said that this Court is not concerned with the practice and procedure in the lower court and the pleading and such issues should be always resolved with the primary judge, in my understanding.  It was said similarly to your Honour in the recent judgment of his Honour Justice Bryson in the Court of Appeal where his Honour said that the rights of the party are not finally resolved with this judgment of the Court of Appeal.  In my understanding of that judgment and that reasoning and after later development of the facts in this case, I decided to replead the certain causes of action in the lower court, but only concern for me was this reasoning of the Court of Appeal in paragraph 58 and 59 which are the most important paragraphs where it deals with the rights of the parties in relation to the existence of the warrant.

I was of concern whether the parties can rely on these paragraphs and I will have some difficulties, the opposition to filing of such statement of claim, would rely on paragraph 58 and 59 and I expected this as a great concern not only for myself, but such reasoning of great public importance

to be decided by the High Court, whether the Court of Appeal is correct in its reasoning in paragraph 58 and 59.  That is why I put to your Honour those two paragraphs are the most important in this judgment because based on those two paragraphs, their Honours are basing the rest of the judgment.

Also, if I understood, if your Honour is of opinion that those two paragraphs are not going to be some obstacle and going to be used against me in the lower court, then I was prepared to replead certain causes of action and to provide to the parties revised statement of claim to reflect new developments and new facts after they came out to the knowledge of the applicant after the delivering of judgment of the Court of Appeal.  I would like to take the chance and will see what will happen on pleading involving the new facts and new development which the Court of Appeal was not concerned in the judgment at all.

HIS HONOUR:   I am just considering your reinstatement application.  I take it there is nothing more you want to say in support of that application?

MR MARKISIC:   I understood what your Honour said to me.  I have no further word to say.

HIS HONOUR:   Thank you, Mr Markisic.

MR MARKISIC:   Thank you, your Honour.

HIS HONOUR:   This is an application by summons filed on 29 January 2007 for reinstatement of an application for special leave to appeal filed on 20 December 2006.  The orders in relation to which the applicant wishes to appeal were made on 23 November 2006 by the Court of Appeal of the Supreme Court of New South Wales, Justices Giles, Santow and Ipp:  see Markisic v Department of Community Services of New South Wales (No 2) [2006] NSWCA 321.

The special leave application was deemed abandoned pursuant to rule 41.10.4 of the High Court Rules because of the failure to file a draft notice of appeal within 28 days of the filing of the application.  It was filed one day late and according to the applicant’s affidavit of 29 January 2007 this arose simply from oversight.  It was not filed, although it had been prepared.  There is also medical evidence that the applicant’s medical condition is such that it caused him simply to forget to file the document.

The respondents have claimed no prejudice as a result of the failure to file the notice of appeal.  In these circumstances the application would ordinarily be granted unless it were futile to do so.  The question turns on whether the applicant has any prospects of success in obtaining special leave.  It is on that sole ground that the respondents oppose the application. 

The proceedings to which the application relates began before the Common Law Division of the Supreme Court of New South Wales on 20 December 2000 with the filing of a statement of claim.  Those proceedings arose from the fact that Macedonia requested Australia to ensure that the applicant’s daughter born in Macedonia but brought to Australia by the applicant be returned to Macedonia.  The statement of claim was struck out by a master.  Acting Justice Smart refused leave to file another statement of claim.  The applicant then applied to Acting Justice Smart for that judgment to be set aside, but he rejected that application. 

The Court of Appeal, after considering a third version of the statement of claim with a view to deciding whether Acting Justice Smart erred in not granting the applicant leave to apply to replead more widely than he did refused leave to appeal except that it granted leave to appeal and allowed the appeal to the extent of permitting the applicant to replead defamation claims against the State of New South Wales and the Commonwealth.

The applicant contends that matters of public importance arise out of the application for special leave, particularly the matters discussed in paragraphs 58 and 59 of Justice Giles’ reasons for judgment.  Although the draft statement of claim on which the applicant sought to rely in the Court of Appeal was not tendered and has not been filed, I have read a copy which the applicant handed up during the argument this morning.  The question of whether a pleading is adequate is a matter of practice and procedure.  It is a question which, in all but very unusual cases, is one best left to primary courts and intermediate Courts of Appeal.

I agree with the reasons given by Justice Giles in relation to whether the draft statement of claim was adequate and in relation to whether it is likely that the applicant would ever be able to produce a satisfactory statement of claim capable of exposing any important questions of law which he wishes this Court to consider.  For those reasons, I dismiss the application for reinstatement.  Is there any application for costs?

MS HARTSTEIN:   Yes, your Honour, on behalf of the first and second respondent.

MR KOHN:   Yes, your Honour.

MR YOUNG:   Yes, your Honour.

HIS HONOUR:   All the respondents want you to pay the costs of this summons, Mr Markisic.  Apart from your lack of wealth, is there any reason why they should not have that order?

MR MARKISIC:   Your Honour, I would like to rely on Part 5 in my application for leave to appeal where I stated reasons why this Court should not make any order for cost against me.

HIS HONOUR:   Yes, I have that.  I read that before and I have just reread it now.

MR MARKISIC:   Yes, I said in this paragraph that I am impecunious person.  I am on disability support pension and because of the wrongful acts and events involving my daughter from 1998 I am on continuous sick leave and I was granted a disability support pension because of my illness.  I correct myself, from 2004 I am granted disability support pension, but till that moment I was on continuous sick – I am not on sick leave because I was not in working position.  I was on a continuous sick – I will correct myself.  From 1998 till 2004 and in 2004 I was granted disability support, but as I explained in my affidavit and in this paragraph, the doctor stated to this Court how I – and because of that, what is stated in paragraph 5, I would ask your Honour to not make any order for cost because that order will further make my impecuniosity and my financial position more difficult than is now. 

Now is very difficult position.  I am out of job for and unfit for work for so many years and if your Honour make any order will make my living worse than is now, your Honour.  I am faced with condition of poorness.  I am not able to live normally.  I am living with my old and sick mother and my mother is also aged pensioner and we are living on very low incomes and not able to have proper living condition and to buy proper food and to have for us proper life, your Honour.

I am aware of one judgment of the High Court where one of – I am not quite sure now which Honour was of this Court, which Justice, but in that judgment the Justice of this Court declined to make an order for costs against impecunious party because in the reasoning it was stated by Judge that this Court is not making order which cannot be enforced or is not of – cannot stand against impecunious party and is not – in some understanding of myself, cannot be enforced against that party because of impecuniosity. 

In my case my impecuniosity is long term, probably to the end of my life, your Honour, and if these conditions continue will not improve any more than it is now.  That order will only stand as oppressive towards myself, your Honour.  I am in this Court, your Honour, for search for justice and prejudice what I suffered in the – if I knew the position and reasoning of your Honour probably I would have taken another course and probably I would never appear before your Honour, but I will – I should have taken another course in the lower court.  As your Honour suggested, that pleadings is always for the resolution, as practice dictated, before the primary courts.  I would like your Honour to exercise your Honour’s discretion, costs always discretionary.  I know that is the rule.  Costs follow the events, I heard for many times in the lower courts appearing in various proceedings. 

I would like your Honour to exercise his discretion and not to make the order for cost as your Honour has power in the proper circumstances and before your Honour is the most proper circumstances where impecunious and pensioner parties involved, your Honour.  Also, the other parties been here represented before your Honour by qualified barristers.  I can submit to your Honour that I was not advised in advance of the position of your Honour what will be the view of the Court to such applications or reinstatement of the application and what could have been development in this matter to avoid just unnecessary appearance before your Honour.  Not any more, your Honour.  Thank you very much for your time.

HIS HONOUR:   The respondents have asked for an order that the applicant pay the costs of the summons.  The applicant has referred to the fact that he is impecunious and is on a disability support pension, that his financial position is unlikely to improve in the future, that his present living conditions are unsatisfactory and he has referred to the medical evidence that he has been suffering from severe depression with anxiety and post‑traumatic stress disorder since 1998.

Whether or not any costs order against the applicant would be useful for the respondents and whether or not it would be a prudent use of their financial resources to attempt to enforce it, unfortunately the applicant has brought the respondents here and there is no relevant reason why the order they seek should not be made.  So I add to the order I made earlier that the applicant pay the respondents’ costs of the summons.  The Court will now adjourn.

AT 10.33 AM THE MATTER WAS ADJOURNED