Markisic v Department of Community Services of NSW

In the proceedings before Bryson JA of the Court of Appeal of New South Wales, Dragan Markisic, the appellant, sought to file further notices of motion and make oral applications. The respondents sought orders to restrain such actions, arguing they constituted an abuse of process due to the appellant's history of making numerous unproductive applications throughout the appeal and related proceedings.

The central legal issue before the Court was whether the appellant's repeated and unsuccessful applications amounted to an abuse of process, justifying an order restraining him from filing further notices of motion or making oral applications without leave. The Court was required to consider the extensive history of the appeal, including a satellite appeal and separate CLD proceedings, which had already resulted in an order restraining further applications without the leave of a Judge of Appeal.

Bryson JA reasoned that the appellant's conduct, characterised by a persistent pattern of making applications that were dismissed and complicated the proceedings, constituted an abuse of process. The Court applied the principle that repeated, unproductive litigation can be an abuse of the court's process, particularly when it causes prejudice to other parties and wastes judicial resources. Consequently, the Court made orders restraining the appellant from filing or serving any notice of motion, and from making any oral application in the proceedings, without the leave of a Judge of Appeal. Further, it stipulated that any such application for leave must be in writing, setting out the full basis for the request and the proposed relief, and would be determined without an oral hearing or notice to other parties unless a Judge directed otherwise. The appellant was also ordered to pay the costs of the respondents in relation to their respective notices of motion.