Markisic v Middletons Lawyers - [2007] NSWSC 1147

CITATION: Markisic & Anor v Middletons Lawyers & Ors [2007] NSWSC 1147

HEARING DATE(S): 26 September 2007

JUDGMENT DATE :
16 October 2007

JUDGMENT OF: Harrison J

DECISION: See paragraph 38.

CATCHWORDS: CIVIL PROCEDURE – UCPR 36.15 – application to set aside judgment on basis obtained by fraud – plaintiffs unsuccessful at first instance and in Court of Appeal – application for special leave to appeal to High Court refused – fresh attempt to rely upon evidence available at trial – re-agitation of application made in Court of Appeal – no basis for disturbing decision of trial judge demonstrated – application for leave to issue subpoenas in hope of eliciting evidence to support application – abuse of process - applications dismissed – ABUSE OF PROCESS – inherent power of court to control applications - power to retrain the making of unwarranted and vexatious applications – prejudice to the community in general and litigants in particular – plaintiffs restrained from filing motions without leave

LEGISLATION CITED: Uniform Civil Procedure Rules

CASES CITED: Markisic v Department of Community Services of New South Wales and Ors [2007] NSWCA 30
Port of Melbourne Authority v Anshun Pty Limited (1980-1981) 147 CLR 589
Wentworth v Graham (2003) 57 NSWLR 741

PARTIES: Dragan Markisic (First plaintiff)
Oliver Markisic (Second plaintiff)
Middletons Lawyers (First defendant)
Stephen John Thompson (Second defendant)
Jeremy Colville (Third defendant)
Zlatko Blajer (Fourth defendant)

FILE NUMBER(S): SC 20285 of 2004

COUNSEL: Dragan Markisic (In person)
Oliver Markisic - (In person)
K A Rees (First, second and third defendants)

SOLICITORS: Dragan Markisic (In person)
Oliver Markisic - (In person)
Mallesons Stephen Jaques (First, second and third defendants)
SBS Staunton Beatte Solicitors as agents for MCP Commercial Lawyers (Fourth defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HARRISON J

16 October 2007

20285 of 2004 DRAGAN MARKISIC & OLIVER MARKISIC v MIDDLETONS LAYWERS & ORS
JUDGMENT

1 HARRISON J: The plaintiffs apply by notice of motion filed 13 August 2007 for an order to set aside the judgment of Nicholas J delivered on 1 April 2005. They allege that the judgment was obtained illegally or irregularly and, specifically, fraudulently.

2 The plaintiffs are unrepresented in the proceedings. Pursuant to rule 7.3 of the Uniform Civil Procedure Rules they also seek leave to issue a series of subpoenas to the following persons: -

(a) Zlatko Blajer - the fourth defendant.

(b) Stuart Gibson - Zlatko Blajer's solicitor from Melbourne.

(c) Steven Thomson - Zlatko Blajer's solicitor from Sydney, the second defendant.

(d) Jeremy Colville - Zlatko Blajer's solicitor from Sydney, the third defendant.

(e) Matthew Collins - Zlatko Blajer's barrister from Melbourne.

(f) Ljupco Stankovski - Zlatko Blajer's business partner from Melbourne.

3 The plaintiffs’ grounds for requiring the issue of these subpoenas are referred to later in these reasons.

Background

4 These proceedings have their origin in another set of defamation proceedings 20492/99 in which the present plaintiff Dragan Markisic is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Markisic v Middletons Lawyers

Details

AGLC: Markisic v Middletons Lawyers [2007] NSWSC 1147
Case: [2007] NSWSC 1147
Decision Date: 16 October 2007

CaseChat Overview and Summary

In the matter of Markisic v Middletons Lawyers, the plaintiffs sought to challenge the validity of a judgment obtained against them by alleging fraud. The proceedings took place in the Federal Circuit Court. The plaintiffs were unsuccessful in their initial application and subsequent appeal to the Court of Appeal, and their application for special leave to appeal to the High Court was also denied. Despite these outcomes, they attempted to re-agitate their claims by relying on evidence that was available at the trial. The court considered whether it should permit the plaintiffs to issue subpoenas in the hope of obtaining evidence that could support their claims. The court concluded that the plaintiffs were abusing the process by re-litigating old claims and that such conduct prejudiced the community and other litigants. The court exercised its inherent power to restrain the plaintiffs from making further motions without leave.

The central legal issues were whether the plaintiffs' attempts to set aside the judgment on the basis of fraud constituted an abuse of process and whether the court had the power to restrain the plaintiffs from filing further motions without leave. The court considered whether the plaintiffs had demonstrated a basis for disturbing the original judgment or whether they were merely re-agitating old claims. The court found that the plaintiffs had not shown any new evidence or basis for overturning the previous decisions. The court also considered the broader implications of allowing the plaintiffs to continue making unwarranted and vexatious applications. The court concluded that the plaintiffs' conduct was an abuse of process and that it had the inherent power to restrain them from filing further motions without leave.

Orders