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.

(g) Lile Blazevska - Zlatko Blajer's translator 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 the plaintiff and Zlatko Blajer is the ninth defendant. In those proceedings the plaintiff sued a number of defendants for defamation in respect of a statement made by Katerina Markisic on or about 2 June 2004. Zlatko Blajer was at all material times the editor of the newspaper "Australian Macedonian Weekly" in which the statement was published. The present plaintiffs claim damages from the defendants for conspiring to publish matter defamatory of them and/or for collateral abuse of process.

5 In the proceedings before Nicholas J the first, second and third defendants sought orders by notice of motion filed 12 November 2004 that the statement of claim be summarily dismissed or otherwise disposed of pursuant to Pt 13, r 5(1)(a) and (b) on the grounds that it disclosed no reasonable cause of action and/or that the proceedings were frivolous or vexatious. The fourth defendant by his motion filed 12 October 2004 sought similar orders.

6 Nicholas J set out some of the background in his judgment on 1 April 2005. It is convenient for present purposes to repeat some of what his Honour said about the matter: -

"[4] The proceedings in No. 20492/99 (the proceedings) provide the background to which these applications should be considered. In those proceedings the first plaintiff, by his further further amended statement of claim filed 1 July 2003, sues, inter alia, the fourth defendant (the ninth defendant therein) in respect of the publication of an article in the "Australian Macedonian Weekly". On 13 June 2003 at the trial pursuant to s 7A Defamation Act 1974 a number of defendants including the fourth defendant and Mr Ljupco Stankovski (the fifteenth defendant therein) were found to have published the article which conveyed a number of imputations defamatory of the first plaintiff. Mrs Novka Pejovska-Blajer, the wife of the fourth defendant, was sued as the tenth defendant but obtained a verdict in her favour.

[5] The imputations found by the jury are the following:


“(a) The plaintiff physically abused his wife;

(b) The plaintiff committed the criminal offence of kidnapping by removing his daughter from Macedonia to Australia;

(c) The plaintiff dishonestly obtained a passport for his daughter, Elena, without the knowledge or consent of her mother when the plaintiff well knew that it was necessary to obtain the mother's consent".


[6] On 12 December 2003 Adams J gave directions for the further conduct of the proceedings. These included a direction that the fourth defendant file and serve an amended defence by 6 February 2004, and that the parties file and serve statements of all witnesses proposed to be called by each party on or before 11 May 2004. This time was extended by the Registrar on 3 June 2004 to 2 July 2004.

[7] The trial of issues of defences and damages in the proceedings is yet to take place.

[8] Katerina Markisic (Katerina) is the former wife of the first plaintiff. Elena Markisic is their daughter who was born on 3 May 1997.

[9] In the claims with which these applications are concerned the plaintiffs allege that in the proceedings the first, second and third defendants acted as solicitors for the fourth defendant, and published the statement and translation by mail to the first plaintiff and to members of his family. According to the better particulars filed for the plaintiffs on 5 and 9 November 2004, the fourth defendant sent the statement and translation to a solicitor with the first defendant in Melbourne. A copy of the documents were sent by the solicitor to counsel in Melbourne, and also to lawyers in the first defendant's office in Sydney.

[10] It is also alleged that the fourth defendant published the statement to Lile Blazevska in Melbourne for the purpose of obtaining an English translation which is now annexure B to the first plaintiff's affidavit referred to. (As is evident from the annexure, Lile Blaveska is an accredited translator with the National Accreditation Authority for Translators and Interpreters)."

7 A little later his Honour continued as follows-

"[13] The circumstances surrounding the preparation of the statement are described in the affidavit of the fourth defendant of 28 September 2004. In summary he says that in about May 2004 he requested Katerina in Macedonia to prepare a statement for the purpose of the proceedings. The statement, in the Macedonian language, was sent by mail to Mr Stankovski in Melbourne who received it on or about 15 June 2004 and delivered it to the fourth defendant. As the attached certificate of the notary shows, the statement was signed by Katerina in Veles, Macedonia, on 2 June 2004.

[14] The fourth defendant says that he provided the statement to Mrs Blazevska for translation into English. On 21 June 2004 he collected the statement and translation and made about six copies of them. Next day he provided them to Mr Georgievski for certification that the photocopies were true copies of the originals.

[15] He says that subsequently he gave a copy of each document to Mr Stankovski. He kept three copies and showed one to his wife. The remaining copies he gave to his solicitor with the first defendant to enable compliance with the court's direction as to the filing and service of witness statements.

[16] On 2 July 2004 the statement and translation was served on the first plaintiff by the first, second and third defendants on behalf of the fourth defendant by mail at the address nominated as his address for service."

8 In the proceedings before Nicholas J the defendants sought orders based upon the ground that the statement and translation was a witness statement brought into existence solely for the purpose of the proceedings, and that each occasion of publication was one of absolute privilege. It was also said that the claims of conspiracy and abuse of process were so manifestly groundless that they should be dismissed.

9 His Honour found that the documents were brought into existence for use as a witness statement for the purpose of the proceedings and that the occasions of publication relied upon were ones of absolute privilege. His Honour also found that the pleadings disclosed no cause of action against the defendants for publication to members of the first plaintiff's family. Furthermore, his Honour held that the pleadings and particulars were incapable of sustaining claims that the defendants had engaged in an unlawful conspiracy or that in obtaining and/or publishing the documents on the occasions complained of they were unlawfully using the proceedings to harm the plaintiffs. His Honour formed the view that the claims were so manifestly groundless that to permit them to go to trial would be futile. In those circumstances, his Honour dismissed the statement of claim with costs.

10 The plaintiffs then filed an application for leave to Appeal to the Court of Appeal. Their Notice of Appeal contained many grounds. It is unnecessary for present purposes to restate all of them. However, the following grounds should be noted: -

"1. (w) allowing to the defendants to obtain the judgment in their favour by fraud, i.e. accepting unreliable and alleged false evidence of the defendants as evidence in relation to the said statement of Katerina Markisic

2. (c) ignoring or not considering the Plaintiffs’ claim that the defendants attempt to obtain judgment in their favour by fraud"

11 In the Court of Appeal the matter came before Ipp and Basten JJA on a preliminary application, which was to lead new evidence in support of their application for leave to appeal. That new evidence was said to consist of testimony given by Mrs Katerina Markisic in Veles, Macedonia, in criminal proceedings conducted there. In that evidence Mrs Markisic stated:

"The Australian judicial authorities requested from me to give a statement regarding our relationship and the things happening with the prosecutor Dragan while we were married as well as the later period when we were actually divorced".

12 It was contended by the plaintiffs that Mrs Markisic’s testimony falsified evidence given by Zlatko Blajer, which was taken into account by Nicholas J, namely, that he had requested Mrs Markisic to provide the statement in question.

13 Ipp JA, with whom Basten JA agreed, was not persuaded that the testimony given by Mrs Markisic contradicted Mr Blajer’s evidence. He said that her testimony was not inconsistent with that of Mr Blajer because her reference to the "Australian judicial authorities" was readily capable of being construed as a reference to the orders made by Adams J. In any event, according to Ipp JA, the “new evidence” (i.e. the testimony given by Mrs Markisic) had no relevance to the publication by them of the material that was said to be defamatory. In other words, the new evidence did not bear on the findings made by Nicholas J that the occasions on which the first and third defendants were alleged to have published defamatory material was subject to absolute privilege. In those circumstances the Court of Appeal dismissed the application to hear new evidence with costs.

14 Ipp and Basten JJA proceeded to hear the plaintiffs’ application for leave to appeal. Ipp JA considered that the plaintiffs had been given far greater latitude in presenting their case than ordinary litigants but that in any event, none of the arguments had any substance and dealt with matters that were irrelevant to the issues in dispute. Basten JA agreed that the application should be dismissed with costs. His Honour noted that the only matter that he thought had any substance was the complaint that Nicholas J had relied upon the evidence of Mr Blajer who was not called for cross-examination. However, as Basten JA went on to observe, the transcript of the proceedings before Nicholas J on 15 December 2004 revealed that counsel for Mr Blajer had said without contradiction that Mr Blajer’s affidavit had been read without objection and without the requirement that he attend for cross-examination.

15 The plaintiffs then filed an Application for Special Leave to Appeal to the High Court of Australia. The grounds upon which the plaintiffs sought such leave included the following: -

(d) Error of their Honours, judges of the Court of Appeal of the Supreme Court of New South Wales, in dismissing the application to hear new evidence

16 On 14 December 2006 Hayne and Crennan JJ dismissed the plaintiffs’ application for special leave to appeal.

Consideration

17 The plaintiffs relied upon two affidavits. First, an affidavit sworn on 12 August 2007 by Dragan Markisic. For reasons that will emerge, it is necessary to set out below some of the paragraphs of the affidavit. They are as follows: -

"4. In about June 2004 the Defendants sent by mail to my home address two documents, one in Macedonian language and one in English. The Defendants claimed that the document in Macedonian language was a witness statement of my former wife she issued to Zlatko Blajer he to use it in the proceedings No. 20492/99. The document in English was Blajer's translation of the document in Macedonian language. The above mentioned documents in Macedonian and in English were never used in any court process or court proceedings.

5. In August 2004 I and my brother Oliver instituted the [present] proceedings against the Defendants for defamation in relation to the publication of the above mentioned statement of my former wife.

6. The Defendants filed two Notices of motion seeking orders to strike out our Statement of claim and summary dismissal of the proceedings. In support of their motions on 12.10.2004 Zlatko Blajer has an sworn affidavit. In the said affidavit Blajer tried to explain how he obtained the above mentioned statement of my former wife. The other three Defendants had no evidence and relied only on Blajer's affidavit.

7. The case . . . came for hearing before his Honour Nicholas J. . . . and delivered his judgment on 01.04.2005.

8. His Honour dismissed the proceedings . . . His Honour accepted facts stated in Blajer's affidavit ruling that my former wife prepared her statement for Zlatko Blajer and that Blajer and his solicitors have a defence of absolute privilege.

9. The Defendants obtained judgment from his Honour Nicholas J illegally or irregularly - by fraud by presenting to his Honour false facts in the above mentioned affidavit of Zlatko Blajer.

10. In his above affidavit Zlatko Blajer stated that he obtained Katerina's phone number by taking first the name of Katerina's father "Goce Mioski" from the article in his newspaper and then searching and finding on the Internet on the Macedonian White Pages Katerina's number under his father's above name. Further Zlatko Blajer stated that after obtaining Katerina's phone number in the above way he has spoken with Katerina on the said number.

11. I state that the name of the father of my former wife Katerina is "Goce Miovski" but not "Goce Mioski" as stated by Zlatko Blajer in his above mentioned affidavit.

12. [From the relevant document] it can be seen that the maiden name of Katerina is "Miovska”, which is in Macedonian language feminine form of "Miovski".

13. From July to September 2005 my brother Neven Markisic has spent his holiday in Veles Macedonia where my daughter lives with my former wife. After his return to Australia on 12.09.2005 Neven has sworn affidavit.

14. One or about 31.01.2006 I instituted criminal proceedings in the Basic Court in Veles, Macedonia, against my former wife Katerina Markisic for committing three criminal offences under Macedonian Criminal law: article 172 (defamation), article 173 (slander) and article 174 (disclosing to the public of private and family matters) in relation to a public document (her statement) she prepared and notarised in June 2004 in Macedonia.

15. I was informed by my legal representative in Macedonia and believe that on 28.02.2006 there was a hearing in the above matter in the Basic Court of Macedonia before Judge Snezana Nikolovska. At the said hearing I was represented as private prosecutor by a lawyer and the accused Katerina Markisic was also represented by a lawyer. I was informed by my lawyer in Macedonia and I believe that the above hearing the accused Katerina Markisic was orally cross-examined.

16. After the above hearing I received by mail from my lawyer in Macedonia and believe it is a copy of a document in Macedonian language. I believe it is minutes of the above hearing."

18 At appropriate points in the original affidavit, reference is made to the documents that are referred to as annexures to the affidavit. Those portions of the affidavit have been omitted from the paragraphs quoted above.

19 One of the documents referred to is the affidavit of Neven Markisic sworn 12 September 2005. Paragraphs 7 and 8 of that affidavit as follows: -

"7. On about 06.08.2005 I visited together with my wife and son my niece Elena at Katerina's home. At the end of our visit I put specific questions to Katerina Markisic to the effect whether she was ever contacted over the phone by Zlatko Blajer from Australia, whether she prepared the said statement for Zlatko Blajer, whether she issued the said statement for the purpose of my brother’s defamation proceedings in the Supreme Court in Sydney, Australia against Macedonian newspapers and whether she intended to come to Australia for the purpose to be witness at the trial in the above defamation proceedings.

8. On my above questions Katerina answered to me to the effect that she doesn't know Zlatko Blajer and that to the best of her recollection she never spoke with him. Katerina said that she doesn't know anything about my brother’s defamation proceedings in Sydney, Australia against Macedonian newspapers and that she never intended to travel to Australia for the purpose to be witness at the trial in the said defamation proceedings. Katerina said to the effect that it was all a new fact for her and she has never been contacted by anyone who asked her to come to Australia as a witness."

20 The minutes from the proceedings in Macedonia contain what is accepted to be a statement given by Katerina Markisic. The statement gives some introductory background to proceedings between her and her former husband concerning custody of their daughter Elena. Some relevant portions of the statement thereafter contain the following material: -

"Dragan commenced a lot of proceedings in Australia and because of this the Australian judicial authorities requested from me to give a statement regarding our relationship and the things happening with the prosecutor Dragan while we were married as well as the later period, when we were actually divorced. I issued that statement on 2nd June 2004, and the statement was written as requested by the Australian authorities and a Notary verified it and I submitted it to Australia, and specifically to the Supreme Court in Australia. Regarding this same statement I received an invitation from the Supreme Court to attend the trial which occurred on 30th November 2005 where I appeared. I was present at the trial of the Supreme Court in Australia, more precisely in New South Wells [sic], and the prosecutor Dragan was not present at that trial and there was no his attorney, so I was interrogated in their absence and, in front of the Supreme Court, I confirmed the issued statement issued by the Notary. I have been informed about the trial that the New South Wells Supreme Court has had, but I have not received the decision yet and I will submit it to the Court as soon as I receive it. Neither the prosecutor nor his attorney attended this trial and the circumstances that all the information from the statement and what I have personally said in front of the court confirms the same statement was considered as a proof and that the prosecutor who started the process has lost it that is his claim was rejected and with that decision I will confirm that everything I have stated in the statement and on the trail [sic] is true since the court accepted and I won the dispute. As much as I am advised my written statement and certified before the Notary after I conveyed it the Supreme Court in Australia the same was received and was conveyed to him by the court yet in 2004 because this proceeding about which I talked earlier was on foot yet from 2004 or from 6 years before and during this proceeding in 2004 it was requested from me to send such statement and after the receipt of the court has conveyed to the plaintiff Dragan and so he had had these understandings that is the statement and everything what has been said inside it, but everything I have said is truth I will confirm it with the judgment I received by the Supreme Court in New South Wells I am sending you and I have confirmed it into the court. Otherwise to add that in July 2005 the brother of the prosecutor Dragan who has arrived from Australia in Veles came to me with the statement because he had given it to him, he showed me the statement and asked me whether I have written the statement or someone else has helped me, on what I personally have told him that the statement was written by me and certified at the notary and that no one has helped me."

21 The plaintiffs contend that the material in the affidavit of Neven Markisic amounts to fresh evidence that contradicts the statement given by Katerina Markisic to the court in Macedonia. It was not available to be relied upon in the proceedings before Nicholas J and presumably, or arguably, would have led to a different result if it had been. It follows from this, according to the plaintiffs, that the judgment of 1 April 2005 was obtained by fraud and should be set aside.

22 The defendants rely upon three matters in response. First, no mention was made of this material in the plaintiffs’ application to the Court of Appeal. The plaintiffs were obviously in possession of the relevant information at that time but for some reason chose not to bring it forward as part of their case. That was the proper time for them to do so. Having failed to do so then, they cannot do so now: see Port of Melbourne Authority v Anshun Proprietary Limited (1980-1981) 147 CLR 589.

23 Secondly, the comments of Ipp JA in par [6] of the judgment of the Court of Appeal on 23 May 2006 provide a complete answer to the contention: see par [13] above. The evidence given by Katerina Markisic did not contradict Mr Blajer’s evidence on the one hand and had no relevance to the publication by the first and third defendants of the material said to be defamatory on the other hand.

24 Thirdly, whatever issues the plaintiffs seek to agitate against the defendants, the present application is incapable of disturbing the finding by Nicholas J that the circumstances in which the alleged defamatory material was published by them was, and remains, an occasion of absolute privilege. In other words, the availability of the defence of absolute privilege is unconnected either to the question of whether or not the matters referred to by Neven Markisic in his affidavit were true, or would have made any difference to his Honour’s decision if they had been before him.

25 I agree. The plaintiffs have not demonstrated the slightest prospect that any evidence, upon which Nicholas J relied in making his decision, was placed before him, or withheld from his consideration, as the result of fraud on the part of anybody. Moreover, the plaintiffs had every opportunity to raise these matters in the Court of Appeal and chose, for reasons best known to them, not to do so. In my opinion, it is an abuse of the process of this Court for them to attempt to do so now. The plaintiffs have shown some considerable enthusiasm for disregarding the umpire’s decision when they disagree with it and for finding ways to avoid its consequences. In their attempts to rely upon allegations of fraud as a basis to set aside a judgment otherwise apparently regularly obtained they have also shown scant regard for the seriousness with which this Court treats allegations of that character, and little or no understanding of the need or means to formulate evidence to make them good.

26 The plaintiffs next argued that Mr Blajer’s evidence was false or fraudulent because a comparison, between what he said in his affidavit and the statement made by Katerina Markisic, demonstrated that they were inconsistent. This submission was based upon the material referred to in the affidavit of Dragan Markisic set forth in par [17] above. It is based upon the proposition that the evidence given by Mr Blajer must have been false because of the way that he described having obtained Mr Mioski’s telephone number by an internet search.

27 It is sufficient, in order to dispose of this argument, simply to refer to portion of the judgment of Nicholas J which demonstrates not only that the matter is not new but that it has been argued and decided. Pars [26] and [27] are in the following terms: -

"[26] The plaintiffs submitted that the court should reject as false the fourth defendant’s evidence that in about May 2004 he obtained Mr Mioski’s telephone number on the internet and subsequently had a conversation with Katerina which resulted in the making of the statement. It was never submitted that the court should also find that the conversation never happened and as a consequence find that the statement is not one made by Katerina and that the matters concerning it as he described in his affidavit did not happen.

[27] The basis for the submission is the evidence of the first plaintiff that on or about December 2004 he was unsuccessful in obtaining Mr Mioski’s telephone number from an internet search. In my opinion the plaintiffs’ argument is entirely misconceived and without merit. The first plaintiff’s search was made about seven months after that made by the fourth defendant. Absent any other evidence, the fact that it then failed to identify a telephone number in Mr Mioski’s name neither contradicts nor diminishes the probative value of the fourth defendant’s account."

28 His Honour summarised the evidence of the first plaintiff to which he referred in par [21] of his judgment and it is unnecessary for present purposes to repeat it.

29 In short, the legitimacy of Mr Blajer’s affidavit and Katerina Markisic’s statement were litigated before Nicholas J and, on the defendants’ submission, should not be allowed to be re-litigated. I agree. His Honour dealt in terms with precisely the matters that were the subject of the plaintiffs’ lengthy submissions before me. There must be some finality to litigation, particularly and most obviously on points that have been previously argued and decided. I repeat what I said in par [25] about the umpire’s decision.

30 The plaintiffs also relied upon an affidavit of Dragan Markisic sworn 25 September 2007. The affidavit is said to have been provided in support of their application for the issue of subpoenas to the people referred to in par [2] above. It contains an acknowledgement in par [25] that Zlatko Blajer did not give oral evidence, and was not cross-examined, in relation to the affidavit sworn by him in the proceedings before Nicholas J. The affidavit contains an historical account of what appears to me to be the same material which was before Nicholas J and upon which he determined the matter on 1 April 2005.

31 Before dealing with the question of subpoenas, however, the affidavit contains some further material upon which the plaintiffs rely in support of the application to set aside the judgment. That material consists, first, in an extract at par [33], from page 52 of the transcript of evidence in the 1999 proceedings before Adams J on 12 December 2003. Matthew Collins of counsel said, referring to Katerina Markisic, “the mother is still there [i.e. in Macedonia] and the mother is cooperating with the ninth defendant [i.e. Mr Blajer]”. Secondly, at par [35], there is what purports to be an extract from Mr Blajer’s sworn list of documents said to support the proposition that Katerina Markisic provided her notarised written statement to Mr Blajer nearly two months earlier than the trial before Adams J and eight months before his affidavit in the proceedings. These matters are said to have some particular significance. However, it is unnecessary to elaborate upon what that significance might be. If they are matters of any relevance at all they could, and should, have been raised and litigated when the matter was before Nicholas J, much in the way of the other material already referred to, and should now be similarly treated. If what was said by Mr Collins, or if what appears in the sworn list of documents provided by Mr Blajer, was significant, then the plaintiffs had an opportunity to raise it before Nicholas J or the Court of Appeal, and they have not satisfied me in the circumstances that they should be given another opportunity to do so now.

32 Commencing at par [37], the affidavit sets out in considerable detail what are said to be the bases for the application to have the named persons attend to give oral evidence. The dominant and reoccurring theme throughout these reasons is redolent and repetitive of the plaintiffs’ earlier expressed concerns that Mr Blajer’s affidavit is false and that inconsistencies between it and the statement of Katerina Markisic remain unexplained. For example, par [41] says the following: -

"41. The plaintiffs intend to issue subpoenas to Ljupco Stankovski to attend to give oral evidence in relation to the events mentioned in Blajer’s affidavit and Katerina’s oral evidence. It will be in issue the credibility of Zlatko Blajer."

33 It seems to me that there are at least two problems with this. First, the subpoenas are presumably required for use in re-litigation of the matters already dealt with by Nicholas J. For reasons that appear above, I do not consider that the plaintiffs should be given an opportunity to re-litigate anything that was the subject of proceedings before his Honour. Secondly, however, with the exception of Mr Blajer, none of the proposed recipients of the subpoenas has sworn an affidavit in the proceedings. Some of them are defendants. In the case of Mr Blajer, the plaintiffs forwent an opportunity to cross-examine him on a previous occasion and no good reason to permit them to resile from that decision has been demonstrated, even assuming the existence of a litigious context within which to do so. In the case of the remainder, again assuming the existence of an appropriate litigious context within which to do so, the plaintiffs have not, apart from the obvious reason in the case of the defendants, demonstrated why affidavits from these proposed witnesses in their case had not been obtained earlier or why, if it be the case, they are unprepared to provide affidavit evidence to the plaintiffs without subpoenas being issued. Why the plaintiffs should be given leave to cross-examine their own witnesses, two of whom are defendants, is a question that is itself beset with uncertainties.

34 At a step slightly removed from the detail of this debate, the plaintiffs’ stated reasons for the need to issue subpoenas belie the existence of a more fundamental objective. To my observation, the plaintiffs appear to be engaged in constant and repetitive applications of all sorts and at all levels for no good reason, and certainly for no obvious reason, other than a need or desire to occupy the time of his Court for their own narcissistic purposes. The nature, extent and frequency of the plaintiffs’ appearances in this matter, the significantly unmeritorious nature of their claims in nearly every case and the discursive, unstructured and undisciplined nature of their submissions combine, in my opinion, literally to constitute an abuse of this Court’s process. In forming my views in this matter I have had regard to the lengthy written submissions and their annexures dated 9 October 2007 provided by the first plaintiff in accordance with directions given by me.

35 Ms Rees of counsel referred me to the decision of Markisic v Department of Community Services of New South Walesand Ors [2007] NSWCA 30. Ms Rees sought orders in or to the effect of those made by Bryson JA in that case. At pars [30] and [31], his Honour had this to say about the case before him and the conduct of that litigation by the first plaintiff in the present proceedings: -

"[30] The proceedings have involved superfluous complexities. Interlocutory applications have typically involved correction of procedural failures by the claimant. Involvement of the fourth, fifth, sixth, seventh and eighth opponents in the Court of Appeal proceedings can be seen with hindsight to have been altogether futile, and with the benefit of the reasons of the Court of 23 November 2006 it should be said that there never was any reasonable prospect of obtaining any remedies against them. Indeed, the reasons of Smart AJ also show this. The burden placed on each has been increased by the involvement of other superfluous respondents. Their involvement has increased the burden imposed on the second and third opponents, who are affected by the remedy which the claimant obtained on appeal, to the very limited extent of that remedy.

[31] The history of the present proceedings and of the satellite proceedings, and particularly the interlocutory applications which the claimant has made in them, including two of the interlocutory applications he has made since judgment was given, show in my opinion that there have been abuses of the processes of the Court in his making a number of insubstantial, unnecessary and misconceived applications. There have also been useless complexities and unproductive attendances which the claimant could and should have avoided by conducting business with timely efficiency. There have been many of them. The burden imposed on the opponents of dealing with these applications, preparing to meet them and attending court on numerous occasions has become an oppression and injustice which the Court should not allow to continue. A control of the kind which ha[s] already been imposed [i]n the Common Law Division should now be imposed in the present appeal proceedings."

36 In Wentworth v Graham (2003) 57 NSWLR 741, Ipp JA and Brownie A-JA had this to say at 742 concerning applications to the Court which are devoid of merit:

"[2] In Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 Barwick CJ and McTiernan J said at 320 that:

"[T]here is an inherent power of the court to control the bringing of applications in the course of an action of which the Court is seized for the purpose of preventing a party abusing the process of the court".


Their Honours held that, as part of this inherent power, a court may restrain a person from making unwarranted and vexatious applications in an action which is pending in the Court concerned, without the leave of the Court.

[3] In Bhamjee v Forsdick (No 2) [2003] EWCA Civ 1113, the Master of the Rolls, Lord Phillips, said at [3]:

"[T]he courts are facing very serious contemporary problems created by the activities of litigants like Mr Bhamjee who are bombarding them with applications which have no merit at all. ... It is also [the case] that the court is having to divert the skilled attention that ought to be paid to cases of real merit which warrant early hearings to cases which have no merit at all".

[4] The courts in this State are facing the same kind of problems to which the English Court of Appeal referred. There is a need, in this State, for courts to take appropriate steps to prevent the persistent making of hopeless interlocutory applications that unnecessarily take up the time of the court to the prejudice of the community in general and of other litigants in particular."

37 It is urged upon me that there are similarities with the present case and Markisic v Department of Community Servies of New South Wales & Ors (supra), and that orders should be made to restrict the plaintiffs in terms not dissimilar to the orders made by Bryson JA in that case. For the reasons earlier set forth, I am of the opinion that such orders should be made.

Orders

38 I make the following orders: -

1. The plaintiffs’ notice of motion dated 13 August 2007 is dismissed with costs.

2. Order that Dragan Markisic and Oliver Markisic are not to be allowed to file and are hereby restrained from filing and also from serving any notice of motion, and are not to be allowed to make and are hereby restrained from making any oral application in these proceedings without the leave of a Judge of this Court.

3. Order that in case Dragan Markisic or Oliver Markisic shall, without the leave of a Judge of this Court file or serve any notice of motion, other parties are not to attend at the return of the notice of motion and they are not to participate in proceedings upon the notice of motion unless otherwise directed by a Judge of this Court: and further order that unless the Court shall think fit to give such direction any such notice of motion shall be dismissed without being heard.

4. Leave pursuant to Order 2 is to be sought by written application setting out the full basis on which leave is sought and the full basis of the claim for relief with a copy of the proposed notice of motion. No oral hearing will take place on an application for leave, which will be determined without notice to other parties, unless the Judge otherwise directs.

*********