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Markisic v Today-Denes

Markisic v Today-Denes

Case [2009] NSWSC 482 10 July 2009

Civil Litigation & Procedure

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CITATION: Markisic v Today-Denes [2009] NSWSC 482

HEARING DATE(S): 9-10 April 2008; 4-8 May 2009

JUDGMENT DATE :
10 July 2009

JUDGMENT OF: Harrison J

DECISION: 1. The plaintiff's notices of motion dated 17 September 2007 and 4 May 2009 are dismissed with costs.
2. Order that the plaintiff is not to be allowed to file and is hereby restrained from filing and also from serving any notice of motion, and is not to be allowed to make and is hereby restrained from making any oral application in these proceedings without the leave of a Judge of this Court.
3. Order that in case the plaintiff 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.

CATCHWORDS: JUDGMENT – application to set aside – whether given or entered irregularly, illegally or against good faith – whether judgment genuine and authentic or "a forgery, a fake or counterfeit" or otherwise fabricated – whether Court’s website and file secure from tampering - whether irreconcilable and fatal conflict between foundation of application for relief and previous (unsuccessful) appeal to Court of Appeal by plaintiff against now disputed judgment – application dismissed - PRACTICE – hopeless proceedings - unwarranted applications - unreasonable refusal to accept rulings – power to restrain – restraint with conditions

LEGISLATION CITED: Defamation Act 1974
Evidence Act 1995
Uniform Civil Procedure Rules 2005

CATEGORY: Principal judgment

CASES CITED: Markisic v AEA Ethnic Publishers Pty Ltd [2006] NSWCA 378
Markisic v Middletons Lawyers [2007] NSWSC 1147
Markisic v Today-Denes & Ors [2005] NSWSC 1276
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

PARTIES: Dragan Markisic (Plaintiff)
Zlatko Blajer (Ninth Defendant)

FILE NUMBER(S): SC 20492 of 1999

COUNSEL: Dr M J Collins (Ninth Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HARRISON J

10 July 2009

20492/1999 Dragan Markisic v Today-Denes & Ors
JUDGMENT

1 HIS HONOUR: On 9 December 2005 her Honour Simpson J published her reasons for judgment in these proceedings: see Markisic v Today-Denes & Ors [2005] NSWSC 1276. Her Honour dismissed the plaintiff's claim against the second, fourth, fifth, ninth and…

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 Today-Denes

Details

AGLC: Markisic v Today-Denes [2009] NSWSC 482
Case: [2009] NSWSC 482
Decision Date: 10 July 2009

CaseChat Overview and Summary

The application in Markisic v Today-Denes was brought by a plaintiff who sought to set aside a judgment that was previously entered against him. The matter was heard in the Federal Court of Australia. The plaintiff challenged the validity of the judgment, alleging that it was either irregular, illegal, or obtained against good faith. He also claimed that the judgment might be a forgery, fake, or counterfeit. Furthermore, he questioned the security of the Court's website and file, suggesting potential tampering. The plaintiff had previously unsuccessfully appealed against the same judgment in the Court of Appeal, and the application at hand was seen to be fundamentally at odds with that earlier appeal.

The legal issues before the court involved determining the authenticity and validity of the judgment, as well as the integrity of the Court's record-keeping and website security. The court had to consider whether the application for relief was genuinely founded or if it represented a hopeless and unwarranted proceeding. The plaintiff's allegations raised questions about the procedural fairness and the possibility of tampering with the Court's records. The court also examined whether the application constituted an unreasonable refusal to accept previous rulings.

In assessing the application, the court found that it was a hopeless proceeding due to the plaintiff's persistent refusal to accept the finality of previous judgments and the lack of any credible evidence to support the allegations of tampering or forgery. The plaintiff's conduct in bringing the application was seen as unreasonable and an abuse of process. The court held that the application was not genuinely founded and was instead a continuation of unwarranted and vexatious litigation. The court dismissed the application and imposed conditions on any future applications to prevent similar abuses of the court process.

Orders