Markisic v Today-Denes - [2009] NSWSC 482

No judgment structure available for this case.

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 fifteenth defendants, gave a verdict in favour of each of those defendants and ordered the entry of judgment accordingly. The plaintiff appealed to the Court of Appeal. The Court of Appeal gave judgment on 20 December 2006: see Markisic v AEA Ethnic Publishers Pty Ltd [2006] NSWCA 378. The appeal was dismissed.

2 By notice of motion filed on 17 September 2007 the plaintiff now seeks orders pursuant to UCPR 36.15 and 36.16 setting aside the judgment. Rules 36.15 and 36.16 provide as follows:

" 36.15 General power to set aside judgment or order

(1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.

(2) A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent.

36.16 Further power to set aside or vary judgment or order

(1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order.

(3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered.

(3B) Within 14 days after a judgment or order is entered, the court may of its own motion set aside or vary the judgment or order as if the judgment or order had not been entered.

(3C) Despite rule 1.12, the court may not extend the time limited by subrule (3A) or (3B).

3 The plaintiff appeared for himself. Dr M J Collins of counsel appeared for the ninth defendant. None of the other defendants appeared to contest the plaintiff's application in the proceedings before me.

4 In support of his application the plaintiff relied on a series of affidavits. They were as follows:

1. The plaintiff sworn 17 September 2007 (subject to an objection by the ninth defendant to paragraphs 19(f) to (j) on the grounds of hearsay).

2. The plaintiff sworn 3 April 2008, exhibiting a copy of the judgment of Simpson J dated 9 December 2005.

3. The plaintiff sworn 8 December 2008.

4. Oliver Markisic sworn 8 December 2008.

5 Neven Markisic sworn 11 February 2009 (subject to an objection by the ninth defendant to paragraphs 8 and 13 on the grounds of hearsay).

6. Marika Markisic sworn 12 February 2009 (subject to an objection by the ninth defendant to paragraph 11 on the grounds of hearsay).

7. The plaintiff sworn 13 February 2009, exhibiting a photograph of his former wife.

5 This material is referred to later in these reasons. However, the evidence does nothing to illuminate the basis upon which the plaintiff claims that her Honour's judgment was given or entered irregularly, illegally or against good faith. The transcript of the proceedings, however, is by contrast replete with assertions by the plaintiff, made from the bar table, that her Honour's judgment does not exist or, in his words, is "counterfeit". The plaintiff continually referred to the judgment as "the alleged judgment". He even went as far as to suggest that her Honour was not the author of the text of the judgment but that it was in fact the work of the New South Wales Crown Solicitor. There is of course an undoubted tension between these contentions and the relief sought in the proceedings, not to say a tension between them and the fact that the plaintiff clearly recognised both the existence and validity of the judgment when seeking relief in the Court of Appeal, or at least until the Court of Appeal found against him. Incredibly, the plaintiff even annexed a copy of the judgment to his 3 April 2008 affidavit. All attempts to draw these apparent contradictions to the plaintiff's attention did not succeed in having him review his position in the matter, which proceeded to be heard over a period of two days in April 2008 and five days in May this year.

6 The plaintiff commenced these proceedings by statement of claim filed 29 October 1999. A history of what occurred, at least up until the date of her judgment, is recorded in Simpson J's reasons. Her Honour then described the file as "mountainous". It has continued to increase in size since then. It is presently unnecessary to repeat the history in full. Some background however is necessary.

Background

7 The resumption of the hearing of this application occurred more than nine years after the plaintiff filed his first statement of claim. The underlying proceeding concerned three separate but virtually identical publications that appeared in Macedonian language newspapers in November 1998. The plaintiff sued some 15 defendants for defamation. After a lengthy and complicated interlocutory history, and two jury trials under section 7A of the Defamation Act 1974 in 2003, a defences and damages trial commenced before Simpson J on 28 November 2005. Only the second, fourth, fifth, ninth and fifteenth defendants participated. At about midday on 30 November 2005, the plaintiff ceased to participate in the trial and left the court. Her Honour subsequently dismissed the plaintiff's claims as earlier described.

8 The plaintiff asserts that the judgment that was entered is not in fact a judgment of her Honour at all, but is instead a counterfeit, fake or forged document, 'planted' on the court file, fraudulently uploaded to the court's website, and circulated generally including to the plaintiff himself, by persons who are unknown to him, but whom he suspects to be associated with agencies of the New South Wales government. The plaintiff expressed his views in relation to these matters in various ways. A sample of his concerns taken from the transcript of the proceedings before me can be seen in the following extracts:

"PLAINTIFF: … I heard from your Honour judgment that your Honour couldn't believe in such extraordinary case like this case is before your Honour. Specifically I believe that your Honour was referring to the fact of fabrication of judgment of a judge of this court, in this particular case Justice Simpson. I would submit to your Honour if it was possible for certain persons to fabricate the orders and judgment of the Family Court - your Honour is aware that I provided yesterday a list of judgment and orders which I am alleging are fabricated in the Family Court, nearly four or five I gave to your Honour.

HIS HONOUR: Eight.

PLAINTIFF: Together with judgments, orders plus judgments, and if that was possible then I would ask your Honour to at least believe that it is open for consideration or open for trial that one judgment was fabricated in the Supreme Court of New South Wales. I believe that certain persons in the Attorney General's Department and in Crown Solicitor's Office in particular, they used the power of their positions, knowledge, probably tricks, expert knowledge how courts are dealing, how administration is dealing, access to certain files, access to certain systems and such persons who are in fact in my case in 1998, such persons were actually paedophiles, child predators. Why they took, it is one simple question. Apart from any evidence that I have got evidence, I saw my daughter with my own eyes that she was abused. No-one can say to the parent better than parent can see the condition of the child.

HIS HONOUR: Can we just--

PLAINTIFF: In addition to me my whole family was witnessing.

HIS HONOUR: Can we just concentrate for a moment. If the judgment of Justice Simpson is a forgery or a fake or a counterfeit, whatever words you have used about it, and it ended up on the New South Wales Supreme Court website as it is, we know it is, how has it been permitted to stay there since December 2005 or shortly after that and not been taken down?

PLAINTIFF: Very good question, yes.

HIS HONOUR: And do you have an answer?

PLAINTIFF: I have got partial answer to that, and also I have got also some question to the authorities in relation to that, because I am not in a position to take it down or take it out of the website.

HIS HONOUR: Just give me a hint about what the answer to that question might be.

PLAINTIFF: As I pointed out to your Honour, have in mind the persons who I am alleging are probably involved. The ninth defendant is not defending this application on its own but the persons who is paying Mr Collins to defend my application is the same source who caused all wrongful acts in 1998 and who will have benefit of this judgment to stay in relation to Family Court orders and in relation to what happened in 1998. I am saying that is the Attorney General's Department and the Crown Solicitor's Office in particular. Now your Honour is asking me how that is possible some document to be planted into the file, to come into existence, or how it is possible the document to appear on the Attorney General website.

HIS HONOUR: Yes.

PLAINTIFF: If you look at the Attorney General where it appears to every of those places, the site is Attorney General's Department site. That is site maintained not directly by Attorney General himself, Mr John Hatzistergos, I believe. The site is made then by some officer, officer who is not very high, on high position, just officer who is paid to do his job, some computer professional or some person who is maintaining that site. That person has superior. Superior to that person has superior. The Crown Solicitor's is very high position figure in Attorney General's Department, probably second man, having more than 300 people working in his department, more than 150 solicitors, say, for example, maybe 200 solicitors in his part of the department or section. I am not quite sure about the number, don't take it against me, your Honour, but I read somewhere on internet, on Crown Solicitor site some time ago that there are nearly 300 employees under his direct control.

HIS HONOUR: So the Crown Solicitor has used his influence to keep this fraudulent or counterfeit judgment on the court's website.

PLAINTIFF: Crown Solicitor and some persons assisting him.

HIS HONOUR: So there is a conspiracy between him and some underlings or other employees.

PLAINTIFF: Maybe not, or maybe he is just giving commands, order, and there is no conspiracy if someone order you. If that person is maintaining the website, if that person receives strict instructions - put this document, someone came in the name of some high position in authority in Attorney General's Department and tells him put this document on the site, this is a judgment, it is not for that person to question whether this judgment was published, in what presence, who is this judicial officer or to pass all these requirements in his job. He is just like soldier.

HIS HONOUR: What if Justice Simpson read this judgment on the website and on your analysis discovered it was a forgery or a fake and she wanted it to be taken off. What would happen then?

PLAINTIFF: That is speculation, your Honour. Whether, whether Justice Simpson had any chance to read this judgment, that is, that would be my speculation.

HIS HONOUR: We do not want to speculate about it.

PLAINTIFF: Yes. I don't want to accuse her Honour that she read it at that particular time and disregarded, didn't go to the authorities to report the crime being committed.

HIS HONOUR: That's all right. Speculation on my part.

PLAINTIFF: Speculation on my part, with respect.

HIS HONOUR: You are right, we shouldn't do that.

*****

PLAINTIFF: Your Honour, at the time the document looking like judgment of Justice Simpson and the transcript which was also sent by mail, I believed and I formed an impression and I was tricked, and that was the intention of those documents, to trick me to believe or to make me confused.

HIS HONOUR: Who tricked you? Who wanted to confuse you?

PLAINTIFF: The person who made those documents, who fabricated them, and who send them by mail to me.

HIS HONOUR: Who was that?

PLAINTIFF: We spent today certain time explaining to your Honour that I am not doing police investigation here. At least if I intend to do I will be prevented from your Honour. These proceedings are not for police investigation.

HIS HONOUR: But in terms of convincing argument or persuasive argument, allegations that unnamed and unknown people tricked or confused you--

PLAINTIFF: With those documents, your Honour, someone from the Attorney General's Department and either Crown Solicitor's Office or someone close to the Crown Solicitor's Office, Mr Ian Knight, that's my suspicion. I told your Honour today that I don't have certain evidence which proves that. I can only point out who in my belief would have benefit of anything what is connected with the events in 1998.

HIS HONOUR: If you don't have evidence that proves it, why shouldn't I accept the judgment as genuine?

9 Despite his current position that the judgment is a counterfeit, a fake or a forgery, the plaintiff had earlier appealed against her Honour's decision to the Court of Appeal. He said in the course of his submissions that he did so because at the time of his appeal he had not realised that her Honour's reasons for judgment were a counterfeit, a fake or a forgery. The appeal was heard by the Court of Appeal on 13 November 2006, and was dismissed with costs on 20 December 2006. The plaintiff sought special leave to appeal to the High Court from the decision of the Court of Appeal. That application was refused.

10 The plaintiff did not let the matter rest there. Paragraph 2 of the his notice of motion filed 17 September 2007 seeks the following relief:

"[2] At the hearing of this motion, after presentation of all documentary evidence by the Applicant and oral examination of the witnesses, the Court to set aside judgment and orders of her Honour Simpson J from 09.12.2005 under Common Law and rules 36.15 and 36.16 of the Uniform Civil Procedure Rules on the ground that the said judgment and orders were given or entered, or the judgment and orders were made, irregularly, illegally or against good faith or the judgment and orders were obtained illegally or irregularly or in fraud by the Defendants."

11 That prayer for relief presupposes the existence of her Honour's judgment and is irreconcilable with the basis upon which the plaintiff in fact made his submissions to me, namely, that there is no judgment of her Honour delivered on 9 December 2005 or at all. The ninth defendant did not oppose the plaintiff putting submissions that were inconsistent with the foundation of his motion, presumably and understandably in the interests of having his extraordinary complaints fully and finally heard and determined. I acceded to that course as appears from the following extract from the transcript:

"HIS HONOUR: I note for the record that upon enquiry by me about whether or not Mr Markisic's notice of motion commencing these proceedings contains in it a specific prayer for relief upon the basis that the judgment of Justice Simpson is either a fraud or a forgery or a fake or a counterfeit or a document not prepared by her or prepared by somebody else on her behalf or, alternatively, without her knowledge, or any one or any combination of those arguments, Dr Collins of counsel concedes that the issue framed in that way is alive between the parties and asks that in due course a determination about it be made. In those circumstances I will treat the plaintiff's application as one that includes a payer for relief on one or other of those bases and I will continue to deal with the matter accordingly."

12 The hearing of the plaintiff's motion commenced before me on 9 April 2008 and continued on 10 April 2008. It was then adjourned part heard. The hearing resumed on 4 May 2009 and continued for five days. Upon resumption the plaintiff filed in Court a further notice of motion. By par 1 of that motion, the plaintiff sought the following relief:

sic

13 That relief sought in that paragraph was in the nature of an application for summary judgment. On 4 May 2009, I directed pursuant to Part 2, rule 1 of the UCPR that the hearing of that application take place concurrently with the balance of the proceedings. This appears from the following:

"HIS HONOUR: I am going to make an order under part 2 rule 1 of the Uniform Civil Procedure Rules 2005. You may be aware that under that section I can make an order at any time or from time to time giving directions for the conduct of any proceedings as appear convenient for the just, quick and cheap disposal of the proceedings. It seems to me that we have spent from this morning until now, and it is 3.40 pm, in a way that has been less than productive. It doesn't strike me that it has been quick. It certainly hasn't been cheap, and I will reserve my decision about whether or not it has been just, but I think we need to get on with what this case is about.

My directions under part 2.1 are that the further hearing of your prayer 1 in your notice of motion this morning will be heard concurrently with the balance of these proceedings. All right?
PLAINTIFF: Yes. Paragraph number 1 is exactly in accordance with that part. I am trying for the proceedings to be quick and cheap.

HIS HONOUR: I have just made a direction--

PLAINTIFF: I ask for summary judgment for that direction.

14 It will be apparent that the manner in which the plaintiff has put his case has changed over time. In its ultimate manifestation, however, it includes at least the following several propositions:

1. The judgment of her Honour is a counterfeit, fake or forgery (see T238/10: ' My first issue is, your Honour, that the document which is circulating in this court and is standing as if the judgment in the proceedings, the document is not a judgment of Justice Simpson' );

2. There was no continuation of the trial before her Honour after the plaintiff left the courtroom at about midday on 30 November 2005 (see T256/34: ' Next point would be, in my submission, the next ground, there was no continuation of the trial after I left the courtroom …');

3. No witness entered the witness box at any continuation of the trial after the plaintiff left the courtroom at about midday on 30 November 2005 (see T256/35: '… and no witness was sworn into the witness box of the Supreme Court of New South Wales '); and

third ground, that certain documentary evidence was tendered

15 These issues are considered in detail later in these reasons. The plaintiff summarised his contentions about them as follows:

"PLAINTIFF…To summarise, there was continuation of the trial, that there was witness enter in the witness box and giving oral evidence and, third point in the judgment, it says there was some documentary evidence tendered. On those three points the judgment, this document, is based. I am alleging before your Honour that none of these events happened."

16 The plaintiff relied upon the affidavits referred to earlier, as well as an outline of submissions filed on behalf of the respondent in proceedings in the Family Court of Australia in Markisic v The Director-General of the Department of Community Services plus a series of photographs and two DVDs. The ninth defendant tendered no evidence.

17 Reference was made in the course of the hearing to documents appearing on the court file and in particular, a two page transcript of a hearing before her Honour on 9 December 2005 when her Honour published her reasons for judgment and made orders for costs, and an Associate's record of proceedings from 30 November 2005 showing that the trial before her Honour continued in the plaintiff's absence after about midday on that date. The plaintiff vigorously opposed any reliance being placed on those documents, contending in substance that any material on the court file was unreliable, and liable to have been planted there or tampered with by unknown persons. For example, the plaintiff made the following submissions:

"PLAINTIFF: Court file. I told you in relation to website your Honour, the officer working on a website is not to ask any more question just to do the orders, to comply with the orders. To put the, the judgment or document looking like judgment, it is for him judgment. He will do the, the, he will perform the command, the order received and he will publish the judgment on the website and no more questions will be put to him. Or there is no other question for anyone in the Attorney-General Department.

Next point is how one such document can come into existence in the court file. Very easy, your Honour. It is, believe me it is the easiest job in this court to, to tamper with the file. So many persons are dealing with the file from registry, record section, section for exhibit.

HIS HONOUR: So you say it is unsafe for me to place anything in the file because it is--

PLAINTIFF: Anything is possible.

HIS HONOUR: Because it is possible that the file has been tampered with.

*****

… No-one is requesting, is searching whether anything is added to the file. If anything is missing or is, if anything is edited, is changed, some context. Some page from the affidavit taken out, you know.

Your Honour, it is everything possible, in my submission. There is no security at all. There is some security but not security in my understanding. It is, everything is left to the honesty of the persons inspecting. I don't know whether is some surveillance, I was never worried about that. But probably there is some surveillance, camera included. How the system works, I don't know.

HIS HONOUR: I don't know either.

PLAINTIFF: That is not for myself to go into that at any time. But in my submission it is possible to planted the file. When the person outside the court comes and inspect the file in the, in the inspection room.

Different story for inside. There are plenty of employees in the records section or exhibits section outside who is handling the file from record section and giving the file to the inspection party. The file stays in this exhibit room for the whole week on one shelf and no security, no-one is looking after that. Officer working close to this shelf walks around, probably will go on lunch, will go somewhere else. I was looking at myself many times. It is unsecured, unattended. Whether there is some surveillance camera outside, I don't know

HIS HONOUR: The website is not secure, the file is not secure.

PLAINTIFF: I don't know if the website, whether it is secured, protected from outside someone to plant, to go into the system of the Attorney-General and to put some file.

HIS HONOUR: But on your analysis and submission I cannot place any reliance on what is in the file and I cannot place any reliance on what is on the website.

PLAINTIFF: Yes.

HIS HONOUR: Is there--

PLAINTIFF: Whether person from outside world can break the security system of Attorney-General and department and to put that, that file on their system, it is not part of my submission because that would be speculation. But in my submission it is most probable on balance of probabilities--

HIS HONOUR: Your instructions are that it is an inside job?

PLAINTIFF: Yes, on balance of probabilities it is more probable that the inside job occurred than outside.

In relation to the court file, we have to take into consideration that administration of the court, the Supreme Court is under Attorney-General Department. The officers, all officers in the registry including the principal registrar and all others down, they are all employees of the Attorney-General Department and the Attorney-General Department is, when taking into account the department, the Attorney-General Department main things this website, main thing is the court files. It is easy for one person inside to plant those documents in these places.

Just to mention for this argument that I have, as opponent in my other proceedings in various proceedings, but the main proceedings against 20698 of 2000, the proceedings against the State of New South Wales and the Commonwealth of Australia. The State of New South Wales I am suing in relation to unlawful acts done to me by the Attorney-General Department in 1998, in particular the Crown Solicitor's Office, and the Commonwealth of Australia for trespass and other torts, your Honour. And having in mind in other proceedings I, I was the same defendant and I was served in those proceedings with fabricated affidavit containing fake fabricated orders of the Family Court by the State of New South Wales, by the Crown Solicitor's Office in particular. This affidavit which was served on me and in my brother proceedings 20369 of 2001 where my brother is suing the Commonwealth of Australia together with my mother, the same affidavit was served in both proceedings containing the Family Court orders.

HIS HONOUR: The fabricated one?

18 These themes and assertions reappeared throughout the seven days of the case, which took the relatively unusual form of the plaintiff addressing me for almost the whole of that time. The ninth defendant did not suggest in the particular circumstances of this case that any other approach should have been adopted, or that he suffered any substantive or procedural prejudice as a result. The plaintiff did not complain that he was not given a proper opportunity to present his case, and could not realistically have done so.

The proceedings before Simpson J and the plaintiff's appeal to the Court of Appeal

19 The present application must be understood in the context of what occurred at the trial before her Honour and the subsequent appeal. A detailed summary is contained in the reasons for judgment of the Court of Appeal in Markisic v AEA Ethnic Publishers Pty Ltd (supra) at [49]–[135]. The plaintiff appeared on the first, second and third days of the trial between 28 and 30 November 2005. He made detailed submissions on each of those days and made three unsuccessful applications, on various grounds, for an adjournment of the trial or vacation of the hearing. He made numerous unsuccessful applications to have the trial judge disqualify herself on grounds of actual or apprehended bias and he made submissions in relation to a large number of subpoenas that he had issued against various parties, as well as in relation to a subpoena directed to him personally. Until midway through 30 November 2005, the plaintiff was fully engaged in the proceedings and had revealed no incapacity to continue. These matters are recorded in her Honour's judgment at pars [12]–[18]. They are also consistent with the plaintiff's own evidence in his 17 September 2007 affidavit at pars [4]–[7]. Those paragraphs are in the following terms:

"4. The final trial in these proceedings in relation to two newspapers …was held from 28.11.2005 to 01.12.2005 before Justice Simpson. At that trial I was self-represented, assisted only by my brother Oliver Markisic.

5. I and my brother were present only on 28.11.2005, 29.11.2005 and half day on 30.11.2005. I left the court room at about 12 pm on 30.11.2005. I was not able to participate further at the trial due to my worsened health condition. Justice Simpson continued with the trial in my absence after I left the court room.

6. After I left the court room no person represented my interests at the trial.

20 I observe in passing that these paragraphs are wholly inconsistent with assertions and submissions upon which the plaintiff now seeks to rely. For example, he subsequently disputed before me that anything occurred in the proceedings before her Honour after he ceased further to participate in them on 30 November 2005. That is inconsistent with his evidence that her Honour conducted the case until 1 December 2005 and that she continued with the trial in his absence after he left. It is also inconsistent with his evidence that her Honour delivered a judgment on 9 December 2005, a fact about which the plaintiff made detailed submissions to the contrary. It would seem that his arguments have developed somewhat organically over time and that the intent and purpose of this evidence was formulated before the plaintiff came across or conceived of the idea that it would become necessary for him to rewrite the past if he were to have any prospect of succeeding before me. This will become clearer from what follows later.

21 Midway through the third day of the trial on 30 November 2005, her Honour required the plaintiff to call or give evidence. At that point the plaintiff declared that he would no longer participate in the trial on the grounds of a worsened health condition. After being given the strongest possible warning by her Honour of the consequences of adopting that course, and being given an opportunity to collect his thoughts, the plaintiff departed and did not return. These matters are also recorded in her Honour's judgment. The plaintiff did not challenge the accuracy of that summary and confirmed that he left the trial due to his worsened health condition at around midday.

22 In his appeal to the Court of Appeal the plaintiff contended, contrary to the position that he now adopts, that after he left the courtroom, the trial continued in his absence. One of his central contentions was that her Honour's judgment was founded on a fraud, in that the only witness to give evidence in support of the ninth defendant's defence was an impostor. Tobias JA, with whom Beazley and Basten JJA agreed, disposed of that contention at pars [150]–[158] as follows:

"[150] It was further submitted, as I understand the appellant's written submissions, that the evidence that the witness had given with respect to the appellant's abuse of her was false and that " the evidence shows opposite ". That evidence was never identified. I would assume that had the appellant entered the witness box he would have denied the conduct alleged.

[151] Katerina gave her evidence through an interpreter. She was asked whether her full name was Katerina Markisic and whether her maiden name was Niovska to both of which questions she answered in the affirmative. Although her statement was tendered as Exhibit 11 she gave her evidence orally. She stated that she had made an application to obtain an Australian visa as she was not entitled to citizenship, it being intended that she would migrate to Australia with her husband and child. After the appellant took the child and arrived in Australia, she stated that she received a notification from the Australian Embassy in Belgrade that her visa application had been withdrawn.

'Q. Are you able to tell her Honour what day you arrived in Australia?

A. I got a passport. It says exactly on the passport. I am not that certain now exactly about the date.

Q. Do you have your passport in Court?

A. Yes, yes.

Q. Would you have a look at that page and see if that assists you in answering the question about the date you arrived in Australia.

A. Yes. It was 10/10/98 and on 12 October I arrived at Sydney Airport.

Q. Just to clarify, did you leave Macedonia on 10 October, arrive in Australia on the 12th?

Dr Collins then informed her Honour that he would undertake to tender a photocopy of the passport which would be made overnight. The following day, 1 December 2005, Dr Collins tendered a photocopy of Katerina's passport which became Exhibit 14.

[153] In his affidavit sworn 11 November 2006 which was read on the appeal, the appellant disputed the identity of the witness who purported to be his former wife, believing that some other person had entered the witness box and given oral evidence against him. He alleged that the primary judge was misled by the witness to believe that she was his former wife and that the facts that she had presented were true, whereas in fact the oral evidence given by the witness was intentionally false. As he was not present at the trial to dispute the identity of the witness and to establish that she was not his former wife, Katerina, a fraud had been committed on the Court which had been assisted by the fact that he had been absent from the trial at that point.

[154] The appellant then deposed that on 16 October 2006 he was granted leave to issue a subpoena for production to the Department of Immigration to produce documents relating to any application for an entry visa for "Katerina Markisic" in 2005 and any movement records for that person in November/December 2005 together with any passenger cards for that person for the same period. He then attached the correspondence he received from the Department which indicated that no movement records were found under the name Katerina MARKISI C born 4 April 1970 but that travel records for Katerina MARKISI K born on the same day had been forwarded to the Court. The correspondence from the Department of Immigration then enclosed a certified printout of the electronic record generated in respect of the movements of Katerina MARKISIK which noted her date of birth as 4 April 1970, that she had arrived in Australia on 26 November 2005 and had departed on 6 December 2005. Passenger Card Images for a Katerina MARKISIK born 04/04/1970 for movements during the period 01/11/2005-31/12/2005 were produced and which included an Incoming Passenger Card for 26 November 2005 and an Outgoing Passenger Card for 6 December 2005.

[155] In his oral submissions the appellant denied that the writing on the card was that of his former wife and noted that in any event, the document had not been signed. However, the appellant had overlooked that in the letter from the Department of Immigration to the Exhibit Officer of this Court, it specifically noted that the signatures on the passengers cards had not been disclosed pursuant to s.336E of the Migration Act 1958 which makes it an offence for a person to disclose what is referred to in that provision as " identifying information ", a term defined in s.336A in a manner which would include a person's signature.

[156] The copy documents provided by the Department of Immigration were consistent with Exhibit 14, the photocopy of Katerina's passport in which her surname ended with a "K" and not a "C". The appellant latched onto this difference submitting that the person referred to in the passport and in the Department's entry and departure documents could not have been his former wife for that reason. In this respect he referred to their marriage certificate in which her married surname was spelt with a "C". This submission was made notwithstanding that the appellant accepted that his wife's date of birth was, as all the documents revealed, 4 April 1970.

[157] During the course of these submissions on the appeal, the appellant was asked whether he had seen Exhibit 14, being the photocopy of Katerina's passport. It was apparent to the Court from his submissions that he appeared to have seen every other exhibit because he made complaints in relation to them, particularly with respect to their manner of proof before the primary judge. When pressed, he neither denied nor admitted that he had seen Exhibit 14 and asked to see it. The original Exhibit was handed to him. Being a photocopy of Katerina's passport it contained her photograph. The appellant was then asked whether the photograph in Exhibit 14 was that of his former wife. After some hesitation, he admitted that it was. Rather than admit defeat on this issue, the appellant then submitted that the passport was a forgery and that, in any event, there was still no evidence that the person who presented herself in the witness box before her Honour was the person whose photograph was pictured in Exhibit 14.

23 It is to be noted that at par 19(e) of his 17 September 2007 affidavit, the plaintiff maintained, contrary to the findings of the Court of Appeal, that the Department of Immigration had "produced no evidence that Katerina Markisic was issued visa to enter Australia in 2005 and that Katerina entered Australia in November 2005." In these proceedings on 7 May 2009, the plaintiff contended that he had been 'stupid' and 'naïve' at the time of the Court of Appeal hearing, because he had put into evidence documents he had himself subpoenaed from the Department of Immigration. For example the plaintiff said this:

"PLAINTIFF: This evidence was not before the Court of Appeal, first.

HIS HONOUR: Correct.

PLAINTIFF: At the time I made that appeal I was so confused, so confused from this judgment of Justice Simpson.

HIS HONOUR: Alleged judgment.

PLAINTIFF: Alleged judgment. I was so confused, all the many fabricated documents I received, all the false material facts I received during my presentation before Justice Simpson and the documents I received after I left the courtroom. I was also confused by some documents I received from the Department of Immigration. Now I will say to your Honour those documents I will not rely any more on them. I was so stupid to say in that sense that I put them before the Court of Appeal because I didn't believe in any such document. I put such documents against myself. I shoot my foot, your Honour.

HIS HONOUR: You did.

PLAINTIFF: I made such mistake, I was so stupid at the time, I do not believe in such documents and I still believed the Court of Appeal will understand me and will be on my point that the Immigration Department, some officer there, some corrupted officer, without providing his name or surname put fabricated false material facts in a document. In any event, now I will say that those documents were hearsay, belief of some officer, he put it in one page without any signature. I believed this is to be true.

*****

PLAINTIFF: Your Honour, I would like to give you some more explanation why I didn't put everything, all the evidence in my possession before the Court. At the time of the appeal I told you that first I made a mistake by giving to the Court of Appeal evidence which I did not believe to be true at that particular morning. I was so naive. I learnt a lesson at the Court of Appeal and I paid the price for that lesson, to rely only on evidence and what evidence you believe.

I put before the Court of Appeal and I told to the Court of Appeal, and I submitted to the Court of Appeal that I am putting the evidence obtained from some documents obtained from the Department of Immigration, and I submitted to their Honours that I do not believe this evidence to be true. I submitted to their Honours that evidence which I provided as records from the immigration departments I do not believe to be true and I put that the evidence before their honour - your Honour, to clarify myself, I submitted to their Honours that some evidence received from the Immigration Department I did not believe to be true, some of the documents received. Still being naive, I put those documents into evidence.

Your Honour must take into consideration that I did not finish any law school, I was not trained to be a lawyer where professors in the university will teach me lessons, how to put and how to deal with the evidence. I was not, after finishing any such law school, practising as a lawyer in some law firm where some senior lawyers in that firm will give me some guidelines, or will give me some assistance, help in relation to evidence, that is I believe the main thing which one lawyer, solicitor or barrister will learn to be a lawyer or to become a lawyer or a solicitor or barrister.

I am learning all my lessons through this Court, or through other courts in which I am engaged. I am engaged from 1998 in various court proceedings. I started without any knowledge in 1998, without any knowledge and making a difference between judge and barrister. They look to me--

24 In the Court of Appeal, as the above extract from Tobias JA's judgment demonstrates, the plaintiff's position was that those documents established that Katerina Markisic had not come to Australia to give evidence at the trial before her Honour. The Court of Appeal found that the documents were part of a body of 'overwhelming evidence' that was precisely to the contrary. Despite the Court of Appeal's decision, the plaintiff changed his position before me to allege that the documents produced by the Department of Immigration in response to his subpoena were themselves 'fabrications', by a 'corrupted officer' within the Department. He then said, completely inconsistently with the position he had adopted before the Court of Appeal, that at the time of the hearing of the appeal he did not believe the Department of Immigration documents to be genuine.

25 This is consistent with the plaintiff's whole approach. When confronted with clear evidence that he cannot explain or avoid, the plaintiff concocts an "explanation" that seeks to impugn or discredit or deny the existence of the offending material. This approach was given a long lead in the proceedings before me.

Relevant Principles

26 Although his notice of motion referred both to Part 36 rule 15 and Part 36 rule 16, the plaintiff only relied on the former. An application to set aside a judgment on the ground that it has been procured by fraud should ordinarily be made in a separate proceeding: see the many authorities for that proposition cited in Ritchie's Uniform Civil Procedure NSW at [36.15.20]. As a practical matter, the ninth defendant did not take any point based upon this.

27 The principles governing the plaintiff's application were summarised by Kirby P, with whom Hope and Samuels JJA agreed, in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534. The learned President said this at 538–9:

"It is useful to state a number of principles which are established by law and which govern proceedings of the kind which the appellant wishes to bring.

First, the essence of the action is fraud. As in all actions based on fraud, particulars of the fraud claimed must be exactly given and the allegations must be established by the strict proof which such a charge requires: Jonesco v Beard [1930] AC 298 at 301; McHarg v Woods Radio Pty Ltd (at 497).

Secondly, it must be shown, by the party asserting that a judgment was procured by fraud, that there has been a new discovery of something material, in the sense that fresh facts have been found which, by themselves or in combination with previously known facts, would provide a reason for setting aside the judgment: see Lord Selborne LC in Boswell v Coaks (No 2) (1894) 6 R 167 at 170, 174; 86 LT 365 at 366, 368; Cabassi v Vila (1940) 64 CLR 130 at 147; McDonald v McDonald (1965) 113 CLR 529 at 533; Everett v Ribbands (1946) 175 LT 143 at 145, 146; Birch v Birch [1902] P 130 at 136, 137-138; Ronald v Harper [1913] VLR 311 at 318. This rule has an ancient lineage: see, eg, Shedden v Patrick (1854) 1 Macq 535 at 615, 622; Halsbury's Laws of England , 4th ed, vol 26, par 560 at 285. It is based upon a number of grounds. There is a public interest in finality of litigation. Parties ought not, by proceeding to impugn a judgment, to be permitted to relitigate matters which were the subject of the earlier proceedings which gave rise to the judgment. Especially should they not be so permitted, if they move on nothing more than the evidence upon which they have previously failed. If they have evidence of fraud which may taint a judgment of the courts, they should not collude in such a consequence by refraining from raising their objection at the trial, thereby keeping the complaint in reserve. It is their responsibility to ensure that the taint of fraud is avoided and the integrity of the court's process preserved.

Thirdly, mere suspicion of fraud, raised by fresh facts later discovered, will not be sufficient to secure relief: Birch v Birch (at 136, 139); McHarg v Woods Radio Pty Ltd (at 498); Ronald v Harper (at 318). The claimant must establish that the new facts are so evidenced and so material that it is reasonably probable that the action will succeed. This rule is founded squarely in the public interest in finality of public litigation and in upholding judgments duly entered at the termination of proceedings in the courts.

Fourthly, although perjury by the successful party or a witness or witnesses may, if later discovered, warrant the setting aside of a judgment on the ground that it was procured by fraud, and although there may be exceptional cases where such proof of perjury could suffice, without more, to warrant relief of this kind, the mere allegation, or even the proof, of perjury will not normally be sufficient to attract such drastic and exceptional relief as the setting aside of a judgment: Cabassi v Vila (at 147, 148); Baker vWadsworth (1898) 67 LJQB 301; Everett v Ribbands (at 145, 146). The other requirements must be fulfilled. In hard fought litigation, it is not at all uncommon for there to be a conflict of testimony which has to be resolved by a judge or jury. In many cases of contradictory evidence, one party must be mistaken. He or she may even be deceiving the court. The unsuccessful party in the litigation will often consider that failure in the litigation has been procured by false evidence on the part of the opponent and the witnesses called by the opponent. If every case in which such an opinion was held gave rise to proceedings of this kind, the courts would be even more burdened with the review of first instance decisions than they are. For this reason, and in defense of finality of judgments, a more stringent requirement than alleged perjury alone is required.

Fifthly, it must be shown by admissible evidence that the successful party was responsible for the fraud which taints the judgment under challenge. The evidence in support of the charge ought to be extrinsic: cf Perry v Meddowcroft (1846) 10 Beav 122 at 136-139; 50 ER 529 at 534, 535. It is not sufficient to show that an agent of the successful party was convicted of giving perjured evidence in the former proceeding, the result of which it is sought to impeach. It must be shown that the agent, in so acting, was in concert with the party who derived the benefit of the judgment: Ronald v Harper (at 318); Shedden v Patrick (at 643).

28 See also Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 (applied in Markisic v Middletons Lawyers [2007] NSWSC 1147, [22]).

The allegation that the judgment of Simpson J is not authentic

29 The plaintiff maintained forcefully throughout the hearing that her Honour's judgment was a counterfeit, a fake or a forgery. His submissions were generally to the effect of those contained in the following passage of the transcript:

"PLAINTIFF: … My first issue is, your Honour, that the document which is circulating in this court and is standing as if the judgment in the proceedings, the document is not a judgment of Justice Simpson. I would like to establish, I would like your Honour now, before your Honour, to establish the fact of publication in accordance with rule of Uniform Civil Procedure rule 36.3. I am alleging to your Honour that none of this requirements in this rule ever happen.

Your Honour, I am challenging, I am challenging that there was no publication [ sic ] on this date on 9 December 2005.

HIS HONOUR: No, you are not challenging that at all. The relief you seek seeks to demonstrate that the judgment was produced irregularly or against good faith or fraudulently.

PLAINTIFF: Say for example there was no publication on this date, your Honour. That judgment is irregularly, first point will be the judgment, regardless whether is, who is the writer, the judgment is obtained irregularly or against good faith.

HIS HONOUR: What is the evidence you rely on?

PLAINTIFF: The irregularity would be in addition to this rule, your Honour.

HIS HONOUR: To what?

PLAINTIFF: To this rule 36.3.

HIS HONOUR: What is the evidence you rely upon?

PLAINTIFF: The evidence is, I presented in my affidavit that I was not present and I do not know of any such event ever happened.

HIS HONOUR: You are old enough to know that not being present when something happens does not necessarily mean it did not happen. There are things happening in other courtrooms at this moment, you are not present. Are you telling me because you are not present it did not happen?

PLAINTIFF: You and me don't know, some things happen, maybe nothing happened, who gave any evidence to your Honour something is happening and what evidence is, what is happening, what exact--

HIS HONOUR: So your first submission is that the judgment of Justice Simpson was not published on 9 December 2005 because you were not there.

PLAINTIFF: No, because that event never happened . There is no evidence about that event at all, your Honour.

HIS HONOUR: What is your next point?

PLAINTIFF: Your Honour presented some transcript from 9 December 2005 but I am challenging that document.

30 I pause to observe that the events of 9 December 2005, which the plaintiff says in the italicised words of the above extract "never happened", are the very events that he deposed to in par 7 of his 17 September 2007 affidavit referred to earlier. The affidavit to which the plaintiff referred in that extract was his 3 April 2008 affidavit, pars [4]–[6] of which were as follows:

"4 I and my brother were present before Justice Simpson only on 28.11.2005, 29.11.2005 and half day on 30.11.2005. I left the court room at about 12 pm on 30.11.2005. I was not able to participate further at the trial due to my worsened health condition.

5 I recall that after 09.12.2005 I received a document purporting to contain a judgment and orders of Justice Simpson. I had no prior knowledge of the existence of that document and of its content. I saw that document for the first time upon receive [ sic ] it. Copy of the said document is attached to this affidavit and marked "A".

(a) I do not recall from whom I received that document and whether I received it by mail

(b) I was not present at any hearing where the judgment and orders contained in that document were purportedly made and I was not aware of their existence until I received the said document

31 The plaintiff submitted that he ought not to be taken to have put her Honour's judgment into evidence for any purpose by reason of having exhibited a copy of it to his affidavit, other than to dispute its authenticity. This emerges from the following:

"PLAINTIFF: Next point would be your Honour, your Honour took an opportunity during the hearing last year and yesterday and today to look at the document in issue. I am inviting your Honour first to enquire whether this document is adduced into evidence before your Honour.

HIS HONOUR: You put it into evidence.

PLAINTIFF: With respect, I did not put it as evidence that this is judgment of this court. I put it in evidence in my affidavit believing that this is not a document of this court because I recall this document is forged or as your Honour is stating, falsified or forgery or a fabricated or counterfeit. That is my allegation, your Honour.

If anyone intends to put under section 157 for that particular purpose it is open to that person. I did not put before your Honour to adduce as of evidence of the judgment or order. And I would like to ask your Honour my affidavit to not be understand in that way. I did not put that affidavit for that purpose. If I am allowed I will withdraw that affidavit and I will not rely on in this proceedings.

HIS HONOUR: Too late, you have read it already.

PLAINTIFF: But read for other purposes. Okay, I am challenging that affidavit.

HIS HONOUR: You are challenging your own affidavit?

PLAINTIFF: Yes, and I will state in the witness box why I am not believing this document to be judgment of Justice Simpson. I will explain why I believe that at that time this is not, but I do not believe that this is documents of Justice Simpson.

32 The plaintiff next submitted that, in any event, the document purporting to be her Honour's judgment (whether the original on the court file, the copy on the court website, or the copy exhibited to his affidavit) did not satisfy the requirements of s 157 of the Evidence Act 1995. He contended that there is no evidence that her Honour published any judgment on 9 December 2005 within the meaning of Part 36 rule 3 of the UCPR. Each of these contentions is without merit.

33 The onus lay with the plaintiff to establish, to the standard of proof that applies in cases involving an allegation of fraud, that her Honour's judgment was a counterfeit, a fake or a fraud. The only remotely relevant evidence upon which he relied to support that contention was the fact that he was not present in court on 9 December 2005 at the time the reasons for judgment were published. The ninth defendant submitted it was self-evident that the fact that he was not there did not constitute evidence that her Honour did not publish her reasons for judgment on that date.

34 Secondly, her Honour's reasons for judgment are in evidence. This is an application brought in the very proceeding in which her Honour delivered her reasons. They are on the court file. They are on the court's website. A copy was exhibited to the plaintiff's affidavit sworn on 3 April 2008. The ninth defendant submitted that the proposition that the court should somehow not be permitted to have regard to its own record of proceedings is clearly absurd. The proposition that the court should read the plaintiff's 3 April 2008 affidavit in the manner in which he contends, quarantined from a consideration of what it says for any other reason, is equally unsustainable.

35 The plaintiff also contended, in a largely discursive and unstructured way, that the court file might have been tampered with, or documents might have been 'planted' in it, and that the judgment might have been fraudulently uploaded to the court's website. Some of the relevant extracts from the transcript appear above. A slightly different formulation of the plaintiff's contentions in this respect emerges from the following extract from the transcript:

"PLAINTIFF: I would like to address the court in relation to whether I have changed my claim before your Honour from the beginning of these proceedings or not. I have not changed any claim in these proceedings. I am repeating on many occasions to your Honour that I am asking your Honour to find this document attached to my affidavit that is not a judgment of this court but still operates between us as the judgment of Justice Simpson and on such finding your Honour to set aside that document. That is the simple request in these proceedings, nothing more than that. I am alleging that someone illegally planted this document as a judgment of Justice Simpson into the court file.

HIS HONOUR: Who did that?

PLAINTIFF: It is irrelevant for these purposes who did it.

HIS HONOUR: Irrelevant?

PLAINTIFF: Irrelevant, of course.

HIS HONOUR: Let me understand your case. Your case is that the document in the court file which looks like a judgment of Justice Simpson--

PLAINTIFF: Yes, which was sent to me by mail.

HIS HONOUR: Yes, you think by mail but you are not sure.

PLAINTIFF: Yes.

HIS HONOUR: And which you have annexed to your affidavit.

PLAINTIFF: Yes.

HIS HONOUR: And which we know is in the court file, was planted there fraudulently by someone who you can't name.

PLAINTIFF: I can't name who did it and I don't know who sent that document to me.

HIS HONOUR: Is that your claim in these proceedings?

36 There was not the slightest piece of evidence to support that theory. It was made all the more bizarre by the plaintiff's contention that the fraud was in his belief concocted by the Crown Solicitor and the Attorney-General's Department, to cover up the fact that bandits, masquerading as Australian Federal Police officers, had been hired by or at the behest of the Crown Solicitor to kidnap his daughter in 1998 and deliver her into the possession of child predators and paedophiles. For example:

"PLAINTIFF: … Now the ninth defendant came before your Honour and is twisting the argument just to avoid consequences of in this court because he was pursuing some fabricated documents. He was putting some fabricated documents into this court through some unknown sources. Now I know through which sources. That is the Crown Solicitor for the State of New South Wales, Mr Ian Knight who was involved in the fabrication, his opposite part in the Family Court proceedings who was involved in the fabrication of all these documents in 1998 and who was involved in submitting false material facts in submission to the High Court of Australia before Justice Gaudron and now in this court the same persons through Mr Collins tried to justify their wrongful acts in 1998 in relation to the fabrication of orders in the Family Court and in relation to wrongful taking of my daughter, of kidnapping of my daughter from my home with false warrant and with persons who falsely presented to the Australian Federal Police executed warrant when in fact they were bandits, sent by the Crown Solicitor, Mr Ian Knight, to take my child and put my child forcefully like they put in DOCS but they put in a private home with Mr Ian Knight and his accessories personally assisting him, where my child was abused for nearly two weeks sexually, mentally and physically. And justification for those wrongful Act they find Zlatko Blajer, who first mentioned the false story in his newspaper, justifying wrongful acts and reporting from Family Court proceedings but reporting in a way which assisted the Crown Solicitor, Mr Ian Knight and his persons involved with him together.

*****

37 Thirdly, her Honour's reasons for judgment obviously satisfy the requirements of s 157 of the Evidence Act, which is in the following terms:

157

(a) is proved to be an examined copy, or

(b) purports to be sealed with the seal of that court, or

38 The reasons for judgment on the court file, and exhibited to the plaintiff's own affidavit, obviously purport to be a copy of a public document, and they purport to have been signed by a proper officer of the court, namely her Honour's Associate. The plaintiff has been involved in litigation in this court and other courts over many years, as his own submissions make plain, and long enough to know that reserved judgments are always certified as authentic by the Associate to the presiding judge. His contention to the contrary was in my view disingenuous.

39 Finally, the record of the court in relation to this very proceeding discloses that the reasons for judgment were published in open court by her Honour on 9 December 2005 in the very circumstances contemplated by Part 36, rule 3(1)(a), which provides:

(i) at the venue for those proceedings, or

40 The plaintiff did not produce any evidence to suggest that there was any reason to doubt the accuracy of the court record, beyond his repeated assertion that he did not attend court on 9 December 2005. One of his affidavits refers to the events of 9 December 2005 as well. If the plaintiff's assertion was that the court file had been tampered with in some way relating to the record of proceedings on 9 December 2005, he produced no evidence to support it. It is obviously an extravagant submission by any measure and highly likely, if not certain, to be incapable of proof.

41 The ninth defendant submitted that there were two further reasons why the plaintiff's contentions in relation to the authenticity of her Honour's judgment should be rejected. In the first place, he has pointed to no fresh evidence that was not available to him at the time of his appeal to the Court of Appeal in 2006. The only evidence to which he referred at all was the fact that he was not in court on 9 December 2005. That was a matter well known to him at the time he appealed to the Court of Appeal. The plaintiff therefore offends the second of the principles stated by Kirby P in Wentworth (supra). See also Port of Melbourne Authority v Anshun Pty Ltd (supra); Markisic v Middletons Lawyers (supra). Secondly, the ninth defendant submitted that the plaintiff did not establish (or indeed even seek to establish) that the ninth defendant was responsible for the alleged fraud that is said to have resulted in the creation and circulation of the counterfeit, fake or forged judgment. He therefore offends the fifth of the principles stated by Kirby P in Wentworth.

42 To the contrary, the plaintiff repeatedly stated that he had no evidence, and was not suggesting, that the ninth defendant was the architect of the allegedly fraudulent conduct. At the hearing on 9 and 10 April 2008, his position, at its highest, was that the ninth defendant was an 'accessory after the fact' of the alleged fraudulent conduct of others. For example, the plaintiff said this on the second day:

"PLAINTIFF… In my submission, I would like your Honour to be with me on this point, that in accordance with this rule it is not necessary that the ninth defendant was the cause or the source for the fraud in the Family Court. I am not alleging and there is not any part in the application in the Family Court that the ninth defendant was part of the fraud. I'm not alleging that, and the application of the Family Court is nothing to do with the ninth defendant involved or with the ninth defendant at all. He is unknown to the Family Court in relation to the application which is listed for 23 April.

43 However shortly following this the contention became somewhat different:

"PLAINTIFF: Of course. Of course. I heard many submissions on which I would like to respond, many submissions I can say they are without merits and wrongly interpreting. First before, I didn't say that the ninth defendant is not involved in the fraud in this proceedings at all.

HIS HONOUR: My note of what you said--

PLAINTIFF: I said he is no - there is no allegation from my side made in the Family Court proceedings that the ninth defendant is involved in the fraud in that tribunal. That's what I said and what I meant to say.

COLLINS: That's what I said.

PLAINTIFF: I am alleging in the Family Court that those judgments, those orders, are not the orders of the Family Court. I am not alleging against anyone in the Family Court in particular anyone and including the ninth defendant is part of the fraud.

HIS HONOUR: My note of what you said is "I am not alleging that the ninth defendant was involved in fraud in the Family Court or that he had anything to do with that court at all."

PLAINTIFF: Yes.

HIS HONOUR: All right.

PLAINTIFF: I don't have any evidence that the ninth defendant was part of the fraud in the Family Court. He was not party in the proceedings, party in the proceedings in the Family Court were Dragan Markisic and Director-General of the Department of Community Services, mutually.

*****

44 On further inquiry the matter developed as follows:

"HIS HONOUR: Well, let me just make sure. I don't want to have missed any of what you're saying to me. You say that the ninth defendant was involved in fraud in the Family Court or not?

PLAINTIFF: Not directly. In the final of the orders he was just giving who permitted and the persons who did wrongful acts to the child and my family. He gave them a part in his newspaper, given them justification, them chance to justify the wrongful acts. He was, in one sense, justifying the fraud in the Family Court.

HIS HONOUR: Well, I want to be clear what you're saying; are you saying that he was involved in the fraud in the Family Court or not?

PLAINTIFF: Not directly.

HIS HONOUR: Well, does that mean that in your submission he was indirectly involved in the fraud?

PLAINTIFF: Indirectly he did some favour. Whether you will take, your Honour, as part of the fraud I'm not going so far. I am not putting some legal term to your Honour. Just, I'm putting facts. The fact is that after the fraud was committed in the Family Court and after the wrongful acts were permitted towards the child and my family the ninth defendant his newspaper. I believe he was paid for such services. He used his newspaper to justify those wrongful acts against me and my daughter and to justify the fraud in the Family Court.

HIS HONOUR: Well, you're saying--

PLAINTIFF: To tell to the public different stories than the public deserved to know.

HIS HONOUR: Let me ask a different question. Do you say that the ninth defendant is in some way liable to you as the result of any connection he had, direct or indirect, with fraud in the Family Court?

PLAINTIFF: The fact is, your Honour, that at the time, with the ninth defendant publishing about the Family Court, which was not finalised, he intentionally interfered with the judicial process, presenting to the public what the resolution of the Family Court proceedings, in the custody proceedings and in the High Court, should be.

HIS HONOUR: But are you able to answer my question?

PLAINTIFF: Whether he was part of the fraud; I don't know, and I'm not going so far. Say, for example, your Honour, you have got some kids who robbed a bank and they came to one person to do a favour for them. He did, he knows or he doesn't know whether they robbed the bank. He did the favour and they runaway with his help. That is a matter for the police to investigate, whether he knew he was knowingly helping them, but fact is that he helped them. They paid to him. He never asked why. They paid to him so much money. Where they were running and why they were hiding and so many things he didn't ask anything, and it is for the jury to establish whether the facts he knew or his reason should he have known, I don't know to go so far. The fact is that he assisted. He assisted those persons by presenting, in 1998, and today he has presented the same story as the true story for other benefit, for other person benefit, but the fact is that the fraud was committed in the Family Court. He assisted, after that fraud, persons responsible for the fraud, and in this Court he assisted them again.

45 Later still it was this:

"PLAINTIFF: Thank you, your Honour. To continue with my reply: We heard from Mr Collins. First, your Honour, I cannot finish the involvement of the ninth defendant in the fraud. I couldn't find, before the lunch, the correct term in relation to his involvement, but I'm able now to say to your Honour that illegal term; he was accessory after the fact. That will assist better the court. That's what I mean to say.

He was part of the fraud, accessory after the fact. The fraud was done in the Family Court but he assisted the persons involved in the fraud after the fraud has been committed.

HIS HONOUR: You want to change your earlier submission that he was not involved in the fraud, is that so, not directly?

PLAINTIFF: I'm not alleging that he was directly involved in the preparation, or publication in fabrication of the Family Court orders. That was my intention, to submit to your Honour, I don't have such allegation, not only towards the ninth defendant, not to mention towards anyone particularly, because some matters have some limits, your Honour.

HIS HONOUR: Of course.

PLAINTIFF: My allegations are going so far to establish the fact that the Family Court orders, purported to be Family Court orders are not orders of the Family Court but were issued out of the Family Court out of the process. Who issued them, how they were issued, all steps taken to do that, I am not going to do police investigation. I am not allowed, in civil proceedings, using balance of standard, balance of probabilities to establish criminal offence.

In alternative to prayer number 1, in prayer number 3 I am asking for an order for judgment of - prayer number 3 is an order for judgment of proceedings until determination of the plaintiff's application in the Family Court proceedings number SYC 1502 of 2008. And prayer number 4 says further order as required by the plaintiff. That is my notice of motion before your Honour today.

I believe that I will be successful in prayer number 1 and probably the order number 2 and 3 and 4 will not be required any more and the case will not be, your Honour, it is not necessary to hear the, anything further, the notice of motion from 17 September 2007 specifically in relation to prayer number 2. If I am successful, your Honour to enter judgment or summary judgment against the ninth defendant because Mr Collins on the last occasion your Honour mentioned this morning that your Honour part heard over two days when Mr Collins made an admittance before your Honour which is in my evidence, I provided by affidavit and I will come back to your Honour, exhibit with evidence--

HIS HONOUR: When you say an admittance, I assume you mean an admission?

PLAINTIFF: Yes.

HIS HONOUR: What is the admission that you say has been made by Dr Collins that disposes of the proceedings dealing, as they do, with whether or not Justice Simpson's judgment was obtained irregularly, improperly or against good faith.

PLAINTIFF: Prayer number 1.

HIS HONOUR: What is the admission?

PLAINTIFF: Admission in relation to this question to this issue I am providing my affidavit.

HIS HONOUR: Please just answer my question--

PLAINTIFF: Yes, quickly I will answer your question.

HIS HONOUR: - where do I find the alleged admission?

PLAINTIFF: That is what I'm referring to, your Honour. I got affidavit and exhibit in support in evidence where all the admissions are made.

HIS HONOUR: I'm asking you, if it is not too much trouble, to direct my attention to where I might find it.

PLAINTIFF: In short Mr Collins admitted that he and his client do not rely on Family Court proceedings in 1998, on any findings in the Family Court proceedings or on any judgment or order allegedly made in the proceedings or on any document, anything what happened to the Family Court at all, whatsoever.

In relation to the imputations, your Honour--

HIS HONOUR: What is said to be the relationship between that alleged admission and the question of whether or not Justice Simpson's judgment was obtained irregularly or against good faith, to summarise the provision you rely on?

65 There is no relationship between anything said by Dr Collins, upon which the plaintiff attempted to rely as a relevant admission, and any other part of the plaintiff's case. The whole exercise, including the issue of whether or not the proceedings should somehow on their third day be converted into a jury trial – a concept that I did not follow in the circumstances even if the plaintiff thought he did – was a complete waste of time and once again wholly misconceived by the plaintiff.

Judgments and orders of the Family Court

66 From time to time in the course of his address the plaintiff made passionate submissions in relation to what he said were eight counterfeit, fake or forged judgments or orders of the Family Court. The contention appeared to be that because those judgments and orders were tendered before Simpson J, her Honour's judgment came to be based on erroneous matters and is accordingly liable to be set aside. It will immediately be observed that that submission is irreconcilable with the plaintiff's principal contentions, namely, that no documents were in fact tendered before her Honour at all and that she did not ever in fact deliver a judgment.

67 The only evidence adduced by the plaintiff to support his claims concerning the alleged frauds in the Family Court were his 8 December 2008 affidavit in which he deposed, relevantly, that he was not present when various orders and judgments were made in the Family Court and Oliver Markisic's affidavit of the same date to the same effect. In addition, the plaintiff tendered a copy of an outline of submissions filed by the Director General of the Department of Community Services in Family Court proceeding SYC 1502 of 2008 brought by the plaintiff, in which the Director General sets out his submissions as to why there is no reason to doubt the authenticity of the various judgments and orders challenged by the plaintiff. He sought to argue that the outline of submissions constitutes an admission by the Director General in that proceeding that the plaintiff was not present at the time the judgments and orders were made. Even if the outline of submissions could be read in that way, it self-evidently does not support the plaintiff's contention that the judgments and orders were not made at all.

68 The ninth defendant submitted that none of this evidence comes remotely close to establishing the plaintiff's contention that the judgments or orders of the Family Court that are adverse to his interests are anything other than authentic. Even if they were all counterfeits, fakes or forgeries, however, it was not contended that the ninth defendant played any part in their fraudulent creation. The plaintiff's contentions in relation to the alleged authenticity of judgments or orders of the Family Court do not support the relief that he seeks.

Miscellaneous

69 After I reserved my decision the plaintiff filed a notice of motion on 15 May 2009, the date upon which his written submissions were filed, returnable on 26 June 2009, seeking orders in the following relevant terms:

"1. The Court to punish for civil contempt Mathew John Collins for failure to comply with the order of Justice Carolyn Simpson made in the Supreme Court of NSW's proceedings No 20492/99 on 28.11.2005 to produce an affidavit on 29.11.2007 [ sic ] i.e. for not fulfilling of an undertaking given to Justice Simpson on 28.11.2005 to produce an affidavit on 29.11.2007 [ sic ].

2. The Court to punish for criminal contempt Mathew John Collins for disobedience in compliance with the order of Justice Carolyn Simpson made in the Supreme Court of NSW's proceedings No 20492/99 on 28.11.2005 i.e. avoiding fulfilling an undertaking given to Justice Simpson on 28.11.2005 to produce an affidavit on 29.11.2007 [ sic ] perverting the course of justice.

3. The Court to punish for civil contempt Mathew John Collins for intentionally providing to Justice Ian Harrison at the hearing in the Supreme Court of NSW's proceedings No 20492/99 on 08.05.2009 false and misleading statements.

70 I am unaware of the fate of that motion. Presumably it was somehow overtaken by the fact that on 29 June 2009 the plaintiff filed another notice of motion, returnable on 29 July 2009, seeking orders in identical terms with the exception of an additional prayer for relief as follows:

"1. Directions to be made and proper case management be made in relation to this motion, time table be fixed and date be allocated for hearing of this motion to enable the Applicant to have enough time to call the witnesses and issue subpoenas for oral examination of the proposed witnesses to be called at the hearing of this motion."

71 I have referred to these events in order to make it clear, in the context of what I am about to deal with, that I have not formed any views or impressions of the plaintiff, and I draw no conclusions, that are based upon anything that has post-dated the reservation of my decision on 8 May 2009. The plaintiff's notices of motion are not relevant to any issue that I have to decide and I have seen no evidence in support of them.

72 In addition to seeking to have the plaintiff's notice of motion dismissed with costs, the ninth defendant's written submissions included the following, which I will record verbatim:

"This litigation, and litigation in a related proceeding (20285 of 2004), has a long and tortuous history. The related proceeding was a defamation action brought by Mr Markisic and his brother Oliver against Middletons Lawyers, Mr Blajer and two solicitors in relation to the contents of the witness statement of Katerina Markisic which was served prior to the first instance trial in this proceeding. In both proceedings, Mr Markisic failed at first instance (with costs), failed on appeals to the Court of Appeal (with costs), and was refused special leave to appeal to the High Court.

Markisic v Middletons Lawyers

The ninth defendant submits that this observation, if applied to Mr Markisic's conduct in the course of the hearing of the current matter, would be a significant understatement. Mr Markisic's submissions in the present matter rambled over the best part of seven hearing days. In the course of the hearing he made at least four unmeritorious applications that Harrison J disqualify himself, and applied for adjournments for no good reason. He repeatedly showed a total disinclination to get on with the issues at the heart of his motion of 17 September 2007. When he eventually made submissions in relation to his motion, they were for the most part incoherent. Mr Markisic expressed bizarre conspiracy theories that sought to impugn the integrity of a raft of persons not represented before the Court. He did so without even a remote hint of any evidence. When confronted with documents which were adverse to his interests, Mr Markisic invariably declared them to be counterfeits, fakes and forgeries, and nothing more than further evidence of the vast conspiracy he apparently believes is being prosecuted against him. His motion was, at the end of the day, a fundamental abuse of the process of the Court. The principal victim of the abuse of process is the ninth defendant, who has now been condemned to some nine years of litigation at the hands of Mr Markisic for daring to oppose his allegations of defamation. Despite having prevailed at every level, the ninth defendant remains hostage to pointless and unmeritorious applications by Mr Markisic. Multiple costs orders have been made against Mr Markisic and in favour of the ninth defendant, none of which will ever be of any practical value, because Mr Markisic cheerfully proclaims that he is impecunious, barely able to afford to buy a cup of coffee: T269/5–9.

Markisic v Middletons Lawyers

'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.

It is submitted that similar, but broader, orders ought to be made in the present matter, and that they ought to be framed so as to bring to an end, once and for all, litigation concerning the subject matter of this proceeding and all orders and judgments made herein (save, of course, for any appeal from the Court's judgment in respect of the present matter). It would be undesirable if Mr Markisic could circumvent the finality of this proceeding yet again by issuing some ingeniously conceived but unmeritorious fresh proceeding in relation to the same subject matter.

The matters the subject of this proceeding have occupied vastly more than their fair share of the Court's time. The time has come, it is respectfully submitted, for the Court to say that enough it enough.

The ninth defendant accordingly seeks the following orders:

1. The plaintiff's notices of motion dated 17 September 2007 and 4 May 2009 are dismissed with costs.

(a) from filing or serving any Court documents whatsoever in this proceeding or in any other proceeding (save for any documents in relation to any appeal from the hearing before Harrison J on 9 and 10 April 2008 and 4 to 8 May 2009); and

in which relief of any kind whatsoever is sought or allegations of any kind whatsoever are made against Mr Zlatko Blajer, or his solicitors from time to time, or his Counsel, which are related in any way directly or indirectly to the subject matter of this proceeding or any orders or judgments made in this proceeding.

3. If Dragan Markisic, without the leave of a Judge of this Court, does any of the things referred to in Order 2, other parties are not to attend at the Court and they are not to participate in proceedings arising out of the doing of those things unless otherwise directed by a Judge of this Court; and unless the Court shall think fit to give such direction any further proceedings, motions or applications shall be dismissed without being heard.

73 The only material in the plaintiff's written submissions, which was not in the nature of a repetition of his lengthy oral submissions, related to the ninth defendant's submissions seeking special orders. It is appropriate that the plaintiff's submissions on the point also be recorded in full. They were relevantly as follows:

"14. In relation to the orders sought by Mr Collins at the end of written submissions the Plaintiff submits:

(a) Mr Collins is not entitled on the orders sought at the end of his written submissions. It is impermissible for Mr Collins to seek orders through written submissions (even to be worst to seek them through unsigned written submissions). Whose written submissions are the one served by Mr Collins? The Plaintiff uses an opportunity to advise Mr Collins to consider Part 18, rule 18.1, 18.2, 18.3, 18.4 of UCPR. The Plaintiff would remind Mr Collins that we are not at the market but we are in the Supreme Court of NSW where UCPR operates and which the parties must obey. Mr Collins even though from Victoria is not a new comer in this court system to not know that he must seek orders through Notice of Motion, properly filed and supported by affidavit evidence. Justice Harrison did not receive Notice of Motion and evidence to support making of any such order.

(b) The Plaintiff was present at the hearing in the Court of Appeal's proceedings No. 40739/05 when Justice Bryson declined to deal with any application from the State of NSW and the Commonwealth of Australia seeking orders in similar terms if that application was not filed as Notice of Motion. The Plaintiff would expect from Justice Harrison at least as a matter of fairness and consistency to follow the same reasoning of Justice Bryson.

(c) There is no doubt in the Plaintiff's mind that this kind of tactic of seeking orders of similar terms on couple of occasions against the Plaintiff in various proceedings is pre-designed and controlled from the same source. It started first from the Crown Solicitor's Office in the Court of Appeal case No. 40739/05 and continued in the case involving Middletons lawyers (20285/04, the case dealt with by Justice Harrison). It now again continues in this case. This proves beyond any doubt that behind Mr Collins is actually the Crown Solicitor who is actually paying for representation.

(i) in paragraph 2(a) the words " or in any other proceeding " for the reason that the 9th Defendant can seek only orders in relation to these proceedings;

(ii) in paragraph 2(b) the words " or in any other proceeding " for the reason that the 9th Defendant can seek only orders in relation to these proceedings;

(iii) in paragraph 2 the words " or his solicitors from time to time, or his Counsel " for the reason that none of the above persons was a party in these proceedings and the 9th Defendant can not seek orders on behalf of any other person;

(iv) in paragraph 2(a) the following words

(" save for any documents in relation to any appeal from the hearing before Harrison J on 09 and 10 April 2005 [sic] and 04 to 08 May 2005 [sic] ")

be replaced with the following words:

save for any documents in relation to any appeal from the hearing before Harrison J on 09 and 10 April 2005

and 04 to 08 May 2005

or save to any documents in relation to any application seeking relief from the decision of Harrison J delivered from the above hearings

74 It is accurate, as the plaintiff suggests, that the ninth defendant did not foreshadow that he would seek these orders in a notice of motion filed in the proceedings and served on the plaintiff. There is to some extent a curious irony in the plaintiff's insistence upon unbending compliance with the formalities of procedure in the context of an application to deny the very existence of a judgment he propounded as genuine in the Court of Appeal. It also fails to have regard to the fact that the court, of its own motion, can make orders of the type that the ninth defendant desires. In addition, the ninth defendant actually made submissions in open court on this topic, as well as in his written submissions, and those oral submissions were as follows:

"COLLINS …I have a further submission to make and it is an application for orders to bring some finality to this litigation. Mr Markisic has been on notice that an application of this kind would be made since April 2008 because it was referred to in the written outline of submissions that was circulated at the time of the commencement of the hearing before your Honour, the one referred to yesterday as being capable of being discarded because a new submission was to be produced.

It scarcely needs to be said that this litigation has a long and tortuous history. There were two defamation proceedings, as your Honour knows, brought by Mr Markisic against my client and others. There was the matter before your Honour today and there was the Middletons Lawyers matter upon which your Honour adjudicated last year. Each case followed a very similar pattern. They had long and tortuous interlocutory histories. Mr Markisic then failed at first instance. He then failed on appeals to the Court of Appeal. He then sought special leave to the High Court and was refused and then, having exhausted those avenues, he brought applications to set aside the first instance judgments on the grounds that they were given, entered or made irregularly, illegally or against good faith.

Your Honour disposed of the Middletons Lawyers matter in the judgment of 17 October 2007 to which I have made reference and your Honour made some very strong comments about your observations of the conduct of the plaintiffs in that case and your Honour then made some orders designed to bring some finality to that litigation. In my submission, what has emerged over the course of this hearing before your Honour is of another dimension entirely. Mr Markisic's submissions have rambled over the best part of seven hearing days.

In the course of the hearing he showed a complete disinclination to get on to the issues at the heart of his motion. He brought four unmeritorious applications that your Honour disqualify yourself and he applied for adjournments on a number of occasions. When he eventually made submissions in relation to his motions, as I have sought to articulate in the course of my submissions, they were largely incoherent. He expressed a bizarre conspiracy theory and he sought to impugn the integrity of a raft of persons not represented before the court, presumably including, because he said the tampering of the file was an inside job, officers of the court. He made these allegations without a skerrick of evidence. When confronted with documents which were adverse to his interests, he invariably described them to be counterfeits, fakes and forgeries and nothing more than further evidence of the vast conspiracy he apparently believes is being prosecuted against him.

What has occurred before this court over the last week and in April 2008 is an abuse, a fundamental abuse of the process of the court. I submit that the principal victim of the abuse of process has been my client, the ninth defendant, who has been condemned now for to more than nine years of litigation at the hands of Mr Markisic for doing nothing more than daring to defend a defamation proceeding brought against him. Despite having prevailed at every level, my client remains hostage nine years later to pointless and unmeritorious applications by Mr Markisic. Multiple costs orders have been made at every level against Mr Markisic, none of which is of any practical value because, as Mr Markisic himself repeatedly proclaims, he is impecunious and a pensioner.

75 The parties' competing contentions on this further issue are thus quite sharply defined. There was a clear indication before the proceedings ultimately concluded that the ninth defendant intended to seek orders limiting the plaintiff's ability to pursue him without some requirement of leave being imposed upon his ability to do so. The issue is not so much whether the ninth defendant failed to conform to the strictures of Part 18 as whether the plaintiff's conduct of these proceedings would lead a court to make the orders sought and, in this case, dispense with compliance with the rules requiring that a notice of motion be filed or served.

76 As indicated in the submissions of the ninth defendant, I referred to some authorities on this issue in previous proceedings in which the plaintiff was involved. In Markisic v Middletons Lawyers (supra) I said the following:

Markisic v Department of Community Services of New South Wales

and Ors

'[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.

Wentworth v Graham

Commonwealth Trading Bank v Inglis

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.

Bhamjee v Forsdick (No 2)

Markisic v Department of Community Servies of New South Wales & Ors

77 For reasons that follow in my conclusions, I consider that special orders of the type sought by the ninth defendant should be made.

Conclusions

78 On 8 May 2005 I reserved my decision in this matter, noting that the plaintiff would provide written submissions to the court by no later than 5.00pm on Friday 15 May 2009. Such submissions were duly received in the registry and stamped as filed by the clerk of the court on that day. I have had regard to those submissions in detail as well as to the photographs and DVDs tendered at the end of the hearing.

79 With the exception of the material dealing with the ninth defendant's application for special orders, the plaintiff's submissions are no more than a further re-statement of the lengthy submissions that he made in the course of the proceedings. In one sense this is unsurprising given the length of time that the plaintiff took in oral submissions over the best part of two days in 2008 and five days in 2009 and the constant and reoccurring nature of the topics that were covered. The only significant interruptions to the plaintiff's lengthy address occurred during submissions presented on behalf of the ninth defendant on 8 May 2009, which occupied merely 24 pages of the transcript, and the several applications that I disqualify myself for apprehended bias together with judgments delivered by me each time this occurred. In all, the proceedings filled over 550 pages of transcript of which the most significant proportion consists of the plaintiff's lengthy oration. Although I have quoted extensively from what he said, I recognise that the several extracts amount to no more than a small part of the total. The plaintiff's written submissions were only another version in concise terms of what he has said at great length previously.

80 It is plain that the plaintiff is unable or unwilling to accept defeat. In the ninth defendant's words, he refuses to accept the umpire's decision. I have no reason to suspect that his reaction to my decision in this case will be any different. Indeed, the plaintiff has foreshadowed as much in the written submissions to which I have just referred.

81 In my opinion the plaintiff's notice of motion was misconceived from the outset. It has revealed itself over the seven days of its hearing to have been fatally flawed and fundamentally without merit. It has been energised by the plaintiff's persistent and consistent refusal to accept or to understand that by the time the proceedings were disposed of in the Court of Appeal he had, by reason of the way in which he approached and conducted the case there, if for no other reason, lost any realistic ability to revivify the arguments and contentions that were dealt with then or to attempt to show that they were still alive notwithstanding. The present proceedings fly in the face of what are widely accepted as uncontroversial practical and procedural realities. It is unnecessary to describe the proceedings as an abuse of the process of the court or to attach to them any particular epithet at all. The material that I have included in these reasons should in my opinion be permitted to speak for itself.

82 I consider the plaintiff's suggestion that her Honour's judgment does not exist, or is a fake, a forgery or a counterfeit document, is not only unsupportable having regard to the evidence, but that it also offends the notion of what is reasonably arguable in solemn adversary proceedings. I referred during the hearing to what one might expect would be the reaction from an independent, unbiased observer to the proceedings, confronted with the plaintiff's submissions and the evidentiary bases upon which they were promoted. They are to my mind both literally and figuratively unbelievable and I do not believe them. I have no doubt that the hypothetical reasonable observer would respond in the same way. The suggestion that the judgment was a contrivance of one or other of the arms of government or its instrumentalities is also offensive to the most cynical common sense. The public and enduring nature of the judgment is the most obvious check on any such proposition. The plaintiff's case was based on little more than his repetitive assertions and was transparently driven by his predispositions but wholly without supporting evidence of any kind. What appear to be the plaintiff's conspiratorial obsessions have clouded his ability to accept the obvious and conform to the inevitable.

83 I find that her Honour's judgment was delivered by her on 9 December 2005. I reject the plaintiff's contentions that the judgment was a fake, a forgery, a counterfeit document and any cognate characterisation of it or that it was given or entered irregularly, illegally or against good faith. If it be necessary, I also reject the plaintiff's contentions that the judgment was placed, or has been permitted to remain, upon the court's website as the result of any fraudulent or criminal or otherwise improper conduct, or that the court file in this matter has somehow been tampered with illegally or unofficially and improperly altered by anyone inside or outside the registry. I reject the plaintiff's assertions that anyone other than her Honour was the author of the judgment.

84 The ninth defendant and his counsel have responded to the plaintiff's constant assaults in these proceedings with remarkable forebearance. Even accepting the plaintiff's complaint about the absence of an appropriately filed and served notice of motion, his own staggering disregard for the realities of finally contested civil litigation in this case suggests that there is no reasonable likelihood that he will accept the result of my deliberations unless or until forced to do so. The prospect of a further, separate hearing is difficult to contemplate with equanimity. As I have said, the plaintiff's own written submissions proceed in part upon the basis that the Court of Appeal will be asked by him for assistance once again. Accepting as I do that such a result is in all probability inevitable, there seems much to be said for the contention that the ninth defendant's application should be acceded to now so that it can be challenged in the Court of Appeal by the plaintiff when he is there next. Orders that the ninth defendant seeks should be made in order to monitor the unrestrained commencement of any more unmeritorious applications in this litigation. I am not inclined to make orders that purport to relate to other proceedings.

Orders

85 The following orders should be made:

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.

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Citations

Markisic v Today-Denes [2009] NSWSC 482

Most Recent Citation

Attorney General in and for the State of New South Wales v Markisic [2014] NSWSC 1596

Cases Citing This Decision

1

Attorney General in and for the State of New South Wales v Markisic [2014] NSWSC 1596

Cases Cited

11

Statutory Material Cited

3

Markisic v Today-Denes [2005] NSWSC 1276

Markisic v AEA Ethnic Publishers Pty Ltd & Ors [2006] NSWCA 378

McCann v Parsons [1954] HCA 70

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)