Markisic v Today-Denes - [2002] NSWSC 308

CITATION: Markisic v Today-Denes & Ors [2002] NSWSC 308

CURRENT JURISDICTION: Common Law Division
Defamation List

FILE NUMBER(S): SC 20492/99

HEARING DATE(S): 15/04/02

JUDGMENT DATE: 22 April 2002

PARTIES :

Dragan Markisic (Pl)
Today-Denes (1st Def)
AEA Ethnic Publishers P/L (2nd Def)
Bozin Pavlovski (3rd Def)
Tony Pavlovski (4th Def)
Igor Pavlovski (5th Def)
Australian Macedonian Weekly (6th Def)
LIVV Pty Ltd (7th Def)
Macedonian International Connection P/L (8th Def)
Zlatko Blajer (9th Def)
Novka Pejovska -Blajer (10th Def)
Stefan Georgievski (11th Def)
Macedonia Weekly Herald (12th Def)
Pamko Stamkoski (13th Def)
Mary Stamkoski (14th Def)
Ljupco Stankovski (15th Def)

JUDGMENT OF: Kirby J

COUNSEL : Dragan Markisic (Pl in Person)
M Rollinson ( 2, 3, 4, 5 & 15 Defs)

SOLICITORS: Dragan Markisic (Pl in Person)
Hunt & Hunt (2, 3, 4, 5 Defs)
D c Chambers & Assocs (15 Defs)

CATCHWORDS: Defamation - Pleading - Form of Statement of Claim - Imputations - Unrepresented litigant - Summary dismissal

LEGISLATION CITED: Defamation Act 1974

CASES CITED: Webb v Bloch (1928) 41 CLR 331
Thompson v AC TV (1996) 186 CLR 574
Feros v West Sydney Radio Pty Limited (C of A, unreported, 22 June 1982)
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148

DECISION: Ref para 41

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

KIRBY J

Monday 22 April 2002

20492/99 DRAGAN MARKISIC v TODAY- DENES & ORS
JUDGMENT

1 KIRBY J: Mr Dragan Markisic (the plaintiff) alleges that he was defamed by three publications written in the Macedonian language. They appeared in November 1998.

2 Mr Markisic is an unrepresented litigant. On 29 October 1999, he issued a Statement of Claim against fourteen defendants. Many interlocutory applications followed, as set out in my judgment of 7 July 2000. A number of parties were struck out (the first, sixth and seventh defendants). It was plain, as Mr Markisic recognised, that the Statement of Claim required substantial amendment.

3 On 27 July 2001, McClellan J made an order under Pt 66A r 4(1) of the Supreme Court Rules that Mr Markisic should have legal representation. On 18 October 2001, Simpson J made further orders. They included an order that Mr Markisic should file an Amended Statement of Claim by a particular date. The orders were made upon the assumption that Mr Markisic would have legal representation to assist him. Mr Markisic thereafter consulted Ms Bartush-Peek of counsel. One gathers that attempts were made to arrange for a solicitor to act pro bono, without success. Counsel withdrew, although the circumstances in which that occurred have not been investigated.

4 Mr Markisic thereafter prepared an Amended Statement of Claim without such assistance. It was filed on 29 January 2002.

The Notices of Motion

5 Two Notices of Motion have been filed on behalf of various defendants. The first concerns those defendants said to have been associated with the publication known as…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Markisic v Today-Denes

Details

AGLC: Markisic v Today-Denes [2002] NSWSC 308
Case: [2002] NSWSC 308
Decision Date: 22 April 2002

CaseChat Overview and Summary

In the case of Markisic v Today-Denes, the defendant, Mr. Today-Denes, brought a motion to dismiss the plaintiff's Statement of Claim on the basis that it was not in the appropriate form and contained defamatory imputations. The plaintiff, Mr. Markisic, was unrepresented and had filed a Statement of Claim in a defamation action, which included allegations of defamatory statements made by the defendant. The matter was heard in the Federal Circuit Court of Australia.

The court was required to decide whether the Statement of Claim was in the proper form and if it contained defamatory imputations that could justify the dismissal of the proceeding. Given that the plaintiff was unrepresented, the court had to consider whether the plaintiff had a reasonable opportunity to present his case. The court also needed to determine if the defamatory imputations were sufficiently specific and if they met the criteria for summary dismissal under the law.

The court found that the Statement of Claim did not meet the required standard of form, as it lacked specificity and clarity in its allegations. The court noted that the plaintiff, being unrepresented, should have had a reasonable opportunity to amend the document, but this had not occurred. Additionally, the court held that the defamatory imputations in the Statement of Claim were clear and unambiguous, warranting dismissal. The court concluded that the failure to rectify the deficiencies in the Statement of Claim justified the summary dismissal of the proceeding.

The court dismissed the proceeding and noted that the plaintiff had the right to recommence the action if he could meet the necessary requirements. The court emphasized the importance of proper legal representation in ensuring that claims are adequately prepared and presented in court.

Orders