Attorney General in and for the State of New South Wales v Markisic

Refusal of the disqualification application 7The defendants relied on an affidavit sworn by Mr Dragan Markisic, to which was annexed a Court Attendance Notice which the defendants have sought to file in the Local Court. Thereby the defendants seek to bring a criminal prosecution in which I am named as defendant. The Local Court has not issued such proceedings. 8On the basis of this development, the defendants pursued the first order sought in their short minutes, that I disqualify myself for actual and apprehended bias. On their case, given their intended pursuit of me for serious criminal offences, in respect of which I might be sentenced to a term of imprisonment, I had to accede to their disqualification application, because a fair minded lay observer would apprehend, in the circumstances, that I could not bring an unprejudiced mind to these proceedings, now that we were adversaries in criminal proceedings. 9To explain the refusal, it is convenient to quote what Mr Dragan Markisic attested to in his affidavit:

1. My name is Dragan Markisic. I am the First Defendant and First Cross Claimant in these proceedings. My Brother Oliver Markisic is the Second Defendant and Second Cross Claimant.
2. I am a pensioner and a recipient of Centrelink's Disability Support Pension.
3. On 24.08.2012 I filed at the Criminal Registry of the Sydney Downing Centre Local Court 2x (two) court attendance notices and affidavit in support. Copies of the above documents are attached to this affidavit as exhibit "A".
4. We submitted the above documents to the Registrar of the Local Court for signing following the procedure in s. 49 of the Criminal Procedure Act (NSW).
5. In the above mentioned court attendance notices I am the First Prosecutor and my brother Oliver Markisic is the Second Prosecutor.
6. In the above mentioned court attendance notices the Defendant is Monika Schmidt who is employed as a judge of the Supreme Court of NSW and who is sitting as a judge in these proceedings.
7. With those documents I and Oliver commenced private criminal prosecution against the Defendant Monika Schmidt.
8. I believe to the best of my knowledge, belief and recollection that the information contained in this affidavit is true. 10The Local Court Attendance notice annexed to the affidavit states:
9. At the relevant time the Defendant Monika Schmidt was a judge of the Supreme Court of NSW.
10. Oliver Markisic ("Oliver") and Dragan Markisic ("Dragan") are brothers.
11. On 09.03.2011 the Attorney-General in and for the State of New South Wales ("Attorney-General") commenced in the Supreme Court of NSW by way of summons proceedings No. 2011/76594 against Dragan and Oliver.
12. In the said summons the Attorney-General was named as the Plaintiff, Dragan was named as the First Defendant and Oliver was named as the Second Defendant. In the said summons the Attorney-General sought an order against Dragan and Oliver under [the] Vexatious Proceedings Act.
13. In the same above mentioned proceedings on 03.06.2011 Dragan and Oliver filed their Cross-Summons naming therein the Attorney-General as the First Cross-Defendant and the Commonwealth of Australia as the Second-Cross-Defendant.
14. On 29 June 2012 there was a hearing in the proceedings No. 2011/76594 before the Defendant with the Attorney-General, Dragan, Oliver and Commonwealth of Australia as the parties. After the above hearing the Defendant Monika Schmidt reserved the judgment.
15. On 02 August 2012 the Defendant Monika Schmidt while sitting as a judge in the proceedings No. 2011/76594 delivered the above mentioned reserved judgment in open court in the presence of all parties and provided a copy of the said judgment to each of those parties.
16. On page 40, paragraph 115, under order 3 of the said judgment the Defendant Monika Schmidt stated the following false material facts: "The questions raised by the Attorney-General's summons are to be dealt with as separate preliminary questions."
17. The above statement is false for the reason that no question at all is stated in the Attorney-General's summons.
18. On page 40, paragraph 115, under order 4 of the said judgment the Defendant Monika Schmidt stated the following false material facts: "The Attorney-General's case against the two defendants are to be heard separately, one after the other".
19. The above statement is false for the reason that no case is stated in the Attorney-General's summons, separately or at all, against any of the Defendants named in the said summons.
20. The Defendant Monika Schmidt provided the above false material facts in the said judgment with an intention to give orders for the Attorney-General and against the Defendants in the proceedings to enable the Attorney-General to reach the trial.
21. With the above acts of intentionally putting in the judgment from 02 August 2012 false material facts the Defendant Monika Schmidt attempted to pervert the course of justice. 11It is apparent that the essence of the matters which the defendants sought to pursue goes to the question of whether the conclusions I have reached on matters over which the parties have joined issue in these proceedings, were correct. The defendants have made clear their disagreement with those conclusions and their view that they have been wrongly reached in order to favour the other parties, but have not sought to challenge them on appeal. By their 29 May motion they seek to have the judgment set aside. That is a path available to them. That application is yet to be heard and determined. The fact that they have also sought to pursue their views, by the application which they have made to the Local Court, was in my view not a basis upon which their disqualification application could be accepted. 12It is very apparent from the defendants' conduct of these proceedings, that they have strongly held views as to the improper motivation for and the injustice of the proceedings which the Attorney General has brought against them under the Vexatious Proceedings Act 2008. Whether there is a foundation for those views is not a matter which has yet arisen for determination in the proceedings, which have been allocated to me to hear. It is also apparent that the defendants do not fully understand the operation of the legal system and the obligations which it imposes upon judges. The difficulties which this raises, have arisen in the proceedings. 13The defendants have a view, variously explained and repeated, but which essentially amounts to a belief that decisions which I have given are not only wrong, but motivated by a desire to please the Attorney General and the Commonwealth. Such a belief is not a basis upon which their repeated disqualification applications may be granted, given the authorities which I am bound to follow and apply. More must be established. The applicable tests are objective, not subjective. 14The High Court explained in Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427; (2011) 282 ALR 685 at [67]: As pointed out earlier in these reasons, an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). ... And, no less fundamentally, an inquiry of [that] kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side's arguments or otherwise, demonstrates prejudgment. (emphasis in original) 15Also relevant to consider is what was discussed In Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [8]: The apprehension of bias principle admits of the possibility of human frailty Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed. 16The matter identified by the defendants in relation to this disqualification application was the nature of the proceedings they had brought in the Local Court and the claims they sought there to advance, which it was submitted established that I could not now bring an impartial mind to the issues lying between the parties because the defendants were now private prosecutors in proceedings which they had brought against me. As Mr Dragan Markisic put it, we were not friends any more and accordingly there would be a reasonable apprehension that I could no longer bring an impartial mind to the proceedings. 17They have not sought to appeal the 2 August judgment, but have taken steps available to them under the Rules, to have it set aside. Even if the concluson were to be reached, either as a result of that process or by an appeal, that the decsions there reached were wrong, on the authorities that alone could not reveal either actual or apprehended bias, on my part. That the defendants have also sought to pursue their dissatisfaction with the 2 August judgment in the Local Court in the way that they have reveals the depths of their opinions, but not that the matters on which they rely provide a basis for a reasonable apprehension of bias, which is the critical question. 18The application again gave rise to the need to act in accordance with what Kirby P, as his Honour then was, explained in Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411; (1992) 9 ACSR 309 at 418: Judges should perform the duties of their office which, of their nature, will often be painful and unrewarding. They should do so with courage and decisiveness avoiding the relinquishment of their duties which will then necessarily fall to another judicial officer for whom the task may be no more congenial. Such relinquishment will also involve costs, delay and inconvenience to parties who are otherwise entitled to have the decision of the judicial officer appointed to their case (referring to Re JRL; Ex parte CJL; Re Polites; Ex Parte Hoyts Corporation Pty Ltd [1991] HCA 25; (1991) 100 ALR 634). 19In the circumstances I took the view that this disqualification application also had to be refused, although as I observed to the defendants at the hearing, the position may well be different were they granted the leave which they have sought of the Local Court to issue the proceedings they wish to pursue. 20In that event, they are of course entitled to renew their application.

Further disqualification applications 21As I dealt with the directions for the further hearing of the matter, the defendants repeatedly said that they wished to make further disqualification applications. I declined to hear them then, but said that when giving these reasons, I would give directions as to the hearing of any such further application. 22The defendants have repeatedly acted on the basis of a view that they are entitled to pursue whatever application occurs to them from moment to moment; to speak over each other, me and the other parties' advocates; to demand rulings and answers to questions, whenever it occurs to them and whatever they are about. In the result there has on occasion been real disruption to the orderly conduct of the proceedings. 23Having this in mind and having in mind the repeated disqualification applications pursued by the defendants, in circumstances where they simply may not be accepted, given binding authority, I have concluded that the further application which the defendants wish to pursue must be pursued by way of motion, supported by an affidavit and by the submissions on which the defendants rely. 24I do not propose to hear the defendants orally on that application, but will determine it on the basis of their written submissions, unless I take the view that there are any matters which I need to raise with the parties about the defendant's application, in which event I will relist the matter. 25Under s 62(3)(e) of the Civil Procedure Act 2005 I direct the defendants to provide the submissions on which they wish to rely in writing.

The defendants' 29 May motion 26This motion seeks orders setting aside various interlocutory judgments already given in the proceedings. There is no question that the Court has jurisdiction to set aside an interlocutory judgment, if that is what justice dictates in the particular circumstances. In the case of a procedural irregularity, for example, orders setting aside a judgment may be made under s 63 of the Civil Procedure Act and there is a general discretion given by Rule 36.15 of the Uniform Civil Procedure Rules, by which a judgment or may be set aside on sufficient cause being shown. There are other potentially relevant provisions in Rule 36.16. 27This is not, however, a process provided as an alternative to an appeal to the Court of Appeal from a judge of this Court, which is governed by the provisions of s 101 of the Supreme Court Act 1970 and by Part 51 of the Uniform Civil Procedure Rules. An application to set aside a judgment under Rule 36.15 or 36.16 is not a de facto appeal. Nor does it permit a general re-opening of a case (see Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256. 28When the defendants filed their 29 May motion they came before the Registrar and sought to have it referred to another judge for hearing, on the basis that it was not appropriate that I deal with it. Despite the motion being referred to me to be dealt with as the trial judge who had given the judgments in question, the defendants maintained that attitude and persisted with it, at the directions hearing. Their views rested on a belief that it would not be possible to persuade me that I had erred in the conclusions I had reached. 29There are, of course, many examples where judges have acceded to applications of the kind which the defendants now seek to pursue. I have acceded to them myself when a proper basis for the exercise of the discretion has been established by a party. On occasions such applications are dealt with by consent. That requires the particular error to be identified, so that the other parties may consider what alleged error is being pursued. 30In this case the defendants have already unsuccessfully made an application that Rothman J reconsider an interlocutory judgment he had given, in relation to a motion by which they sought leave to issue subpoenas to named individuals and that the matter be heard by a jury (see Attorney General in and for the State of New South Wales v Markisic [2011] NSWSC 1333). 31I took the view that I should deal with the defendants' application in respect of the judgments I have given in these proceedings, which were continuing before me, notwithstanding their preference that it be dealt with by another judge. In my assessment that accorded with the requirements of the Civil Procedure Act, that the proceedings be conducted on a basis that facilitates the just, quick and cheap resolution of the real issues in the proceedings. 32The trial judge who has given the decision the subject of an application such as this, is clearly best placed to deal with any difficulty or error which can be identified in an interlocutory judgment which he or she has given. There may, of course, be circumstances where that is not possible, for example where a judge has retired or is absent on extended leave, in which event the application will need to be dealt with by another judge. This was not such a case.

The Commonwealth 33It is convenient first to deal with the position of the Commonwealth. It does not wish to be heard on the Attorney General's summons and asked to be excused from its hearing. That was opposed by the defendants. They explained that they want the Commonwealth present at the hearing of the summons, because judgments on which the Attorney General sought to rely were judgments from Federal Courts and certain proceedings alleged to have happened in the Family Court. 34That is not a basis upon which a party who does not wish to be heard on an application which it is not concerned with, can be required to attend a hearing, consistently with the requirements of the Civil Procedure Act, which by s 56 requires the Court to adhere to the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings. To accede to the defendants' views would result in unnecessary costs being incurred. It is the Attorney General and the defendants who have joined issue over the matters raised by the Attorney's summons. The Commonwealth became a party to the proceedings as the result of the defendants' cross-claim. That is to be heard after the Attorney General's summons. 35In all of those circumstances justice demands that the Commonwealth be excused from the hearing of the summons. The leave sought is granted.

The hearing of the defendants' motions 36Some of the matters raised in the defendants' motions have already been dealt with and some matters relate to their cross-claim, which is not to be heard until the Attorney General's summons has been dealt with. In their short minutes the defendants also sought various orders relating to their cross claim, which it is not appropriate to deal with now. 37Over the objections of the Attorney General and the Commonwealth I determined that the defendants should be heard on relevant aspects of their two motions, that is the matters relevant to the hearing of the Attorney General's summons, indicating that I would give directions, when I issued this judgment. 38The matters raised by the 29 May motion which should be determined before the Attorney General's summons is heard are the directions to be given for the hearing of the summons and whether the existing judgments should be set aside and by the 14 March motion, whether Ian Victor Knight, the NSW Crown Solicitor and the solicitor on the record and the Attorney General's legal representatives should be removed on the ground of their having a conflict of interest. 39The defendants sought various directions as to the hearing of their motions, including a direction that the Attorney General's summons be dismissed on the ground of lack of cause of action, particulars and evidence. It is not appropriate to make such a direction. The defendants have already been heard on a strike out application, which was dismissed (see Attorney General in and for the State of New South Wales v Markisic [2012] NSWSC 433). Unless the judgment is set aside, the Attorney General is entitled to be heard on the summons. 40The defendants also sought directions as to discovery, interrogatories and the issue of subpoenas. Those are matters also raised in the 29 May motion. They may be applications which the defendants wish to press in relation to the hearing of the summons. That can be dealt with when the motions are heard. 41As to the hearing of the motions, I decline to give such directions. The defendants having not complied with the requirements of the Rules in respect of such orders. In the case of discovery they have not specified the documents or classes of documents which they seek to have discovered, nor have they identified what fact in issue any documents sought are relevant to. In the case of interrogatories they have not provided any proposed interrogatories. In the case of subpoenas, they have already sought and been refused leave to issue a large number of subpoenas and they have not identified what further subpoenas they seek to have issued. 42The defendants also sought a direction that witness statements be served before trial. It was again confirmed for the Attorney General that the evidence it would seek to rely on at the hearing of the summons is the affidavit sworn by Ms Kavanagh, to which are attached the documents by which it will seek to establish its case. It appears that the Attorney General does not seek to rely on material other than that which it has already served. 43 In those circumstances it does not seem to be necessary to give further directions to the Attorney General, other than in one respect. Given that the hearing in respect of the two defendants is to proceed separately and that the Attorney General has indicated that the case against the two defendants is not identical, it seems sensible that prior to the hearing of the summons, that the Attorney General should advise each defendant as to which of the documents annexed to Ms Kavanagh's affidavit it will rely on against that defendant. 44For their part, the defendants each confirmed that they may lead evidence at the hearing of the summons. Once the motions have been dealt with, directions will be given for the filing of any evidence which the defendants each wish to rely on at the hearing of the summons. 45The defendants also seek a direction that they have leave to file a defence to the Attorney General's summons. That is not provided for in the Rules, but if the defendants wish to file a document indicating their position in relation to the matters advanced against them in the summons, I can't see why they should not do so. 46The defendants seek to have their motions tried by jury. An application that the proceedings be tried by jury has already been refused (see Attorney General in and for the State of New South Wales v Markisic [2011] NSWSC 1304 and Attorney General in and for the State of New South Wales v Markisic [2011] NSWSC 1333 per Rothman J). This further application was advanced on the basis that given that the applicant was the Attorney General, a jury trial was necessary, if justice was to be seen to be done. 47The further application may not be accepted. Trial by jury may only be ordered if it is established that the interests of justice require such a trial (s 85 Supreme Court Act). As Rothman J discussed, that requires a consideration not only of the private interests of the parties (see Maroubra Rugby League Football Club Inc v Malo [2007] NSWCA 39; (2007) 69 NSWLR 496). The interests of justice clearly do not demand that the defendants' motions be heard by a jury, even given that the Attorney General is a party. Even in a criminal trial, where the Crown is almost always a party, a jury does not hear such interlocutory applications, which raise for determination legal, not factual questions. 48The defendants also sought leave to prosecute the Attorney General, the Crown Solicitor, Ms Kavanagh and Mr Emmett, for perjury. That is not an appropriate direction to be given. If alleged perjury is a matter on which the defendants wish to rely, in support of their 14 May motion, it should be dealt with in their submissions. 49Given the difficulties which have been encountered in the proceedings to date and having in mind the requirements of s 56 of the Civil Procedure Act, I have determined that the parties will be given only limited opportunity to make oral submissions on 30 November, given what needs to be dealt with on that day. Under s 62(3)(e) of the Civil Procedure Act, I direct that the parties put all of the submissions which they wish to advance in support of their motions in writing and that they also put on any reply which they wish to advance, in writing. At the hearing oral submissions will be restricted to any response to the other side's reply, in relation to any matter which has not already been addressed in the written submissions. 50I give the following directions: 1 Each party is to file and serve their written submissions in support of their motions within 21 days. 2 Each party is to file any written submissions in reply, within a further 21 days. 3 At the hearing the parties' oral submissions will be limited to a response, in each case, to any matter raised by the reply and not already dealt with in the parties' written submissions. 4 The defendants are to file any motion by which they seek to pursue any further disqualification application, supported by an affidavit and all written submissions on which they seek to rely. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 October 2012