The 16 November motion, the defendants' notices to produce and to admit facts and the Commonwealth's August motion
84The defendants had served four notices to admit facts, two each on the Attorney General and the Commonwealth. They also served a number of notices to produce documents on the Attorney General, as well as a notice to produce on the Commonwealth. The Attorney General served notices disputing the asserted facts and provided a response to the notices to produce, in which objections to much of what was sought were taken. By its November motion the Commonwealth sought orders that the notice to produce and the first notice to admit facts be set aside. It later foreshadowed an application to amend the motion, to refer to the second notice to admit facts.
85The defendants' September motion sought an order that the Commonwealth's motion in relation to notices to admit facts which they had served be dismissed and summary judgment be ordered in their favour. That order was pressed, as was an order for summary judgment in relation to the notices to admit facts served on Attorney General, as well as an order for its summons to be summarily dismissed on the basis of those admitted facts. Their November motion pressed an order for the production of the disputed documents.
The notices to admit facts served on the Attorney General
86The defendants seek summary judgment on the basis of the facts provided in their notices, which included such facts as, for example, that servants and agents of the State of New South Wales abducted the child Elena Markisic. That relief must be refused.
87The defendants' case was that they were entitled to summary judgment, because the Attorney General's notices disputing facts did not strictly adhere to the requirements of Rule 17 of the Uniform Civil Procedure Rules, with the result that the facts asserted were admitted and they were entitled to summary judgment in their favour. They also sought to rely on the admitted facts, in support of their summary dismissal application.
88The defendants also argued that the Attorney General's dispute of various of the facts alleged was not sincere; that a position had been taken to spite the defendants; the denial did not rest on any evidence which had been provided; that it was intellectually challenged, dishonest and should be punished. These submissions may not be accepted.
89The notices to admit facts have been disputed. The defendants will be put to proof of the claims which they seek to advance. In pursuing the litigation both parties are bound by their obligations under the Civil Procedure Act. That does not require that the facts which the defendants seek to have admitted be conceded if they are in dispute, or that the Attorney General must provide an evidentiary basis for pursing such a dispute.
90The Attorney General's departure from Rule 17 lay with the use of the words 'does not admit' identified facts, rather than 'disputes' those facts. There was, it was argued by the defendants, no discretion in the Court to permit any departure from the strict requirements of the Rule. The result was that the notices disputing facts should be struck out.
91This submission is plainly wrong. Both the Interpretation Act 1987 (s 80) and the Civil Procedure Act, are relevant. Section 80(1) of the Interpretation Act provides that strict compliance with the form is not necessary and that substantial compliance is sufficient. Section 63 of the Civil Procedure Act, deals with 'a failure to comply with any requirement of this Act or of rules of court, whether in respect of time, place, manner, form or content or in any other respect.' Such a failure is an irregularity, which, subject to any order of the Court 'does not invalidate the proceedings, any step taken in the proceedings or any document, judgment or order in the proceedings' (s 63(2)(b)). In the circumstances, were it necessary, which it is not, the discretion given the Court by s 64 to permit the amendment of the notice disputing facts, to use the word 'disputes', in place of the words 'does not admit' would be available to be exercised.
92An irregularity such as the one here in question does not invalidate the replies given by the Attorney General to the notices to admit facts. Amendment of the replies is not necessary. It is entirely clear from those documents that the Attorney General has not accepted the facts which the defendants asserted and asked to be admitted as accurate. The departure from the words used in the Rule has not given rise to any ambiguity as to the Attorney General's position in relation to the asserted facts, nor could any fair reading of the documents have led to any misunderstanding of the Attorney General's position on the defendants' part. To the contrary, they have not given evidence of any such misunderstanding.
93Nevertheless, they seek to take advantage of the irregularity, in a way which the Civil Procedure Act does not contemplate, particularly having in mind the obligation imposed upon the Court by s 56, to ensure the 'the just, quick and cheap resolution of the real issues in the dispute or proceedings.' It is apparent that there is a real issue lying between the parties as to the relevant facts, which cannot justly be resolved on the basis for which the defendants contend.
94Nor do the Rules require that the Attorney General provide any evidentiary basis for the notice it has served disputing the asserted facts. Rule 17.3 merely provides:
"17.3 Notice to admit facts
(cf SCR Part 18, rule 2; DCR Part 15, rule 2; LCR Part 14, rule 2)
(1) The requesting party may, by a notice served on the admitting party (the requesting party's notice), require the admitting party to admit, for the purposes of the proceedings only, the facts specified in the notice.
(2) If, as to any fact specified in the requesting party's notice, the admitting party does not, within 14 days after service on the admitting party of the requesting party's notice, serve on the requesting party a notice disputing that fact, that fact is, for the purposes of the proceedings only, taken to have been admitted by the admitting party in favour of the requesting party only.
(3) The admitting party may, with the leave of the court, withdraw any such admission."
95The notices which the defendants served and which were disputed did not support their application for summary dismissal of the Attorney General's summons, nor did they provide a basis for the making of an order for summary judgment in their favour. The relief which the defendants sought by relying on these notices must be refused.
The notices to admit facts served on the Commonwealth
96The defendants also sought to rely on the facts which they claimed the Commonwealth had admitted, in support of their summary dismissal application, the Commonwealth having failed to serve a notice disputing those facts, as Rule 17 required. They also sought 'summary judgment' in their favour, on the basis of the admitted facts. What part of the cross-summons such judgment was intended to relate to, is not clear.
97By the cross-summons, as well as the dismissal of the Attorney General's summons, (order 11) the defendants seek orders that the Attorney General, the State of New South Wales, the Attorney General of the Commonwealth and the Commonwealth be declared vexatious litigants (orders 12, 13, 14 and 15), as well as orders in relation to other proceedings to which the Commonwealth is a party (order 16). Orders for summary judgment and an assessment of damages are sought in other proceedings, matter numbers 20698 of 2000 and 20369 of 2001. Declarations are sought in respect of the documents annexed to Ms Kavanagh's affidavit which the Attorney General seeks to prove are judgments and orders made by various courts, to the effect that they are false, counterfeit, void irregular or illegal (orders 5, 6, 7 and 8). Other declarations are sought in relation to an alleged conspiracy between identified employees of the State and Commonwealth to take the child Elena Markisic out of the country in breach of the Family Law Act 1975 (order 9). Amongst the various relief pressed, other declarations are sought in relation to conspiracies between identified persons, including judges of this Court and other courts, as to the fabrication of judgments and transcripts of both State and Federal proceedings, as well as the commission of various alleged offences by various judges and the Commonwealth's legal representatives.
98For its part the Commonwealth pressed its application to have the notices set aside, its case being that the notices were an abuse of process, being a device designed to avoid or circumvent existing court orders, almost all of the relief sought having already been litigated in earlier proceedings. It sought leave to amend its motion to refer to both notices to admit facts served upon it by the defendants, as it had earlier foreshadowed. The defendants, who disputed that the Court had the power to make such orders, opposed that application.
99I am satisfied in the circumstances that the Commonwealth's application must be granted. The power to permit such an amendment is dealt with in s 64 of the Civil Procedure Act. It is to be exercised in order to allow all necessary amendments to be made 'for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.' (s 64(2)). The amendment sought is plainly a necessary one in order that the issues lying between the parties as to the notices to admit facts may be resolved. The grant of the leave sought is consistent with the facilitation of the just, quick and cheap resolution of the real issues in the proceedings, as s 56 requires.
100The defendants also opposed the orders sought in the Commonwealth's motion, arguing that there was no right on its part, to seek an order setting aside the notices which they had served upon it and if there was, given the undue delay in the orders sought, it would not be granted, such relief being contrary to the requirements of the Civil Procedure Act, particularly the requirements of s 56.
101Part 18 of the Rules deals with motions. Rule 18.1 requires applications for interlocutory orders to be made by way of motion. There can be no question that the Court has power to order that a notice to admit facts be set aside. By s 23 of the Supreme Court Act 1970, the Court is given all jurisdiction necessary for the administration of justice in the State. In civil proceedings such as this, the Court's powers must be exercised in accordance with the guiding principles established in Division 1 part 6 of the Civil Procedure Act. By s 56 the Court must exercise its powers to facilitate the just, quick and cheap resolution of the real issues in dispute. By s 57 it must have regard to various objects, including not only the just determination of the proceedings, but also the efficient disposal of the business of the court, the efficient use of available resources and the timely disposal of proceedings. In making orders it must follow what the dictates of justice require (see s 58).
102The notice to admit facts addressed to the Commonwealth was dated 10 June 2011. Rule 17.6 and 17.7 provide:
"17.6 Restricted effect of admission
(cf SCR Part 18, rule 6; DCR Part 15, rule 6; LCR Part 14, rule 6)
An admission made under this Part in connection with any proceedings:
(a) may not be used in those proceedings except in favour of the party in whose favour it was made, and
(b) is taken to have been made for the purposes of those proceedings only.
17.7 Judgment on admissions
(cf SCR Part 18, rule 3; DCR Part 15, rule 3; LCR Part 14, rule 5)
(1) If admissions are made by a party, whether by his or her pleadings or otherwise, the court may, on the application of any other party, give any judgment or make any order to which the other party is entitled on the admissions.
(2) The court may exercise its powers under this rule even if the other questions in the proceedings have not been determined."
103In this case the notice was responded to promptly, with the advice given that it was considered to be an abuse of process and that an application would be made to have it set aside. That occurred in August when the motion was filed. There was no delay of a kind which would warrant the Commonwealth's motion not being entertained. There was a second notice later served and advice given that the motion would be amended to include that notice. This course of conduct is not consistent with the Commonwealth admitting the facts asserted. They are clearly in contention.
104In any event, judgment on admissions is discretionary. Whether the discretion will be exercised depends on the nature and quality of the admissions in question (see Frinty v Landmax Developments [2010] NSWSC 734). If the judgment sought is contested and the asserted admissions are contrary to the true facts, judgment on an admission will not be made. The Court will only grant the relief which the admissions properly justify.
105The first notice to admit facts sought, for example, that the Commonwealth agree to facts such as that persons who entered the defendants' home in 1998 were not sent by any employee of the Australian Federal Police and were not members or employees of the Australian Federal Police; that they did not have various valid declarations or certificates; that they were employees of Interpol; that they were sent by servants or agents of the Commonwealth and by the then Prime Minster, John Howard and the then Commonwealth Attorney General; the then Premier of New South Wales and the then Minister for Justice and other identified individuals. Other facts asserted relate to information contained in various computer systems. Other facts asserted were couched in the negative, that certain pronouncements were not made in identified proceedings. Other facts asserted that identified judgments and orders made in identified proceedings had been fabricated.
106In written submissions, detailed explanations were given by the defendants as to the relevance of the facts sought to be admitted, to the claims which they variously sought to pursue in the cross-summons. For example, it was explained that the facts asserted related to alleged breaches of the Crimes Act in relation to the abduction of Elena Markisic; and that various Courts have been misled, and lied to, over a period of more than a decade about the circumstances, with the result that the State and the Commonwealth were liable to pay the defendants damages. Other facts asserted related to claims that there had been no proceedings of various kinds in which the defendants had been involved and that no judgments had been given in such proceedings. Other submissions were advanced as to the dishonesty of the Commonwealth's lawyers, who are alleged to have a conflict of interest and to hate the defendants.
107The Commonwealth's position is, clear. It defends the cross-summons. In support of its motion it argued that the notice to admit facts sought to avoid or circumvent orders made in various proceedings which presently bind the defendants and that even if admitted, the asserted facts could not provide a foundation for the summary judgment which the defendants pursued against it.
108It argued, for example, that Mr Oliver Markisic was a party to the 2001 proceedings, which have been stayed and that Mr Dragan Markisic was a party to the 2000 proceedings, which have been partially stayed. Its case in relation to the 2001 proceedings is that Mr Oliver Markisic's application for leave to appeal from the stay order was refused; that in February 2011, Gummow J refused leave to issue proceedings against Davies J; and that the High Court refused special leave to appeal in April 2011. In the case of the 2000 proceedings, the Commonwealth's position is that Mr Dragan Markisic is presently pursuing part of those proceedings before Price J, following orders made by the Court of Appeal, which permitted him to pursue a claim in defamation, but otherwise stayed the proceedings.
109In the circumstances, there can be no question that the order sought by the Commonwealth must be made. The defendants cannot make out the case which they wish to pursue by their cross-summons, by means of their notice to admit facts. That is a course which justice could not permit.
110If orders have been made in relation to the 2000 and 2001 proceedings, for example, which bind the defendants, they cannot be ignored in these proceedings, by the admissions which they seek to have the Commonwealth make. It has long been accepted, as Lord Halsbury LC observed in Reichel v Magrath (1889) 14 App Cas 665 at 668 that:
"... it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again ... there must be an inherent jurisdiction in every Court of Justice to prevent such an abuse of its procedure ..."
111If the defendants are entitled to pursue claims in the 2000 and the 2001 proceedings, they face the obvious difficulty of establishing a basis for the pursuit of that relief in these proceedings. The parties must be heard in relation to these matters.
112Given the parties' respective positions and the other relief which the defendants seek to pursue in their cross-summons, it is also apparent that amongst other things, questions of estoppel will arise to be determined, in light of the applicable principles, discussed for example in Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [70] - [77].
113The asserted facts are not admitted by the Commonwealth. The defendants cannot establish their case on the cross-summons, on the basis of those facts. Nor could an order dismissing the Attorney General's summons, be justly made in favour of the defendants on the basis of the notices served on the Commonwealth. In the circumstances, it must be set aside.
The notices to produce served on the Attorney General
114By the 16 November motion the defendants sought orders that the Attorney General and the Commonwealth produce documents pursued in the notices to produce. The motion was supported by an affidavit sworn by Mr Dragan Markisic.
115The production sought did not accord with the requirements of the Rules in certain respects. In some instances what was sought was clearly impermissible discovery, given that the production sought was in relation to classes of documents, rather than specific documents. The production of documents prior to hearing is dealt with in Rule 21.10. Other than documents referred to in originating process, pleadings, affidavits or witness statements, only specific documents clearly identified in the notice, which are relevant to a fact in issue may be required to be produced (see Brereton J's discussion in Portal Software v Bodsworth [2005] NSWSC 1115). The onus of establishing relevance falls on the party seeking production. That depends on the cases which the parties are respectively seeking to advance as to the real issues which are lying between them.
116In this case, the issues lying between the parties in respect of the Attorney General's summons are relatively clear. Given that the defendants have on foot an application to amend their cross-summons and that the plaintiff and the Commonwealth dispute the defendants' right to pursue the relief which they seek in respect of other proceedings, what the real issues lying between the parties on the case which the defendants wish to pursue, is not yet entirely clear.
117The production sought of the Attorney General in the first notice to produce of 18 May 2011, required the production of documents showing the authorisation or direction given by the Attorney General, Mr Smith to the Crown Solicitor, Mr Knight, to represent him in the proceedings. The second notice of 10 June sought production of correspondence Ms Kavanagh said in her affidavit she had sent to the Local Court, the Family Court, the Supreme Court and the Court of Appeal, seeking copies of judgments. The third notice of 14 June and the fourth notice of 12 August sought production of 'Original documents (judgments)' referred to in Ms Kavanagh's affidavit.
118There was a response given to the notices to produce by the Attorney General. Privilege was claimed in respect of certain documents and the production of other documents was resisted. A document confirming the Attorney General's retainer of the Crown Solicitor was provided. On the Attorney General's case, there was no legitimate forensic purpose for the defendants' pursuit of other documents relating to the retainer. Nor had any basis for challenging the retainer been identified by the defendants, warranting the pursuit of those documents.
119The defendants' case was that the letter confirming the instructions given to the Crown Solicitor was a sham, which failed to reveal how the writer came to have the knowledge disclosed in the letter and that the failure to produce other documents sought, in respect of which privilege was claimed, had to result in the dismissal of the Attorney General's summons. The Attorney General's production of original judgments was also pursued.
120Orders for the production of original judgments must be refused. They are documents which are not in the Attorney General's possession, despite the views which the defendants hold that the Registrar of the Supreme Court, or a judge's associate are a part of the Attorney General's Department; that the Attorney General is their superior; and that the relevant court files are under the control of the Attorney General, when they are not with a judge of the court and are held in the Registry. The Attorney General is not the 'keeper' of court records and asking the Attorney General to produce a court file, is not the same as asking the Registrar of the court for its production, as the defendants variously argued.
121Contrary to the defendants' case, control of original judgments of this and other courts does not lie in the Attorney General's hands, notwithstanding that the department which the Attorney General administers provides administrative support to the courts of this State. Just like any other party, should the Attorney General seek access to an original judgment held in a court file, an application for access to the file must be made by the Attorney General to the relevant court, in the usual way, as the Rules and the practices of the relevant court provide.
122Judgments are within the custody and control of the relevant courts, where they are kept in the relevant court files. In many cases, of course, nowadays such judgments are published by a court on its website, where they are freely accessible to the Attorney General, the defendants and others. That the Attorney General is not the keeper of the court files and does not possess the original judgments maintained in those files does not result in the position for which the defendants contended, namely to prove that the documents on which the Attorney General seeks to rely are not genuine, but fabricated, invalid or void.
123If the defendants wish to have an original judgment produced, they must pursue such production in the usual way, that is, by way of by application to the relevant court (see for example, Rule 31.11). Such production cannot be required to be given by the Attorney General.
124As to client legal privilege, it is well settled that it applies to communications made with respect to litigation that is actually taking place, or is reasonably apprehended. In the case of a communication between a party's lawyer and a third party, the privilege extends to confidential communications for the dominant purpose of existing or anticipated litigation. Such privilege may be waived, expressly or by implication. Implied waiver does not arise from disclosure of the fact of a communication, but disclosure of the contents of the communication does.
125The defendants sought production of the letters Ms Kavanagh deposed that she had sent to various courts, seeking copies of judgments and orders. It is difficult to see that these are confidential communications and even if they were, that any privilege in the correspondence has not been waived by Ms Kavanagh's disclosure of their contents, namely, requests made of those courts for the production of certain judgments and orders. It seems to me that the Attorney General must produce the correspondence. If there is any question that there has only been a partial disclosure of the contents of the correspondence and that there are aspects of it in which any privilege may persist, then that is a matter on which the parties must be heard further, if access is pursued.
126As to the defendants' pursuit of the production of a Court of Appeal file referred to in Ms Kavanagh's affidavit, it is apparent that they have misunderstood what Ms Kavanagh said in the affidavit. She there referred to the Crown Solicitor's file in a matter before the Court of Appeal. Production of the Court of Appeal's file may not be required of the Attorney General. Access to court files must be pursued by the defendants in accordance with the Rules and practices of the Court of Appeal. It cannot be given the defendants by the Attorney General.
127In so far as it may be understood that the defendants were seeking access to the Attorney General's file in relation to the Court of Appeal proceedings, that file unquestionably contains privileged material, privilege which has not been waived by the reference made to the file, in the affidavit. The defendants are not entitled to production of classes of documents, but may seek production of specified documents. Production of the file may thus not be required. Nor may production of the classes of documents sought in relation to the retainer. Even if they could be required, that they have any relevance to facts in issue in the proceedings, is not apparent.
The notices to produce served on the Commonwealth
128The production sought of the Commonwealth by the 12 August notice included documents in relation to various identified persons, such as 'certificates of employment', declarations under s 40B of the Australian Federal Police Act 1979, certificates under s 68 of the Australian Federal Police Act, rosters and log books, badges and ID cards, certificates of appointment, orders and directions given by the Commissioner of the Australian Federal Police, printouts of computer records of the Family Court and various original judgments.
129The order sought by the defendants in respect of this notice must also be refused. The notice was served on 15 June 2011. The Commonwealth advised by letter of 24 June that the notice was considered to be an abuse of process and that a motion would be filed, seeking to have it set aside. The motion was filed in August.
130As I have explained in relation to the Attorney General, the production of the original judgments sought by the defendants cannot be required of the Commonwealth. It is not, as the defendants submitted, 'the keeper' of the files of the Family Court of Australia or of other federal courts. Production of original judgments may not be required of the Commonwealth, but must be pursued in the usual way, by approach to the relevant courts in accordance with their rules and practices.
131Nor do the Rules permit a notice to produce to require discovery of classes of other documents, which the defendants seek to pursue. Apart from these difficulties, it has not been established that the documents in contest, are relevant to the real issues which require determination in these proceedings. As discussed in HML v R; SB v R; OAE v R [2008] HCA 16; (2008) 235 CLR 334 at [4]:
"The issues in civil cases are defined by the pleadings or other corresponding procedure. They are determined by the principles of substantive law that apply to the dispute, and by choices made by the parties within the boundaries set by those principles."
132The defendants advanced written submissions in relation to their cross-summons (marked MFI 9), in addition to their written replies to the Attorney General's submissions (marked MFI 10 ) and two sets of submissions in relation to the notices to produce and notices to admit facts (marked MFI 11 and MFI 12), which they addressed orally at the further hearing on 15 March 2012. Various of the submissions advanced relate to the defendants 14 March 2012 motion, by which they seek leave to amend the cross-summons and to the matters raised by the Attorney General's 12 March motion. These motions are yet to be heard.
133Despite the many submissions which the defendants have advanced, the position is that requiring the production of documents relevant to relief sought in other proceedings, would not only be a costly exercise, it may well prove to be a futile one. In so far as the documents sought relate to orders sought in respect of the 2000 and 2001 proceedings, for example, it is not apparent that the defendants are entitled to pursue such relief in these proceedings. They are bound by orders made in those proceedings. What they are has not been established. The onus falls on the defendants to establish their right to pursue the relief which they seek. What relief will finally be pressed, will depend on the fate of their 14 March motion.
134It follows that requiring the production sought, at this stage of these proceedings, would also not be consistent with the requirements of the Civil Procedure Act, which in s 56 obliges the Court to exercise its powers in order to 'to facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings'; to act 'in accordance with the dictates of justice' when making procedural orders (s 58) and to resolve the issues lying between the parties 'in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute' (s 60). These requirements would not be met were the production sought required.
135For all of these reasons I am satisfied in the circumstances that the orders sought by the Commonwealth in relation to the notice to produce served on it must be granted.