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

Supreme Court of NSW|2014-04-28|Before: Schmidt J, Mr DP

Judgment 1These proceedings were brought against the two defendants, Mr Dragan Markisic and his brother Mr Oliver Markisic, under the Vexatious Proceedings Act 2008 (NSW). They are now pursued only against Mr Dragan Markisic, following the unfortunate death of Mr Oliver Markisic in 2013, after a period of ill health. 2The matter is listed for hearing in June. This judgment concerns motions filed in October 2013 by Mr Dragan Markisic. The hearing was repeatedly deferred until 28 April, on Mr Markisic's application, for reasons which are unnecessary to outline. 3Mr Markisic made short oral submissions in support of the motions, relying on written submissions he had filed and explaining that he considered that there was no point in expanding on those submissions, given his view that I was biased and corrupt and his expectation that I had prejudged his applications. 4There can in the circumstances be no question that he was given a fair opportunity to advance his case. 5Mr Markisic submitted that the Attorney General's submissions were rubbish, as was every other document filed in its case; that he believed that his brother's death was not natural; that his brother believed that he had been poisoned; and that he, too, feared for his own life. The application to have him declared vexatious was only pursued, he argued, because the Attorney General feared that he would succeed in three cases which he was advancing against the Commonwealth, the State and the United States of America. 6Mr Markisic also said that he did not expect to have a fair trial and intended to pursue a Royal Commission into the treatment of his family, during over 15 years of litigation. 7At the hearing of the motions, Mr Markisic also sought leave to approach the Duty Registrar to issue subpoenas for the hearing in June, which I declined, explaining that he had made repeated applications for the issue of subpoenas in the proceedings which had already been dealt with; that he was bound by those decisions; and that he was not entitled to repeatedly apply to the Court, seeking the same relief. 8The orders sought in the motions were: "1. Directions be made and proper case management be made in relation to this Notice of Motion, time table be fixed and date be allocated for hearing of this Notice of Motion. 2. At the hearing of this Notice of Motion Justice Schmidt to disqualify from further hearing in the proceedings in relation to the First Defendant. 3. At the hearing of this Notice of Motion Justice Schmidt to make an order disqualifying herself from the hearing in proceedings in relation to the Second Defendant, i.e. her Honour has already done that through her reasoning in the judgement from 02.09.2013 but omitted to include an order to that effect in the orders at the back of the judgement. 4. If order 2 and/or 3 granted then an order be made directing the Principal Registrar or list judge to be organised another judge to be brought from another jurisdiction or another State of Australia. 5. Further orders as required by the Applicant at the hearing or trial in relation to this Notice of Motion. and 1. Directions be made and proper case management be made in relation to this Notice of Motion, time table be fixed and date be allocated for hearing of this Notice of Motion after finalisation of all below interlocutory matters. 2. Temporary stay of the whole proceedings until finalisation of this Notice of Motion and finalisation of any appeal in relation to this Notice of Motion. 3. The mode of trial of this Notice of Motion to be with jury, i.e. the court to make an order under s85 (2) of the Supreme Court Act that the proceedings in relation to this Notice of Motion are to be tried with a jury. 4. The hearing of this Notice of Motion be by a judge from another superior court from another State of Australia or in alternative by a judge from another jurisdiction (Federal Court of Australia, Family Court of Australia, High Court of Australia etc.) In accordance with the above decision direction to be made to the Principal Registrar or list judge to organise engagement of another judge from another superior court of another State of Australia or from another jurisdiction. 5. At the trial of this Notice of Motion, after presentation of all documentary evidence by the First Defendant the court to set aside under common law and rules 36.15 and 36.16 of Uniform Civil Procedure Rules the judgment from 02.09.2013. 6. If order number 5 is granted then an order be made directing the Principal Registrar or list judge to organise engagement of another judge from another superior court of another State of Australia or from another jurisdiction. 6(sic). An order be made directing the Principal Registrar or list judge to organise engagement of another judge from another superior court of another State of Australia or from another jurisdiction to hear the proceedings in relation to the Second Defendant as Justice Schmidt already disqualified herself from the hearing in proceedings in relation to the Second Defendant in her judgement from 02.09.2013. 6(sic). Further orders as required by the Applicant at the hearing or trial in relation to this Notice of Motion." 9The orders sought were largely opposed. 10I have concluded that none of the orders sought can be made and that the scheduled hearing must proceed. These are the reasons for those conclusions.

Temporary stay pending an appeal against this decision 11These proceedings were commenced in March 2011. The matter was originally listed for hearing in November 2011. The time then allocated was taken up with interlocutory applications which had not earlier been dealt with. The parties later pursued other interlocutory applications. A further hearing listed in November 2012 was adjourned in order to permit the defendants to travel to Macedonia. There were further adjournments in 2013 because of Mr Oliver Markisic's ill health and further adjournments following his death. 12Numerous decisions on various interlocutory and case management applications have been given, as well as in relation to repeated disqualification applications. None of those decisions have been appealed, although that has been foreshadowed from time to time. 13It is not appropriate to stay the proceedings in those circumstances. The appropriate time to consider any stay application is after an appeal is filed.

Trial by jury 14This is an application previously made and rejected, both by Rothman J and I (see Attorney General in the State of New South Wales v Markisic [2011] NSWSC 1304 at [14] and Attorney General in and for the State of New South Wales v Markisic [2012] NSWSC 1143 at [46]). 15Mr Dragan Markisic renewed this application, submitting that the interests of justice demanded a trial by jury in this case so as to "avoid even a hint of bias". He contended that a jury trial was necessary because of the involvement of the governments of the State of NSW and the Commonwealth in the proceedings; that he believed that over the past 14 years judges who had been appointed to deal with matters in which he and his family had been involved, had a bias in favour of those governments; that they had not been up to their task to judge those matters impartially; that they did not like allegations that the governments' servants and agents, high ranking officials and judges of the Family Court had committed various torts, wrongdoings and crimes towards his family; and that they were dishonest, corrupt and common criminals. 16The involvement of a jury would thus permit the fact finding exercise in this case to be properly conducted, given its delicate nature. That would negate any appearance of bias and permit the just resolution of what was here in issue. 17These submissions may not be accepted. 18Whether orders should be made under the Act undoubtedly raises important considerations for Mr Markisic. Such orders will have serious consequences if made. 19Whether orders should be made under the Vexatious Proceedings Act against Mr Markisic does not, however, raise questions which ought, as a matter of justice, to be resolved by a jury, notwithstanding that Mr Markisic has been involved in litigation in which the Attorney General and the Commonwealth have been involved in the past. 20True it is that the application was brought by the Attorney General as s 8(4) of the Act permits. The Vexatious Proceedings Act also expressly contemplates that a person against or in relation to whom another person has instituted or conducted vexatious proceedings or who in the opinion of the court, has a sufficient interest in the matter, may bring such proceedings (s 8(2)). It follows that the fact that the Attorney General was a party to or involved in other proceedings with Mr Markisic is itself contemplated under the legislative scheme. That the State and the Commonwealth were parties to such proceedings is thus not a matter, which of itself, demands that a jury try proceedings such as this. 21Nor does the fact that in such proceedings, serious allegations of wrongdoing, even criminal wrongdoing, have been made against various officers and employees of the State or the Commonwealth. Mr Markisic has not led any evidence which suggests that such allegations have ever been considered or determined in his favour, or that of other members of his family. 22Nor do Mr Markisic's beliefs as to past bias against him by other judges or myself, or the seriousness of the matters which he wishes to rely on to resist the orders sought establish that justice requires a trial by jury in this case. These beliefs may be genuinely held, but their repeated assertion does not, of itself, form a proper basis on which an order for a jury trial can rest. 23This application is refused.

Appointment of another judge from another jurisdiction to hear this case 24Mr Dragan Markisic also relied on the matters he advanced in support of his application for a jury trial, to advance an application that a judge from another court be appointed to hear this case. He proposed an appointment of a judge from either the Federal Court, the Family Court, or the High Court. 25These submissions also provide no basis upon which it could justly be concluded that steps should be taken to have another judge, let alone one from another jurisdiction, appointed to hear these proceedings. 26This application is also refused.

Setting aside the judgment given on 2 September 2013

Application that another judge hear the motion 27On 2 September 2013, I made orders adjourning the proceedings, so far as Mr Oliver Markisic was concerned, refusing orders sought by Mr Dragan Markisic in motions filed in March and May 2012 and granting the Attorney General leave to amend the summons which initiated the proceedings. 28Mr Markisic sought to have the application to set that judgment aside heard by another judge, submitting that it would be unfair and inappropriate for me to hear and determine that application. The Attorney General did not oppose the application being heard by another judge, submitting that was a matter for me to determine, but opposed the judgment being set aside. 29As I discussed in Attorney General in and for the State of New South Wales v Markisic [2012] NSWSC 1143 at [32], while there are circumstances in which another judge can deal with an application such as this, the judge who has been allocated the matter for hearing and has decided interlocutory matters before the trial, and has given the decision the subject of the application, 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. 30In the circumstances, I consider that it is I who ought to deal with the application. Parties do not choose the judges who hear their cases, nor do judges determine which cases are allocated to them for hearing. There must be good reason established for an application that another judge hear an application that an interlocutory judgment not given by that judge, be set aside. No such reason has been established.

Setting aside the judgment 31No basis for an order setting aside the judgment has been established. 32In the September judgment Mr Oliver Markisic's position was considered and dealt with by way of formal order. Mr Dragan Markisic's adjournment application until his brother had recovered his health was refused. 33In his written submissions, Mr Dragan Markisic submitted that paragraphs 6, 7, 10, 11, 12 and 13 of the judgment "is unfair and is done in prejudice to both defendants". Those paragraphs of the judgment dealt with Mr Oliver Markisic and the decision that the proceedings against Mr Dragan Markisic would have to proceed, notwithstanding that the proceedings against Mr Oliver Markisic were adjourned until further order. 34There is no basis for revisiting these aspects of the decision, notwithstanding Mr Dragan Markisic's submissions that the conclusions reached were wrong; only reached in order to prejudice the defendants; unfair; done in bad faith; and contrary to s 56 of the Civil Procedure Act 2005 (NSW). 35Mr Markisic simply established no basis upon which those submissions could be accepted. 36The September decision also dealt with a motion filed in March 2012, by which orders were sought that: "1 Leave is granted to the Cross-Claimants to file their Second Cross-Claim (the document attached to the affidavit of Dragan Markisic). 2 Ian Victor Knight, (the NSW Crown Solicitor and solicitor on record and legal representative for the NSW Attorney-General in these proceedings), be removed from proceedings on the ground of having conflict of interest. 3 David Robinson, (barrister representing the Commonwealth of Australia in these proceedings), be removed from proceedings on the ground of having conflict of interest. 4 Roshana Wikremanayake, (solicitor employed in the Australian Government and representing the Commonwealth of Australia in these proceedings), be removed from proceedings on the ground of having conflict of interest. 5 Further orders as required by the Applicants." 37None of the orders sought were made.

The second cross-summons 38Mr Markisic submitted that I erred in refusing leave to file the second cross-summons and that the observation at [31] of the judgment that "it is apparent, however, from a reading of the two documents, that many of the amendments sought seek relief in relation to matters which are clearly relevant to the case which the Attorney General seeks to establish, by evidence of which Mr Dragan Markisic has long been put on notice" was incorrect and false. 39This was a reference to the affidavit evidence on which the Attorney General proposes to advance its case at the hearing of its application, which was served on the defendants prior to the hearing listed for November 2012. Mr Dragan Markisic's case is that this affidavit contains documents said to be judgments, which are fabricated, counterfeit and forged by the Crown Solicitor and his office and that the intention of the affidavit is to pervert the course of justice and to cover up offences committed in 1998. 40Whether the affidavit and the documents on which the Attorney General seeks to rely to make out the case advanced in these proceedings against Mr Dragan Markisic are relevant and admissible has not yet been determined. The parties will be heard about that at the hearing. 41Mr Dragan Markisic also submitted that other decisions I have made refusing leave to issue subpoenas, to strike out the Attorney General's summons, to issue interrogatories and have discovery, and the decision in the September judgment, to refuse leave to file the proposed amended cross-summons, all established how I had wrongly favoured the Attorney General's case in order to damage him and to prevent him from properly defending himself. 42Mr Dragan Markisic submitted that the judgment had been given in bad faith because at [39,] I had observed that: "In order for a judgment to be set aside on the ground of fraud, evidence must be led which permits an affirmative finding of the fraud alleged (see McDonald v McDonald [1965] HCA 45; (1965) 113 CLR 529)." 43He also submitted that I had done everything possible to prevent the defendants from taking "certain steps to come into possession of certain evidence which would have enabled them to have sufficient evidence to show sufficient cause (ie to issue subpoenas for oral evidence and production, to cross examine eye witnesses, to issue letters of requests to certain courts, etc)." 44What this "certain evidence" would have been and who could have given it, was not revealed. This submission cannot establish the various shortcomings and bad faith he alleged. 45Mr Dragan Markisic also submitted that the conclusion at [41] that orders setting aside judgments given by other courts, including the Court of Appeal, in other proceedings could not be made in these proceedings, was wrong. No basis for that submission was provided, other than the terms of Rule 36.15, which provides: "36.15 General power to set aside judgment or order (cf DCR Part 13, rule 1, Part 31, rule 12A; LCR Part 11, rule 1, Part 26, rule 3) (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." 46That Rule simply does not provide that for which Mr Dragan Markisic contends. 47Further, where it is claimed that a judgment has been given as the result of alleged fraud, separate proceedings need to be commenced by way of a separate statement of claim. As discussed in Banksia Mortgages Ltd v Croker [2013] NSWSC 270 at [16]: "16 Firstly, the Uniform Civil Procedure Rules 2005 ("UCPR") are entirely clear, that any proceedings on a claim based on an allegation of fraud are to be commenced by Statement of Claim: Rule 6.3(c) UCPR. Rule 14.14(3) UCPR provides that matters which must be pleaded specifically in a claim are matters including a claim of fraud. The Courts have emphasised that specificity and particularity are required where a judgment or order is sought to be set aside upon the ground that it was procured by fraud: Wentworth v Rogers (No. 5) (1986) 6 NSWLR 534 at 538-539; Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 at 700. 17 The use of a Summons is misconceived. A Summons is a procedure for commencement of other types of claims, referred to in Rule 6.4 UCPR." 48Mr Dragan Markisic also complained about references in the judgment to claims sought to be advanced in the second cross-summons, namely events in 1999 there referred to, submitting that it was not open to establish such facts, without trial. The submission is misconceived. Whether leave to file the second cross-summons should be given, could only be determined in the context of what was there sought to be advanced. That does not, however, require a trial to determine whether what is claimed can be established, if the leave sought is given.

The NSW Crown Solicitor 49Mr Dragan Markisic has not established any basis on which it could justly be concluded that the conclusions reached in relation to the application concerning Mr Knight was incorrect, having regard to the onus which fell upon him, as Brereton J explained in Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561, which I discussed in the September judgment. 50The application in relation to Mr Knight was refused because I concluded amongst other things that: "58 That Mr Dragan Markisic has in the past made allegations against Mr Knight as to alleged criminal conduct, does not establish that 'a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice'. There is no suggestion that any criminal proceedings have ever resulted from the allegations made against Mr Knight. Nor is there evidence that any other proceedings have been successfully pursued against him, despite allegations made against Mr Knight in the past." 51Mr Dragan Markisic contended that various evidence could have been led, relevant to the application against Mr Knight. The application had to be determined on the basis of what was then relied on. Contrary to the submission that I ignored eye witnesses and affidavit evidence as to the commission of torts and crimes by Mr Knight, what was relied on established only that serious allegations have been made against him in the past. Mr Markisic did not attempt to establish that those allegations have ever been found to have a basis.

Mr Robinson SC and Ms Wikremanayake, the Commonwealth's counsel and solicitor 52Mr Dragan Markisic advanced similar submissions in relation to the rejection of his application in relation to Mr Robinson SC and Ms Wikremanayake. 53Mr Markisic established no basis on which it could justly be concluded that the conclusions reached in the September judgment in relation to this application were incorrect.

The motion of 29 May 2012 54Mr Markisic challenges the authenticity of the judgments I have given in the proceedings, even though orders were made in his presence in open Court, when the reasons were published and he was given a copy of them. 55This motion sought that three judgments given in these proceedings in open court on 28 November 2011, 8 May 2012 and 17 May 2012 be set aside. They were: Attorney General in and for the State of New South Wales v Markisic [2011] NSWSC 1436 Attorney General in and for the State of New South Wales v Markisic [2012] NSWSC 433 Attorney General in and for the State of New South Wales v Markisic [2012] NSWSC 510 56In the September judgment I refused to set aside these judgments. 57If such an order is to be made in relation to the September judgment, Mr Dragan Markisic must establish that the judgment was given "irregularly, illegally or against good faith" (Rule 36.15). 58Mr Dragan Markisic submitted that in the September judgment I had wrongly concluded that: "71 Mr Dragan Markisic's submissions are misconceived. It is apparent from the text of the section itself, that s 157 is not concerned with how judgments are delivered. It is concerned with how evidence of a judgment might be given in other proceedings. In this instance, such proof was unnecessary, because these judgments were given in these proceedings, the orders made being announced in open court, in Mr Dragan Markisic's presence, when a copy of the judgment was given to him." 59Mr Dragan Markisic submitted that this interpretation was incorrect and that the authenticity of the document he had been given could be put in issue in these proceedings as he sought to do; that s 157 applied to all judgments given in any proceedings; that there was no discretion or option left to a judge not to sign and seal a judgment; and if that was not done, it could not be accepted as a judgment under s 157. On his approach the issue was not whether I had handed out a document to the parties as my judgment, but whether the document handed out was my judgment, which he was entitled to challenge, notwithstanding how it had been delivered to the parties. 60These submissions are plainly wrong, for the reasons which I explained in the September judgment at [61] - [79], to which I adhere. 61No basis on which it could justly be concluded that the September judgment was given "irregularly, illegally or against good faith" was established. Accordingly it cannot be set aside. 62If Mr Dragan Markisic disagrees with the conclusions reached, he must challenge them by exercising his rights of appeal.

63Mr Dragan Markisic's case was that the leave which the Attorney General was given in the September judgment to amend the summons initiating these proceedings was given in bad faith and revealed incompetence. 64He submitted that the summons was defective and that accordingly, the leave sought ought not to have been granted. That has already been dealt with in Attorney General in and for the State of New South Wales v Markisic [2012] NSWSC 1143, when a strike out application was refused. 65The Attorney General was given leave to amend the summons in circumstances where I concluded that the amendment sought raised an issue of which Mr Dragan Markisic had long had notice and because the amendment would not prejudice him, given what was in issue in relation to the Attorney General's application. 66Mr Dragan Markisic's case was that leave to amend had been granted in bad faith and on incorrect facts and that the amendment could not cure pleadings which were bad and defective, failing as they did to provide him with proper particulars. The leave sought and granted revealed that both the Attorney General and I had failed to do our jobs properly, did not respect the law and were pursuing a private vendetta against him. 67By those submissions Mr Markisic established no basis upon which the orders setting aside the September judgment and the leave granted to amend the summons could be made.

Further disqualification application 68Mr Dragan Markisic has made and I have refused a number of such applications. This further application was pressed on the basis of a criticism of the reasons given for refusal of an earlier application dealt with in the 2 September judgment. They included that I had incorrectly stated at [16] that the defendants had succeeded on various applications which they had made, when I had never allowed them to succeed on any important application and had allowed the Attorney General to succeed on other applications, with false, fabricated, hearsay and defective affidavit evidence and a defective summons. 69That Mr Dragan Markisic choses to characterise applications on which he and his brother succeeded in the past as unimportant, is not a basis upon which this further disqualification application may be granted. 70Nor can submissions such as that I knew that the Attorney General and certain servants and agents of the State of NSW and of the Commonwealth of Australia were the defendants' enemies, or that I have put myself on their side, or that the defendants had sought to institute criminal proceedings against me, provide a basis upon which this application can be granted. Such matters were raised and dealt with in the course of earlier applications that I disqualify myself, which were refused for reasons there given. Their repetition is not a basis on which this application can be granted. 71Mr Dragan Markisic submitted orally that Mr Oliver Markisic died believing that he had been poisoned and that he too, feared for his life, given his recent success in other proceedings in which he is involved. In his written submissions he complained that I had failed to consider this allegation. He also complained that at [20] of the September judgment, I had intentionally and unjustifiably presented him in a bad light. There I observed: "20 It is not necessary to outline again Mr Dragan Markisic's ongoing conduct in court. It is sufficient to observe that it is now even less disciplined than it was, while his brother, who frequently admonished and remonstrated with him, was present during earlier stages of these proceedings. That helps explain his desire not to proceed in the absence of his brother, but is not a basis upon which the hearing of the proceedings against him can justly be further delayed. The constant need to manage his conduct in court is certainly challenging, but does not provide a basis upon which either actual or apprehended bias can be found." 72These submissions may not be accepted as reflecting any basis upon which this further disqualification application may be granted. It is necessary to give reasons for decisions which I make. In this instance they rested in part on Mr Dragan Markisic's conduct in court, which has been as I have variously described in judgments I have given. 73I have also repeatedly discussed the authorities which bind my consideration of applications such as this in the reasons which I have given for refusing earlier disqualification applications. I adhere to what I there said. 74As discussed in Re F [2013] NSWCA 239: "16 The mere fact that a submission is rejected cannot amount to bias; every judicial officer rejects one party's submissions every time a point is argued. And the mere fact that a submission is rejected in a way which seems to the loser to be curt, or demeaning, or belittling, once again, cannot of itself amount to bias. The reason that must be so is that regard must be had to the nature of the submission. Some submissions are, of their nature, readily rejected, because they are very weak or indeed hopeless." 75Further, as discussed by Ward J in Partington v Pacific Link Community Housing Ltd [2013] NSWCA 67 at [53]: "(As I indicated in my oral reasons I would do, I add that the test for apprehended bias is set out in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [16]) as confirmed in Michael Wilson & Partners Ltd v Nicholls & Ors [2011] HCA 48; (2011) 282 ALR 685 at [31]). It requires identification of what it is said might lead a decision-maker to decide a question other than on its merits and articulation of the logical connection between that matter and the feared deviation from the course of deciding the question other than on its merits. In Wilson, the High Court noted the fallacy in arguing (as seems to have been the basis of Mr Partington's claim of bias) that because one side lost the litigation, the judge was biased, or that some appellable error demonstrated pre-judgment. Where actual bias is alleged, such an allegation can be made good only by proof that the decision maker is actually biased. Brereton J, in Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 540, said "the submission that a reasonable bystander would conclude that there was actual bias is misconceived, because actual bias depends not upon the impression of any reasonable bystander, but upon proof that the decision maker is actually biased" (at [45]).)" 76Applying those binding principles, I am satisfied that the matters that Mr Dragan Markisic advanced to support his further application did not evidence either actual or apprehended bias on my part and that a fair minded observer of these proceedings would have been left with an impression that Mr Dragan Markisic has been given a fair opportunity to advance the matters which he has sought to raise at various times, including those dealt with in the September judgment and in this judgment. 77No basis on which this further application could be granted has been established and it must accordingly be refused.

Orders 78 For the reasons given, I order that:

The orders sought by Mr Dragan Markisic in the motions filed in October 2013 are refused.
The usual order as to costs is that they follow the event. I will hear the parties on costs, which are reserved.

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: 16 May 2014

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