Attorney-General in the State of NSW v Markisic

Ex Tempore Judgment 1The Court has before it an application to review a decision of the Registrar to adjourn the hearing of a motion. The motion relates to a summons, which is listed for hearing on 14 November 2011. The original notice of motion was filed by the defendants, Dragan Markisic and Oliver Markisic (hereinafter, "the applicants"), on 20 October 2011. An affidavit of Oliver Markisic sworn 23 August 2011 and the applicants' submissions filed on 20 October 2011 support the motion. The motion seeks the Court's leave to issue subpoenas to 54 persons under rule 7.3 of the Uniform Civil Procedure Rules 2005 (hereinafter "UCPR"). The motion also seeks an order under s 85(2) of the Supreme Court Act 1970 (NSW) that the substantive proceedings listed on 14 November 2011 be before a jury. 2The original preliminary view of the Court was that the Court should confine its review to the adjournment of the motion by the Registrar. The parties have convinced the Court to hear the original motion that otherwise would have potentially disrupted the hearing of the summons on 14 November 2011. This is due to the fact that if the applicants were successful on the application for a jury, the hearing could not continue, and, further, if any one of the subpoenas were issued than, presumably, an adjournment would be sought to serve the subpoena and adduce evidence from the witness. 3On 9 March 2011, the substantive proceedings were commenced by the Attorney General in and for the State of NSW (hereinafter, "the respondent") by way of summons. The summons sought an order against the applicants under s 8(7)(b) of the Vexatious Proceedings Act 2008. The trial has been fixed for 14 November 2011. The Court notes that the applicants are currently unrepresented. 4It is not the role of the Court as presently constituted, to determine the substantive issues before the Court on 14 November 2011. However, a brief description of the nature of the matter will assist in determining whether the Court should grant the orders sought in the notice of motion currently before the Court. 5According to the affidavit of Dragan Markisic, a cross-summons was filed on 3 June 2011. The cross-summons sought relief and damages against the Attorney-General in and for the State of NSW (the respondent) and the Commonwealth of Australia (listed as the second cross defendant). The applicants allege that the State of NSW and the Commonwealth tendered false material facts and fabricated evidence, which led to allegedly fraudulent judgments. The particulars of those allegations, as outlined at length in the affidavit, are summarised for the purposes of this judgment. 6There appears to be three sources of angst by Dragan Markisic. The first relates to Family Court proceedings commenced by Dragan Markisic in July 1998. The applicants allege that the agents of the Commonwealth and State involved in those proceedings acted with malice towards him and his family and that the judgments and orders relating to those proceedings were fabricated. 7The second source of angst relates to Dragan Markisic's child. The applicants allege that the Commonwealth took his child from him and his family without a valid warrant and placed her in a secret private prison where she was physically, mentally and sexually abused by agents of the respondent. The child was sent to Macedonia to be with her mother, Katerina Markisic. Katerina Markisic and Dragan Markisic have been divorced since May 1999. 8The applicants further allege, as I understand it, that on 29 September 1998, during an appeal of the abovementioned Family Court proceedings to the Full Family Court, a group of persons sent by the Commonwealth and State government raided Dragan Markisic's residential premises. The group is said to have deceived Mr Markisic's mother in falsely presenting themselves as Australian Federal Police. Dragan Markisic says that the group later mentally, and physically abused his mother, subjected her to false imprisonment for 2 weeks and transported her overseas against her will. The applicants further allege that the group deceived the applicants by falsely claiming that their actions were in response to the orders of Justice Alwynne Rowlands of the Family Court. 9Dragan Markisic has been involved in various other court proceedings. As discussed in his affidavit, he commenced proceedings in December 2000 against the Department of Community Services of NSW, State of NSW, Commonwealth of Australia, Qantas and the Catholic Church. He, again, alleges that he was deceived by the State and Commonwealth governments. The State of NSW filed a notice of motion to strike out the statement of claim on the basis that no cause of action was pleaded. The notice of motion was supported by an affidavit sworn by Doreen Edith Muirhead, which Mr Markisic describes as containing false material facts and fabricated and counterfeit documents. The matter went before Master Malpass for hearing and the statement of claim was struck out with leave to replead. The Commonwealth of Australia also filed a notice of motion to strike out the statement of claim. Again, Mr Markisic alleged that a supporting affidavit of Roshana Wikramanayake contained false material facts and fabricated and counterfeit documents. The notice of motion came before Justice Smart on 31 May 2005. He granted leave to proceed with respect to the claim of nervous shock, only. 10Mr Markisic sought to appeal the decision of Justice Smart. The application for leave to appeal came before Giles J, Ipp J and Santow J and the Court delivered judgment on 23 November 2006. According to Mr Markisic, the Court granted leave to file an amended statement of claim with respect to defamation. The matter later came before Justice Price. Justice Price delivered ex-tempore judgment on 27 February 2008 apparently directing Mr Markisic to institute proceedings in the Family Court. The matter apparently came before Justice John Cohen but was 'indefinitely adjourned'. According to Mr Markisic he appeared regularly before Justice Price at directions hearing to update him on the Family Court proceedings. 11In 2001, Oliver Markisic also instituted proceedings against the Commonwealth of Australia. He, along with Marika, alleged that the Commonwealth was vicariously liable for the negligence of its agents. Roshana Wikramanayake swore an affidavit in the proceedings. As outlined in Master Harrison's judgment, delivered on 28 January 2001, the plaintiffs were not successful in their claim. Mr Markisic now alleges that the Commonwealth knowingly tendered false and misleading evidence. On 13 August 2001, Justice Bell granted the applicants leave to file an appeal. The case proceeded to trial before Justice Patten on 27 February 2007 or thereabouts. Justice Patten struck out certain paragraphs of the applicants' further amended statement of claim. It is alleged that the case went before Registrar Bradford on 28 May 2008 and 18 June 2008 and Justice Davies for hearing on 19 October 2009. Apparently, the matter was heard over eight days and judgment was published in favour of the Commonwealth on 25 February 2010. The applicants, again, allege that the entire history of the proceedings was fraught with false material facts and fabricated and counterfeit documents. 12A third stream of proceedings were commenced by Dragan Markisic in 1999. The proceedings concerned the publication of three allegedly defamatory articles concerning Mr Markisic and his family. The matter went before Justice Simpson on 28 November 2005. On 17 September 2007, Mr Markisic sought, by notice of motion, to set aside the orders made by Justice Simpson on the grounds that the orders were made "irregularly, illegally or against good faith or in fraud". The notice of motion came before Justice Harrison on 26 September 2007 and was dismissed on 10 July 2006. Mr Markisic alleges that Justice Harrison took sides with the Commonwealth and failed to disqualify himself on the basis that he is a witness in the substantive proceedings. 13It is up to the Court hearing the substantive proceedings to comment on the truth of the above allegations. However, on the material put by the applicants it is apparent that the applicants, in effect, want a Royal Commission into what has occurred. The 54 persons sought to be called are all persons associated with the foregoing: judges, solicitors and the like. While Mr Dragan Markisic may have shown themselves an intelligent, erudite advocate who has grave suspicions, Courts do not conduct investigations or Royal Commissions.