Dragan Markisic & Anor v USA & Anor

CASES CITED : DM v Director-General Department of Community Services [1998] Fam CA 1557 Markisic v Department of Community Services NSW and Ors. [2006] NSWCA 106

Plaintiff 1 - Dragan Markisic PARTIES : Plaintiff 2 - Oliver Markisic Defendant 1 - United States of America Defendant 2 - Commonwealth of Australia

Plaintiff 1 - Self-represented COUNSEL : Plaintiff 2 - Self-represented Defendant 1 - Mr D Sturzaker Defendant 2 - Mr D Robinson SC

Plaintiff 1 - Self-represented SOLICITORS : Plaintiff 2 - Self-represented Defendant 1 - Gaydens Lawyers Defendant 2 - Australian Government Solicitor

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

JUDGMENT 1 The second defendant, the Commonwealth of Australia moves on a Notice of Motion filed on 30 August 2006, seeking an order that the plaintiffs provide the particulars sought by the second defendant by letter dated 10 August 2006, and consequential orders. The letter dated 10 August 2006 followed a direction made by Senior Deputy Registrar Musgrave on 8 August 2006 that the plaintiffs respond to the second defendant's request for particulars. 2 The request for particulars relates to a Statement of Claim filed on 11 August 2004 alleging defamation by the first and second defendants of the plaintiffs. That defamation is said to arise out of the publication of a paper titled "Issues Surrounding Safe Return of the Child (and the Custodial Parent)", a copy of which is annexed to the affidavit of the first plaintiff sworn on 10 August 2004. Paragraph 7 of the Statement of Claim alleges that "the servants and agents of the first and of the second defendant agreed to defame the plaintiffs by publishing and broadcasting" the paper. 3 More particularly, the paper is said to defame the plaintiffs by the reference within the report to the case of DM v Director-General Department of Community Services [1998] Fam CA 1557, including a summary of the facts surrounding that case and excerpts from the judgments of Nicholson C J and Kay J. The full text of the paper is available from the Family Court web site. The paper was prepared for the purposes of a conference on the subject of international child custody held in Washington, DC between 18 and 21 September 2000 attended by a delegation from the Commonwealth of Australia, including the authors of the paper, each of whom are named in the Statement of Claim at paragraph 5. 4 The alleged agreement to defame set out in paragraph 7 of the statement of claim discloses on its face a civil conspiracy between the first and second defendants. The plaintiffs acknowledged as much in the proceedings before McClellan CJ at CL on 3 August 2006 and in the proceedings before me. 5 The Notice of Motion is supported by the affidavit of Gregory Kathner sworn 29 August 2006. At paragraph 3 of the affidavit the deponent states that the following orders were made on 8 August 2006 :- (a) that the second defendant's request for particulars be answered by the plaintiffs (b) the position of the plaintiffs regarding the first defendant's request for particulars be finalised and

(c ) stand the matter over to 23 August 2006. 6 On 10 August 2006 the second defendant caused a letter to be sent to the plaintiffs, a copy of which is annexed and marked "A" to Mr Kathner's affidavit. The letter refers to the orders made by Senior Deputy Registrar Musgrave, and to the proceedings before McClellan CJ at CL on 3 August 2006. In view of the plaintiffs' statements before McClellan CJ at CL regarding an alleged conspiracy to defame, the second defendant sought confirmation from the plaintiffs that the terms of paragraph 7 of the Statement of Claim gave rise to an allegation of conspiracy and confirmation of the plaintiffs' intention to continue with that allegation. The letter went on to set out the particulars sought by the second defendant in relation to paragraph 7, namely :- (a) On what date is it alleged that the servants and agents of the first and second defendant agreed to defame the plaintiffs?

(b) what was the form of the alleged agreement? (c) was the agreement in writing, or oral or partly in writing and partly oral?

(d) if the alleged agreement was in writing, please provide us with a copy. (e) if the alleged agreement was oral, please specify precisely the details of the oral agreement and please specify who on behalf of the first defendant and who on behalf of the second defendant allegedly participated in the oral agreement and the substance of what was said. (f) if the alleged agreement was partly written and partly oral, please provide the particulars requested in paragraphs (d) and (e) above in respect of that part which was in writing and that part which was oral. 7 The letter further noted that the matter had been adjourned to 23 August 2006 and sought a response to the particulars by 18 August 2006. 8 The second defendant did not receive answers to the above particulars. A copy of the Notice of Motion was served upon the plaintiffs by way of letter dated 30 August 2006 (Exhibit A on the hearing of the Notice of Motion). The letter drew to the plaintiffs' attention a decision of the Court of Appeal on the issue of costs in Markisic v Department of Community Services NSW and Ors. [2006] NSWCA 106. The plaintiffs were thereby put on notice that should the second defendant be successful on the hearing of the Notice of Motion and if a costs order be made as sought by the Notice of Motion, a possible consequence would be a stay of the proceedings pending a reply to those particulars and payment of the second defendant's costs. 9 Before turning to the submissions advanced by the plaintiffs in response to the second defendant's Notice of Motion, it is necessary to deal with two preliminary applications made by the plaintiffs. First, the plaintiffs sought an adjournment of the hearing of the notice of motion to allow an appeal to be brought from the decision of Registrar Howe this morning to refer the notice of motion to the list judge for hearing, in isolation from the notices of motion filed on behalf of the plaintiffs. Second, the plaintiffs made an application that the Notice of Motion be struck out, essentially as an abuse of process, in that the second defendant was seeking by the notice of motion to collaterally advance the interests of the first defendant. This latter argument was premised upon a submission that the first defendant was not entitled to particulars. 10 I refused the application to adjourn the Notice of Motion on the basis that it is undesirable to fragment the proceedings and that if the second defendant was successful on the Notice of Motion, any application for leave to appeal to the Court of Appeal from my decision could include an appeal from my decision to refuse the application for adjournment. In the course of argument, I expressed the tentative view that an appeal from the decision of Registrar Howe appeared to me to have little prospects of success, given that the orderly, efficient and just resolution of the issues in the substantive matter was more likely to be achieved by compliance with the directions made on 8 August 2006, in advance of the hearing of the Notices of Motion filed by the plaintiffs. Compliance with those directions appears to me to be necessary to inform the second defendant of the case it is required to meet. 11 I remain of that view. Whilst the plaintiffs' Notices of Motion were not strictly speaking before me, I have had regard to them in view of the arguments advanced by the plaintiffs in these proceedings. The Notice of Motion filed on 27 July 2006 primarily seeks orders for discovery of documents or leave to issue subpoenas for production of those documents and for attendance to give oral evidence, directed to the former Attorney General of the Commonwealth of Australia and the four persons making up the Australian delegation to the conference in Washington. The Notice of Motion filed on 8 August 2006 seeks an order setting aside the order of McClellan CJ at CL made on 3 August 2006. 12 As to the former Notice of Motion, orders for discovery and/or the issue of subpoenas for production and for attendance to give oral evidence would only be made or leave granted upon satisfaction by the Court that those orders were necessary for the purposes of resolving the issues in the substantive proceedings. That is an exercise which cannot be undertaken until and unless the scope of the Statement of Claim has been ascertained. A reply to the particulars sought by the second defendant would substantially assist in that process. 13 As to the latter Notice of Motion, the appropriate course for the plaintiffs to adopt is to seek to appeal the order of McClellan CJ at CL. The decision made by his Honour on 3 August 2006 related to the means by which a proposed witness, a resident of the United States of America, was to be cross-examined. There is no necessary connection between that decision and the request for particulars by the second defendant. The request for particulars is capable of resolution independently of the plaintiff's dissatisfaction with the decision of 3 August 2006. 14 Equally, I am unpersuaded that there is any substance to the argument that the second defendant's notice of motion is an abuse of process. The plaintiffs have already provided a response to a request for particulars by the first defendant, a course which is inconsistent with an assertion that the first defendant is not entitled to particulars. I note that a directions hearing on 20 March 2006 resulted in a direction that the plaintiffs respond to a request for particulars made by the first defendant on or before 17 April 2006 and that the plaintiffs did respond on 26 April 2006. 15 I turn then to the resolution of the matters raised by the second defendant's Notice of Motion.

16 The plaintiffs dispute that there was no compliance with the orders made on 8 August 2006. In addition, the plaintiffs dispute that any such "orders" were made. I am satisfied from a perusal of the file that directions were given on 8 August 2006, whether or not it is correct to describe those directions as "orders". It appears that the plaintiffs understood that they were being directed to respond to the request for particulars, given that the plaintiffs maintained before me that they sought clarification from the Senior Deputy Registrar of the nature of their obligations. The plaintiffs did in fact "respond" in writing to the second defendant, simply asserting that they would not answer particulars until and unless their respective Notices of Motion filed on 27 July and 8 August 2006 were heard and determined. I do not regard that correspondence from the plaintiffs as relevant compliance with the directions of 8 August 2006. 17 Further, the plaintiffs conceded in argument before me that certain of the particulars sought by the second defendant are capable of answers. To the extent that the plaintiffs are insisting upon a hearing of their respective Notices of Motion before they are prepared to provide particulars, it appears that they are wilfully refusing to comply with the directions made on 8 August 2006. 18 I regard compliance by the plaintiffs with the directions made on 8 August 2006 as essential to the advancement of the proceedings in this Court. More than two years have elapsed since the filing of the Statement of Claim, yet very little has been achieved that would allow the matter to be set down for hearing. The second defendant is entitled to know with some certainty how the plaintiffs propose to prove the alleged conspiracy. More particularly, the second defendant is entitled to know whether the conspiracy alleged against it is a conspiracy to injure by unlawful means or for an unlawful purpose. It is not incumbent on the second defendant to provide information to the plaintiffs that would assist them to discharge the onus that they bear. This contention appeared to be one basis advanced by the plaintiffs for the orders for discovery and the issue of subpoenas, that is, that a general "fishing expedition" might provide information allowing the plaintiffs to provide answers to those questions set out at paragraph 6 above. 19 The important purposes served by the rules and by costs orders in an adversarial system have recently been reinforced by the Court of Appeal in Markisic v Department of Community Services NSW and Ors. [2006] NSWCA 106, a decision that turned on the first plaintiff's conduct in that litigation, necessitating an adjournment of certain applications in the Court of Appeal. In my view, the plaintiffs' refusal to comply with the orders of 8 August 2006 has contributed to the substantial delay in the proceedings generally, has needlessly occupied the resources of the Court in ensuring compliance with those orders and has contributed to the considerable costs incurred to date by the defendants. Accordingly, I regard the orders sought by the second defendant in the Notice of Motion as appropriate to the maintenance of discipline in the conduct of the litigation. 20 I make the following orders :-

1. The plaintiffs provide the particulars sought by the second defendant by letter dated 10 August 2006, on or before 29 September 2006.
2. The plaintiffs pay the costs of the second defendant of this motion.

3. The costs of the motion are assessed and payable forthwith in the sum of $2000.

4. The proceedings against the defendants are stayed until the plaintiffs comply with orders 1 and 2. **********

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.