Markisic & Anor v Commonwealth

Commonwealth of Australia (Defendant) JUDGMENT OF : Master Harrison

Mr Oliver Markisic (First plaintiff in person)

COUNSEL : Marika Markisic (Second plaintiff in person)

Mr D P Robinson (Defendant) SOLICITORS : Ms Wikramanayake of Australian Government Solicitor (Defendant) CATCHWORDS : Strike out amended statement of claim Supreme Court Rules - Pt 15 r 6; Pt 13 r 5 LEGISLATION CITED : Family Law (Child Abduction Convention) Act 1986 Imperial Acts Application Act Australian Police Force Act 1979 Air Services Australia v Zarb (NSWSC unreported, 26 August 1998) Dey v Victorian Railway Commissioners (1948-49) 78 CLR 62 General Streel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 CASES CITED : Webster & Anor v Lampard (1993) 177 CLR 598 Sirros v Moore & Ors [1974] 3 All ER 776 Maharaj v Attorney-General of Trinidad & Tobago (No 2) [1979] AC 385; [1978] 2 All ER 670 O'Reilly v Mackman [1983] 2 AC 237 ([1982] 3 All ER 680, [1982] 3 WLR 604) DECISION : (1) The amended statement of claim and the proceedings are dismissed ; (2) The plaintiffs are to pay the defendant's costs.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20369/2001 - OLIVER MARKISIC & ANOR v COMMONWEALTH OF AUSTRALIA

1 MASTER: By notice of motion filed 15 May 2001 the defendant seeks an order that that the amended statement of claim filed 5 June 2001 be struck out pursuant to Part 15 r 26 of the Supreme Court Rules (SCR) or Part 13 r 5 SCR; alternatively that the proceedings be stayed or dismissed generally. The defendant relied on the affidavit of Roshana Dilani Wikramanayake sworn 14 June 2001. By notice of motion filed 10 May 2001 the plaintiffs seek directions and further orders. 2 Family law proceedings taken by the Director-General Department of Community Service and the departmental head of a New South Wales Government department against Dragan Markisic were finalised in October 1998 (these proceedings will be referred to in more detail later in this judgment). In these proceedings before this court the first plaintiff Oliver Markisic and Marika Markisic the second plaintiff are the uncle and grandmother respectively of the child Elena Markisic. Elena was born on 3 May 1997. Mr Dragan Markisic is the father of Elena. The first and second plaintiffs alleged that they were at all times the carers of Elena. In 1998 Elena's father Dragan Markisic brought Elena to Australia from Macedonia. At that time the child was about one year of age. Apparently three days after Elena's arrival in Australia Elena's mother obtained orders in Macedonia giving her custody of Elena. In these proceedings the uncle and grandmother claim that they suffered nervous shock as a result of the warrant being executed. Their nervous shock and alleged entitlement to aggravated and exemplary damages are also said to arise because of the actions of the police, the judiciary and officers of the Department of Youth and Community Services. In October 1998 by virtue of the Federal of Australia orders, Elena and her mother returned to Macedonia.

The law on summary judgment 3 Part 15 r 26 provides: "(1) Where a pleading - (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading;

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c) is otherwise an abuse of the process of the Court, the Court may at any stage of the proceedings, on terms, order that the whole or any part of the pleadings be struck out. (2) The Court may receive evidence on the hearing of an application for an order under subrule (1)." 4 Part 13 r 5 says: "(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings- (a) no reasonable cause of action is disclosed;

(c) the proceedings are an abuse of the process of the Court, the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings."

5 In a Court of Appeal decision Air Services Australia v Zarb (NSWSC unreported, 26 August 1998) Rolfe AJA found it useful to remind himself of the highly demanding test imposed on a party seeking summary judgment. His Honour referred to Dey v Victorian Railway Commissioners (1948-49) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 and Webster & Anor v Lampard (1993) 177 CLR 598. I have reproduced some of the passages quoted in Zarb. 6 In General Steel Barwick CJ, who heard the application alone stated: "Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed." 7 Barwick CJ also said: "It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of cause of action - if that be the ground on which the Court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; be manifest that to allow them' (the pleadings) 'to stand would involve useless expense." 8 In Webster Mason CJ, Deane and Dawson JJ reinforced the rigorous testing stating, at p 602:

"The power to order summary judgment must be exercised with 'exceptional caution' and 'should never be exercised unless it is clear that there is no real question to be tried."' 9 According to Rolfe AJA in Zarb: "The demanding nature of the test is in no way lessened in circumstances where there are the potential for difficult factual and legal issues to arise. Rather, as the decision in Webster made clear, it is heightened: see also Wickstead & Ors v Browne (1992) 30 NSWLR 1 and Esanda Finance Corporation Limited v Peat Marwick Hungerfords (1997) 188 CLR 241."

(1) On 13 April 1998 the Welfare Centre of Veles decided that the mother be appointed the custodian of the child until such time as the court proceedings for Dissolution of Marriage were completed and a custody order for the child issued. The Primary Court at Veles ordered that the father, immediately on receipt of the order, return the child Elena Markisic to the applicant mother Katerina Markisic.

(2) On 10 May 1998 the Republic of Macedonia requested that the Australian authorities proceed in compliance with the Hague Convention on Child Abduction . Australia is a signatory to this convention.

(3) Pursuant to Regulation 8(1) of the Regulations the Attorney General for the Commonwealth of Australia appointed the secretary to the Attorney General's Department to be the Commonwealth Central Authority and the Director-General, Department of Youth and Community Services (as it then was) to be the State Central Authority for New South Wales.

(4) Pursuant to Regulation 8(3) the State Central Authority was appointed to exercise those functions and obligations of the Commonwealth under the Convention other than the Function of receiving or transmitting applications under the Convention.

(5) On 28 July 1998 the Family Court of Australia in proceedings No SY6727 of 1998 between Dragan Markisic (respondent father) and Director General Department of Community Services (central authority) made the following relevant exparte orders. "2. That orders be made in terms of paragraphs 1, 4, 5, 6, 7 and 8 of the application filed 17 July 1998 as set out hereunder: '1. That the child Elena Markisic born 3 May 1997 not be removed from the Commonwealth of Australia until further order of this Court. 4. That until further order, the respondent father, Dragan Markisic, surrender forthwith to the Registrar of the Family Court of Australia, all current passports relating to himself and the child, Elena Markisic born 3 May 1997. 5. That the names of the respondent father, Dragan Markisic, and the child, Elena Markisic born 3 May 1998, be placed upon the Airport Watch List at all International Airport Terminals within the Commonwealth of Australia as soon as possible and until further order the Australian Federal Police will restrain Dragan Markisic, and the child, Elena Markisic born 3 May 1997 from leaving Australia.

(6) After Mr Dragan Markisic was served with these court orders, he appeared in the Family Court before Rowlands J and then the Full Court. The court made an order that the child remain in the care of the Director-General of the Department of Community Services pending her return to Macedonia.

(7) On 29 September 1998 the Full Court of the Family Court of Australia (Appeal No EA 76 of 1998 File No SY 6727 of 1998) in the matter of Dragan Markisic and Director-General Department of Community Services delivered judgment. During the hearing the Full Court issued a warrant to take possession of the child and then dismissed the plaintiff's appeal against the decision of Rowlands J. Paragraphs 3 to 5 in judgment of the Chief Justice of the Family Court stated: "…These are proceedings under the Hague Convention for the return of the child to the former Yugoslav Republic of Macedonia, upon the basis that the father abducted that child from that country on 12 April 1998 and brought the child to Australia. The father has lost in proceedings before the Judicial Registrar, unsuccessfully reviewed those proceedings before Rowlands J, and now appeals to this court. This morning, he commenced with the making of an application for an adjournment, which this court rejected for reasons already stated. At his request we have him some three-quarters of an hour to collect his thoughts, before proceeding with the appeal. Following the adjournment, the father announced that he felt sick and was unable to present arguments in relation to continuing with the appeal. He said that he had other arguments that he wished to advance, but his state of health was such that he could not advance them. Speaking for myself, I do not accept that assertion of the father. I have little doubt that what the father was doing, was seeking to avoid the court dealing with this matter, and putting the matter off as long as possible. When he adopted that course, I asked the responsible authority whether they wished to make an application as to the disposition of the child. Mrs Flohm, for the authority, indicated that, although the authority had hitherto been reluctant to make such an application, she felt in the circumstances she ought to make it, and the application was made. The basis of the application is undoubtedly a concern that, since the father was, on the departmental case at least, prepared to abduct the child from its mother in the former Yugoslav Republic of Macedonia, that there was a real risk that if he saw these proceedings as running against him, that he may take similar steps in relation to the child in Australia, to either remove the child from its present address and remove it to other parts of Australia, or elsewhere." Kay J agreed with Nicholson CJ and added a passage, the source of which was the father's own material which stated: "I was waiting for 37 years of my life for this baby to be born, and I was not going to give up on her at any cost."

In order to protect the child from the removal of her current address, the court issued a warrant.

(8) On 29 August 1998 the court ordered: "1. That until further order a warrant issue authorising and directing the Marshal and Deputy Marshal of the Family Court of Australia and all officers of the Australian Federal Police and all officers of the Police Forces in the Commonwealth of Australia to take possession of the child ELENA MARKISIC born 3 May 1997 and deliver such child to TIM McDONALD, MANAGER ST GEORGE CSC DEPARTMENT OF COMMUNITY SERVICES, 390 FORREST ROAD HURSTVILLE and that for the purposes of the exercise of the foregoing powers and with such assistance as is necessary and reasonable by force to: i) stop, enter and search any vehicle, vessel or aircraft; or

ii) enter and search any premises or place if the person executing the warrant reasonably believes that: iii) the child is in or on the vehicle, vessel, aircraft or premises; and

iv) the entry and search is made in circumstances of such seriousness or urgency as to justify search and entry under the warrant where the said child may be or where there is any reasonable cause to believe the said child may be." The order was to take effect forthwith. The plaintiffs submitted that the department, by acting in accordance with this suggestion, breached their statutory duty, namely Regulation 13 to the Family Law (Child Abduction Convention) Act 1986 . According to the plaintiffs the warrant was issued invalidly. Further the plaintiffs allege that the Federal Police exceeded their power under the warrant and that the Deputy Marshall was not present at the execution of the warrant and these actions also make the warrant void ab initio.

(9) This warrant was executed by the Australian Federal Police at 1740 hours on 29 September 1998 at 17 Edward Street Turella which is the home of the first plaintiff and the child was delivered to Tim McDonald of the Department of Community Services. He handed the child over to the case officer who took the child to the nominated foster parents.

(10) On 13 October 1998 the plaintiff's application for the stay of the decision of Rowlands J was dismissed by the High Court. On 14 October 1998 Elena Markisic and her mother returned to Macedonia.

Pleading in the amended statement of claim 10 As previously stated the amended statement of claim alleges that members of three groups namely, the Department of Community Services, the Judiciary and the Federal Police knowingly, maliciously or with reckless indifference acted in misfeasance in public office and in breach of statutory duties and/or obligations imposed by Family Law (Child Abduction Convention) Regulations. The issue of the warrant, according to the plaintiffs, caused the Australia Federal Police officers to act unjustifiably and out of authority execute the warrant to take possession of the child while failing to establish the seriousness and urgency as required in order 1(iv) of the orders of the Full Court, ie, the warrant to take possession of the child and furthermore failing to consider that:

(a) the child was not in need of care and there was no urgency or seriousness;

(b) the Director General of DOCS New South Wales has not established a standard of care for taking a child not in need of care and ought to have known that the Director General of DOCS cannot establish such a standard for such standard would be unauthorised by the Parliament of New South Wales;

(c) the Director General of DOCS NSW has not established guidelines for accepting children into care in the Hague Convention matter and ought to have known that the Director General of DOCS NSW cannot establish such guidelines for such guidelines would be unauthorised by the Parliament of New South Wales;

(d) that DOCS NSW does not have enough resources to properly care for the child;

(e) the child is closely tied to the first and second plaintiffs and the separation will result in harm of each of them;

(f) that DOCS has no justification for the placement of the child into the care of the Director General of DOCS NSW under the State welfare law. 11 The officers of DOCS are New South Wales State officers. The Commonwealth has delegated authority to the appropriate State authority which is the Director General of Youth and Community Services. In turn certain legal officers have been given delegated authority to act in these matters. The New South Wales State officers had delegated powers to act in relation to this Act. 12 Further the plaintiff alleges that the judicial officers of the defendant (Nicholson CJ, Kay and O'Ryan JJ) knowingly, intentionally and maliciously erred in excess of jurisdiction and powers, to comply with the principles of natural justice and fairness, principles of the adversarial system - failing to act independently and impartially, pursuant to the provisions of the Imperial Acts Application Act in relation to due process of law by issuing an invalid warrant to take possession of the child causing the Australian Federal Police officers to unjustifiably and without authority execute the warrant to take possession of the child and failing to establish seriousness and urgency as required in order 1(iv) of the orders of the Full Court. According to the ASC the defendant is vicariously liable for the actions of the respective officers and judicial officers. There are similar allegations at paragraph 30 against the Australian Federal Police. 13 In relation to the judiciary, it is settled law that every judge of the superior and inferior courts, has judicial immunity. This means that the judges are entitled to protection from liability in damages in respect of what he or she does while acting judicially and under the honest belief that they act was within their jurisdiction, although, in consequence of a mistake of law or fact, what they had done was outside their jurisdiction. The judge was therefore protected since, although he or she had been mistaken in his or her belief that they had power to detain the plaintiff, he or she had acted judicially in good faith - see Sirros v Moore & Ors [1974] 3 All ER 776 per Lord Denning MR and Ormond LJ (at 784 e and f, p 785 a to d, f h and j, p 796 e and f). 14 There is nothing to suggest that the judges acted outside their powers. The plaintiffs referred to Maharaj v Attorney-General of Trinidad & Tobago (No 2) [1979] AC 385; [1978] 2 All ER 670 in which a barrister was charged with contempt and sentenced to seven days imprisonment. At that time the common law applied and it was held that the order of Maharaj J was unlawful on the ground that had already been determined in the previous appeal; and in their Lordships' view it clearly amounted to a contravention by the state of the appellant's rights under section 1(a) not to be deprived of his liberty except by due process of the law. In relation to the law of Trinidad & Tobago, Lord Diplock stated that under the law in force at the coming into effect of the Constitution the only remedy available to the appellant against an order for committal that was unlawful on this or any other ground, would have been an appeal to the Judicial Committee of the Privy Council, by special leave, to have the order set aside. 15 Relevantly Lord Diplock then stated: "No action in tort would have lain against the police or prison officers who had arrested or detained him since they would have acted in execution of judicial process that was valid on its face; nor would any action have lain against the judge himself for anything he had done unlawfully while purporting to discharge judicial functions: see Sirros v Moore [1975] 1 QB 118, in which many of the older authorities are cited." 16 The plaintiffs submitted that a judge made the application as to the disposition of the child and was not authorised to do so. The portion of the judgment earlier shows that it was the plaintiff who made the application and that it had considered doing so for some time. There is nothing to suggest that the judges had done anything unlawful while discharging their judicial function.

17 The Australian Federal Police were acting in execution of judicial process that was valid on its face and thus in doing so, have immunity from an action in tort. At the hearing of this motion, the first plaintiff alleged that they were falsely imprisoned, assaulted and the police in coming into the home are liable in trespass. There cannot be a trespass or false imprisonment where the police are executing valid judicial process. 18 While it is possible that a Federal Police officer and the Commonwealth can be liable for committing a tort in the course of his/her employment under s 64B of the Australian Police Force Act 1979 there are no facts which give rise to any action for assault pleaded. There is a factual dispute as to whether the first plaintiff was present when the warrant was executed.

Collateral attack 19 The defendant submitted that because the plaintiffs were deeply unhappy with the outcome of the Family Court proceedings and Dragan Markisic failed in his application to have the Family Court order set aside, by taking these proceedings the plaintiff have launched a collateral attack. 20 The authority "The Law of Australia" under the heading "Remedies in Judicial Review", Law Book Company Volume 2, says that there are two ways in which a collateral challenge may be made. The first is where an action, whether criminal or civil, is defended on the grounds that an administrative decision, or a piece of delegated legislation, the validity of which is essential to the case, is invalid. 21 The second case of collateral challenge is where an action, other than proceedings for judicial review, is brought and, in the course of the action, it is necessary to challenge the validity of an administrative decision or piece of delegated legislation. The learned author says that the limits of collateral challenge have not been determined in Australian law. Australian law does not have an equivalent to the English 'rule' in O'Reilly v Mackman [1983] 2 AC 237 ([1982] 3 All ER 680, [1982] 3 WLR 604) which insists on the primacy of direct challenge by means of the standard judicial review procedure and which places limits on collateral challenge. 22 Dragan Markisic has pursued all avenues to appeal the decisions of the Family Court and failed. The decisions of the Family Court are valid and binding. The plaintiffs were not parties to the family law proceedings. The plaintiffs have not established that there has been a jurisdictional error of law in the face of the record.

Damages 23 It is alleged that the conduct of the officers of the defendant caused and continued to cause pain, suffering and worries to each of the plaintiff and damage to the health of the second plaintiff who allegedly as a result of the misconduct of the officers of the defendant developed a heart condition. The plaintiffs claim damages, aggravated damages, exemplary damages, interest and costs. 24 It is my view that the plaintiffs' claims are hopeless and are an abuse of the process of this court. The pleadings are doomed to failure so it is futile to grant leave to replead the claim. Hence the amended statement of claim and these proceedings should be dismissed. 25 Costs are discretionary. Costs normally follow the event. The plaintiffs are to pay the defendant's costs. 26 The court orders that:

(1) The amended statement of claim and the proceedings are dismissed.

(2) The plaintiffs are to pay the defendant's costs. **********

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