Markisic & Anor v Commonwealth

Markisic & Anor v Commonwealth - [2001] NSWSC 533 - NSWSC 2001 case summary — Zoe

[15]

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:

[23]

(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."

[36]

(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.

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (42 paragraphs)

Parties

Cases Cited (4)

Cited By (5)