[27] The basis for the submission is the evidence of the first plaintiff that on or about December 2004 he was unsuccessful in obtaining Mr Mioski's telephone number from an internet search. In my opinion the plaintiffs' argument is entirely misconceived and without merit. The first plaintiff's search was made about seven months after that made by the fourth defendant. Absent any other evidence, the fact that it then failed to identify a telephone number in Mr Mioski's name neither contradicts nor diminishes the probative value of the fourth defendant's account."
28 His Honour summarised the evidence of the first plaintiff to which he referred in par [21] of his judgment and it is unnecessary for present purposes to repeat it.
29 In short, the legitimacy of Mr Blajer's affidavit and Katerina Markisic's statement were litigated before Nicholas J and, on the defendants' submission, should not be allowed to be re-litigated. I agree. His Honour dealt in terms with precisely the matters that were the subject of the plaintiffs' lengthy submissions before me. There must be some finality to litigation, particularly and most obviously on points that have been previously argued and decided. I repeat what I said in par [25] about the umpire's decision.
30 The plaintiffs also relied upon an affidavit of Dragan Markisic sworn 25 September 2007. The affidavit is said to have been provided in support of their application for the issue of subpoenas to the people referred to in par [2] above. It contains an acknowledgement in par [25] that Zlatko Blajer did not give oral evidence, and was not cross-examined, in relation to the affidavit sworn by him in the proceedings before Nicholas J. The affidavit contains an historical account of what appears to me to be the same material which was before Nicholas J and upon which he determined the matter on 1 April 2005.
31 Before dealing with the question of subpoenas, however, the affidavit contains some further material upon which the plaintiffs rely in support of the application to set aside the judgment. That material consists, first, in an extract at par [33], from page 52 of the transcript of evidence in the 1999 proceedings before Adams J on 12 December 2003. Matthew Collins of counsel said, referring to Katerina Markisic, "the mother is still there [i.e. in Macedonia] and the mother is cooperating with the ninth defendant [i.e. Mr Blajer]". Secondly, at par [35], there is what purports to be an extract from Mr Blajer's sworn list of documents said to support the proposition that Katerina Markisic provided her notarised written statement to Mr Blajer nearly two months earlier than the trial before Adams J and eight months before his affidavit in the proceedings. These matters are said to have some particular significance. However, it is unnecessary to elaborate upon what that significance might be. If they are matters of any relevance at all they could, and should, have been raised and litigated when the matter was before Nicholas J, much in the way of the other material already referred to, and should now be similarly treated. If what was said by Mr Collins, or if what appears in the sworn list of documents provided by Mr Blajer, was significant, then the plaintiffs had an opportunity to raise it before Nicholas J or the Court of Appeal, and they have not satisfied me in the circumstances that they should be given another opportunity to do so now.
32 Commencing at par [37], the affidavit sets out in considerable detail what are said to be the bases for the application to have the named persons attend to give oral evidence. The dominant and reoccurring theme throughout these reasons is redolent and repetitive of the plaintiffs' earlier expressed concerns that Mr Blajer's affidavit is false and that inconsistencies between it and the statement of Katerina Markisic remain unexplained. For example, par [41] says the following: -
"41. The plaintiffs intend to issue subpoenas to Ljupco Stankovski to attend to give oral evidence in relation to the events mentioned in Blajer's affidavit and Katerina's oral evidence. It will be in issue the credibility of Zlatko Blajer."
33 It seems to me that there are at least two problems with this. First, the subpoenas are presumably required for use in re-litigation of the matters already dealt with by Nicholas J. For reasons that appear above, I do not consider that the plaintiffs should be given an opportunity to re-litigate anything that was the subject of proceedings before his Honour. Secondly, however, with the exception of Mr Blajer, none of the proposed recipients of the subpoenas has sworn an affidavit in the proceedings. Some of them are defendants. In the case of Mr Blajer, the plaintiffs forwent an opportunity to cross-examine him on a previous occasion and no good reason to permit them to resile from that decision has been demonstrated, even assuming the existence of a litigious context within which to do so. In the case of the remainder, again assuming the existence of an appropriate litigious context within which to do so, the plaintiffs have not, apart from the obvious reason in the case of the defendants, demonstrated why affidavits from these proposed witnesses in their case had not been obtained earlier or why, if it be the case, they are unprepared to provide affidavit evidence to the plaintiffs without subpoenas being issued. Why the plaintiffs should be given leave to cross-examine their own witnesses, two of whom are defendants, is a question that is itself beset with uncertainties.
34 At a step slightly removed from the detail of this debate, the plaintiffs' stated reasons for the need to issue subpoenas belie the existence of a more fundamental objective. To my observation, the plaintiffs appear to be engaged in constant and repetitive applications of all sorts and at all levels for no good reason, and certainly for no obvious reason, other than a need or desire to occupy the time of his Court for their own narcissistic purposes. The nature, extent and frequency of the plaintiffs' appearances in this matter, the significantly unmeritorious nature of their claims in nearly every case and the discursive, unstructured and undisciplined nature of their submissions combine, in my opinion, literally to constitute an abuse of this Court's process. In forming my views in this matter I have had regard to the lengthy written submissions and their annexures dated 9 October 2007 provided by the first plaintiff in accordance with directions given by me.
35 Ms Rees of counsel referred me to the decision of Markisic v Department of Community Services of New South Wales and Ors [2007] NSWCA 30. Ms Rees sought orders in or to the effect of those made by Bryson JA in that case. At pars [30] and [31], his Honour had this to say about the case before him and the conduct of that litigation by the first plaintiff in the present proceedings: -
"[30] The proceedings have involved superfluous complexities. Interlocutory applications have typically involved correction of procedural failures by the claimant. Involvement of the fourth, fifth, sixth, seventh and eighth opponents in the Court of Appeal proceedings can be seen with hindsight to have been altogether futile, and with the benefit of the reasons of the Court of 23 November 2006 it should be said that there never was any reasonable prospect of obtaining any remedies against them. Indeed, the reasons of Smart AJ also show this. The burden placed on each has been increased by the involvement of other superfluous respondents. Their involvement has increased the burden imposed on the second and third opponents, who are affected by the remedy which the claimant obtained on appeal, to the very limited extent of that remedy.