In each case costs were sought.
34 There was also before me an Amended Notice of Motion by the Commonwealth seeking that the proceedings be dismissed, that the Commonwealth have the costs of the Motion and costs thrown away by the Plaintiffs' failure to comply with court orders and an order that the Plaintiffs not be able to file further Motions without the leave of a judge or make any further oral applications in the proceedings without leave.
35 These Motions were heard over 8 days with the vast majority of the hearing time taken up with submissions and numerous oral applications by the Plaintiffs. The Plaintiffs were unrepresented and I permitted Mr Dragan Markisic to appear both on behalf of the Second Plaintiff (who I was told speaks very little English) and to assist his brother, the First Plaintiff. It was frequently difficult to persuade the Plaintiffs to focus on the issues that were to be determined on the Notices of Motion. At various times I was forced to impose time limits on the oral submissions and in that regard I bore in mind that the Plaintiffs had filed extensive written submissions in advance of the hearing.
Applications for disqualification
36 On 9 occasions the Plaintiffs interrupted the hearing to make applications that I disqualify myself on the grounds of bias or apprehended bias. These applications were frequently made after I had made a ruling on evidentiary or other matters contrary to the Plaintiffs' interests. On each occasion I declined to disqualify myself. I did so bearing in mind that the test was whether a fair minded lay observer with knowledge of the material objective facts might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the questions before me - see in this regard Webb v R (1994) 181 CLR 41 at 47, Livesey v NSW Bar Association (1983) 151 CLR 288 at 293-294, Wentworth v Wentworth (unreported- Santow J - 6 February 1998) and Ebner v Official Trustee in Bankruptcy [2000] HCA 6; (2000) 205 CLR 337.
37 The view I took was that the authorities established that I was not under a duty automatically to disqualify myself whenever requested to do so on the grounds of apprehended bias.
38 The Plaintiffs put forward various bases to suggest that I was actually biased in the matter. These included rulings which I had given that I would admit into evidence certain affidavits read by the Commonwealth and in particular the affidavit of Roshana Dilani Wikramanayake sworn 14 June 2001, and rulings that I would not permit cross-examination of the deponents of those affidavits.
39 The affidavit of Ms Wikramanayake featured prominently and repeatedly in the hearing before me. The Plaintiffs challenged its admissibility and challenged the truth and validity of documents annexed to the affidavit.
40 The Plaintiffs raised a number of issues about the admissibility of this affidavit. These were the hearsay nature of material annexed to the affidavit, the fact that the affidavit annexed an affidavit of Doreen Edith Muirhead, and that it was not shown Ms Wikramanayake had any personal knowledge of the events in question. I formed the view that the affidavit was admissible on the applications before me and I refer in that regard to the reasons that I gave in 2 interlocutory judgments during the course of the hearing on 22 October 2009 on the admissibility of a death certificate in relation to Doreen Edith Muirhead and on 26 October 2009 on the admissibility and use of Ms Wikramanayake's affidavit. I did not consider it was appropriate to permit Ms Wikramanayake to be cross-examined when her affidavit, in substance, entirely consisted of annexures and was sworn as a matter of formality so that those annexures would be before the Court. Although originally used on the Commonwealth's application for summary dismissal before Master Harrison, the material in it had clear relevance to what was raised by the Plaintiffs in their various Motions.
41 The Plaintiffs also asked me to disqualify myself on the basis that I invited the Commonwealth to put the affidavit of Ms Wikramanayake into evidence. A perusal of the transcript shows that Mr Robinson of Senior Counsel who appeared for the Commonwealth sought to tender the affidavit of Ms Wikramanayake a considerable time before I expressed my opinion that the affidavit should be formally read. This was in accordance with a view that I held and still hold that, ordinarily, affidavits should be read whether in final or interlocutory proceedings rather than being tendered as exhibits.
42 A further basis for asking me to disqualify myself was that I was a personal friend of another Judge of this Court who had heard 2 interlocutory matters in related proceedings brought by Dragan Markisic. The allegations arising from this sufficiently appear from the transcript. It is sufficient to say that the assertions made have no basis and are untrue. For that reason I declined to disqualify myself on the basis put forward.
The issues on the Notices of Motion
43 The Plaintiffs were really trying to achieve two things by the hearing of these Motions. First, they were endeavouring to avoid a trial on liability on the basis that the Commonwealth did not show any answer to their claim that the taking of the child was wrongful. Secondly, the Plaintiffs wanted to be allowed to substitute their new view of what transpired, particularly their view that the AFP were no longer involved in the taking of the child, thereby enabling them to claim the punitive damages that s 64B would otherwise preclude. Although it was not articulated by the Plaintiffs it appeared to be their view that if they were entitled to some sort of default or summary judgment and they were entitled to proceed with the pleading rejected by Registrar Bradford, there would not be any further right given to the Commonwealth to put on a defence to the new claim. The way the Motions were conducted suggested that the Plaintiffs' view was that the Commonwealth had no defence to the claim they made however it was formulated and pleaded.
44 It seems clear from the pleading contained in the original Statement of Claim and the Amended Statement of Claim that the Plaintiffs originally accepted that the Director-General commenced proceedings in the Family Court pursuant to obligations under the Hague Convention, that orders were made by the Family Court (although it can be accepted that the Plaintiffs considered that the orders were unjust and should not have been made), that a warrant was forwarded to the AFP pursuant to the orders of the Court and that the AFP took the child pursuant to the Family Court orders and delivered the child to the care of the Department of Community Services at Hurstville.
45 The first defence filed by the Commonwealth, once Bell J had determined that some of the causes of action were arguable, was that the Commonwealth was justified in acting the way it did through the medium of the AFP by reason of the Family Court orders that were made. The contentious affidavit of Roshana Wikramanayake sworn 14 June 2001 was (as I have said) sworn and served in support of the Commonwealth's Motion to strike out the claim that was initially heard by Master Harrison and subsequently on appeal by Bell J. Master Harrison summarises in her judgment the material that is to be found annexed to Ms Wikramanayake's affidavit and which I have summarised briefly at the outset of this judgment.
46 However, the position has now changed. First, the Plaintiffs do not accept that the Director-General made an application. In this regard, they point to the fact that annexure "C" to Ms Muirhead's affidavit (itself an annexure to Ms Wikramanayake's affidavit) is said to be Form 16 under the Family Court forms. Despite the fact that this document is headed "Application", and, on its face and by reason of its annexing documents, appears to be an application by the Director-General, the Plaintiffs say that Form 16 in the Family Court forms is the form for an affidavit, and that this shows no application was ever made.
47 In the alternative (it appears) they say that an application was made but the proceedings were fraudulent and were instituted for an improper purpose (see paras 8, 10 and 11 of the Further Further Amended Statement of Claim set out in para 22 above).
48 Further, their case now is certainly that all of the orders and judgments of the Family Court were fabricated and that, therefore, whoever it was that took the child had no power to do so. They do not accept that anything is proved by the seals of the Family Court on the documents nor the signatures of apparently authorised persons, maintaining that, in the face of the evidence of Dragan Markisic, s 157 Evidence Act 1995 does not assist the Commonwealth in relation to the copies of the documents.
49 Section 157 Evidence Act provides:
Evidence of a public document that is a judgment, act or other process of an Australian court or a foreign court, or that is a document lodged with an Australian court or a foreign court, may be adduced by producing a document that purports to be a copy of the public document and that:
(a) is proved to be an examined copy; or
(b) purports to be sealed with the seal of that court; or
(c) purports to be signed by a judge, magistrate, registrar or other proper officer of that court. (emphasis added)
50 The evidence of Dragan Markisic is that he was present at every hearing before Judicial Registrar Johnston, at the hearing before Rowlands J and at the hearing before the Full Court of the Family Court. He says he was assisted by his brother Oliver. In relation to each judicial officer or body he says:
I'm not aware, I did not hear and I did not see, that Judicial Registrar Johnston [Rowlands J, the Full Court] made any judgment and orders and there was no pronouncement of any judgment and orders by him at any of the above hearings.
51 In the face of copies of judgments and orders of the Family Court apparently signed and sealed and apparently regular on their face, it cannot be said (at least at any interlocutory hearing such as I was determining) that there was no arguable case that judgments and orders were made by the Family Court.
52 More particularly, as I have said, the Plaintiffs now assert that these persons were not members of the AFP and, as the Plaintiffs made perfectly clear in their submissions, the result of that is that they are entitled (they say) to punitive damages against the Commonwealth which would be otherwise denied to them.
53 This belief that the AFP were not involved, as the Plaintiffs had first thought, appears to come from some discussion that Dragan and Oliver Markisic had with a Mr Christopher Noble who had been employed by the AFP at some time prior to that discussion. The explanation is set out in the affidavit of Dragan Markisic filed 2 October 2009 and derives from the fact that Mr Noble, in the discussion, said that he did not know anything about the events involving Dragan Markisic's daughter and that he was not involved in the case at all although Dragan Markisic said that he found Mr Noble's business card at his home. It seems also to be related to the fact that the persons who took the child from the house were not dressed as police officers, were not driving cars marked as police cars and had no interpreter to converse with the Second Plaintiff.
54 It was difficult to ascertain clearly from the Plaintiffs when the change in their beliefs about what happened in the matter came about and what was the cause or causes for the changes in those beliefs. It was not apparent that any event had taken place that provided the evidentiary basis for the new beliefs about the events and the new formulation of the claim except, possibly, the discussion with Christopher Noble. It is not made clear precisely when this discussion was but it was said to have been sometime in 2007 when a subpoena was apparently issued to Mr Noble and the Plaintiffs were endeavouring to serve it on him.
55 It was difficult not to form the view that the beliefs of the Plaintiffs, which brought about their desire to reformulate the claim and to take the course they did over the hearing of these Notices of Motion, were attended with some irrationality and paranoia. Copies of judgments and orders of the Family Court, regular on their face, and apparently signed and sealed in accordance with the procedures of the Court were said to be fabricated and concocted despite, as I have said, the Plaintiffs' earlier acceptance that those judgments and orders were issued. A death certificate tendered to say that Doreen Muirhead was deceased was challenged as being a fabricated document, partly on the basis that the Plaintiffs had a view that death certificates issued by the relevant authority should appear in a different form from the one that was tendered. Doubt was expressed that Doreen Muirhead was dead (at one stage one of the Plaintiffs suggested her body needed to be viewed to be sure). It was also suggested that if she was dead her affidavit was sworn by someone else after her decease.
56 Indeed, the whole of the pleading in the Further Further Amended Statement of Claim that suggested a scheme by paedophiles and predators to get orders from the Family Court and abduct the child rather demonstrated the irrationality which surrounded the whole of the Plaintiffs' claim.
57 In my view, at least for the purposes of the interlocutory applications that I was determining, but probably also at a final hearing of the matter, the copies of the various judgments and orders of the Family Court annexed to the affidavit of Ms Wikramanayake and otherwise tendered in the Commonwealth bundle of documents, satisfied s 157. My task, particularly in relation to summary judgment (as I frequently reminded the Plaintiffs), was not to determine whether those documents should be preferred over the evidence of Mr Dragan Markisic that cast doubts on those orders. There was, without any doubt, evidentiary support for the Commonwealth's defence that the child was taken pursuant to orders of the Court.
58 There is a small side issue about the warrant. Investigations seem to have shown that in fact there was no warrant issued pursuant to the orders of the Family Court that the Commonwealth maintains provided the authority for the actions of the AFP. This position was recognised by the time the matter was before Bell J. The Commonwealth appears to accept that there was no warrant but maintains, nevertheless, that the actions of the AFP were justified in law by reason of the orders of the Family Court. The absence of a warrant did not appear to be of any significance in the hearing before me, even in the approach taken by the Plaintiffs.
59 The issue of the material in Ms Wikramanayake's affidavit was not a matter that only affected the question of summary judgment. The Plaintiffs made it clear that one principal reason they wanted to set aside the order of Master Harrison was that she recited the factual material contained in Ms Wikramanayake's affidavit, and in a similar way Bell J relied on those facts in coming to the views she did about the matter. Similarly, the Court of Appeal, when considering Dragan Markisic's appeal from Smart AJ, used those facts on which to base their decision. It was that Court of Appeal judgment that the Plaintiffs wanted to challenge and in respect of which they sought to remit the present proceedings.
60 Whilstever the material contained in Ms Wikramanayake's affidavit remained before the Court for consideration, the Plaintiffs were not able to achieve the purposes they set out to achieve in bringing the various Notices of Motion and ultimately the proceedings. It was also for that reason that there were such vociferous and prolonged challenges to Ms Wikramanayake (and for that matter Doreen Muirhead) as deponents of the affidavits that identified that material, and to Vicky Kanellopoulos who swore the affidavit verifying the defence.
61 Again and again through the course of the 8 days of hearing the Plaintiffs returned to Ms Wikramanayake's affidavit and the material annexed to it. There was also no doubt that it was my acceptance of that affidavit and rejection of the various arguments put by the Plaintiffs against the material contained in it that led to the frequent applications to me to disqualify myself on the grounds of actual or apprehended bias.
62 It is in the light of that discussion that I turn to consider each of the orders sought in the various Notices of Motion.
(1) Default judgment against the Commonwealth