Markisic v Department of Community Services NSW & Ors

CATCHWORDS: Applications for leave to appeal - against refusal of leave to file amended statement of claim - some opponents not joined - necessity to adjourn - intention to further amend - costs orders to be made.

CASES CITED: Harrison v Schipp (2002) 54 NSWLR 738; Project 28 Pty Ltd v Barr [2005] NSWCA 240.

Dragan Markisic - Claimant Department of Community Services NSW - First Opponent PARTIES: State of New South Wales - Second Opponent Commonwealth of Australia - Third Opponent The Trustees of the Roman Catholic Church for the Archdiocese of Sydney- Fourth Opponent Qantas Airways Ltd - Fifth Opponent

Claimant in person Ms V Hartstein - First & Second Opponents COUNSEL: D P Robinson SC - Third Opponent A Kohn (Solicitor) - Fourth Opponent J Young - Fifth Opponent

I V Knight, Crown Solicitor - First & Second Opponents SOLICITORS: Australian Government Solicitor - Third Opponent Markinson & d'Apice - Fourth Opponent Blake Dawson Waldron - Fifth Opponent

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT MEDIUM NEUTRAL CITATION: Markisic v Dept of Community Services of New South Wales & Ors [2005] NSWSC 1373

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40739/05 SC 20698/00

GILES JA SANTOW JA IPP JA

Monday 1 May 2006 MARKISIC v DEPARTMENT OF COMMUNITY SERVICES NSW & ORS Judgment

1 GILES JA: These are one of a number of proceedings arising from events of 1998.

2 In that year the claimant brought his daughter Elena, born in May 1997, from Macedonia to Australia. An application for the return of the child was made to the Family Court of Australia by the Department of Community Services, at the request of the Government of Macedonia under the Hague Convention. On 17 August 1998 an order was made for her return. On 9 September 1998 an application by the claimant for review of the order was dismissed by Rowlands J. On 29 September 1998 an appeal to the Full Court of the Family Court was dismissed.

3 In the course of the appeal an order was made that a warrant issue to take the child into the Department's custody. Officers of the Australian Federal Police took possession of the child and gave her into the Department's custody, and she was placed for a time with a caring institution of the Roman Catholic Church. An application for a stay of the order for the return of the child dismissed by the High Court, and the child was returned to Macedonia.

4 In proceedings commenced in 2000 the claimant sought relief against a range of defendants involved in this brief summary of events, a summary which the claimant has made plain he disputes at least to the extent that, in his belief, the child was returned to Macedonia in the interval between the dismissal of the appeal to the Full Court of the Family Court and the hearing in the High Court. The defendants were effectively the State of New South Wales, the Commonwealth of Australia, the Roman Catholic Church and Qantas. Qantas was the airline on which the child was flown to Macedonia.

5 In 2001 the claimant's statement of claim was struck out, with liberty to apply for leave to file an amended statement of claim. In 2004 the claimant applied for leave, propounding an amended statement of claim in the form attached to an affidavit. The document also joined as additional defendants the barrister who had appeared in the Family Court and two of the Judges, Rowlands J and the Chief Justice. I will refer to these persons as the new opponents, for reasons which will become clear. The proposed amended statement of claim was drafted in a difficult manner, more than might normally have been expected even allowing for the fact that the claimant is conducting the proceedings unrepresented.

6 On 31 May 2005 Smart AJ refused leave to file the amended statement of claim, but did give limited liberty to apply to file an amended statement of claim as against the Commonwealth. It should be noted that the new opponents had not been given notice of the application made to his Honour. His Honour dealt with that in para 183 of his reasons, saying that there was no evidence of service upon them and that "the Court taking the view that there was no tenable or arguable cause of action against any of them and that in such circumstances, and for the avoidance of unnecessary costs, the better course was to dismiss the proceedings against them".

7 Having refused leave to file the amended statement of claim, with the limited exception to which I have referred, the Judge dismissed the claims against the defendants other than the third defendant and as against the new opponents.

8 The claimant applied for leave to appeal against the decision refusing leave. The Commonwealth applied for leave to appeal against the limited liberty to apply to file an amended statement of claim as against it.

9 The hearing of the applications was listed for today, to be on full submissions as so-called 'wrapped up' applications. Two matters gave rise to debate occupying the morning of the hearing. One was that the claimant had not joined or served the new opponents as parties to his application for leave to appeal. The other was that the claimant said that he intended to revise the proposed amended statement of claim. He said that he had discovered new facts, and that he intended to recast the proposed amended statement of claim by dropping the allegations of conspiracy and reframing causes of action with a focus on misfeasance in public office, interference with domestic relations, breach of statutory duty and what the claimant referred to in general terms as unlawfulness in the conduct of the various opponents. There had been eleven conspiracies alleged in the proposed amended statement of claim, together with a host of other claims at least some of them falling within the general nature of the purported causes of action I have just indicated. But the revised statement of claim would be a very different thing from the proposed amended statement of claim.

10 The debate in the morning included whether the applications could be heard as regards the opponents, other than the new opponents and if so whether the claimant would not persist in his application as regards the new opponents. Even if the claimant had not intended to revise the proposed amended statement of claim, in my opinion adjournment of the applications would have been necessary, whether or not the claimant persisted in his application as regards the new opponents. The entanglement of the claims against the new opponents, with the claims against the other opponents, even with a benevolent view of the difficulties in the way the proposed amended statement of claim was framed, is such that it would not in my opinion be practicable to proceed with the applications upon notionally excising the claims against the new opponents. In this I include proceeding with the application for leave to cross appeal, at first sight somewhat discrete but on closer examination in my view also entangled with all else in the unhappy proposed amended statement of claim. For this reason alone, an adjournment of the applications is necessary.

11 If there must be the adjournment, in my opinion it is appropriate to permit the claimant to put forward the revised statement of claim. That does not mean de facto appellate success in being able to re-plead as against all opponents, rather than the Commonwealth alone. Whether the claimant can rely on the revised statement of claim will remain for decision. The directions permitting this, however should be on terms, which the claimant indicated he accepted, that the revised statement of claim be accompanied by affidavit evidence showing that there are facts which probably can be proved which, if proved, would support the allegations in the revised statement of claim. The terms should be imposed because the history of the proceedings, and the nature of the proposed amended statement of claim, suggest that the allegations themselves begin against a background of improbability, and thus there is particular need to see, before exercising a power in favour of the claimant, that there is point in doing so.

12 The debate this morning was also about costs. The claimant must pay the costs thrown away by reason of the adjournment of the applications. The debate was particularly addressed to whether or not the claimant should be required to pay those costs before continuing his proceedings beyond the delivery of the revised statement of claim and its accompanying affidavit evidence. Particular attention was given to adjournment because the claimant intended to revise the amended statement of claim, and it was only at a rather later time in the course of the morning that attention returned to the question of adjournment because the claimant had not joined the new opponents. It seems to me that that casts a slightly different complexion on what should happen about costs, and that the opponents in particular have not had the opportunity to put submissions which address whether, an adjournment being necessary because of the failure to join the new opponents, that works to the advantage of the claimant when considering whether the order should include that the costs be paid forthwith and before continuing. I would wish to give the parties the brief opportunity, underlining the word brief, to put further submissions on that matter.

15 GILES JA: We have heard submissions on what the Court ought to do in giving effect to the previously indicated position that the claimant must pay the costs thrown away by reason of the adjournment of the applications.

16 In Project 28 Pty Limited v Barr (2005) NSWCA 240 it was said at [112] - "The adversarial system owes its form to its gradual and piecemeal development over centuries. The rules of the system have been produced by pragmatic reactions to a multiplicity of pressures over the centuries. They are interdependent and subtly influence each other. The system is effective by reason of its operation as a whole. One of its important features is the discipline imposed by the knowledge that an unsuccessful party is likely to be ordered to pay the costs of the successful party. This rule provides a bridle against lack of restraint in taking points that are hardly arguable or not arguable at all and against other possible excesses in the conduct of litigation. It provides a measure of protection to those involved in litigation and to the Court itself against unscrupulous attempts to manipulate the system. It provides an incentive to act carefully in a measured way."

17 The function of costs orders is no less important when it comes to considering a matter such as the present. On an adjournment because of the failure to join the new opponents, it cannot be ignored that the claimant announced his intention to revise the proposed amended statement of claim in the manner described in my earlier reasons.

18 Three questions arise in relation to the costs thrown away by reason of the adjournment of the applications. The first is whether the amount of the costs can be assessed in a gross sum, to avoid the expense to the opponents of an assessment when it is apparent that the costs of an assessment are unlikely to be recovered. The second is whether the costs, whether in a gross sum or not, should be ordered to be paid forthwith. The third is whether the future progress of the proceedings should be stayed until some or all of the costs have been paid.

19 As to the first of these matters, it appears to me that a proper exercise of discretion not only justifies, but calls for, the assessment by the Court of a gross sum if that can responsibly be arrived at. The matter was considered by myself in Harrison v Schipp (2002) 54 NSWLR 738. I am satisfied that the costs of each of the second, third, fourth and fifth opponents thrown away by reason of the adjournment of the applications would be no less than $3,000 each, that being a figure which was mentioned in the course of debate this morning, and that it is appropriate to fix the costs in that amount.

20 The second and third questions are related. The claimant asserts that he is impecunious, and that appears to have been accepted by the opponents present today. In the circumstances of this case I do not think it would be a proper exercise of discretion to order that the whole of the total sum of $12,000 be payable forthwith, or to condition future progress of the proceedings on its payment, because the proceedings are still at a rather tortuous pleading stage. Nonetheless, in recognition of the part played by costs orders as described in Project 28 Pty Limited v Barr, it seems to me that the Court should not do nothing, but should at least mark the necessity for acting "carefully in a measured way" by requiring payment forthwith of a sum which, while not stultifying the proceedings, will at least ensure that the claimant does not continue with the proceedings on the basis that, as an impecunious person, costs are not a factor in his consideration.

21 The appropriate sum can not be great, and I do not suggest that it is arrived at with a view to providing necessary compensation to the opponents. It is arrived at as a mark of the function costs play. In my opinion, it would be appropriate to order that $250 as to each of the opponents be paid forthwith, or better in the present case after an interval commensurate with the period within which the revised statement of claim is to be served; and further, to order that he proceedings be stayed until those sums have been paid.

22 The result is that I propose the following orders -

1. Adjourn the applications to the date for directions in order 7.
2. Grant leave to amend the applications by the joinder of the sixth, seventh and eighth opponents.
3. Direct that the claimant serve on the opponents within four weeks from today his revised statement of claim, accompanied by affidavit evidence showing that there are facts which probably can be proved which, if proved, would support the allegations in the revised statement of claim.
4. Order the claimant to pay the costs thrown away by reason of the adjournment.
5. Assess the costs at $3,000 in the case of each of the second, third, fourth and fifth opponents.
6. Order that of the aforesaid costs $250 in the case of each of the second, third, fourth and fifth opponents be paid within four weeks from today and that, subject to orders 2 and 3, the claimant's proceedings be stayed until those sums have been paid.
7. List the proceedings for directions before myself on 12 June 2006. 23 The purpose of order 7 is that the applications should be kept under close control by a judge of this Court.

25 IPP JA: The adjournment in this case was necessitated by the fault of the appellant; firstly, in failing to join three opponents; secondly, in consequence of his need to amend the statement of claim. He informed the Court that he wished to abandon the causes of action relating to conspiracy and make other changes as mentioned by Giles JA in his judgment delivered earlier. Costs will necessarily be thrown away in consequence of the adjournment. The appellant has had ample time to decide on how he wishes to proceed in the case. He had ample time within which he could have informed the other parties and the Court of his intention to amend the statement of claim and not to proceed with the appeal hearing today.

26 It is well recognized that where a decision relates to a discrete question such as an application to strike out proceedings, which was the subject of this appeal, the Court may order that costs or a specified amount on account of costs be payable forthwith.

27 Costs orders, in addition, serve an important purpose in litigation and I would refer to the remarks to which the presiding judge referred in Project 28 Pty Limited.

28 The appellant in this case is impecunious and says that if the full amount of costs has to be paid by him forthwith he would not be able to continue with the litigation. I accept that proposition which was not disputed by any of the opponents. Nevertheless, it does seem to me that the constraints that ordinarily flow from adverse costs orders have not been so far a fetter to the appellant in the litigation for the very reason that he is impecunious. It is undesirable for this to be allowed to continue.

29 I agree with Giles JA that the full amount of $12,000, being the total of the costs involved, should not be paid forthwith. It would be unjust, at this stage, to stifle the litigation by ordering the appellant to pay the $12,000 immediately. In saying this, I do not intend to make any comment on any further order that might be made in the future course of this litigation. I agree with Giles JA that it would be appropriate in the circumstances that, of the $12,000, $1,000 be paid by the date his Honour mentioned.

31 GILES JA: The orders proposed will therefore be the orders of the Court.

[Note: 12 June 2006 being a public holiday, the date was later changed to 13 June 2006.]

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