Markisic v Department of Community Services & Ors [2005] NSWSC 1374 | Case summary

(3) Further orders as required. 2. The object of the reconsideration was that I should allow the plaintiff to file his proposed amended statement of claim, or at least an amended statement of claim, in wider terms than envisaged by the orders foreshadowed on 31 May 2005. The notice of motion was made returnable by the Registry on 1 July 2005 but I directed that it be returnable on 16 June 2005. This was the day to which the proceedings had been adjourned on 31 May 2005 when I delivered judgment in this matter and the related matter of Oliver Markisic v The Commonwealth. I pointed out to Mr Dragan Markisic that he must have known the particulars of bias on which he wished to rely when he filed his notice of motion. 3. On 16 June 2005 Mr Dragan Markisic sought an adjournment of his motion so he could better prepare his case. This was opposed by the respondent defendants. They wished to avoid further costs and wanted finality. It was submitted that if he was dissatisfied with the judgment delivered he could seek leave to appeal, or appeal as the case may be, and this was his correct remedy. 4. Mr Dragan Markisic also sought that the hearing of this motion should be deferred pending further proceedings which he had instituted. 5. This morning the plaintiff drew my attention to a motion he filed on 20th of June 2005 seeking that a number of individuals and bodies show cause why they should be should not be dealt with for contempt. That motion is returnable on 12 July 2005. That motion involves some twelve respondents being various individuals connected in some way with the proceedings and various bodies. 6. I rejected the suggestion that I should adjourn this hearing and giving judgment until the proceedings for contempt were concluded. I heard Mr Dragan Markisic in support of his application on 16 of June 2005 for about two and a half hours and for just over three hours today, including submissions from Mr Oliver Markisic at the request of Mr Dragan Markisic. 7. In his submissions Mr Dragan Markisic alleged actual and apprehended bias and he referred me to Johnson v Johnson (2000)HCA 48, which I have kept at the forefront of my mind. He said that on reading the judgment of 31 May 2005 he had formed the view that I was not familiar with the Family Law (Child Abduction Convention) Regulation (1986) and Schedule 1 Article 7. Mr Markisic contended that paragraph 6 of my judgment exhibited bias. He pointed to the statement: "...to ensure that a child who was brought to Australia was returned to Macedonia and to her mother." 8. He submitted that where the Hague convention was concerned it dealt with the transfer of a child from one country to another and not with the transferring of a child from one parent to another. Because of the orders of the Macedonian court the child would, as an interim measure pending a final order in Macedonia be placed in the mother's care. Mr Markisic's objection is not soundly based having regard to the facts of this matter. Mr Markisic complained that I had formed an adverse moral view of what he had done and that this had influenced me and that I had not kept to the proper province of administering the law. 9. Mr Markisic emphasized that he was the biological father of the child, Elena, that he had custody of the child, and that in bringing the child to Australia he was not in breach of any order or law; he was an Australian citizen and the child was on an Australian passport. He said that he and his family had been affected by wars in areas of the former Yugoslavia and he did not want his family to be affected by those wars. 10. I have concentrated on administering the law and Mr Markisic's complaint is, in my opinion, not justified. 11. Mr Markisic complains that paragraph 7 of the judgment showed him in a bad light and that I had not mentioned facts justifying the course he had taken. He conceded that he had taken the child from Macedonia on 12 April 1998 and brought her to Australia. Mr Markisic stated that the matters stated in paragraph 7 were not the true issues and were put deliberately to prejudice him and to show him as an immoral person. Paragraph 7 sets out part of the history of the matter which helps to explain the course taken in the proceedings. There is a typographical error, and "2998" should read "1998". 12. Mr Markisic submitted the evidence did not sufficiently support the matters stated in paragraphs 9 to 11 of the judgment. I disagree. 13. Mr Markisic submitted that I was biased because I am an acting judge and do not like proceedings being taken against judges. I disagree that I am biased. All proceedings, however, should be properly based. 14. Mr Markisic contended that the evidence did not sufficiently support the matters stated in paragraph 12. He challenged that the child's mother ever came to Australia. 15. There was evidence in the affidavit of Doreen Muirhead which would support the inference that the child's mother had come to Australia to take the child back to Macedonia. Mr Markisic contended that the Court should not have acted on the affidavit of Doreen Muirhead, but I disagree. This was an interlocutory application and it was appropriate for the Court to mention that as part of the historical introduction. 16. Mr Markisic submitted that the matters in paragraph 12 should have been left to be determined at the trial. I have just given a thumbnail sketch of the proceedings taken and the materials which existed as to what happened after the High Court refused to grant a stay. 17. At the request of Mr Dragan Markisic his brother, Mr Oliver Markisic, submitted that I had formed an adverse view of Mr Dragan Markisic and his conduct and a favorable view of the defendants, their servants and agents and their conduct and that I was biased. It was contended that the moral justification of the defendants allegedly undertaken by me had transferred into a legal justification by me. I disagree with both propositions. 18. Mr Oliver Markisic submitted that I did not like the idea of federal judges being put on trial and that this had led me to being biased and that I had disregarded the evidence led and that I did not apply the correct test as set out in the High Court decision of General Steel (112 CLR 125). 19. My task was to decide whether the plaintiff should be given leave to file the proposed amended statement of claim. Leave is not granted where it would be futile to do so. 20. Mr Oliver Markisic also contended that I had given inadequate reasons for the conclusions reached. I do not agree with that submission. 21. Mr Dragan Markisic contended that the order of addresses adopted during the hearing of his application to file the proposed amended statement of claim evinced bias on my part. During the extended hearing which the parties reminded me took some three days, Mr Markisic was given adequate opportunity to put his case and I reject the allegation of bias on that account. 22. Mr Markisic complained that I had not included all his causes of action in paragraph 13 of the judgment; I had omitted to mention some of the torts on which he relied due to bias. Mr Markisic complained that I had not dealt with the non-compliance with some of the provisions of the regulations. It was not necessary to do so. M 23. Mr Markisic complained that as to paragraph 20 of the judgment matters had been stated as facts and that such matters should have been left to the trial and that sufficient reasons had not been given. It is common knowledge that the Crown Solicitor's office acts on behalf of government departments, including DOCS, when it is involved in litigating matters in the Family Court. A client is entitled to forward documents to his, her or its solicitor. 24. Mr Markisic complained that the judgment did not mention that he had lawful rights of custody over the child. He submitted that there was a conspiracy to damage his custodial rights, that the conspiracy damaged him physically and psychologically with the result that his business and his finances were damaged. 25. I remain of the view that the tort of conspiracy has the limits mentioned in my judgment of 31 May 2005. 26. As to the latter part of paragraph 23, Mr Markisic complained that the evidence did not justify the matters stated. 27. This Court has extensive experience of opposing parties contacting the Legal Aid Commission offices by telephone or letter and urging that Legal Aid should not be granted, or revoked for stated reasons. I adhere to the penultimate and last sentences of paragraph 23. The sentence "Legal Aid is not usually granted for proceeding of that kind" is unnecessary, and as it was challenged it is withdrawn. 28. The plaintiff submitted that his allegations should be left to be resolved at the trial. It is not unlawful for an opposing party to make representations to the Legal Aid Commission for the refusal or revocation of Legal Aid. Accordingly there is no issue to be left in this regard. 29. As to paragraph 24 of the judgment, Mr Markisic submitted he was entitled to complain about and sue Ms R Flohm; she was a barrister at the time and did not enjoy judicial immunity. 30. The complaint goes to the integrity of the Family Court proceedings, and if true should have been raised with the judicial registrar or primary judge who presided so it could be dealt with. The Family Court has jurisdiction to ensure that its proceedings are not corrupted by wrongful action taken outside the formal sitting of the Court but within its precincts. A party complaining of the conduct here alleged cannot just sit by and take no action when a judicial registrar or a judge is sitting. 31. As to paragraphs 25 to 27 of the judgment, Mr Markisic submitted that the conclusion reached was erroneous. The participants in the conspiracy are mentioned in the alternative. There is nothing wrong with a solicitor asking for an expert report from the Ambassador or an officer of the Australian Embassy in Belgrade for a report on the political and military situation in Macedonia and forwarding the report to Australia so that it can be placed before the Family Court. Mr Markisic insisted that the report was incorrect as subsequent events showed. That does not mean that an action lies against the Commonwealth and those requesting the report. It was for the Family Court to determine whether the report was admissible and to decide upon any challenge to its admissibility. A party cannot abstain from challenging admissibility or complain of a ruling which a court subsequently gives, except on appeal. It was of course a matter for the Family Court to decide what weight should be attached to the report of the officer of the Australian Embassy in Belgrade. 32. It is one matter to be mistaken as to what may happen in the future and another to lie. The plaintiff contended that if a tort were committed this Court had jurisdiction and could award damages and that the Family Court had no jurisdiction. However the admissibility and use of this report was primarily a matter for the Family Court and this Court does not review what that Court did. 33. As to paragraphs 28 and 29 of the judgment it was the Full Court of the Family Court which made the order placing the child in the care of the Director General as a result of an assessment it made of the history of the matter and the course of the proceedings before it. It was not objectionable for the Director General and her officers to make arrangements for the care of the child by Centacare in the event of the Court making an order placing the child under the care of the Director General. 34. Mr Markisic submitted that only one application could be made by the Director General (or the State Central Authority) in respect of the child. This overlooks that the application made to the Full Court of the Family Court during the hearing of the appeal was for an interim order and not a final order. 35. Mr Markisic submitted that this matter should have gone to trial. I disagree. The construction of the relevant legal provisions can be, and should be assessed now when they are tolerably clear. It is part of the exercise of determining whether it would be futile to grant leave to file and propound the proposed amended statement of claim. 36. As to paragraphs 30 and 31 of the judgment, the plaintiff submitted that the Family Court is not the proper forum for these claims as it has no jurisdiction. The plaintiff pointed out that he was suing in tort; it was not for the two district officers to determine, either directly or indirectly, what should happen in the proceedings. The fact that those handling the Hague Convention proceedings felt constrained to take a different view does not give rise to an action in tort. 37. As to paragraph 32 of the judgment, the plaintiff emphasized that he wished to sue Justice Rowlands for tort in respect of his conduct out of court and obtain damages. These serious allegations lack particularity. The alleged misconduct conduct should have been raised with both Rowlands J and on appeal to the Full Court. Misconduct of the kind alleged, if established, could have led to a rehearing or the Full Court investigating and considering the matter even more closely. A party is not simply allowed to stand by. 38. As to paragraph 35 of the judgment, the plaintiff complained that the Director General was not entitled to refuse to see him, and he referred to clause 7(b) of the Regulation. That provision does not mean that the Director General was bound to see the plaintiff. There appears to have been frequent contact between the plaintiffs and the officers of DOCS. 39. As to paragraphs 36 of the judgment the plaintiff, after referring to clause 5(2) and (3) of the Regulation contended that the Full Court was not entitled to abridge any of his rights and list the appeal at an early date, rather than in the usual course giving him the time allowed by the Family Court Rules. 40. I disagree. The court is entitled to maintain control of the proceedings and decide what is appropriate. The court is entitled in the conduct of litigious matters to vary the provisions of the rules in relation to their application to a particular case. 41. As to paragraph 37 of the judgment the plaintiff submitted that the various allegations struck out as scandalous should not have been struck out. He relied on the decisions of Justice Sperling and Justice Dunford in previous criminal proceedings which he brought against Chief Justice Nicholson of the Family Court. 42. The plaintiff submitted that it was not scandalous to make grave allegations of misconduct against judges and other people of standing in the community. At the present time these allegations lack sufficient particularity. Actions taken by a judge either in court or out of court as to fixing hearing dates of appeals or applications fall within judicial immunity. 43. As to paragraph 39 of the judgment, the plaintiff complained that I failed to mention that on 30 July 1998 he applied under part 7 of the Family Law Act for the final custody of the child. Reliance was placed on s 65Z of the Act. The plaintiff complained that the proposed defendants had deprived him of a final custody order. He referred to clause 6(1) of the Family Law (Child Abduction Convention) Regulation. He submitted that the child could not be taken out of the jurisdiction where there was an application under part 7 for a final custody order and the pending special leave application to the High Court. The Family Court was entitled to stay any application for a final custody order pending the resolution of the Hague Convention application. Once the High Court refused to grant a stay of the orders of the Family Court there was no impediment to the return of the child to Macedonia. Justice Gaudron refused to grant a stay on the basis that there was a no appellable error on the part of the Family Court. The plaintiff insisted that he was entitled to sue anyone for damages who was involved in the process and proceedings that led to the taking of his child and her return to Macedonia. I do not agree. Before the plaintiff can sue a person that person must have committed an actionable wrong. 44. The plaintiff complained that on 29 September 1998, everyone knew in advance what was going to happen except him and his brother Olivier. He was not allowed to go to the High Court. He stated that the premises of the Australian Federal Police were close to the Family Court and that police officers were waiting to take the child. These submissions overlook that in the view of the Full Court of the Family Court it was the plaintiff's conduct in the court that day and the history of the matter which ultimately led to the Family Court making its orders placing the child in the care of the Director General. 45. As to paragraphs 43, 45 and 46 of the judgment, the plaintiff complained that these exhibited bias on my part against him. The other judges of the Full Court who agreed with Nicholson CJ were, according to the plaintiff, either under the Chief Justice's influence or involved in a conspiracy to deprive the plaintiff of his child and return her to Macedonia. It is not permissible to reason that because the other judges of the Full Court agreed with Nicholson CJ that they did not make up their own minds independently or were involved in the alleged conspiracy. The other judges were entitled to have regard to the reasons of the Chief Justice and if they agreed with them, to say so. 46. As to par 52 of the judgment, the plaintiff objected to the last sentence. The plaintiff complained that the judgment did not refer to Qantas bringing his wife to Australia and to Qantas helping government officials who unlawfully deported his daughter. The plaintiff reiterated his submission that it was his belief that his ex wife never came to Australia. 47. As to paragraph 55 of the judgment, which refers to the defects as to form in the proposed amended statement of claim, the plaintiff submitted that the defendant understood perfectly the plaintiff's position (and case). The plaintiff referred to the judgment of Mr Justice James in his brothers' proceedings allowing certain pleadings to stand. The plaintiff complained that I had not followed the judgment of Mr Justice James and the underlying logic of that judgment. Mr Justice James was dealing with a very different statement of claim part of which had already been struck out and His Honour elicited from Mr Olivier Markisic that he was not seeking to go beyond par 43 of the judgment of Justice Bell. The proposed amended statement of claim with which I am dealing is a more complex document and I have to deal with it as it stands. I do not think that the plaintiff's submissions on these points overcome the difficulties which I have set out briefly in paragraph 55 of the judgment. 48. The plaintiff contended that par 59 was prejudicial for him and wrongly stated the law. The plaintiff complained that this paragraph of my judgment evinced a misunderstanding of the Hague convention. He submitted that if there was no great urgency to deal with the applications in the Family Court then the Regulation does not permit a court to take away any rights which he had. 49. I have already indicated my view, that the court is entitled to control the proceedings and abridge times where it thinks that is appropriate and fix hearing dates. I disagree with the submission that it was impermissible to state that a serious view is taken of those who move children to countries against the wishes of the parent having defacto custody. Mr Markisic contended that his wife would not have had custody as at 12 April 1998. He contended that the object of the Convention was to prevent harmful effects to children and that the Convention was designed to restore the circumstances which existed before the removal occurred. It is trite that in a Hague Convention application, the courts of the country to which the child is returned have to determine questions of custody and access and they are not concluded by Hague Convention proceedings. 50. The plaintiff contends that in the Family Court proceedings, various officers abused their powers and acted beyond their powers with the intention of punishing him and destroying him. He claimed that he was threatened abused and blackmailed and that the child was abused. If this took place during the course of the proceedings in the Family Court, then again, they are matters that should have been raised with the Family Court and not allowed to pass. 51. As to paragraph 60, the plaintiff complained that these were findings which should have been left to the trial and that they would result in injustice to him. I do not agree. The plaintiff complained that I did not look sufficiently at the relevant law and that I should have referred to and dealt with the Family Law (Child Abduction Convention) Regulation in considerably more detail and also the Family Law Act and the rules. I do not agree. 52. As mentioned, Mr Markisic complained that Justice Rowlands and Chief Justice Nicholson had acted unlawfully outside the courtroom. He submitted that the plaintiff can attack what was done by way of administrative procedures if mistakes were made and wrongs were committed. In my opinion, judicial immunity covers incidental matters including fixing hearing dates. Those are matters over which the Family Court has jurisdiction. 53. Mr Markisic submitted that the Commonwealth was the party to the proceedings in the Family Court. I do not agree. As to par 61 of the judgment, the plaintiff complained that I did not take into account some issues which were never resolved in the Family Court. He objected in particular to the sentence: "The multitude of complaints the plaintiff raised in the conspiracy counts ... were resolved by the proceedings in the Family Court." There were complaints and it is apparent now that that there are more complaints. It is sufficient if the complaints or issues could have been raised and determined in the Family Court proceedings and they were not. Again, I emphasise that a party is not allowed to stand by and let matters go. 54. Many of the issues that have been raised go to the roots of the Family Law proceedings. For example, the plaintiff pointed out that the Family Court had never dealt with complaints of unlawful delegation. They were not raised before that court apparently and that court would have dealt with them if they had been because of their importance as they went to the basis of the jurisdiction which they exercised. 55. There was also a complaint that the Family Court had not dealt with the false evidence of an officer of the Australian Embassy in Belgrade. I have earlier dealt with that matter. The plaintiff submitted that in the Family Court the only issue was whether he had committed a breach of Regulation 3 of the Hague Convention Regulation. That is incorrect in that other issues that fell within the jurisdiction of the Family Court and related to the proceedings before the Family Court should have been raised and, if raised, dealt with by that Court. They should not be put to one side. 56. The plaintiff submits that paras 62 to 66 of the judgment evinced an incorrect appreciation of the true issues in that the Family Court did not deal with torts and damages. I am unable to agree with the plaintiff's view as to the limits of the Family Court proceedings. The plaintiff referred to the orders made by Justice Rowlands on 9 September 1998 and in particular to orders 2 and 5. Order 2 was to the effect that the child Elena be returned to Macedonia forthwith in the company of such persons or upon such conditions as the court deems necessary pursuant to the provisions of the Hague Convention on the civil aspect of international child abduction. 57. The plaintiff contended that this was an interlocutory order and that submission was underlined by reference to paragraph 5 where Justice Rowlands ordered that leave be granted to both parties to relist those proceedings on 24 hours notice in relation to the implementation of the orders. The plaintiff complains that that was an interlocutory order and that a final order had yet to be made. 58. The Full Court on 29 September 1998 made both interlocutory and final orders in relation to the care of the child pending the child being returned to Macedonia. The interim orders which placed the child in the care of the Director General of the Department of Community Services was made pending the resolution of the appeal: The final order was made when the court delivered its judgment on the merits of the appeal. 59. The final order of the Full Court dismissed the appeal and ordered that the child remain in the care of the Director General pending her return to the former Yugoslav republic of Macedonia. A stay, for a short period was granted of those orders to enable an application to be made to the High Court. From my judgment of 31 May 2005, it appears that a warrant was never issued and that only the orders of the Full Court were taken out. However, once the child was delivered into the care of the Director General, the remainder of the Family Court's orders came into operation. That happened when the child was delivered in accordance with the court's orders to the Manager, Mr Tim McDonald, at the Hurstville office of DOCS. 60. The plaintiff complained that he had a right to be heard as to order number 2 of Mr Justice Rowlands and also that his ability to challenge any orders that had been made by Mr Justice Rowlands had been pre-empted. The plaintiff insisted that it was open to him to challenge the actions of the defendants and the various officials and that he was not given a chance to challenge the orders and actions of the defendants and officials and that it was open to him now to challenge the lawfulness of the removal of the child and the execution of interlocutory and final orders. 61. The plaintiff contended that the defendants were not entitled to remove the child from Australia pursuant to interlocutory orders. The orders of the Full Court of the Family Court confirm those of Mr Justice Rowlands which were not interlocutory orders. As I have indicated in my judgment the orders of the Full Court combined with those of Mr Justice Rowlands superseded any of the orders that had been previously made. 62. The plaintiff complained that Mr Justice Kay in the Full Court of the Family Court took a sentence out of context. The plaintiff read to me a paragraph from an affidavit which had been filed in those proceedings. I proceeded on the basis of what appeared in Mr Justice Kay's judgment when I wrote paragraph 68. 63. The plaintiff mounted a major attack upon Centacare and complained that I had acted upon the submissions of counsel for Centacare. Those submissions encapsulated what can be deduced from the materials before the court. The Plaintiff's argument proceeded as follows: The Australian Federal Police took the child unlawfully and delivered it to the DOCS officer at Hurstville Mr Tim McDonald. Mr McDonald, it would seem, took the child on the basis of a valid warrant and placed the child with Centacare for fostering. If the child was taken unlawfully it was unlawfully delivered and accepted by Mr McDonald. Mr McDonald in delivering the child or causing the child to be delivered to Centacare acted unlawfully because of the unlawful delivery of the child to him and Centacare acted unlawfully, in accepting the child when the warrant was unlawful and the fostering of the child was unlawful, because of the unlawful warrant. The plaintiff's argument was that all these steps were unlawful, and that I should have taken the view, that every single step after the AFP officers took the child was unlawful. It was submitted that this logic, should be followed for every single step and applied to QANTAS. The plaintiff complained that the child was falsely imprisoned by Centacare and subsequently in Qantas' plane. 64. As a matter of law I do not accept that, having regard to the terms of the order of the Full Court of the Family Court, that every subsequent step after the AFP officers took the child was unlawful. There is evidence that a warrant was not issued and a substantial argument that the initial taking and removal of the child was unlawful but thereafter the materials point to the fact that the child was in the care of the Director General, who is entitled to discharge her responsibilities by causing the child to be placed with an appropriate agency and appropriately fostered. I do not agree that these issues should have been left to the trial when the plaintiff is seeking leave to file a proposed amended statement of claim. 65. The plaintiff submitted that he suffered substantial damage on hearing of the unlawful seizing of his child and contended that thereafter the child was falsely imprisoned and also neglected. He said this affected him both physically and psychologically and he claimed damages as against Centacare. All these matters, he said, should be left to the trial. 66. There were other submissions to the effect that the defendants had presented false and misleading statements and facts to the Court and he instanced as an illustration of that his belief that his ex-wife had never come to Australia. 67. The plaintiff submitted that it was for the trial to establish the extent of suffering of the child while in the control of Centacare and he complained that he was not aware of the law which allowed the officers of the Department to give any instructions as to his daughter and himself. The plaintiff asserted that his daughter's suffering caused him nervous shock. He also complained that during the course of speaking with officers of the Department he was subjected to blackmail in that he was told that if he abandoned his High Court application he would obtain better access. He said there was some mention of him and his daughter going to a detention centre. 68. The plaintiff submitted that he has a right to claim damages for all unlawful conduct. Not every unlawful act gives rise to a claim for damages but many do. The plaintiff complained that the officers of the Departments had not respected his common law and statutory rights. He insisted that his child was a client of both the Department and Centacare and that he was also a client via the child. 69. He complained that he had been penalised because he had resisted the government moves in 1998 to take his child. The plaintiff complained that paragraph 89 of the judgment was prejudicial. That is essentially a summary of the submissions which were made to the Court on behalf of Qantas. 70. The plaintiff submitted that in paragraph 92 of my judgment I was correct in saying that there was a rolled up allegation. The plaintiff submitted that was intentional otherwise the proposed amended statement of claim would be excessively long and possibly held to be prolix. The plaintiff contended that, rather than taking the course I had taken, he should have been invited to plead in what he described as an unrolled-up form. He insisted that his case was very understandable and that all issues were understood by the defendants. I was again reminded of the judgment of Mr Justice James in the case of Oliver Markisic. The plaintiff submitted that Qantas had an obligation not to take the child out of the jurisdiction in the circumstances which prevailed including the legislation which applied. The plaintiff contended that these matters should be left to a trial. 71. The jury will be asked to decide issues of fact. The various legal issues will have to be decided by a judge, and it looks as though there will be considerable complications. 72. The plaintiff contended that Qantas had in fact abducted his daughter because it was acting unlawfully in that his daughter had never lawfully been removed from his control and the control of his mother who was looking after the child on his behalf. 73. The plaintiff contended that Qantas assisted in the unlawful removal of the child and that this was designed to defeat his rights. He also complained of the AFP changing the terms of its "Alert" records and removing the prohibition on his daughter being removed from Australia, but that followed the superseding order of the Family Court. 74. In all the circumstances I have come to the conclusion that I should not reconsider the substance of the orders proposed in my judgment of 31 May 2005. I reject the allegation of bias. I have not overlooked the allegation of the fraud of defendants but I have pointed out the situation which existed and what should have been done in relation to the Family Court and the objections that should have there been taken. 75. I dismiss the applicant's motion of 14 June 2005 seeking reconsideration and disqualification. I make the orders numbered 1, 2 and 3 of paragraph 182 of my judgment of 31 May 2005. 76. HARTSEIN: Mr Robinson has asked me to make an application on his behalf in relation to paragraph 6, and that refers merely to the last six words. 77. DRAGAN MARKISIC: I apologise. I wanted to say in relation to your Honour's judgment before. Can't continue with other matters. 78. HIS HONOUR: I'm hearing Ms Hartsein. I will come back to you later. 79. HARTSEIN: Your Honour, in relation to those last six words, I've been asked to ask your Honour to either omit them or to omit them and add, including the taking away of the child without a warrant as complained in paragraph 165, and the reason for this application is that it is considered by the Commonwealth that there is a danger in the form of the words used that the plaintiff may misinterpret them as giving him a right to obtain damages for trespass to the child, as opposed to a right to obtain damages for the distress caused to him, as explained in paragraph 165. I apprehend that your Honour didn't intend to grant a right to the plaintiff to sue for trespass to the child but rather for nervous shock or - yes, nervous shock to himself. 80. HIS HONOUR: Yes. I think what I probably prefer to say, and this is certainly what I meant - "and nervous shock of the plaintiff involved in the trespass to the child." 81. HARTSEIN: Yes, that would cover the position, your Honour. 82. HIS HONOUR: What did you want to say, Mr Markisic? 83. OLIVER MARKISIC: Might I say instead of my brother, your Honour? 84. HIS HONOUR: Yes. 85. OLIVER MARKISIC: Your Honour, the plaintiff hasn't heard - what the plaintiff has put before your Honour at the beginning of this hearing that your Honour, well, would have to perform the test in relation to the fictitious affair. I was in the back of the courtroom so we haven't heard any of your Honour's reason, whether your Honour has convinced this fictitious, that your Honour was not in fact biased. What your Honour has said is addressed to the parties not to this fictitious observer. 86. HIS HONOUR: I don't propose to add anything to what I've said, Mr Markisic. 87. OLIVER MARKISIC: That was the request of, asking of the plaintiff. 88. HIS HONOUR: I think I've made it fairly clear - at some length I have dealt with all the various allegations and I'm certainly well aware. I did refer to the decision in Johnson v Johnson at an earlier stage of my reasons. 89. OLIVER MARKISIC: Of course, your Honour, although the High Court, if I understand properly, take into account this fictitious observer to be also convinced that justice has been done and seen to be done in the courtroom. 90. HIS HONOUR: Yes, I understand that. 91. OLIVER MARKISIC: Thank you, your Honour. 92. DRAGAN MARKISIC: Your Honour, just in relation to Ms Hartsein, what she is doing she is doing application on behalf of Mr Robinson. 93. HIS HONOUR: Yes. 94. DRAGAN MARKISIC: But Mr Robinson is not party of the proceedings. Mr Robinson is representing - Ms Hartsein cannot represent Mr Robinson but can represent only Commonwealth after she obtained instructions from Commonwealth to act in the proceedings. 95. HIS HONOUR: Yes that's because, but look Mr Markisic, the solicitor, Ms Wikramanayake who's in Court, she can sit up at the bar table and stand up and make the same application and that was only done as a matter of convenience and you had better, if you are going to take this point-- 96. DRAGAN MARKISIC: That is my first objection. My second objection would be everything what is moving, it is best thing to do by notice of motion, as I did. My notice of motion was dismissed and this application is just in air and not been dismissed with cost or anything and that this second point, that if Mr Robinson, or Ms Hartsein, wants to do any application in relation to changing of any of what they've done I am not satisfied that any order of your Honour, it is felt the best way is to go by notice of motion as I did or to go to appeal process and this way is by surprise and this is not the best way to do in this kind of proceedings, your Honour. Thank you. 97. HARTSEIN: If I may answer that very briefly. I was asked to make that application on behalf of the Commonwealth, your Honour. Mr Robinson asked me to mind his papers and make the application before your Honour got that far before he got back. It did not take the plaintiff by surprise. He was informed on 3 June by a letter which Mr Robinson handed me a copy, that the Commonwealth intended to seek clarification about the form of order 6 on page 64 of the judgment. 98. HIS HONOUR: All right. Ms Hartsein, I would just be very cautious. The solicitor for the Commonwealth, that's Ms Wikramanayake, you've heard what Ms Hartsein said to me. 99. WIKRAMANAYAKE: Yes your Honour. 100. HIS HONOUR: You make the application? 101. WIKRAMANAYAKE: : Yes, your Honour, I make the application made by Mr Robinson. 102. HIS HONOUR: Yes, all right. 103. DRAGAN MARKISIC: On what date is that letter sent as to the plaintiff? I'm not aware of that. 21 June? 104. WIKRAMANAYAKE: Your Honour, I handed that letter personally to Mr Markisic in Court on 3 June 2005. 105. DRAGAN MARKISIC: 21st I heard. 106. WIKRAMANAYAKE: The third of June. 107. DRAGAN MARKISIC: : But there was no formal application before the Court. 108. HIS HONOUR: I make the order set out in the first sentence of order number 6 of paragraph 182. I amend the second sentence to read, "This encompasses the nervous shock allegedly suffered by the plaintiff as a result of the AFP's alleged negligence in doing so without a warrant and the nervous shock allegedly suffered by the plaintiff involved in the trespass to the child". 109. OLIVER MARKISIC: Your Honour, I would like to ask your Honour in relation to this issue of trespass of child; in essence he is entitled to ask the Court why the Court is limiting only trespass to the child from AFP when the plaintiff alleged trespass to the child by DOCS officers, Qantas and Centacare? 110. HIS HONOUR: I've given reasons in the course of my - that appears in the reasons that I've given both previously and today. 111. OLIVER MARKISIC: Yes but-- 112. HIS HONOUR: I'm not going to add to it, Mr Markisic. The orders that I've made, and I just read them out. I will deal with costs later:

Markisic v Department of Community Services & Ors

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Judgment (13 paragraphs)

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Cited By (2)