MARKISIC (DRAGAN) v DEPARTMENT OF COMMUNITY SERVICES & ORS

Court of Appeal (NSW)|2006-05-23|Before: Ipp JA, Basten JA, Mr J, Grove J, Michael Grove J

CITATION: MARKISIC (DRAGAN) v DEPARTMENT OF COMMUNITY SERVICES & ORS [2006] NSWCA 149

DECISION: (1) Summons dismissed with costs; (2) Costs of the First, Second, Third and Fifth Opponents to be payable on an indemnity basis; (3) Costs of the Fourth Opponent to be payable on a party and party basis

LEGISLATION CITED: Crown Proceedings Act 1988 (NSW), s6 Supreme Court Act 1970 (NSW), s101

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

Self Represented - Claimant Ms V. Hartstein - First and Second Opponents COUNSEL: Mr R. Beech-Jones - Third Opponent Mr A. Kohn - Fourth Opponent Mr J. Young - Fifth Opponent

Self Represented - Claimant I. V. Knight, Crown Solicitor, Sydney - First and Second Opponents SOLICITORS: Australian Government Solicitor, Sydney - Third Opponent Makinson & D'Apice, Sydney - Fourth Opponent Dawson Waldron, Sydney - Fifth Opponent

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40631/05 SC 20698/00

16 June 2006 MARKISIC (DRAGAN) v DEPARTMENT OF COMMUNITY SERVICES & ORS Judgment 1 THE COURT: This application seeks leave to appeal from a judgment of Michael Grove J in the Common Law Division, refusing to make orders sought by way of notice of motion apparently filed on 20 June 2005. The motion sought, relevantly for present purposes, an order that eight individuals, the Trustees of the Roman Catholic Church, two firms of solicitors and a company, Qantas Airways Ltd, show cause why they should not be held in contempt of the Supreme Court. A statement of charge was filed in relation to each named individual, or group of individuals or company. The alleged contemptuous conduct occurred in the course of proceedings being conducted between the claimant and five defendants in the Common Law Division. Of those sought to be charged with contempt, only the Trustees of the Roman Catholic Church and Qantas Airways Ltd (the Fourth and Fifth Opponents in this Court) were parties to the proceedings. 2 As explained in Markisic (Oliver) v The Commonwealth [2006] NSWCA 150 at [3], the contempt proceedings were not properly constituted, thus giving rise to the potential for confusion as to the proper parties. 3 The notice of motion before Grove J was directed at five respondents (or defendants, as they were called in the notice of motion), albeit the notice of motion sought orders against 12 persons or entities. 4 But, of the five "defendants" cited in the notice of motion, orders were sought (in the notice of motion) only against two. These two were the fourth and fifth defendants, the Trustees of the Roman Catholic Church for the Archdiocese of Sydney ("the Trustees") and Qantas Airways Limited ("Qantas"). That is to say, before Grove J, no orders for contempt were sought against the first to third defendants, being (the Department of Community Services of New South Wales ("the Department"), the State of New South Wales ("the State") and the Commonwealth of Australia ("the Commonwealth"). 5 The application must thus be dismissed in relation to the first three opponents in any event. Further, the First Opponent is said to be the "Department of Community Services of NSW", which is not a person. If proceedings are sought to be brought against a government department, it is usually appropriate to proceed against the Crown, by joining the State of New South Wales, pursuant to the Crown Proceedings Act 1988 (NSW), s 6. In fact the State is a party, being the Second Opponent. The Commonwealth of Australia has also been joined. However, as there was no attempt to charge the State or the Commonwealth with contempt, they are not proper parties to the proposed appeal. 6 Turning to the Trustees and Qantas, the statement of charge in the notice of motion before Grove J alleged that the Trustees knowingly misled Smart AJ by "knowingly instructing" a named solicitor or a named firm of solicitors to state to his Honour that "the fourth defendant [the Trustees] returned the child Elena Markisic into the care of her mother", that "the child left Australia with her mother", that "Centacare accepted the child pursuant to a Court order", and that "Centacare handed the child back to the relevant authorities pursuant to a Court order". 7 The statement of charge alleged that Qantas knowingly misled Smart AJ by "knowingly instructing" a named solicitor or a named firm of solicitors to state to his Honour that "[The Department] and the [Commonwealth] delivered the child to [the claimant's] former wife pursuant to the Family Court orders", that "the child Elena Markisic was allowed to leave Australia with the [claimant's] former wife pursuant to the Family Court orders", that "Qantas acted pursuant to authority under Regulation 20 of the Family Law (Child Abduction Convention) Regulations 1986", that "Katerina Markisic had lawful custody of the child Elena Markisic pursuant to the orders of the Family Court of Australia" and that "Qantas was the carrier chosen by [the claimant's] former wife to come to Australia and to leave Australia with the [claimant's] child". The statement of charge alleged that Qantas knowingly misled Master Malpass by instructing a named solicitor or a named firm of solicitors to make the last-mentioned two statements in proceedings before the Master. 8 In his reasons for judgment, Grove J referred separately to the charges against the Trustees and Qantas. His Honour said that there was no evidence to support the charge that the Trustees gave the alleged instructions to the solicitors. He said that there was no evidence that Qantas "gave instructions to make misleading statements of any sort". 9 These particular findings were made after his Honour had prefaced his discussion of the individual charges with the observation: "The statements of charge are entirely unsupported." After making the particular findings referred to above, his Honour said: "This motion is wholly misconceived. Even if in respect of any aspect, and I am not suggesting that this was the case, something said to a court happened to be inaccurate, that falls far short of any demonstration that the court was knowingly being misled."

His Honour concluded that the motion must be dismissed and made an order to that effect. 10 The judgment of Grove J, read as a whole, is a judgment by which the persons charged with contempt, including the Trustees and Qantas, were found not to have committed the contempt alleged. The fact that his Honour also found that the motion was an abuse of process is irrelevant to the finding he made as to the merits of the alleged contempt. For jurisdictional reasons noted at [33] below, it follows that the claimant is not entitled to appeal against the judgment of Grove J insofar as it applies to the Trustees and Qantas. 11 Included amongst the persons and entities that were not cited as respondents in the notice of motion, but against whom orders for contempt were sought, were Ms Victoria Hartstein, of counsel, (who was instructed by the Crown Solicitor for the State of New South Wales in other proceedings in which the claimant was involved), the Crown Solicitor, Ms Roshana Wikramanayake (an employee of the Australian Government Solicitor), and Mr David Robinson SC, of senior counsel (who was briefed by Ms Wikramanayake on behalf of the Australian Government Solicitor in other proceedings involving the claimant). 12 As the Court understood the appearances on the leave application, counsel appearing for the State, Ms Hartstein, also appeared for those parties who were officers of the State and for herself. Similarly, Mr Beech-Jones, who appeared for the Commonwealth also appeared for those against whom contempt charges were sought to be laid who were officers or counsel briefed by the Commonwealth. 13 Grove J dealt with the matter without examining the discrepancies between the substantive allegations in the motion and the identify of the respondents cited, and it does not seem that the discrepancies were drawn to his attention. They were also not drawn to the attention of this Court. In any event, his Honour considered the substantive allegations against Ms Hartstein, the Crown Solicitor, Ms Wikramanayake and Mr Robinson. His Honour found that there was no evidence to support these allegations and, as with the allegations against the Trustees and Qantas, the motion - insofar as it applied to Ms Hartstein, the Crown Solicitor, Ms Wikramanayake and Mr Robinson - was "wholly misconceived" and, even if anything inaccurate had been said to the Court (and his Honour said that he was not finding that this had occurred), the evidence fell far short of proof that the Court had knowingly been misled. In the Court's opinion, his Honour's findings are undoubtedly correct. 14 To the extent that others sought to be charged were not represented, if it is appropriate that the present application be dismissed, they will not suffer prejudice from such an order. On the other hand, they should have the benefit of a favourable order, so that they will not be put to additional expense or inconvenience because the proceedings in respect of them have not been dealt with by this Court. The orders in the Court below made explicit that the charges brought against them by the motion were dismissed. For the reasons noted in this judgment, they have findings in their favour against which there is no right of appeal.

Nature of orders challenged 15 The draft notice of appeal filed on this application contained 23 grounds of appeal with many sub-grounds. The first page of the draft notice of appeal stated: "The proceedings in respect of which leave to appeal is sought were heard on 12.07.2005 and decided on 18.07.2005. The Claimant claims an order granting leave to appeal from the decision of his Honour Grove J." 16 The quoted extract indicated that the claimant was applying for leave to appeal from a single order made by Grove J on 18 July 2005. On the last page of the draft notice of appeal, however, under the heading "Orders Sought", appears the following: "Judgment and orders of his Honour Grove J made on 12.07.2005 and 18.07.2005 be set aside." 17 The precise orders made by Grove J, in respect of which leave to appeal is sought, are not otherwise identified.

Orders made on 12 July 2005 18 On 12 July 2005 Grove J heard two motions by the claimant. The first motion sought the issue of a warrant for the arrest of the late Doreen Muirhead. The second sought orders that Ms Muirhead and 11 other named persons or entities show cause why they should not be held in contempt of court and why 10 of them should not be "taken of [sic] the list of practising solicitors/barristers of the Supreme Court of New South Wales". His Honour reserved judgment and on 17 July 2005 dismissed the motions. 19 Two things seem clear enough. First, the claimant does not seek leave to appeal against the dismissal of the claim for the issuing of a warrant against the late Ms Muirhead. Secondly, the claimant does not seek leave to appeal against the dismissal of that part of the motion that relates to the striking off of any of the named persons. 20 The two motions before Grove J were part of a long saga of litigation. Grove J described the background facts relating to this litigation as follows: "In 1998 [the claimant, Dragan Markisic] brought his infant daughter to Australia. The Republic of Macedonia requested that the child be returned to her mother in that country. Proceedings were instituted in the Family Court of Australia. Rowlands J made certain orders. Subsequently a Full Court of the Family Court of Australia ordered, inter alia, that the child remain in the care of the Department of Community Services pending return to Macedonia. Pursuant to warrants, the child was delivered ultimately into the care of foster parents on or about 29 September 1998. On 13 October 1998 the High Court of Australia dismissed an application for stay of the orders originally made by Rowlands J. On the following day the child and her mother departed Australia on a flight operated by Qantas in order to return to Macedonia." 21 Arising out of these facts, the claimant has brought numerous proceedings against numerous persons and entities. He has alleged that the various defendants participated in a wrongful removal of his daughter from Australia. He has made a series of serious allegations of conspiracy, fraud and improper conduct of various kinds against many persons, all arising out of the removal of his child and the legal and administrative proceedings taken in that connection. 22 The claimant has represented himself in his various claims and he has been assisted by his brother, Mr Oliver Markisic. Mr Oliver Markisic has also become involved personally in some of the litigation. In the present application Mr Oliver Markisic assisted the claimant. 23 At the commencement of the hearing on 12 July 2005, the claimant asked Grove J to disqualify himself. His Honour had previously disqualified himself in proceedings brought by the claimant against two judges of the Family Court as they were friends of his. These proceedings concerned the same background facts that we have set out above. The claimant said that his Honour, for the same reason, should disqualify himself again. Grove J pointed out that the two judges were not parties to the proceedings before him and he refused to accede to the claimant's request. 24 The claimant relied on his Honour's refusal to disqualify himself as a ground for obtaining leave to appeal against his Honour's decision on the merits. It is unnecessary to say anything about the procedure adopted, or any part of the reasoning involved, save to say that, in the circumstances, Grove J was clearly right to refuse to disqualify himself. 25 The draft notice of appeal complains that Grove J refused to adjourn the proceedings on 12 July. It asserts that his Honour did not allow the complainant "additional time to adduce additional evidence against the respondents". The motions before Grove J were motions by the claimant. The matter was properly listed for hearing. The claimant should have been ready to proceed on the appointed day. No error on the part of Grove J is demonstrated in this regard. 26 The draft notice of appeal complains that his Honour did not allow the claimant to cross-examine the respondents. The transcript reveals that the claimant applied, principally, to cross-examine Ms Drummy, a solicitor in the employ of the Crown Solicitor, who had made an affidavit exhibiting an extract from a death certificate showing that Ms Muirhead died on 24 October 2004. The claimant wished to establish, by cross-examining Ms Dummy, that some fraud or dishonesty or falsity attended on the death certificate, and that Ms Muirhead was still alive. The claimant tendered no evidence to show that the certificate was in any way false and that Ms Muirhead was still alive. 27 His Honour was not satisfied that the challenge to the death certificate was bona fide and refused to allow the cross-examination sought. He was entirely justified in so holding. 28 The claimant asked generally to cross-examine the respondents, an application Grove J refused. There was no particular evidence given by the respondents to the motion before Grove J that the claimant identified as being false or inaccurate. It seems that the claimant merely wished to undertake a fishing expedition and the judge correctly refused to allow this to occur. 29 A reading of the transcript indicates that no other orders were made by Grove J on 12 July 2005 that could be the subject of the present application for leave to appeal.

Orders made on 17 July 2005 30 The draft notice of appeal asserts that Grove J was biased against the claimant. It makes other allegations of a like kind, including that the judge intimidated the claimant and took the role of prosecuting authority. These allegations are apparently raised as grounds for appealing against the orders made by his Honour. The Court has read the transcript of the proceedings on 12 July and is unable to detect any signs of bias. The mere fact that a party is unsuccessful before a judge cannot establish that the judge is biased against him or her. The transcript does not justify the allegations of intimidation or that the judge unfairly entered the forensic arena: these allegations are groundless. 31 On 17 July 2005 Grove J, on two bases, dismissed the motion seeking an order that the 12 respondents show cause why they should not be held in contempt of court. The first basis was that there was no evidence to support the claimant's allegations. The second was that a purpose of the claimant in bringing the motion was to make a collateral attack upon judgments by Master Malpass and Smart AJ given in the course of some of the litigation in which the claimants have been involved and to which reference has been made. Thus, Grove J held, the motion was an abuse of process. 32 These two bases were entirely different from each other. The finding that the charges were not supported by evidence, concerned the merits of the claimant's claim. The finding that the motion was an abuse of process concerned the issue whether the claimant had brought the motion for an improper purpose. 33 At the commencement of argument on the application before this Court, the claimant submitted that he had an appeal as of right in terms of s 101(5) of the Supreme Court Act 1970 (NSW). He asked the Court to give him "leave automatically as of right". For the reasons given in Markisic (Oliver) v The Commonwealth [2006] NSWCA 150 at [7]-[12], the contrary should be accepted, namely that the claimant has no right of appeal, regardless of the question of leave.

Costs 34 The claimant also seeks to challenge the costs order made by the trial judge in favour of each defendant to the motions, which provided that their costs be payable on an indemnity basis. Leave is required to challenge a costs order. Given his Honour's finding that the charges of contempt were totally without merit, such a challenge would have no reasonable prospects of success. It is asserted that the order was made in order to punish the claimant. However, the purpose of a costs order, whilst it may in a colloquial sense penalise the unsuccessful party, is to reimburse the successful party for the legal costs incurred in prosecuting or defending the proceedings. The usual order is that costs be assessed on a party and party basis, although it is well known that a successful party may well remain out of pocket for a significant proportion of his or her costs. In appropriate circumstances, the Court may order that costs be assessed on an indemnity basis, which will give the successful party a full, or at least a greater, level of reimbursement. Such an order is not always appropriate, but there is no reason to suppose it was inappropriate in the present case. Its purpose is reimbursement and not punishment.

Order restraining further proceedings 35 The final order made by the trial judge read as follows: "(e) Subject to the order by Smart AJ granting leave to apply to amend his statement of claim, the plaintiff is restrained from filing further motion in these proceedings against any of the respondents to the notice of motion filed on 20 June 2005 or bringing fresh proceedings against any of those respondents without leave of the Court first being obtained." 36 The challenge to this order appears to be raised on three bases. First, it is said that it was based upon the contempt charges being vexatious in nature, which it is contended they were not. Secondly, it is said that the order affects the claimant's statutory right of appeal. Thirdly, it is said to be a form of punishment. 37 In relation to the first complaint, for reasons noted above, the prospect of the claimant successfully challenging the conclusion that the contempt charges were indeed vexatious is insufficient to warrant a grant of leave. 38 In relation to the second question, none of the opponents suggested that the order precluded the application to this Court. In any event, because the claimant has no right of appeal, this ground of complaint is irrelevant. 39 The third ground of complaint fails for a similar reason to that noted above in relation to the challenge to the costs order. Where proceedings are instituted and fail, it would constitute an abuse of process to seek to institute fresh proceedings in relation to the same matters, or in relation to any matters which should properly have been dealt with in those proceedings. To that extent, the order imposes no greater constraint on the rights of the claimant than does the general law. 40 Proceedings of the kind commenced are liable to be disruptive of the efficient despatch of justice in relation to the substantive issues before the Court. The order made was protective of the orderly administration of justice; it was limited to those involved in the proceedings then on foot in the Common Law Division and was, in any event, interlocutory and capable of variation as the need arose. The claimant has raised no issue of principle which would warrant a grant of leave to appeal against an interlocutory order of this kind.

Conclusions 41 To the extent that leave is sought to appeal from a judgment that a person or persons did not commit contempt, the application must be dismissed because the Court has no jurisdiction to hear an appeal of that kind, whether subject to leave or not. 42 Even if the first conclusion were wrong, and an appeal subject to leave were available in this Court, the application should be refused because an appeal would have insufficient prospects of success. 43 In relation to the consequential orders, to the extent that they require separate consideration, leave should be refused for the reasons given above. 44 Each of the first three opponents seeks an order for its costs of the application on an indemnity basis. The fifth opponent makes a similar claim. The claimant was on notice from the proceedings below that hopeless applications were liable to be visited with an indemnity costs order. The applications to this Court not only failed to demonstrate merit in support of an appeal, but failed because there was no right of appeal and, further, because the first three opponents had no direct interest in the contempt charges in any event. Costs should be awarded in favour of the First, Second, Third and Fifth Opponents on an indemnity basis, and in favour of the Fourth Opponent on a party and party basis. 45 In relation to the indemnity costs order made in the Court below, the claimant alleged on appeal that one basis of error was that the trial judge failed to take into account the fact that he was a pensioner, and presumably impecunious. That is neither a reason for not making the usual order as to costs, nor a reason for not making a costs order on an indemnity basis, where that is otherwise appropriate. The same reasoning should apply in relation to the costs of the present application. The orders of the Court are:

(2) Costs of the First, Second, Third and Fifth Opponents to be payable on an indemnity basis.

(3) Costs of the Fourth Opponent to be payable on a party and party basis. **********

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