Markisic v Department of Community Services & Ors

Judgment 1HIS HONOUR: This judgment concerns the preliminary question as to whether the plaintiff's notices of motion should be dismissed as being outside the orders made in Markisic v Department of Community Services of New South Wales & Ors (No 2) [2006] NSWCA 321 and the orders made by me on 27 February 2008, when the plaintiff's motion for leave to file an amended statement of claim was adjourned on his application. 2Briefly stated the orders sought by the plaintiff in a notice of motion filed 10 June 2011, include: (1)directions for case management of the motion; (2)the motion be heard with a jury; (3)Oliver Markisic and Marika Markisic be joined as intervener or a party directly affected; (4)Declarations that: (i)the documents which appear as if judgments and orders of the Family Court of Australia and Full Court of the Family Court of Australia (on nominated dates) are false, counterfeit or void or alternatively as irregular or illegal instruments in the Supreme Court of New South Wales; (ii)judgments of Smart AJ (on nominated dates) and the judgment of the Court of Appeal on 23 November 2006 be set aside pursuant to r 36.15 and r 36.16 Uniform Civil Procedure Rules (UCPR); (iii)various named persons unlawfully interfered with Family Court of Australia proceedings no SY6727 of 1998; (iv)various named employees of the State of NSW (the State) and the Commonwealth of Australia (the Commonwealth) breached s 65Z of the Family Law Act 1975 (Cth) by taking Elena Markisic out of Australia, conspired to breach and did breach ss 90, 90A and 91 Crimes Act; (v)the employees of the State and the Commonwealth conspired to fabricate and counterfeit and did fabricate judgments and orders of the Family Court of Australia (on nominated dates) in the Family Court proceedings No SY6727 of 1998, the Full Court of the Family Court on 29 September 1998, and the Family Court on 1 March 2011 in Family Court proceedings No SYC1502 of 2008; (vi)various named persons intentionally took or sent Elena Markisic out of Australia in commission of an offence under s 65Z(1) Family Law Act 1975; (vii)various named persons made use of fabricated evidence with intent to mislead the Supreme Court of NSW in proceedings No 20698 of 2000 and the Court of Appeal in proceedings No 40739 of 2005 to obtain judgment for the Commonwealth of Australia contrary to s 36 and 43 Crimes Act 1914 (Cth). (ix)the NSW Attorney-General's Department and the Commonwealth Attorney-General's Department are criminal organisations; (x)the State and the Commonwealth be declared as vexatious litigants; (xi)the NSW Attorney-General and the Commonwealth Attorney-General be declared as vexatious litigants; (xiii)various orders restraining the State and the Commonwealth from filing any notice of motion or making any oral application without leave of a judge of the Supreme Court; (5)If the plaintiff is successful on the motion, orders that: (i)grant leave to file a proposed amended statement of claim (ASOC), entry of summary judgment and assessment of damages against the State and the Commonwealth; (ii)the court accept the further, further amended statement of claim of Oliver Markisic and Marika Markisic (FFASOC), entry of summary judgment and assessment of damages against the Commonwealth of Australia; (iii)leave to the plaintiff under s 338 Crimes Act 1900 to prosecute various named persons for an offence of perjury under s 327 Crimes Act . 3Further orders are sought by the plaintiff in a notice of motion filed 28 July 2011 which briefly stated, are: (1)referral of the proceedings to mediation; (2)if the order for mediation is not granted or the case not settled, entry of summary judgment against the State and the Commonwealth under r 13.1 UCPR on the ground that various facts from the plaintiff's notices to admit facts are admitted; (3)the State's notice of motion filed on 8 July 2010 be dismissed; (4)the Commonwealth's notice of motion filed on 19 July 2010 be dismissed; (5)the Commonwealth and the State be ordered to produce documents sought by the plaintiff's notices to produce; (6)the Commonwealth and the State be restrained from filing and serving any further notices without the leave of a judge of the Supreme Court. 4The plaintiff had filed various notices to admit facts on the State and the Commonwealth. For present purposes, it is neither necessary to detail these documents nor the affidavits filed in support of the plaintiff's motions. 5There was also before me a notice of motion that the Commonwealth had filed on 30 May 2011 seeking inter alia an order that the plaintiff's notice to produce be set aside. The State filed a notice of motion on 8 June 2011 that sought inter alia an order that the plaintiff's notice to produce dated 18 May 2011 be set aside. 6The history of the proceedings is succinctly contained in the judgment of Giles JA at [2] - [31] in Markisic v Department of Community Services of New South Wales (No 2) and does not require dissertation here. 7An argument that the plaintiff advanced during the present proceeding was that regard could not be had to this judgment as s 157 Evidence Act 1995 had not been complied with. Indeed, in a letter dated 1 March 2012 that was sent to me in chambers, the plaintiff re-affirmed his argument that the judgment should be disregarded. I do not propose to do so. A copy of the Court of Appeal's judgment was handed up during the proceedings before me in 2008, without demur from the plaintiff and formed the basis upon which the argument proceeded. The plaintiff has not adduced any evidence to establish that this document was unauthentic, a fake or a fraud. The Court of Appeal's judgment has been cited in other judgments: see for example Markisic v Commonwealth of Australia [2010] NSWSC 24; Markisic v Department of Community Services of NSW & Ors [2007] NSWCA 30 and was referred to in the judgment of Bryson JA in Markisic v Department of Community Services (Court of Appeal (NSW), unrep, 29 January 2007) that was said by the plaintiff to support his case. Furthermore, the judgment appears on the court's website. I have no doubt that the passages to which I directed the plaintiff's attention are from the judgment of the Court of Appeal in Markisic v Department of Community Services of New South Wales (No 2). 8Although I read the plaintiff's letter that was sent, without it appears, the consent of the Commonwealth and the State, I make it plain to the plaintiff that any future submissions made other than in accordance with the court's orders or with the consent of all parties, will not be considered at all. 9The plaintiff's principal claim in the Court of Appeal was for leave to appeal from the decision of Smart AJ in Markisic v Department of Community Services of New South Wales [2005] NSWSC 1373, 1374, 1375 upon the plaintiff's application for leave to file an amended statement of claim. Smart AJ ordered that the plaintiff's application for leave to file the draft amended statement of claim be dismissed. He dismissed the proceedings against various defendants including the State, Justice Flohm, Chief Justice Nicholson and Justice Rowlands. As to the Commonwealth, his Honour granted the plaintiff: "...leave to apply to amend his statement of claim limiting his claim to the removal (or unlawful removal) of the child from the possession of the plaintiff (via his mother) without a warrant for such removal and consequential damage, such application to be made by motion within 42 days and to be accompanied by a proposed amended statement of claim limited as mentioned and correct as to form and substance. 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." 10The Commonwealth applied for leave to cross-appeal against Smart AJ's grant of leave to the plaintiff to apply to amend his statement of claim. 11Giles JA (with whom Santow and Ipp JJA agreed) granted the plaintiff leave to appeal that was limited to leave to apply to re-plead the defamation claims against the State and the Commonwealth. He was granted leave to apply to a judge in the Defamation List for leave to file an amended statement of claim re-pleading the defamation claims. On the Commonwealth's application for leave to cross-appeal, the appeal was allowed, Smart AJ's order was set aside and the proceedings against the Commonwealth, save as to the defamation claims, were dismissed. 12A focal point of debate in the present proceeding was whether the proposed amended statement of claim was precluded by the judgment of the Court of Appeal. Giles JA said at [90], [91] - [93]: "90 Allowing the appeal to this extent means the grant of leave to apply to re-plead the defamation claims, but the leave does not permit Mr Markisic to add to the publications on which he relies or to the imputations attributed to the publications. The re-pleading will only be to put in proper form the substance of the defamation claims in the fresh draft amended statement of claim. Nor does anything I have said restrict the State and the Commonwealth in the grounds on which they may oppose the grant of leave to re-plead. 91 The leave to apply to re-plead is only as to the defamation claims. The orders of Smart AJ otherwise dismissing the proceedings against the State, and dismissing the proceedings against the Trustees, Qantas, Justice Flohm, Chief Justice Nicholson and Justice Rowlands remain, and save as to the defamation claims the proceedings against the Commonwealth are dismissed. Since all that potentially remains of Mr Markisic's proceedings is the defamation claims, the proceedings should be entered in the Defamation List and come before a judge in that List. 92 ... 93 While Mr Markisic may be able to continue with the defamation claims, they occupied very little of the written or oral submissions. Mr Markisic has in real terms failed on the application for leave to appeal and the application for leave to cross-appeal, and in the disposition of costs no more than a small alleviation of the costs payable to the State and the Commonwealth is appropriate." 13The plaintiff contended that when the proposed amended statement of claim was compared to the pleading that was considered by the Court of Appeal, the pleadings are completely different. Further facts had come to his knowledge after the Court's judgment, which he had used in drafting the fresh pleading. The causes of action were founded on other torts that were never before the Court of Appeal. The plaintiff drew my attention to the following passage that appears in Bryson JA's judgment in Markisic v Department of Community Services & Ors (29 January 2007) at p7: "He referred particularly to paragraphs 58, 59 and 60 of the judgment of the Court of Appeal [2006] NSWCA 321. It is I think quite manifest to Mr Markisic as much as to anyone else that the paragraphs referred to, and indeed the whole judgment, did not finally dispose of the rights of any party on any subject; except for the procedural matter relating to the defamation claim in respect of which an appeal was allowed and directions were made. Except in relation to the defamation claim the judgment did not, and could not, dispose of any rights, it did no more than refuse leave to appeal except in relation to re-pleading the defamation claim." 14The plaintiff submitted that Bryson JA explained that there was nothing in the Court of Appeal's judgment that prevented him coming before the court with another pleading. He asked that the fresh pleading be incorporated in the draft statement of claim that was the subject of the hearing in 2008, but said that for practical purposes the two different parts would travel in different lists - the defamation list and the common law list. 15Ms Hartstein, who appeared for the State, submitted that the Court of Appeal did not grant leave to replead anything other than the defamation claims. She said that there had previously been a large number of statements of claim that made allegations "of one sort or another" which had been dealt with by other judges of this court. Ms Hartstein argued that the proposed amended statement of claim was an abuse of process. 16Mr Robinson SC, who appeared for the Commonwealth, contended that the Court of Appeal's orders precluded the plaintiff from ventilating any matter other than the defamation proceedings. Mr Robinson pointed out that one of the orders was the Commonwealth was dismissed from further action save for the defamation claim. 17The argument gives rise to considerations of cause of action estoppel and issue estoppel. 18It appears to me that in the passage quoted at [13] above, Bryson JA explained that the Court of Appeal's judgment did not prevent fresh causes of action being brought by the plaintiff, but prevented the re-pleading of those causes of action that were examined, by the Court of Appeal and leave to replead was refused. 19The pleading before the Court of Appeal consisted of 229 paragraphs, only 25 of which related to the defamation claim. The proposed amended statement of claim contains 121 paragraphs. There appears to be a degree of commonality between the pleadings. Other than making a general submission, the plaintiff, however, has not had the opportunity of precisely identifying those causes of action that he says, were not before the Court of Appeal. Similarly, neither the State nor the Commonwealth have had the opportunity of identifying with precision the causes of action that might give rise to estoppel. Furthermore, I am unaware of, and do not have before me, the other pleadings referred to by Ms Hartstein, as having been the subject of earlier judgments. 20On the material presently before me, I am unable to determine whether the proposed amended statement of claim or parts of the draft pleading are precluded by the Court of Appeal's judgment. There have been no arguments as yet, on whether the other orders sought by the plaintiff in the notices of motion are an abuse of process. 21The plaintiff's application for leave to file an amended statement of claim re-pleading the defamation claims was heard before me for five days commencing on 18 February 2008. On 27 February 2008, the hearing of the motion was adjourned upon the plaintiff's request so that he could apply in the Family Court of Australia to set aside orders of the Family Court and the Full Court of the Family Court. The terms upon which the adjournment was granted, included the following orders: "1.That the notice of motion be stood over part-heard for further hearing before me on a date to be fixed. 2.That there will be no further submissions by the parties with the sole exception of submissions on the outcome of the proposed application referred to in the third order in the Family Court so far as the outcome is relevant to the defence of absolute privilege. 3.That the plaintiff files the proposed application in the Family Court to set aside the orders of the Family Court in file number SY 6727 of 1998, made on 9 September 1998, and the orders of the Full Court of the Family Court in file number SY 6727 of 1998, appeal number EA 76 of 1998 made on 29 September 1998, on or before 19 March 2008. 4.That the plaintiff prosecutes the application in the Family Court without delay." 22The plaintiff submitted that none of these orders prevented him filing other notices of motion. I agree with that submission. Although the notices of motion are outside the spirit of those orders, they do not expressly exclude the motions. Whether any of the orders sought are an abuse of process remains a matter for future argument. 23Accordingly, I do not propose on the present material, to dismiss the notices of motion as being outside the orders of the Court of Appeal or my orders of 27 February 2008. 24To facilitate the just, quick and cheap resolution of real issues in dispute, I make the following orders: (1)The further hearing of the plaintiff's application to file an amended statement of claim re-pleading the defamation claims is to proceed first. The parties are to strictly comply with order 2 of the orders of 27 February 2008. Upon completion of these submissions, the court will hear further from the parties on the notices of motion filed on 30 May 2011, 8 June 2011, 10 June 2011 and 28 July 2011. (2)Without my leave, the parties are not permitted to file any further notices of motion in these proceedings. (3)Leave pursuant to order (2) is to be sought by written application setting out the full basis on which leave is sought and the full basis of the claim for relief with a copy of the proposed notice of motion. The application will be determined by me, in chambers and no oral hearing will take place. Any application for leave must be made at least 14 days prior to the date fixed for further hearing of these proceedings. (4)Fix the further date for the further hearing of the proceedings on 2 October 2012. (5)Order that the Registrar of the court be notified forthwith of these orders.