Markisic v Dept of Community Services of New South Wales & Ors

Supreme Court of NSW|2005-02-03|Before: Smart AJ, Mr J, Robyn Flohm J, Alistair Nicholson J

For the reasons previously given the conspiracy claims against New South Wales are embarrassing and defective and are bad in substance. The materials make it apparent that there is no tenable or arguable cause of action. They are dismissed.

Trespass to Land 129. This claim appears to relate to the entry of the AFP officers into the mother's home at 17 Edward Street, Arncliffe (sometimes referred to as Turrella) on 29 September 1998. The mother lived there with Oliver Markisic. The plaintiff usually lived at Unit 9, 16-20 Warialda Street, Kogarah. He claims that he moved into his mother's home temporarily. The mother played a major part in assisting with the care of the child who had been left with her while the plaintiff and Oliver Markisic attended at Court.

In the present case the issue is whether the plaintiff had sufficient possession to maintain an action of trespass.

In MacIntosh v Lobel (1993) 30 NSWLR 441 at 454 Kirby P pointed out "As it developed, the action of trespass to land vindicated only violations of actual possession of the land." "Who may sue for trespass to land? The key to the tort is to be found in its purpose. That purpose is the protection of quiet possession of land. In Clerk & Lindsell on Torts , 16th ed (991989), London, the authors state (par 23-08 at 1309) that:

'… a person in possession can sue although he neither is the owner nor derives title from the owner, and indeed may be in possession adverse to the owner. Possession means generally the occupation or physical control of land. The degree of physical control necessary to constitute possession may vary from one case to another, for "by possession is meant possession of that character of which the thing is capable".' Mr MacIntosh pointed out that the same authors go on to stress (at par 23-15 at 1315) that mere occupation of premises by a servant or bailiff or any other person occupying land or buildings in a merely ministerial character, even where exclusive, does not amount to such 'possession' as will sustain an action for trespass to the land.

I take this qualification to be referring to a case of a claim separate from that of the employer who is entitled to possession. The cases cited by the authors to sustain their proposition confirm this …" 134. Kirby P at 455 said: "But where, as here, there is a one-man company in undoubted physical possession and that company is nothing more than the alter ego of that director and principal employee an invasion of the company's 'possession' is also an invasion of that of such a director and employee."

Mahoney JA and Cripps JA held that Mr Lobel did not have a sufficient interest in the subject property entitling him to maintain an action for trespass to land. The view was taken that insofar as there was anyone in possession it was the company and that Mr Lobel was not himself in possession of the premises in law or de facto.

The proposed ASOC does not assert facts from which it could be concluded that the plaintiff had a sufficient interest in 17 Edward Street to maintain an action for trespass. The materials point strongly to the opposite conclusion. At best the plaintiff was allowed to use the premises known as 17 Edward Street. He did not enjoy exclusive possession of the whole or part of those premises. The premises 17 Edward Street could not accurately be described as the plaintiff's land and home.

Again the form of the pleading is embarrassing and defective. More importantly, the materials reveal that there is no tenable or arguable cause of action based on trespass to land. Leave to amend to rely on such a cause of action should be refused. The proceedings against the State should be dismissed so far as they purport to rely on a cause of action based on trespass to land.

Abduction or Wrongful Removal of Child 138. In para 101-25 of the proposed ASOC the plaintiff alleged that an unknown officer(s) of the Commonwealth and/or the State "either with intent to oppress, knowingly, maliciously and fraudulently or negligently or recklessly indifferent to the plaintiff's welfare and rights, unjustifiably and out of authority" urged and directed the AFP wrongfully or without warrant to take possession of the child by force from the plaintiff's home, or failed to prevent AFP members from so doing. In para 101-26 it was alleged that the actions mentioned with the intent mentioned were done with respect to the plaintiff's welfare and rights. Paragraph 101-27 alleges that the AFP members involved acted with the intent mentioned in wrongfully removing the child.

The State contends that no known cause of action is pleaded. Unfortunately, this is another example of a rolled-up allegation to which it is not possible for the State to plead. No identifiable or arguable cause of action is pleaded. It is not clear whether this material is intended to form part of the Ninth Conspiracy or is related to it. The standing and operation of paras 101-25 to 101-27 are not discernible nor the cause of action intended to be advanced.

Wrongful Removal of the Child's Name off the Airport Watch List 140. In para 145 of the proposed ASOC it is alleged that on or about 13 October 1998 to effect the Ninth Conspiracy the AFP members Jenny Hurst and Alison Barrette and/or other unknown AFP member(s), on urging by either an AGD solicitor and/or the counsel and/or CCA and/or the SCA and/or other unknown officer(s) of the State and/or the Commonwealth negligently in the discharge of their duties, without lawful justification changed the data on the AFP's computer system in relation to the plaintiff and the child, i.e., removed the child's name from the Airport Watch List and changed the data in relation to the Family Court Order which prohibited the removal of the child out of Australia and disregarded the said order. The plaintiff alleges that this permitted the wrongful removal of the child from Australia.

It was on 13 October 1998 that the High Court declined to grant a stay of the order of the Family Court providing for the return of the child forthwith to Macedonia. This involved a superseding of the earlier interlocutory orders of the Family Court. It could not be said that the removal of the child from Australia was wrongful once the High Court had declined the stay. Nor was it wrongful for members of the AFP to update the data on the computer to reflect the result of the High Court and Family Court proceedings. Para 146 is ancillary to cl 145.

The plaintiff is attempting to rely on a cause of action unknown to the law. Contravention of Family Court Orders
This subject was dealt with when dealing with the claims against Qantas. For the reasons then given this Court has no jurisdiction in respect of the claims made as a result of the contravention of the Family Court's orders.

Trespass To The Plaintiff 144. Although this heading appears on p 17 of the proposed ASOC and immediately above para 101-28, the plaintiff appears to be relying on a trespass to land and the police taking possession of the child. There is no trespass or assault to the plaintiff pleaded.

Interference With Domestic Relations 145. The child was born on 3 May 1997 and so as at 29 September 1998 was almost 17 months old and as at 14 October 1998 was just over 17 months of age. She was too young to render services and thus the plaintiff has no action at common law for the loss of her services.

Nervous Shock to the Plaintiff 146. In paras 101-31 to 101-33 of the proposed ASOC the plaintiff claimed that sending unknown officers of the State and/or Commonwealth and/or AFP members "either with intent to oppress, knowingly, maliciously and fraudulently or negligently or with reckless indifference to the plaintiff's welfare and rights, unjustifiably and out of authority inflicted nervous shock, emotional distress and trauma to the plaintiff" when he heard over the phone about the abduction of his child, when he did not find the child at his home and heard that the child was abused by AFP members, seized by force and taken to some undisclosed destination, when he saw how deeply his whole family was traumatised and how distressed his mother was as a result of AFP mistreatment.

The State submitted that the plaintiff's child was not a victim either at common law or within the meaning of s 30(1) of the Civil Liability Act 2002 (NSW) and therefore no action for nervous shock was available to the plaintiff. The extent to which that Act applies may be a matter of debate as the removal of the child took place on 29 September 1998. That Act uses the word "victim". Section 30(1) and (2) provide: "(1) This section applies to the liability of a person ( the defendant) for pure mental harm to a person ( the plaintiff ) arising wholly or partly from mental or nervous shock in connection with another person ( the victim ) being killed, injured or put in peril by the act or omission of the defendant.

(2) The plaintiff is not entitled to recover damages for pure mental harm unless: (a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or

(b) the plaintiff is a close member of the family of the victim." 148. Section 30(2)(b) is the applicable provision. 149. Section 31 provides: "There is no liability to pay damages for pure mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness." 150. Section 32 (1) and (2) provide: (1) A person (the defendant) does not owe a duty of care to another person ( the plaintiff) to take care not to cause the plaintiff mental harm unless the plaintiff ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.

(2) For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following: (a) whether or not the mental harm was suffered as the result of a sudden shock,

(b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril,

(d) whether or not there was a pre-existing relationship between the plaintiff and the defendant." It is doubtful whether the child was a victim in the sense of being injured or put in peril by the act or omission of the defendant. The child would have been distressed by being taken.

Considering the matter at common law apart from statute reference should be made to these decisions of the High Court. In Sullivan v Moody and Thompson v Connon (2000) 207 CLR 562 the fathers of children who had been examined for evidence of sexual abuse by medical practitioners and social workers employed by the Department of Community Welfare, sued those persons and the State of South Australia for damages in negligence in the conduct of those examinations which resulted in reports that the children had been sexually abused. Those reports were apparently incorrect. The plaintiffs alleged that as a result of the negligent examination, diagnosis and reporting they had suffered shock, distress, psychiatric injury and consequential personal and financial loss.

It was held that it would be inconsistent with the proper and effective discharge of the professional or statutory responsibility of those involved in investigating and reporting upon allegations of sexual abuse for them to be subject to a legal duty to take care to protect persons who were suspected of being the causes of harm.

These casers are a reminder of the need to analyse whether the defendants were subject to a duty to take care to the plaintiff. In the present case the State and the Commonwealth were discharging, or attempting to discharge, the duties which arose under the Hague Convention. The order for the child to be taken into the care of the Director-General (NSW) was made by the Full Court of the Family Court because of the opinion formed by all three judges having regard to the history of the matter and the plaintiff's conduct in Court.

In Tame v New South Wales and Annetts & Anor v Australian Stations Pty Limited (2002) 211 CLR 317 the High Court again considered the question of the existence of a duty of care and when damages for psychiatric injury were available. In Tame the driver of a car involved in a traffic accident had a nil blood alcohol level. A police officer mistakenly recorded in his report that the driver had a blood alcohol level of 0.14. The error was subsequently noticed and corrected, but a copy of the uncorrected report was provided to the insurer who nevertheless admitted liability. Some time after the accident, the driver's solicitor told her about the entry concerning her blood alcohol level in the police report which had been given to the insurer. On further inquiry the police confirmed that the entry was wrong and apologised for the mistake. The insurer confirmed that liability for the accident was admitted. The driver became obsessed with the mistake and developed a psychiatric disorder. She sued the State claiming it was vicariously liable for the negligent conduct of the police officer. It was held that the police officer did not owe a duty to take reasonable care to avoid psychiatric injury to the driver. It was not reasonably foreseeable that a person in her position would sustain a recognisable psychiatric injury or illness as a result of the erroneous recording of her blood alcohol level in the accident report.

The majority held that the central question was whether, in all the circumstances, the risk of the plaintiff sustaining a recognisable psychiatric injury was reasonably foreseeable. By a majority of 6 to 1, it was held that the duties of an investigating police officer are potentially inconsistent with the existence of a duty to take reasonable care to avoid psychiatric injury to a person whose conduct is under investigation.

In Annetts a majority of the High Court held that the common law does not limit liability for damages for psychiatric injury to cases where the injury is caused by a sudden shock or where a plaintiff has directly perceived a distressing phenomenon or its immediate aftermath.

Tame and Annetts and Sullivan would have had even greater application if a warrant had been issued authorising the actions taken by the AFP. The alleged removal of the child without sufficient lawful authority may give rise to a greater degree of nervous shock and a more serious psychiatric illness than the removal of the child lawfully.

The State was not involved in the events at 17 Edward Street, Arncliffe on the afternoon of 29 September 1998 and cannot be held liable for the actions of the Australian Federal Police.

Putting aside questions of embarrassment and defective pleading, the plaintiff's claim for nervous shock against the State cannot succeed.

Damage To The Plaintiff's Reputation 160. In para 101-34 the plaintiff complains of damage to his reputation by the neighbours witnessing AFP members forcefully entering the house, running out of the house with the child who was in a distraught condition causing the neighbours to think that the plaintiff is a criminal and an abusive or neglectful parent. Para 101-35 is a complimentary paragraph raising much the same point.

This is not an independent cause of action. It flows from the purported execution of the Court's orders of 29 September 1998.

Breach of Statutory or Other Duty 162. I will later deal with the various paragraphs as to the AFP.

No actionable breach of statutory or other duties on the part of the State or the State's officers sounding in damages appears to have been pleaded.

Negligence 164. I have earlier referred to Sullivan v Moody & Ors, Thompson v Connor & Ors, Tame v NSW and Annetts v Australian Stations. In their joint judgment in Sullivan v Moody at [27] the Court referred to - "the incongruity of a proposition that, in deciding what precautions should be taken to protect a child from apprehended sexual abuse, decision makers owe a duty to protect a suspected abuser from emotional distress and other forms of harm."

The present case differs significantly on the facts from Sullivan v Moody. It is hard to see how steps taken to recover possession of the child would not distress the parent losing the child and the child, where the parent losing the child and his family strongly resist handing over the child and the child has to be taken by force and without adequate lawful authority.

At [62] in Sullivan c Moody the justices, after referring to the statutory scheme of protecting children which formed the background to the activities of the respondent continued: "Their professional or statutory responsibilities involved investigating and reporting upon, allegations that the children had suffered and were under threat of serious harm. It would be inconsistent with the proper and effective discharge of those responsibilities that they should be subjected to a legal duty, breach of which would sound in damages, to take care to protect persons who are suspected of being the source of that harm."

It is one thing to complain that the procedures for taking the child were defective (and seriously so) in that the child was taken without a warrant and in apparent reliance upon an order of the Family Court, it is another to complain of sundry breaches of duty including negligence.

No relevant duty of care was owed by the State or its officers to the plaintiff.

Misfeasance In A Public Office 169. In para 183 the plaintiff alleges that the officers and agents of the defendant(s) and/or the responsible defendant(s) with their actions and/or omissions as described in "abovementioned paragraphs" performed misfeasance in a public office. The plaintiff also asserts that the acts or omissions of the aforesaid persons as described in the abovementioned paragraphs were illegal. The plaintiff has nominated some 75 paragraphs.

In para 184 it is alleged that the aforesaid persons abused the power given them by statute and that the acts or omissions of the aforesaid persons were performed maliciously with intent to oppress and defraud the plaintiff of his rights toward the child. The allegations pleaded in paras 183-185 are rolled up allegations and lack sufficient particularity. They are embarrassing and defective.

Further, there is no substance in the allegation of misfeasance in a public office. There is no arguable or tenable cause of action available of misfeasance in a public office. Misrepresentation
In paragraphs 134, 139-140 of the proposed ASOC the plaintiff relies on alleged misrepresentations on the part of Mr Twohill, an officer with the Crown Solicitor's Office. In paras 175-177 the plaintiff relies upon allegedly false or fraudulent misrepresentations made in some 30 paras and asserts that "in making of each of the false or fraudulent misrepresentations [as described in those paras] the officers and agents of the defendant(s) and/or the responsible defendants maliciously, with intent to oppress, wrongfully to remove the child out of Australia and to defraud the plaintiff of his rights towards the child and/or negligently and/or with reckless indifference as to the plaintiff's and the child's welfare and rights."

Paragraph 176 continues and mixes in what appear to be other allegations, if not causes of action. The para is a confusing conglomeration of allegations. As to form the paragraphs contain many rolled up allegations, there is a lack of particularity as to what each officer did and precisely what is alleged. These paragraphs are embarrassing and defective.

As a matter of substance it is not possible to detect a tenable or arguable cause of action based on misrepresentation.

Defamation Claim 175. Through the Freedom of Information legislation the plaintiff was able to obtain copies of reports prepared by officers of DOCS and the AGD. They were critical of the plaintiff. He alleged that they bore imputations that he was a bad parent, a violent person and a dangerous person. There was a claim for absolute privilege extending to all preparatory steps taken with a view to judicial proceedings and in connection with judicial proceedings. It is not easy to see how the claim for absolute privilege can be surmounted. The defamation counts appear to be futile. It should not be overlooked that the reports containing the critical material were circulating between officers of the State and the Commonwealth who were engaged as part of their duties in the Hague Convention proceedings and the return of the child to Macedonia.

The Commonwealth 176. I turn now to the remainder of the pleading as it affects the Commonwealth.

Conspiracy Counts/Unlawful Agreement 177. It will be apparent from what I have earlier written that not only are these bad as to form, embarrassing and defective but they cannot stand as a matter of substance.

As to the allegations of trespass to land, abduction or wrongful removal of the child, wrongful removal of the child's name from the airport watch list, contravention of Family Court orders, Trespass to the Plaintiff, Interference with Domestic Relations, Loss of Child's Services, Nervous Shock to the Plaintiff, Damage to the Plaintiff's reputation, breach of statutory or other duty, Negligence, Misfeasance in a Public Office, Misrepresentation and Defamation, so far as they affect the Commonwealth these matters have been sufficiently covered by what I have earlier written.

Amongst the many claims one matter stands out. When the Full Court of the Family Court made its orders on 29 September 1998 authorising the taking of the child and the placing of her within the care of the Director-General (NSW) of DOCS, the Australian Federal Police were not issued with a warrant nor did they obtain a warrant. There is an arguable case that by taking the child without a warrant the AFP acted unlawfully. The plaintiff would have been distressed on being told, shortly after the finish of the Court proceedings on 29 September 1998, that AFP officers had forcibly taken his child and that distress would have been heightened by his belief that that was unlawful. The orders of 29 September 1998 envisaged a warrant being issued.

The plaintiff ought to be allowed to litigate his claim against the Commonwealth so far as it is based on the AFP wrongfully removing the child without a warrant. 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 trespass to the child. The plaintiff should not be allowed to litigate any of his other claims.

The plaintiff must pay the costs of each of the defendants of his application for leave to file the proposed ASOC attached to his affidavit of 14 August 2003.

I make the following orders: 1. Dismiss the plaintiff's application of 15 August 2003 for leave to file the proposed amended statement of claim in the terms attached to the plaintiff's affidavit of 14 August 2003.

Dismiss Department of Community Services of NSW from the proceedings.

Dismiss the proceedings as against the State of New South Wales, The Trustees of the Roman Catholic Church For The Archdiocese of Sydney and Qantas Airways, Justice Robyn Flohm, Chief Justice Alistair Nicholson and Justice A R O Rowlands.

Order the plaintiff to pay the costs of all defendants of his application of 15 August 2003.

Order the plaintiff to pay the costs of the proceedings of the Department of Community Services of NSW, the State of New South Wales, The Trustees of the Roman Catholic Church For The Archdiocese of Sydney and Qantas Airways Limited.

Grant 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 trespass to the child.
It is noted that there was no evidence of service upon Justices Flohm, Nicholson and Rowlands; 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.

The plaintiff should not endeavour to enlarge, expand or vary his claim. This is the second hearing on pleading matters. If the plaintiff's third pleading of his case is not correct as to form and substance, he should not expect to be allowed a further opportunity to plead his case.

03/05/2006 - Judgment not imported - Paragraph(s)

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Markisic v Dept of Community Services of New South Wales & Ors [2005] NSWSC 1373 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments.

Annetts & Anor v Australian Stations Pty Limited, Tame v New South Wales, (2002) 211 CLR Balkin v Davis, 3rd Ed 2004 Law of Torts Clerk & Lindsell on Torts 16 ed 99,189 London Coco v The Queeen (1994) 179 CLR Crofter Hand Woven Tweed Co v Veitch [1942] AC Hall v Hollander (1825) 107 ER Lonhro Ltd v Shell Petroleum Co Ltd (No 2) 1982 AC MacIntosh v Lobel (1993) 30 NSWLR Markisic v Vizza & Ors [2001] NSWSC 115 Markisic v Vizza & Ors [2002] NSWCA 384 CASES CITED : Munnings v AGS (1994) 118 ALR PLC v Fayed (No 5) [1993] 1 WLR Ratcliffe v Evans 1892 2 QB Richel v Magrath 14 AC 665 Rippon v Chilcoten Pty Limited (2001) NSWLR 198 Rogers v The Queen (1994) 181 CLR State Bank of New South Wales Ltd v Stenhouse (1997) Aust Torts Reports 64,077 Sullivan v Moody & Ors, Thompson v Connon & Ors; 207 CLR 562 TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR Walton v Gardner (1993) 177 CLR

Handley JA pointed out that Richel v Magrath had been followed by the High Court: Walton v Gardner (1993) 177 CLR 378 at 393 and Rogers v The Queen 1994) 181 CLR 251 at 287-288.
Handley JA at 203 described the proceedings in Rippon as "… an attempt to litigates or re-litigate issues which were either decided on or barred by the earlier proceedings."
At 204 Handley JA referred to the judgment of Giles CJ Comm D in State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 64,077 at 64,080, another case involving abuse of process in seeking to re-litigate issues, in which it was said: "… The guiding considerations are oppression and unfairness to the other party in the litigation and concern for the integrity of the system of the administration of justice."
Giles CJ Comm D set out matters to which regard may be had. These included an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.
During the course of the hearing and particularly while Mr Oliver Markisic was addressing the Court with the frequent and many prompts of the plaintiff it was evident that there was great intensity on the part of the members of the Markisic family and that they felt that, as the father, the plaintiff's wishes should prevail.
At the hearing before the Full Family Court Kay J remarked, when giving judgment agreeing with Nicholson CJ: "The only thing I add is in the father's own material he indicates 'I was waiting for 37 years of my life for this baby to be born, and I was not going to give up on her at any cost'."
The conspiracy counts are an abuse of process.
The tort of conspiracy is committed when two or more persons act in concert for the purpose of causing injury to the plaintiff and as a result the plaintiff suffers injury. See Crofter Hand Woven Tweed Co v Veitch [1942] AC 435.
In McKernan v Fraser (1931) 46 CLR 343 at 362 Dixon J said: "It appears now to be settled that, for a combination or acts done in furtherance of the combination to be actionable in such circumstances, the parties to the alleged conspiracy must have been impelled to combine, and to act in pursuance of the combination, by a desire to harm the plaintiff, and that this must have been the sole, the true, or the dominating, or main purpose of their conspiracy." and: "To adopt a course which necessarily interferes with the plaintiff in the exercise of his calling, and thus injures him, is not enough. Nor is it enough that this result should be intended if the motive which actuates the defendants is not the desire to inflict injury but that of compelling the plaintiff to act in a way required for the advancement or for the defence of the defendants' trade or vocational interests." At 408 Evatt J held that each member of the alleged conspiracy had to have the requisite intention or motive to harm the prospective plaintiff.

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