Markisic v The State of New South Wales & Ors

Judgment 1HIS HONOUR: This judgment concerns applications on 4 and 5 October 2012 by Dragan Markisic, the plaintiff, that I should disqualify myself from further hearing his motion to file an amended statement of claim. 2The plaintiff submits that I am intending to put into evidence the judgments and orders of the Family Court of Australia and the Full Court of the Family Court of Australia that were made in 1998 and are exhibits in the notice of motion to re-plead his defamation claim (conveniently referred to in this judgment as the defamation proceedings). The plaintiff argues that I am assisting the defendants to run their cases, that he fears that I have some personal interest in the matters against him because of the allegations in the proposed statement of claim that allege unlawful conduct on the part of a judicial officer in the Family Court in the abduction of his daughter and of judicial officers in the fabrication of judgments and orders of the Family Court. The plaintiff referred to my being "anxious to sit and to preside in the proceedings" and having fear that I "took all notices of motion, especially this kind of application": Tp 157 34-45. He contends that there is actual bias or that he has a reasonable apprehension of bias. Legal principles 3The test of apprehension of bias is whether a fair-minded lay observer might reasonably apprehend that a judicial officer might not bring an impartial and unprejudiced mind in determining the issues for decision: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [31], Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11], In the matter of Cheal Industries Pty Ltd - Fitzpatrick v Cheal [2012] NSWSC 812 at [23]. It is an objective test, not a subjective one (Michael Wilson [33], [67]. 4The application of this test requires two-steps: 1.Identifying what it is said that might lead the judge to decide a case or legal question other than on its legal and factual merits (Ebner v Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337 at [8], In the matter of Cheal Industries Pty Ltd - Fitzpatrick v Cheal [2012] NSWSC 812 at [23]; and 2.Articulation of the logical connection between the matter identified and the feared deviation from the course of deciding the question other than on its merits (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [8], as recently confirmed by the High Court in Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [31], [63]). 5In Spencer v Bamber [2012] NSWCA 274 Campbell JA (with whom Basten JA & Macfarlan JA agreed) referred to the conceptual difference between actual and apprehended bias. His Honour said at [106] - [107]: "106 There is a conceptual difference between apprehended bias and actual bias. The difference emerges in the discussion by Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner at [7] of what apprehended bias is not: 'The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.' (emphasis in original) 107 The actual thought processes of the judge need only be enquired into in deciding whether a judge has been actuated by actual bias." 6Basten JA further said in Spencer at [16]: "... the focus of attention differs in a claim of actual bias, as compared with a reasonable apprehension of bias. In the former case it is the actual state of mind of the judge (or juror) which is in issue; in the latter case, the focus is on the apprehension of the fair-minded bystander. The latter test is usually easier to satisfy, particularly where the evidential basis is limited to statements made by the judicial officer in the course of the proceedings: see Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [33]." Background 7The defamation proceedings were heard by me in February 2008 and were adjourned upon the plaintiff's application. Following restoration to the list, submissions on this motion were concluded on 2 October 2012 and judgment is reserved. 8As I enunciated in Markisic v Department of Community Services & Ors [2012] NSWSC 1197 at [12], the focal point of the debate on the motion to file an amended statement of claim, is whether the proposed statement of claim is precluded by the judgment of the Court of Appeal in Markisic v Department of Community Services of New South Wales & Ors (No 2) [2006] NSWCA 321. 9The plaintiff's contention on the motion is that the "proposed pleading" is different to the "draft pleading" that was considered by the Court of Appeal. He submits that further facts had come to his knowledge after the Court of Appeal's judgment and the causes of action that are incorporated in the proposed pleading were never before the Court of Appeal. A cornerstone of his argument is that there were no proceedings in 1998 in the Family Court of Australia between the Director-General of the Department of Community Services and himself. 10The present controversy arose when the plaintiff partially quoted [52] of the Court of Appeal's judgment. The quoted portion of [52] is as follows: 'The proceedings in the Family Court were brought on 16 July 1998, with Mr Markisic as respondent. After a contested hearing, on 17 August 1998 Judicial Registrar Johnston made an order for the return of Elena to Macedonia. Mr Markisic applied for review of that decision, and on 9 September 1998 Rowlands J was satisfied "that it is appropriate to dismiss the appeal and make orders in terms similar to those of Judicial Registrar Johnston". 11When the plaintiff was asked to tell the court what he said were the proceedings referred to in [52], he replied (Tp 129 25-37): "In 52 the Court of Appeal is dealing with proceedings in which I was never involved. It says, "The proceedings in the Family Court were brought on 16 July 1998 with Mr Markisic as the respondent." I will stop here and say to your Honour now, submit to your Honour, that I was not involved in any such proceedings in the Family Court where the DirectorGeneral was an applicant and I was the respondent. Your Honour, I was involved in the Family Court in the proceedings where I was always the applicant. I was never respondent and especially never respondent in any proceedings with the DirectorGeneral. The only proceedings I was involved were the proceedings I gave you evidence to that effect in the proceedings where I was the applicant on couple of applications, against my former wife Katerina Markisic where she was respondent." 12The plaintiff's attention was directed to his application in 2008 to adjourn the defamation proceedings so that he could apply to set aside the orders of the Family Court and the Full Court of the Family Court that appear to have been made in 1998 between the plaintiff and the Director-General Department of Community Services. The plaintiff's response was that they are "fabricated and false documents." The plaintiff was then referred to the Court of Appeal's judgment at [45]: "The orders of the Family Court were valid unless and until set aside, and if what was done was authorised by the orders Mr Markisic could not collaterally attack them by complaining of conduct whereby they were obtained, or say that any harm he suffered was caused by wrongfulness in the conduct leading to the making of the orders." 13Upon being asked why the orders of the Family Court were not valid, the plaintiff submitted that they were not in evidence in the present application. When reminded that the orders were in evidence in the defamation proceedings, the plaintiff submitted that they should be ignored. He went on to say (Tp 130 42-45): "Your Honour I would ask your Honour to ignore them in the other proceedings as well, because, for defamation, for the granting of leave for the defamation claim." (italics added) 14Much time in the defamation proceedings had been occupied in 2008 about these orders, and judgments were delivered by me on 19, 25 and 27 February 2008 that dealt with many of the issues raised in argument. Furthermore, a condition of the grant of the adjournment was that there would be no further submissions by the parties "with the sole exception of submissions on the outcome of the proposed application in the Family Court..., so far as the outcome is relevant to the defence of absolute privilege." I informed the plaintiff that the court was not going to go back over ground that was well trodden in 2008 and did not intend resiling from the judgments that had been delivered in the defamation proceedings. 15The plaintiff submitted that there were two different notices of motion and that evidence in one notice of motion should not be transferred to another. The plaintiff was told that ultimately I would hear from counsel for the State and the Commonwealth. Conclusion 16I do not consider that there is any merit in the plaintiff's argument. It is a matter of procedural fairness that a judge seeks clarification of a party's argument and then brings to his attention the difficulties that argument might encounter. The plaintiff has been provided with the opportunity to argue against a finding being made that might be detrimental to his application. By raising these matters, I have not assisted the other parties in running their cases nor has any decision been made. The rejection of the plaintiff's application to ignore the Family Court orders in the defamation proceedings is consistent with the conditions of the grant of the adjournment in those proceedings in 2008, my earlier judgments and the closing of submissions on that motion. The five notices of motion that concern the plaintiff were allocated to me to hear. Contrary to the plaintiff's contention, a judge of the Common Law Division of this court does not "pick and choose" the cases that are to go before him or her. 17The plaintiff has not established actual bias or the reasonable apprehension of bias. The application for disqualification for bias is dismissed.