Markisic v Today-Denes [2009] NSWSC 482 | Case summary

Markisic v Today-Denes [2009] NSWSC 482 | Case summary | Zoe

The plaintiff sworn 1 May 2009. 5 This material is referred to later in these reasons. However, the evidence does nothing to illuminate the basis upon which the plaintiff claims that her Honour's judgment was given or entered irregularly, illegally or against good faith. The transcript of the proceedings, however, is by contrast replete with assertions by the plaintiff, made from the bar table, that her Honour's judgment does not exist or, in his words, is "counterfeit". The plaintiff continually referred to the judgment as "the alleged judgment". He even went as far as to suggest that her Honour was not the author of the text of the judgment but that it was in fact the work of the New South Wales Crown Solicitor. There is of course an undoubted tension between these contentions and the relief sought in the proceedings, not to say a tension between them and the fact that the plaintiff clearly recognised both the existence and validity of the judgment when seeking relief in the Court of Appeal, or at least until the Court of Appeal found against him. Incredibly, the plaintiff even annexed a copy of the judgment to his 3 April 2008 affidavit. All attempts to draw these apparent contradictions to the plaintiff's attention did not succeed in having him review his position in the matter, which proceeded to be heard over a period of two days in April 2008 and five days in May this year. 6 The plaintiff commenced these proceedings by statement of claim filed 29 October 1999. A history of what occurred, at least up until the date of her judgment, is recorded in Simpson J's reasons. Her Honour then described the file as "mountainous". It has continued to increase in size since then. It is presently unnecessary to repeat the history in full. Some background however is necessary. Background 7 The resumption of the hearing of this application occurred more than nine years after the plaintiff filed his first statement of claim. The underlying proceeding concerned three separate but virtually identical publications that appeared in Macedonian language newspapers in November 1998. The plaintiff sued some 15 defendants for defamation. After a lengthy and complicated interlocutory history, and two jury trials under section 7A of the Defamation Act 1974 in 2003, a defences and damages trial commenced before Simpson J on 28 November 2005. Only the second, fourth, fifth, ninth and fifteenth defendants participated. At about midday on 30 November 2005, the plaintiff ceased to participate in the trial and left the court. Her Honour subsequently dismissed the plaintiff's claims as earlier described. 8 The plaintiff asserts that the judgment that was entered is not in fact a judgment of her Honour at all, but is instead a counterfeit, fake or forged document, 'planted' on the court file, fraudulently uploaded to the court's website, and circulated generally including to the plaintiff himself, by persons who are unknown to him, but whom he suspects to be associated with agencies of the New South Wales government. The plaintiff expressed his views in relation to these matters in various ways. A sample of his concerns taken from the transcript of the proceedings before me can be seen in the following extracts: "PLAINTIFF: … I heard from your Honour judgment that your Honour couldn't believe in such extraordinary case like this case is before your Honour. Specifically I believe that your Honour was referring to the fact of fabrication of judgment of a judge of this court, in this particular case Justice Simpson. I would submit to your Honour if it was possible for certain persons to fabricate the orders and judgment of the Family Court - your Honour is aware that I provided yesterday a list of judgment and orders which I am alleging are fabricated in the Family Court, nearly four or five I gave to your Honour.

              PLAINTIFF: Your Honour, at the time the document looking like judgment of Justice Simpson and the transcript which was also sent by mail, I believed and I formed an impression and I was tricked, and that was the intention of those documents, to trick me to believe or to make me confused.

PLAINTIFF: I don't need any evidence on this particular application who did it and why he did it. The main issue for your Honour deciding is whether this is a judgment of Justice Simpson. Who did it, why did it, the extent of involvement of other people, conspiracies, that is for police investigation and we are not going to do that, to take that task here, in my belief, and I am not intending to abuse the process of this court with any such intention. My simple intention is if this document is found not to be first genuine, made by Justice Simpson, I am entitled on judgment. Second ground, if certain material facts stated inside never occurred, I am again entitled to judgment. That is the main issue." 9 Despite his current position that the judgment is a counterfeit, a fake or a forgery, the plaintiff had earlier appealed against her Honour's decision to the Court of Appeal. He said in the course of his submissions that he did so because at the time of his appeal he had not realised that her Honour's reasons for judgment were a counterfeit, a fake or a forgery. The appeal was heard by the Court of Appeal on 13 November 2006, and was dismissed with costs on 20 December 2006. The plaintiff sought special leave to appeal to the High Court from the decision of the Court of Appeal. That application was refused. 10 The plaintiff did not let the matter rest there. Paragraph 2 of the his notice of motion filed 17 September 2007 seeks the following relief: "[2] At the hearing of this motion, after presentation of all documentary evidence by the Applicant and oral examination of the witnesses, the Court to set aside judgment and orders of her Honour Simpson J from 09.12.2005 under Common Law and rules 36.15 and 36.16 of the Uniform Civil Procedure Rules on the ground that the said judgment and orders were given or entered, or the judgment and orders were made, irregularly, illegally or against good faith or the judgment and orders were obtained illegally or irregularly or in fraud by the Defendants." 11 That prayer for relief presupposes the existence of her Honour's judgment and is irreconcilable with the basis upon which the plaintiff in fact made his submissions to me, namely, that there is no judgment of her Honour delivered on 9 December 2005 or at all. The ninth defendant did not oppose the plaintiff putting submissions that were inconsistent with the foundation of his motion, presumably and understandably in the interests of having his extraordinary complaints fully and finally heard and determined. I acceded to that course as appears from the following extract from the transcript: "HIS HONOUR: I note for the record that upon enquiry by me about whether or not Mr Markisic's notice of motion commencing these proceedings contains in it a specific prayer for relief upon the basis that the judgment of Justice Simpson is either a fraud or a forgery or a fake or a counterfeit or a document not prepared by her or prepared by somebody else on her behalf or, alternatively, without her knowledge, or any one or any combination of those arguments, Dr Collins of counsel concedes that the issue framed in that way is alive between the parties and asks that in due course a determination about it be made. In those circumstances I will treat the plaintiff's application as one that includes a payer for relief on one or other of those bases and I will continue to deal with the matter accordingly." 12 The hearing of the plaintiff's motion commenced before me on 9 April 2008 and continued on 10 April 2008. It was then adjourned part heard. The hearing resumed on 4 May 2009 and continued for five days. Upon resumption the plaintiff filed in Court a further notice of motion. By par 1 of that motion, the plaintiff sought the following relief: "[1] The Court to enter judgment for the Plaintiff, i.e. granting the relief sought in prayer No. 2 of the Plaintiff's Notice of Motion filed on 17.09.2007, on the ground of admittance [ sic ] made by the 9th Defendant during the hearing before Justice Ian Harrison on 10.04.2009" [ sic ]. 13 That relief sought in that paragraph was in the nature of an application for summary judgment. On 4 May 2009, I directed pursuant to Part 2, rule 1 of the UCPR that the hearing of that application take place concurrently with the balance of the proceedings. This appears from the following: "HIS HONOUR: I am going to make an order under part 2 rule 1 of the Uniform Civil Procedure Rules 2005. You may be aware that under that section I can make an order at any time or from time to time giving directions for the conduct of any proceedings as appear convenient for the just, quick and cheap disposal of the proceedings. It seems to me that we have spent from this morning until now, and it is 3.40 pm, in a way that has been less than productive. It doesn't strike me that it has been quick. It certainly hasn't been cheap, and I will reserve my decision about whether or not it has been just, but I think we need to get on with what this case is about.

[4]

No documentary evidence was tendered at any continuation of the trial after the plaintiff left the courtroom at about midday on 30 November 2005 (see T258/18: ' third ground, that certain documentary evidence was tendered '). 15 These issues are considered in detail later in these reasons. The plaintiff summarised his contentions about them as follows: "PLAINTIFF…To summarise, there was continuation of the trial, that there was witness enter in the witness box and giving oral evidence and, third point in the judgment, it says there was some documentary evidence tendered. On those three points the judgment, this document, is based. I am alleging before your Honour that none of these events happened." 16 The plaintiff relied upon the affidavits referred to earlier, as well as an outline of submissions filed on behalf of the respondent in proceedings in the Family Court of Australia in Markisic v The Director-General of the Department of Community Services plus a series of photographs and two DVDs. The ninth defendant tendered no evidence. 17 Reference was made in the course of the hearing to documents appearing on the court file and in particular, a two page transcript of a hearing before her Honour on 9 December 2005 when her Honour published her reasons for judgment and made orders for costs, and an Associate's record of proceedings from 30 November 2005 showing that the trial before her Honour continued in the plaintiff's absence after about midday on that date. The plaintiff vigorously opposed any reliance being placed on those documents, contending in substance that any material on the court file was unreliable, and liable to have been planted there or tampered with by unknown persons. For example, the plaintiff made the following submissions: "PLAINTIFF: Court file. I told you in relation to website your Honour, the officer working on a website is not to ask any more question just to do the orders, to comply with the orders. To put the, the judgment or document looking like judgment, it is for him judgment. He will do the, the, he will perform the command, the order received and he will publish the judgment on the website and no more questions will be put to him. Or there is no other question for anyone in the Attorney-General Department.

PLAINTIFF: The fabricated one. For many years they were stating, until we became aware of, they were claiming that those were genuine orders of the Family Court and they succeeded in certain way, not in full but in certain way they succeeded to convince judicial officers of this court that Family Court issue and made orders to that effect and such orders and judgment were effectively made in favour of the, of the Crown Solicitor or the state of New South Wales in the Family Court." 18 These themes and assertions reappeared throughout the seven days of the case, which took the relatively unusual form of the plaintiff addressing me for almost the whole of that time. The ninth defendant did not suggest in the particular circumstances of this case that any other approach should have been adopted, or that he suffered any substantive or procedural prejudice as a result. The plaintiff did not complain that he was not given a proper opportunity to present his case, and could not realistically have done so. The proceedings before Simpson J and the plaintiff's appeal to the Court of Appeal 19 The present application must be understood in the context of what occurred at the trial before her Honour and the subsequent appeal. A detailed summary is contained in the reasons for judgment of the Court of Appeal in Markisic v AEA Ethnic Publishers Pty Ltd (supra) at [49]-[135]. The plaintiff appeared on the first, second and third days of the trial between 28 and 30 November 2005. He made detailed submissions on each of those days and made three unsuccessful applications, on various grounds, for an adjournment of the trial or vacation of the hearing. He made numerous unsuccessful applications to have the trial judge disqualify herself on grounds of actual or apprehended bias and he made submissions in relation to a large number of subpoenas that he had issued against various parties, as well as in relation to a subpoena directed to him personally. Until midway through 30 November 2005, the plaintiff was fully engaged in the proceedings and had revealed no incapacity to continue. These matters are recorded in her Honour's judgment at pars [12]-[18]. They are also consistent with the plaintiff's own evidence in his 17 September 2007 affidavit at pars [4]-[7]. Those paragraphs are in the following terms: "4. The final trial in these proceedings in relation to two newspapers …was held from 28.11.2005 to 01.12.2005 before Justice Simpson. At that trial I was self-represented, assisted only by my brother Oliver Markisic.

[7]

After the above trial on 09.12.2005 her Honour Justice Simpson delivered her judgment." 20 I observe in passing that these paragraphs are wholly inconsistent with assertions and submissions upon which the plaintiff now seeks to rely. For example, he subsequently disputed before me that anything occurred in the proceedings before her Honour after he ceased further to participate in them on 30 November 2005. That is inconsistent with his evidence that her Honour conducted the case until 1 December 2005 and that she continued with the trial in his absence after he left. It is also inconsistent with his evidence that her Honour delivered a judgment on 9 December 2005, a fact about which the plaintiff made detailed submissions to the contrary. It would seem that his arguments have developed somewhat organically over time and that the intent and purpose of this evidence was formulated before the plaintiff came across or conceived of the idea that it would become necessary for him to rewrite the past if he were to have any prospect of succeeding before me. This will become clearer from what follows later. 21 Midway through the third day of the trial on 30 November 2005, her Honour required the plaintiff to call or give evidence. At that point the plaintiff declared that he would no longer participate in the trial on the grounds of a worsened health condition. After being given the strongest possible warning by her Honour of the consequences of adopting that course, and being given an opportunity to collect his thoughts, the plaintiff departed and did not return. These matters are also recorded in her Honour's judgment. The plaintiff did not challenge the accuracy of that summary and confirmed that he left the trial due to his worsened health condition at around midday. 22 In his appeal to the Court of Appeal the plaintiff contended, contrary to the position that he now adopts, that after he left the courtroom, the trial continued in his absence. One of his central contentions was that her Honour's judgment was founded on a fraud, in that the only witness to give evidence in support of the ninth defendant's defence was an impostor. Tobias JA, with whom Beazley and Basten JJA agreed, disposed of that contention at pars [150]-[158] as follows: "[150] It was further submitted, as I understand the appellant's written submissions, that the evidence that the witness had given with respect to the appellant's abuse of her was false and that " the evidence shows opposite ". That evidence was never identified. I would assume that had the appellant entered the witness box he would have denied the conduct alleged.

HIS HONOUR: You have worked that out?" 24 In the Court of Appeal, as the above extract from Tobias JA's judgment demonstrates, the plaintiff's position was that those documents established that Katerina Markisic had not come to Australia to give evidence at the trial before her Honour. The Court of Appeal found that the documents were part of a body of 'overwhelming evidence' that was precisely to the contrary. Despite the Court of Appeal's decision, the plaintiff changed his position before me to allege that the documents produced by the Department of Immigration in response to his subpoena were themselves 'fabrications', by a 'corrupted officer' within the Department. He then said, completely inconsistently with the position he had adopted before the Court of Appeal, that at the time of the hearing of the appeal he did not believe the Department of Immigration documents to be genuine. 25 This is consistent with the plaintiff's whole approach. When confronted with clear evidence that he cannot explain or avoid, the plaintiff concocts an "explanation" that seeks to impugn or discredit or deny the existence of the offending material. This approach was given a long lead in the proceedings before me. Relevant Principles 26 Although his notice of motion referred both to Part 36 rule 15 and Part 36 rule 16, the plaintiff only relied on the former. An application to set aside a judgment on the ground that it has been procured by fraud should ordinarily be made in a separate proceeding: see the many authorities for that proposition cited in Ritchie's Uniform Civil Procedure NSW at [36.15.20]. As a practical matter, the ninth defendant did not take any point based upon this. 27 The principles governing the plaintiff's application were summarised by Kirby P, with whom Hope and Samuels JJA agreed, in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534. The learned President said this at 538-9: "It is useful to state a number of principles which are established by law and which govern proceedings of the kind which the appellant wishes to bring.

HIS HONOUR: This is getting ridiculous, isn't it?" 32 The plaintiff next submitted that, in any event, the document purporting to be her Honour's judgment (whether the original on the court file, the copy on the court website, or the copy exhibited to his affidavit) did not satisfy the requirements of s 157 of the Evidence Act 1995. He contended that there is no evidence that her Honour published any judgment on 9 December 2005 within the meaning of Part 36 rule 3 of the UCPR. Each of these contentions is without merit. 33 The onus lay with the plaintiff to establish, to the standard of proof that applies in cases involving an allegation of fraud, that her Honour's judgment was a counterfeit, a fake or a fraud. The only remotely relevant evidence upon which he relied to support that contention was the fact that he was not present in court on 9 December 2005 at the time the reasons for judgment were published. The ninth defendant submitted it was self-evident that the fact that he was not there did not constitute evidence that her Honour did not publish her reasons for judgment on that date. 34 Secondly, her Honour's reasons for judgment are in evidence. This is an application brought in the very proceeding in which her Honour delivered her reasons. They are on the court file. They are on the court's website. A copy was exhibited to the plaintiff's affidavit sworn on 3 April 2008. The ninth defendant submitted that the proposition that the court should somehow not be permitted to have regard to its own record of proceedings is clearly absurd. The proposition that the court should read the plaintiff's 3 April 2008 affidavit in the manner in which he contends, quarantined from a consideration of what it says for any other reason, is equally unsustainable. 35 The plaintiff also contended, in a largely discursive and unstructured way, that the court file might have been tampered with, or documents might have been 'planted' in it, and that the judgment might have been fraudulently uploaded to the court's website. Some of the relevant extracts from the transcript appear above. A slightly different formulation of the plaintiff's contentions in this respect emerges from the following extract from the transcript: "PLAINTIFF: I would like to address the court in relation to whether I have changed my claim before your Honour from the beginning of these proceedings or not. I have not changed any claim in these proceedings. I am repeating on many occasions to your Honour that I am asking your Honour to find this document attached to my affidavit that is not a judgment of this court but still operates between us as the judgment of Justice Simpson and on such finding your Honour to set aside that document. That is the simple request in these proceedings, nothing more than that. I am alleging that someone illegally planted this document as a judgment of Justice Simpson into the court file.

PLAINTIFF: The claim is that the document attached to my affidavit is not a judgment of Justice Simpson but stands in the present situation, as the situation is, that document stands as a judgment of Justice Simpson between the parties. I would like ruling of your Honour to set aside that document, on first ground, if the document is not made by Justice Simpson." 36 There was not the slightest piece of evidence to support that theory. It was made all the more bizarre by the plaintiff's contention that the fraud was in his belief concocted by the Crown Solicitor and the Attorney-General's Department, to cover up the fact that bandits, masquerading as Australian Federal Police officers, had been hired by or at the behest of the Crown Solicitor to kidnap his daughter in 1998 and deliver her into the possession of child predators and paedophiles. For example: "PLAINTIFF: … Now the ninth defendant came before your Honour and is twisting the argument just to avoid consequences of in this court because he was pursuing some fabricated documents. He was putting some fabricated documents into this court through some unknown sources. Now I know through which sources. That is the Crown Solicitor for the State of New South Wales, Mr Ian Knight who was involved in the fabrication, his opposite part in the Family Court proceedings who was involved in the fabrication of all these documents in 1998 and who was involved in submitting false material facts in submission to the High Court of Australia before Justice Gaudron and now in this court the same persons through Mr Collins tried to justify their wrongful acts in 1998 in relation to the fabrication of orders in the Family Court and in relation to wrongful taking of my daughter, of kidnapping of my daughter from my home with false warrant and with persons who falsely presented to the Australian Federal Police executed warrant when in fact they were bandits, sent by the Crown Solicitor, Mr Ian Knight, to take my child and put my child forcefully like they put in DOCS but they put in a private home with Mr Ian Knight and his accessories personally assisting him, where my child was abused for nearly two weeks sexually, mentally and physically. And justification for those wrongful Act they find Zlatko Blajer, who first mentioned the false story in his newspaper, justifying wrongful acts and reporting from Family Court proceedings but reporting in a way which assisted the Crown Solicitor, Mr Ian Knight and his persons involved with him together.

The only person who had benefit from that and who ordered that from Zlatko Blajer are the persons who committed crimes and other torts in 1998, and the first person who was responsible for all of such things done to me and to my daughter in 1998 is Mr Ian Knight, the Crown Solicitor's. He was the person who was serving me every fabricated documents in the Family Court proceedings, the person who instituted unlawful proceedings in the Family Court, Mr Ian Knight, and the barrister, in particular the barrister in the Family Court proceedings involved Miss Robyn Flohm. Now she is sitting as a judge of the Family Court of Australia in the Parramatta registry, but in 1998 she was together with Ian Knight, and together with other two solicitors of Attorney General's Department, Miss Gina Vizza and Mr Mark Twohill, those four persons were involved in the fabrication of documents in the Family Court, in the unlawful taking of my daughter from my home, sending bandits to rape my home and falsely represent to myself as Australian Federal Police when in fact they were not Australian Federal Police and they were just bandits hired to do the kidnapping, and those persons kept my child after the bandits delivered my daughter to their possession. At the place they detained my child and they had my child in their possession, but at the same time falsely - they kept my child for about 10 days but at the same time falsely represented to me that my child is in the care of the Director General of the Department of Community Services, meaning in the welfare system of the State of New South Wales." 37 Thirdly, her Honour's reasons for judgment obviously satisfy the requirements of s 157 of the Evidence Act, which is in the following terms: " 157 Evidence of a public document that is a judgment, act or other process of an Australian court or a foreign court, or that is a document lodged with an Australian court or a foreign court, may be adduced by producing a document that purports to be a copy of the public document and that:

(ii) at any other place at which he or she is authorised to hear or dispose of those proceedings, or…" 40 The plaintiff did not produce any evidence to suggest that there was any reason to doubt the accuracy of the court record, beyond his repeated assertion that he did not attend court on 9 December 2005. One of his affidavits refers to the events of 9 December 2005 as well. If the plaintiff's assertion was that the court file had been tampered with in some way relating to the record of proceedings on 9 December 2005, he produced no evidence to support it. It is obviously an extravagant submission by any measure and highly likely, if not certain, to be incapable of proof. 41 The ninth defendant submitted that there were two further reasons why the plaintiff's contentions in relation to the authenticity of her Honour's judgment should be rejected. In the first place, he has pointed to no fresh evidence that was not available to him at the time of his appeal to the Court of Appeal in 2006. The only evidence to which he referred at all was the fact that he was not in court on 9 December 2005. That was a matter well known to him at the time he appealed to the Court of Appeal. The plaintiff therefore offends the second of the principles stated by Kirby P in Wentworth (supra). See also Port of Melbourne Authority v Anshun Pty Ltd (supra); Markisic v Middletons Lawyers (supra). Secondly, the ninth defendant submitted that the plaintiff did not establish (or indeed even seek to establish) that the ninth defendant was responsible for the alleged fraud that is said to have resulted in the creation and circulation of the counterfeit, fake or forged judgment. He therefore offends the fifth of the principles stated by Kirby P in Wentworth. 42 To the contrary, the plaintiff repeatedly stated that he had no evidence, and was not suggesting, that the ninth defendant was the architect of the allegedly fraudulent conduct. At the hearing on 9 and 10 April 2008, his position, at its highest, was that the ninth defendant was an 'accessory after the fact' of the alleged fraudulent conduct of others. For example, the plaintiff said this on the second day: "PLAINTIFF… In my submission, I would like your Honour to be with me on this point, that in accordance with this rule it is not necessary that the ninth defendant was the cause or the source for the fraud in the Family Court. I am not alleging and there is not any part in the application in the Family Court that the ninth defendant was part of the fraud. I'm not alleging that, and the application of the Family Court is nothing to do with the ninth defendant involved or with the ninth defendant at all. He is unknown to the Family Court in relation to the application which is listed for 23 April.

PLAINTIFF: Not quite, if the fair-minded observer or bystander in the courtroom knows all the submissions I put and the evidence before your Honour. Say, for example, if bystander observer hear my allegation that there was no witness at all at the continuation of the trial or there was no continuation of the trial without witness at all. If the fair-minded observer read the actual document and see what is written in the document and if he hear, he see in the document that that document is whole based on the evidence of the alleged witness in the witness box, on the oral evidence and the documentary evidence received from the witness, if the observer later on hear my allegation then none of that happen, that no continuation of the trial was in my absence after I left the courtroom, no witness entered the witness box and no evidence was given by that witness, then what is too hard to conclude to the observer and hearing that I am alleging that document was not made by Justice Simpson?" 49 It is relatively unsurprising that the plaintiff produced no satisfactory evidence to support what he said was his opinion in relation to these matters. Notwithstanding that fact, or perhaps because of it, I have chosen wherever possible to give full vent to the plaintiff's submissions, including the publication of relatively lengthy extracts of what he said in open court to me, lest any version or shade of meaning or other subtlety contained within them be obscured or overlooked or inadequately emphasised by my attempts to formulate or summarise the essence of his particular, and often very novel, propositions. Continuation of the trial 50 The plaintiff contended that there was no continuation of the trial after he ceased to participate on 30 November 2005. It is difficult to take this submission seriously. I do not. The plaintiff was unable to prove it and did not seek to do so in any reasoned or reasonable way beyond his irrelevant assertion that he himself was not present after midday on 30 November 2005. It is completely at odds with his earlier sworn evidence to the opposite effect. It is difficult to know how it could have been established as a fact at all having regard to what transpired in the Court of Appeal where reference to the proceedings before her Honour occurred constantly and where part of the reason for the appeal was the plaintiff's allegation that her Honour had fallen into error in the way in which she dealt with the matter after he chose to take no further part in the proceedings. The plaintiff's position at the very least borders upon an abuse of the process of the court and collides with the boundaries of judicial restraint. Evidence of Katerina Markisic 51 The plaintiff's next contention was that no witness gave evidence at any continuation of the trial and that, in particular, his former wife Katerina Markisic did not do so because she was not in Australia at all but in Macedonia at the time of the trial. This is a variation of the plaintiff's contention that the trial did not continue after he left the court. In support of his contention, the plaintiff relied on his 13 February 2009 affidavit, in which he deposed to the fact that his brother and mother had a holiday in Macedonia in July and August 2005 and that a photo of Katerina Markisic taken at that time showed that she was there then. The ninth defendant submitted that that affidavit provides no apparent support for the plaintiff's assertion that his former wife was not in the witness box in Australia in November 2005. So much is apparent as a matter of common sense. 52 The plaintiff's brother Neven Markisic swore an affidavit on 11 February 2009, in which he described travelling on holiday to Macedonia between July and September 2005. The affidavit contained hearsay material to which the ninth defendant objected. The hearsay allegations (at their highest) are to the effect that Katerina Markisic denied to Neven Markisic sometime between July and September 2005, and again on about 26 November 2005, that she was intending to give evidence at the trial. I originally deferred ruling upon that objection. It is however clearly inadmissible to prove the fact of the intention described and should be rejected. Even understood at face value, it does not amount to evidence that supports the fact that Katerina Markisic did not come to Australia for at least the following reasons. 53 First, in par 10 of his affidavit Neven Markisic deposes to the relevant conversation having occurred 'on or about' 26 November 2005. This imprecision stands in stark contrast to the specific dates and times of conversations given by other deponents relied upon by the plaintiff. Unlike many of the other conversations on which the plaintiff relied, no telephone bill said to correspond to the alleged conversation was produced. Neven Markisic was presumably deliberately imprecise in his affidavit, and may well have had the conversation to which he deposes some time before 26 November 2005. It is to be recalled that his affidavit was sworn on 11 February 2009, more than three years after the events that it purports to describe. 54 Secondly, Neven Markisic deposes to having the conversation with Katerina Markisic on her 'Macedonian mobile number': see par 12. The plaintiff has overlooked the obvious point that the alleged call to the Macedonian mobile number could well have been received by Katerina Markisic on her Macedonian mobile phone in Australia or anywhere in the world. 55 Thirdly, when regard is had to the evidence that Katerina Markisic gave against the plaintiff in the trial before her Honour (in particular, of physical abuse and of kidnapping) the ninth defendant submitted that it would scarcely be surprising if she had gone out of her way to avoid revealing her intention, to come to Australia to give evidence against his interests, to any member of his family. 56 The plaintiff next relied upon an affidavit from his mother Marika Markisic, sworn 12 February 2009, in which she deposed to telephoning Katerina Markisic's home number in Macedonia on 28 November 2005. The ninth defendant also objected to that evidence as hearsay. At its highest, the evidence is that Katerina's father, Goce Miovski, represented that Katerina was in Veles, Macedonia on 28 November 2005. The ninth defendant again submitted that it would hardly be surprising if Katerina Markisic's father had declined to reveal the true whereabouts of his daughter in circumstances where she had gone to Australia to give evidence against her ex-husband. Even if it were admitted, the ninth defendant submitted that this hearsay allegation fell well short of establishing the proposition in support of which it is advanced. 57 Finally the plaintiff relied upon par 19 of his 17 September 2007 affidavit, which set out what is described as 'the evidence that Katerina was not called as a witness at the trial'. However, that material cannot stand in the face of the decision of the Court of Appeal and the findings and conclusions referred to in par [158] of the judgment to which reference has already been made. The evidence was "overwhelming" that Katerina Markisic was in Australia in November 2005 and gave evidence in the proceedings before her Honour. The plaintiff is attempting to revisit that issue when there is no sound basis for doing so. All of the affidavit evidence on which the plaintiff sought to rely on this issue concerned alleged conversations in 2005. None of the material is new evidence. It was all available to the plaintiff at the time of his appeal to the Court of Appeal in 2006. The ninth defendant correctly submitted that it is now too late for the plaintiff to seek to relitigate this contention in the circumstances: Wentworth v Rogers (No 5) (supra) at 538; Port of Melbourne Authority v Anshun Pty Ltd (supra). 58 It should also not pass without comment that when pressed to explain why the hearsay evidence on which he sought to rely should be preferred over the documentary evidence produced by the Department of Immigration in response to his subpoena in the Court of Appeal, the plaintiff declared that the documents produced by the Department of Immigration were 'fabrications', by a 'corrupted officer' within the Department: see par [23] above. This is an extraordinary and unsupported assertion by the plaintiff. Even assuming that the allegations were true, they have not been related or connected in any way to the ninth defendant. Documentary evidence 59 The plaintiff submitted that no documentary evidence was tendered before her Honour at any continuation of the trial after midday on 30 November 2005. This has been referred to earlier. However, the submission is difficult to follow. In the first place, the transcript of the trial and her Honour's judgment each record the tendering of exhibits. Secondly, the submission is in complete conflict with what was referred to by the Court of Appeal at par [157] reproduced above. The contention is wholly unsupported and patently unsupportable. The plaintiff's motion dated 4 May 2009 60 By paragraph 1 of his notice of motion filed in court on 4 May 2009 the plaintiff sought judgment on the basis of an alleged admission made by counsel for the ninth defendant on 10 April 2008. The substance of the allegation appears in par 5 of the plaintiff's 1 May 2009 affidavit as follows: "5 On 10.04.2008, in opposition to my application for an adjournment, the barrister Matt Collins in his oral submissions made an admittance [ sic ] that his client does not (and did not ever) rely on any material fact and on any document from the Family Court's file No. SY6727/98 and on any order or judgment from the Family Court's proceedings No. SY6727/98. (Copy of the relevant extract from the transcript from 10.04.2008 is to be fond in the exhibit "AA" of this affidavit and marked "1")." 61 The plaintiff did not at any time explain how, if an admission to the effect alleged were made by counsel for the ninth defendant on 10 April 2008, it would entitle him to an order setting aside her Honour's judgment on the ground that it was obtained irregularly, illegally or against good faith. There is no discernible logical connection between the alleged admission and the relief sought. 62 In any event, the allegation proceeds from an entirely false premise. No admission of the kind alleged by the plaintiff was made. As the transcript plainly reveals, all that relevantly occurred was that a submission was put, in opposition to an application by the plaintiff for an adjournment, to the effect that her Honour relied in her reasons for judgment upon the oral evidence given by Katerina Markisic, and referred to the earlier proceedings in the Family Court solely as background matters. For example: "[DR COLLINS:] My principal two submissions are these: as a matter of law, Mr Markisic's application is misconceived; in order to succeed he must show some bad faith and absence of good faith on the part of my client and he hasn't. To the contrary he said that he doesn't allege that the ninth defendant had any involvement with any fraud in the Family Court. So from his own mouth the application must fail in my submission at the threshold on the legal question. Even if that were wrong, however, your Honour, the premises argument factually is false, namely, Justice Simpson's judgment turned on the events in the Family Court. For reasons I've sought to articulate it did not. The judgment turned on the whole upon her Honour's acceptance of the evidence of the witness Katerina Markisic." 63 In short, the submission of counsel on 10 April 2008 was that the hearing and determination of the present matter ought not to await the resolution of the plaintiff's proceedings in the Family Court because, properly understood, her Honour did not place any material reliance on any events in the Family Court for the purpose of deciding this proceeding adversely to the plaintiff. The ninth defendant submitted that there was simply no admission of the kind alleged by him. 64 To give the matter some context it is instructive to recall the plaintiff's contentions when the motion was initially referred to by him on the first day of the resumed hearing: "PLAINTIFF: Today, your Honour, this motion is returnable before your Honour.

PLAINTIFF: That is very simple answer to that, your Honour. There is, I can provide to your Honour with evidence of bad faith of the ninth defendant. The ninth defendant reached the trial on claim on defence drawn up and the file around the Family Court proceedings and everything what happened in the Family Court proceedings and on certain alleged Family Court orders and judgments. That was debated by the ninth defendant before various judicial officers, for example Justice Nicholas as case manager for handling the matter for over two years. And ninth defendant claiming during various proceedings before his Honour that his client is relying on everything that happened in the Family Court proceedings in relation to his defence and justification defence." 65 There is no relationship between anything said by Dr Collins, upon which the plaintiff attempted to rely as a relevant admission, and any other part of the plaintiff's case. The whole exercise, including the issue of whether or not the proceedings should somehow on their third day be converted into a jury trial - a concept that I did not follow in the circumstances even if the plaintiff thought he did - was a complete waste of time and once again wholly misconceived by the plaintiff. Judgments and orders of the Family Court 66 From time to time in the course of his address the plaintiff made passionate submissions in relation to what he said were eight counterfeit, fake or forged judgments or orders of the Family Court. The contention appeared to be that because those judgments and orders were tendered before Simpson J, her Honour's judgment came to be based on erroneous matters and is accordingly liable to be set aside. It will immediately be observed that that submission is irreconcilable with the plaintiff's principal contentions, namely, that no documents were in fact tendered before her Honour at all and that she did not ever in fact deliver a judgment. 67 The only evidence adduced by the plaintiff to support his claims concerning the alleged frauds in the Family Court were his 8 December 2008 affidavit in which he deposed, relevantly, that he was not present when various orders and judgments were made in the Family Court and Oliver Markisic's affidavit of the same date to the same effect. In addition, the plaintiff tendered a copy of an outline of submissions filed by the Director General of the Department of Community Services in Family Court proceeding SYC 1502 of 2008 brought by the plaintiff, in which the Director General sets out his submissions as to why there is no reason to doubt the authenticity of the various judgments and orders challenged by the plaintiff. He sought to argue that the outline of submissions constitutes an admission by the Director General in that proceeding that the plaintiff was not present at the time the judgments and orders were made. Even if the outline of submissions could be read in that way, it self-evidently does not support the plaintiff's contention that the judgments and orders were not made at all. 68 The ninth defendant submitted that none of this evidence comes remotely close to establishing the plaintiff's contention that the judgments or orders of the Family Court that are adverse to his interests are anything other than authentic. Even if they were all counterfeits, fakes or forgeries, however, it was not contended that the ninth defendant played any part in their fraudulent creation. The plaintiff's contentions in relation to the alleged authenticity of judgments or orders of the Family Court do not support the relief that he seeks. Miscellaneous 69 After I reserved my decision the plaintiff filed a notice of motion on 15 May 2009, the date upon which his written submissions were filed, returnable on 26 June 2009, seeking orders in the following relevant terms: "1. The Court to punish for civil contempt Mathew John Collins for failure to comply with the order of Justice Carolyn Simpson made in the Supreme Court of NSW's proceedings No 20492/99 on 28.11.2005 to produce an affidavit on 29.11.2007 [ sic ] i.e. for not fulfilling of an undertaking given to Justice Simpson on 28.11.2005 to produce an affidavit on 29.11.2007 [ sic ].

The Court to punish for criminal contempt Mathew John Collins for intentionally providing to Justice Ian Harrison at the hearing in the Supreme Court of NSW's proceedings No 20492/99 on 08.05.2009 false and misleading statements with an intention to pervert the course of justice." 70 I am unaware of the fate of that motion. Presumably it was somehow overtaken by the fact that on 29 June 2009 the plaintiff filed another notice of motion, returnable on 29 July 2009, seeking orders in identical terms with the exception of an additional prayer for relief as follows: "1. Directions to be made and proper case management be made in relation to this motion, time table be fixed and date be allocated for hearing of this motion to enable the Applicant to have enough time to call the witnesses and issue subpoenas for oral examination of the proposed witnesses to be called at the hearing of this motion." 71 I have referred to these events in order to make it clear, in the context of what I am about to deal with, that I have not formed any views or impressions of the plaintiff, and I draw no conclusions, that are based upon anything that has post-dated the reservation of my decision on 8 May 2009. The plaintiff's notices of motion are not relevant to any issue that I have to decide and I have seen no evidence in support of them. 72 In addition to seeking to have the plaintiff's notice of motion dismissed with costs, the ninth defendant's written submissions included the following, which I will record verbatim: "This litigation, and litigation in a related proceeding (20285 of 2004), has a long and tortuous history. The related proceeding was a defamation action brought by Mr Markisic and his brother Oliver against Middletons Lawyers, Mr Blajer and two solicitors in relation to the contents of the witness statement of Katerina Markisic which was served prior to the first instance trial in this proceeding. In both proceedings, Mr Markisic failed at first instance (with costs), failed on appeals to the Court of Appeal (with costs), and was refused special leave to appeal to the High Court.

[37] It is urged upon me that there are similarities with the present case and Markisic v Department of Community Servies of New South Wales & Ors (supra), and that orders should be made to restrict the plaintiffs in terms not dissimilar to the orders made by Bryson JA in that case. For the reasons earlier set forth, I am of the opinion that such orders should be made." 77 For reasons that follow in my conclusions, I consider that special orders of the type sought by the ninth defendant should be made. Conclusions 78 On 8 May 2005 I reserved my decision in this matter, noting that the plaintiff would provide written submissions to the court by no later than 5.00pm on Friday 15 May 2009. Such submissions were duly received in the registry and stamped as filed by the clerk of the court on that day. I have had regard to those submissions in detail as well as to the photographs and DVDs tendered at the end of the hearing. 79 With the exception of the material dealing with the ninth defendant's application for special orders, the plaintiff's submissions are no more than a further re-statement of the lengthy submissions that he made in the course of the proceedings. In one sense this is unsurprising given the length of time that the plaintiff took in oral submissions over the best part of two days in 2008 and five days in 2009 and the constant and reoccurring nature of the topics that were covered. The only significant interruptions to the plaintiff's lengthy address occurred during submissions presented on behalf of the ninth defendant on 8 May 2009, which occupied merely 24 pages of the transcript, and the several applications that I disqualify myself for apprehended bias together with judgments delivered by me each time this occurred. In all, the proceedings filled over 550 pages of transcript of which the most significant proportion consists of the plaintiff's lengthy oration. Although I have quoted extensively from what he said, I recognise that the several extracts amount to no more than a small part of the total. The plaintiff's written submissions were only another version in concise terms of what he has said at great length previously. 80 It is plain that the plaintiff is unable or unwilling to accept defeat. In the ninth defendant's words, he refuses to accept the umpire's decision. I have no reason to suspect that his reaction to my decision in this case will be any different. Indeed, the plaintiff has foreshadowed as much in the written submissions to which I have just referred. 81 In my opinion the plaintiff's notice of motion was misconceived from the outset. It has revealed itself over the seven days of its hearing to have been fatally flawed and fundamentally without merit. It has been energised by the plaintiff's persistent and consistent refusal to accept or to understand that by the time the proceedings were disposed of in the Court of Appeal he had, by reason of the way in which he approached and conducted the case there, if for no other reason, lost any realistic ability to revivify the arguments and contentions that were dealt with then or to attempt to show that they were still alive notwithstanding. The present proceedings fly in the face of what are widely accepted as uncontroversial practical and procedural realities. It is unnecessary to describe the proceedings as an abuse of the process of the court or to attach to them any particular epithet at all. The material that I have included in these reasons should in my opinion be permitted to speak for itself. 82 I consider the plaintiff's suggestion that her Honour's judgment does not exist, or is a fake, a forgery or a counterfeit document, is not only unsupportable having regard to the evidence, but that it also offends the notion of what is reasonably arguable in solemn adversary proceedings. I referred during the hearing to what one might expect would be the reaction from an independent, unbiased observer to the proceedings, confronted with the plaintiff's submissions and the evidentiary bases upon which they were promoted. They are to my mind both literally and figuratively unbelievable and I do not believe them. I have no doubt that the hypothetical reasonable observer would respond in the same way. The suggestion that the judgment was a contrivance of one or other of the arms of government or its instrumentalities is also offensive to the most cynical common sense. The public and enduring nature of the judgment is the most obvious check on any such proposition. The plaintiff's case was based on little more than his repetitive assertions and was transparently driven by his predispositions but wholly without supporting evidence of any kind. What appear to be the plaintiff's conspiratorial obsessions have clouded his ability to accept the obvious and conform to the inevitable. 83 I find that her Honour's judgment was delivered by her on 9 December 2005. I reject the plaintiff's contentions that the judgment was a fake, a forgery, a counterfeit document and any cognate characterisation of it or that it was given or entered irregularly, illegally or against good faith. If it be necessary, I also reject the plaintiff's contentions that the judgment was placed, or has been permitted to remain, upon the court's website as the result of any fraudulent or criminal or otherwise improper conduct, or that the court file in this matter has somehow been tampered with illegally or unofficially and improperly altered by anyone inside or outside the registry. I reject the plaintiff's assertions that anyone other than her Honour was the author of the judgment. 84 The ninth defendant and his counsel have responded to the plaintiff's constant assaults in these proceedings with remarkable forebearance. Even accepting the plaintiff's complaint about the absence of an appropriately filed and served notice of motion, his own staggering disregard for the realities of finally contested civil litigation in this case suggests that there is no reasonable likelihood that he will accept the result of my deliberations unless or until forced to do so. The prospect of a further, separate hearing is difficult to contemplate with equanimity. As I have said, the plaintiff's own written submissions proceed in part upon the basis that the Court of Appeal will be asked by him for assistance once again. Accepting as I do that such a result is in all probability inevitable, there seems much to be said for the contention that the ninth defendant's application should be acceded to now so that it can be challenged in the Court of Appeal by the plaintiff when he is there next. Orders that the ninth defendant seeks should be made in order to monitor the unrestrained commencement of any more unmeritorious applications in this litigation. I am not inclined to make orders that purport to relate to other proceedings. Orders 85 The following orders should be made: 1. The plaintiff's notices of motion dated 17 September 2007 and 4 May 2009 are dismissed with costs.

Markisic v Today-Denes

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Judgment (238 paragraphs)

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Cases Cited (11)

Cited By (1)