Oliver Markisic & Anor v Commonwealth of Australia

COUNSEL : Mr O.Markisic (in person) - Plaintiffs Mr D Robinson SC - Defendant

SOLICITORS : Australian Government Solicitor - Defendant

• 9 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

No: 20369 of 2001 Oliver Markisic & Anor v Commonwealth of Australia

JUDGMENT 1 Before the court are the Defendant's motion to strike out parts of the Further Amended Statement of Claim and the Plaintiffs' motion that the Defendant's motion be struck out as an abuse of process. 2 There have been a number of interlocutory hearings in this matter, most of which are recited in my judgment of 7 February last. It is unnecessary to repeat what I said then. Suffice to say that the Plaintiffs' motion, as I understand it, is based on the quite reasonable proposition that the relief now sought by the Defendant should have been sought in one of the earlier proceedings. For instance, before Greg James J in December 2002 there was an application which directly attacked the Further Amended Statement of Claim. However, so I was informed, it came before His Honour as duty judge in a very busy list. In the result, there was no detailed consideration of the matters agitated before me and His Honour was not called upon to deliver a judgment. The pleading was maintained, with the Plaintiffs confirming, as noted by His Honour, that they did not plead a cause of action outside the terms of paragraph 43 of the judgment delivered by Bell J on 13 August 2002. 3 Since the proceedings before Greg James J however, there have been two developments which I regard as significant, viz the parties have exchanged statements of witnesses and the Court of Appeal has delivered judgment in relation to a Statement of Claim in somewhat similar terms, filed by Mr Dragan Markisic, the brother and son of the present plaintiffs (Markisic v Department of Community Services of NSW and ors [2006] NSWCA 321, 23 November 2001). 4 Although there is, in my view, a good deal to be said for the position taken by the Plaintiffs on their motion, I have ultimately reached the conclusion that it should only be reflected in costs. This matter is to go for trial by jury and, in my opinion, it is very much in the interests of justice, particularly the saving of costs, that the issues be refined as much and as early as possible. Accordingly, I refuse to strike out the Defendant's motion. 5 Some of the relevant facts to be gleaned or inferred from the pleadings are not in dispute. On 29 September 1998, the Full Court of the Family Court (Nicholson CJ, Kay and O'Ryan JJ) made these orders: 1. That until further order a warrant issue authorising and directing the Marshall and Deputy Marshal of the Family Court of Australia and all officers of the Australian Federal Police and all officers of the Police Forces in the Commonwealth of Australia to take possession of the child Elena Markisic born 3 May 1997 and deliver such child to Tim McDonald, Manager St George CSC Department of Community Services, 390 Forrest Road Hurstville and that for the purposes of the exercise of the foregoing powers and with such assistance as is necessary and reasonable by force, to i) stop, enter and search any vehicle, vessel or aircraft; or

if the person executing the warrant reasonably believes that: iii) the child is in or on the vehicle, vessel, aircraft or premises; and iv) the entry and search is made in circumstances of such seriousness or urgency as to justify search and entry under the warrant where the said child may be or where there is any reasonable cause to believe the said child may be.

2. That sealed copies of these orders be served upon:

b) the Commissioners of State and Territory Police Forces of the Commonwealth of Australia

3. That the engrossing and service of these orders be expedited forthwith.

6 Present in court when the above orders were made were the male plaintiff and his brother, Mr Dragan Markisic, who was appearing in person in the proceedings. 7 During the afternoon of 29 September 1998, officers of the Australian Federal Police went to premises at 17 Turrella St, Turrella, the home at the time of the Plaintiffs and Mr Dragan Markisic. The police officers took with them a sealed copy of the Family Court order. Apparently no formal warrant had been issued as contemplated by order1. 8 Only the female plaintiff and the child, Elena Markisic were present at the house. The police officers took possession of Elena Markisic and left the premises with her. There is an issue as to whether, in any way, and, if so to what extent, they mistreated Mrs Markisic. After the event the male plaintiff and his brother were informed by telephone that police officers had entered the Turrella house and taken away the child. 9 These proceedings were commenced by Statement of Claim on 9 May 2001, but were summarily dismissed by Master Harrison on 28 June 2001. However, an appeal to Bell J from the Master's decision was partly successful, Her Honour concluding: "I am persuaded that claims against the Commonwealth arising out of the actions of members of the AFP said to constitute (i) trespass, (ii) false imprisonment (with respect to the second plaintiff) & (iii) assault (with respect to the second plaintiff) and (iv) negligence (with respect to the second plaintiff's claim for psychiatric injury) are not so obviously untenable that they may not possibly succeed." 10 Thereafter, the Plaintiffs filed the Further Amended Statement of Claim which was before Greg James J. A copy of that pleading is annexed to this judgment, the parts which the Defendant seeks to have struck out being indicated on the document. 11 The power to make the order sought by the Defendant is derived from rule 14.28 of the Uniform Civil Procedure Rules which relevantly provides: "(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading: (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c) is otherwise an abuse of the process of the court. 12 Before coming to a detailed consideration of the Defendant's contentions, it is appropriate to observe that the Further Amended Statement of Claim was apparently prepared by the Plaintiffs without legal assistance. It is in that circumstance reasonable to allow some latitude but this particular pleading, on any view of it, in my opinion, stretches indulgence close to its extremity. 13 The parts of the Further Amended Statement of Claim which the Defendant now seeks to impugn fall into several categories, some parts falling into more than one such category. The first such category is the reference on a number of occasions to the Commissioner and Deputy Commissioner of the Australian Federal Police. The relevant paragraphs in the Statement of Claim are 2, 11, 29, 31, 34, 36, 38, 40, 44, 46, 48, 49, 51, 52, 53, 59, 60, 61, 64, 65, 67, 68, 69 70 and 71. 14 There is no suggestion in the pleading, nor, so I am informed, in the witness statements, that either the Commissioner or Deputy Commissioner was personally involved in any relevant matter. The reference to them seems to be an attempt to indicate that they may, although not joined as parties, attract a liability beyond that of any other member of the Australian Federal Police. 15 At common law the Commonwealth had no vicarious liability for the acts of its police officers acting in the course of their duties (R v Enever (1906) 3 CLR 969). However, the Australian Federal Police Act overcomes the common law principle by s64 BHP, which relevantly provides: "64B Liability for wrongful acts of members.

(1) The Commonwealth is liable in respect of a tort committed by a member or a protective service officer in the performance or purported performance of his or her duties as such a member or a protective service officer in like manner as a person is liable in respect of a tort committed by his or her employee in the course of his or her employment, and shall, in respect of such a tort, be treated for all purposes as a joint tortfeasor with the member or the protective service officer .

(3) The liability of the Commonwealth under subsection (1) does not extend to a liability to pay damages in the nature of punitive damages. 16 Member of the Australian Federal Police is defined to mean any of the Commissioner of Police, a Deputy Commissioner of Police and "an AFP Employee in respect of whom a declaration under s40 B is in force". Thus the Commissioner and Deputy Commissioners are in no different position to any other member of the Australian Federal Police, appropriately authorised under s40 B. 17 Mr Markisic sought to distinguish them by reference to s23 but that section is confined in its application to the rights, duties and powers of the Commissioner in relation to AFP employees and has no relevance to this case. The express references to the Commissioner and Deputy Commissioner could not, in my opinion, as Mr Markisic seemed to suggest, be a means of avoiding the prohibition against awarding punitive damages provided for by s64 B (3). 18 Paragraphs 32, 33 and 71 of the Further Amended Statement of Claim seek exemplary damages otherwise known as punitive damages. Such damages are not recoverable by virtue of s64 B (3). 19 In relation to the male plaintiff, his cause of action was limited by Bell J as indicated above to trespass to property. Although there may be cases where trespass to property can cause compensable psychological or psychiatric injury (see for example McGregor on damages seventeenth edition at paragraph 35 - 05 and the cases referred to in such paragraph, especially Asghar v Ahmed (1983) 17 HLR 25), this case, in my view, is plainly not one of them. In reaching that conclusion, I am fortified by what the Court of Appeal said in relation to Mr Dragan Markisic's Statement of Claim, which substantially alleged the same facts as are pleaded in the Further Amended Statement of Claim before me. The following paragraphs from the judgment of Giles JA are apposite: "65. The Commonwealth submitted, the other opponents again adopting its position, that even if there were wrongful taking possession of Elena on 29 September 1998 because of the absence of a warrant, authority for the care of Elena and Elena's return to Macedonia was provided by the orders made at the conclusion of the hearing on 29 September 1998. The appeal to the Full Court was dismissed, and the order for Elena's return to Macedonia was in force subject to a limited stay which expired before her return to Macedonia. The order that Elena remain in the care of DOCS was not dependent upon her having been placed in the care of DOCS pursuant to a warrant, and it was the plain intention of the Court in the orders made on 29 September 1998 that Elena should be placed in and remain in the care of DOCS. The order that Elena remain in the care of DOCS would have taken effect if; for example, she had been voluntarily given into the care of DOCS. It began from Elena coming into the care of DOCS in accordance with the Court's intention, and the issue of a warrant was a means of giving effect to the intention but subsidiary to the result; and Elena had come into the care of DOCS.

66. In my opinion this submission, which does not appear to have been made to Smart AJ, should be accepted. I do not think that any other view of the order made at the conclusion of the hearing is tenable, and the result is that any wrongfulness can at best sound in damages in respect of a brief period on 29 September 1998 - perhaps no period at all - when the officers of the AFP took possession of Elena and gave her into the care of DOCS.

67. Regard should then be had to the harm which Mr Markisic alleges he suffered. The particulars of damages in the fresh draft amended statement of claim are of psychological injury and of loss of Elena with consequential psychological injury and injury to health. There is reference also to damage to reputation causing damage to health. Apart from loss of Elena's services, business losses from the effect of the psychological injury on the conduct of Mr Markisic's business are alleged.

68. Mr Markisic was not told of the attendance of the officers of the AFP taking possession of Elena until after court on 29 September 1998. By that time he knew of both sets of orders made on that day.. Whatever the effect on his psychological condition of the taking possession of Elena and the loss of Elena, he knew when he left court on that day that Elena was to be placed in the care of DOCS and, subject to any further appellate endeavours, returned to Macedonia. It is hollow to regard him as having suffered any real harm of the kind alleged because (if it be the case) taking possession of Elena on 29 September 1998 required a warrant and there was no warrant. If he suffered the psychological injury alleged, it was in consequence of matters fully authorised by orders of the Family Court. There is no claim for loss of Elena's services. She was under two years old at the time (see Hall v Hollander (1825) 4 B & C 660 ; 107 ER 1206), and Mr Markisic's submission that he could recover for loss of her services when she grew up, apart from having no support in law, does not accommodate that under due authority she was returned to Macedonia."

20 In my opinion, the somewhat extravagant claims for damages made by the male plaintiff, beyond damage suffered in respect of any period while police officers allegedly trespassed in his home, are simply not maintainable in his action for trespass to property. The relevant paragraphs are 7, 8, 28, 29, 64, 65 and 67. For reasons identified by the Court of Appeal, the female plaintiff's claim for damages cannot relate to the removal of the child, in accordance with the orders of the Family Court. In that connection relevant paragraphs of the further Amended Statement of Claim are 64, 67, 68 and 70. 21 A further basis for the Defendant's attack on the Further Amended Statement of Claim is that it pleaded causes of action beyond those allowed by Bell J. In this category fall paragraphs 34, 36, 37, 38, 39, 40,41, 44, 48, 49, 51, 52, 53, 54, 56, 59, 60, 61, 63 and 64. Although in some cases it is difficult to discern exactly what cause of action is intended to be pleaded, on any basis, I agree that the paragraphs or passages within them, attacked by the Defendant, do appear to go beyond the order of Bell J and should be struck out. 22 Slightly different or in some cases overlapping considerations apply to orders sought in respect of other paragraphs in the Further Amended Statement of Claim. A number of them pleaded, in relation to trespass to property, an allegation, that the Defendant acted, "either intentionally, knowingly, maliciously and fraudulently or negligently or with reckless indifference, unjustifiably, or out of authority", or similar phraseology. This allegation is unnecessary and embarrassing. Trespass is constituted by the unlawful entry of a person upon land in the possession of another. Nothing more need be pleaded. The paragraphs affected are 35, 37, 39 and 41. In relation to these paragraphs the order sought should be made. 23 Like phraseology is also employed in relation to the causes of action by the female plaintiff for false imprisonment, assault and negligence causing psychiatric injury. In relation to assault, all that is required is the intentional creation in another person of an apprehension of imminent, harmful, or offensive contact without lawful excuse. The use of inflammatory and unnecessary words is embarrassing and inappropriate. Again the order sought by the Defendant should be made. 24 For similar reasons, the impugned phraseology should be struck out in respect of the female plaintiff's claims for false imprisonment and negligence. The former is met by simply establishing an unlawful deprivation of freedom and the latter by showing a duty of care coupled with a breach of that duty and consequential damage. 25 It follows that I would make the order sought in paragraph 1 of the Defendant's motion. For the reason indicated in paragraph 4, I would make no order as to the costs of either motion.

1. Balance of Plaintiff's motion, filed in court on 26 February 2007, dismissed.

2. Order as asked in paragraph 1 of Defendant's Notice of Motion, filed in court 7 February 2007.

16/03/2007 - Correct spelling of name - Paragraph(s) Cover sheet

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