Oliver Markisic v Magistrate David Heilpern; Dragan Markisic v Magistrate David Heilpern

Judgment 1JOHNSON J : By Notices of Motion filed on 16 December 2010, the Claimant, the Attorney General of New South Wales, seeks leave to appear as an intervenor or, in the alternative, to appear as amicus curiae in two sets of proceedings before this Court. 2The first set of proceedings (2010/309865) are those commenced by the Plaintiff Oliver Markisic by the filing of a Summons on 17 September 2010. The second set of proceedings (2010/309918) are those commenced by the Plaintiff Dragan Markisic by the filing of a Summons on 17 September 2010. 3In each set of proceedings, the Summons as filed nominated one Defendant, Magistrate David Heilpern. On 26 November 2010, a submitting appearance was filed for Magistrate Heilpern. 4On 1 April 2011, Fullerton J gave directions for the filing and service of written submissions on the Attorney General's intervenor application, and directed that the matter be listed before the Duty Judge on 2 May 2011, with the view to listing the applications for hearing. On 2 May 2011, I listed the matters for hearing yesterday, 5 May 2011. 5The Plaintiffs' Summonses seek to challenge the decisions of Magistrate Heilpern of 24 August 2010 in which he declined to sign Court Attendance Notices, which each Plaintiff had sought to have issued. 6The Plaintiff, Oliver Markisic, had sought to have signed five Court Attendance Notices against David Davies, a Judge of this Court. The first four Court Attendance Notices alleged charges under s.34(1)(b) Crimes Act 1914 (Cth) . The fifth Court Attendance Notice alleged a charge under s.37(b) Crimes Act 1914 (Cth) . In written reasons, Magistrate Heilpern refused to sign any of the Court Attendance Notices, concluding that "the proposed proceedings have no prospects whatsoever of success" . The Plaintiff's proposed charges related to judgment given by Davies J in February 2010 in civil proceedings in this Court involving the Plaintiffs. 7The Plaintiff, Dragan Markisic, had sought to have signed four Court Attendance Notices against Ian Harrison, a Judge of this Court. Each of the proposed Court Attendance Notices allege charges under s.34(1)(b) Crimes Act 1914 (Cth) . In addition, the Plaintiff Dragan Markisic sought to have signed one Court Attendance Notice against Carolyn Simpson, a Judge of this Court. This Court Attendance Notice also alleged a charge under s.34(1)(b) of the Crimes Act 1914 (Cth) . In written reasons, Magistrate Heilpern refused to sign any of the Court Attendance Notices concluding that "the proposed proceedings have no prospects whatsoever of success" . Each of these proposed charges related to judgments given by Simpson J in 2005 and Harrison J in civil proceedings in this Court involving the Plaintiffs. 8On 11 January 2011, the Plaintiffs filed an Amended Summons in each set of proceedings, which did not identify Magistrate Heilpern as a Defendant. 9The proceedings have been before the Registrar or a Judge of this Court on about 12 occasions. The Plaintiff, in each set of proceedings, has filed Notices of Motion seeking various orders, including an order that the Attorney General's intervenor Notice of Motion should be dismissed effectively as an abuse of process. The Plaintiffs contended before me that their Notices of Motion should be heard before that of the Attorney General, and that the Court should give directions so that affidavits could be filed and evidence gathered for the hearing of their Notices of Motion. 10I am satisfied that Fullerton J determined on 1 April 2011 that the Attorney General's intervenor Notices of Motion should be heard first, and that written submissions were to be filed and served for that purpose. For myself, I am entirely satisfied that this is the correct approach to be taken. 11The Attorney General's intervenor application involves a matter of practice and procedure and, in my view, falls to be decided by reference to a number of documents found on the Court file, which I have referred to for that purpose. They are: (a) the written decisions of Magistrate Heilpern dated 24 August 2010; (b) the Summons and Amended Summons in each case; (c) the Statements of Particulars of Grounds filed in each case on 31 March 2011 by the Plaintiffs, in accordance with the orders of Hall J; (d) the submitting appearances of Magistrate Heilpern; (e) the written submissions for the Attorney General in each case filed on 8 April 2011; and (f) the written submissions of the Plaintiff in reply in each case filed on 21 April 2011. 12In addition, of course, I have had regard to the oral submissions made yesterday. 13There is a further matter I should mention. As I have said, when the matters came before me on 2 May 2011, I stood them over for hearing on 5 May 2011. When the matters were called on for hearing yesterday, the Plaintiffs said, for the first time, that they wished to join David Davies as a Defendant in the Oliver Markisic proceedings, and Carolyn Simpson and Ian Harrison as Defendants in the Dragan Markisic proceedings. No prior notice had been given to the Attorney General or the Court of this step. The Plaintiffs argue that if these Defendants were added to the two sets of proceedings, there would be a contradictor or contradictors, so that the Attorney General should not be allowed to intervene in any event. 14Mr Thomson, for the Attorney General, submitted that this development ought not affect the Attorney General's application. It was submitted that if these Defendants were added to the proceedings, submitting appearances were likely to be filed in any event. 15I took the view that the Attorney General's intervenor application should proceed to hearing, whether the proposed Defendants were to be added to the proceedings or not. I took the view, as well, that given the listing of the proceedings, leave was required for the Plaintiffs to add these proposed Defendants at this stage. 16No notice had been given to the Attorney General or the Court of the Plaintiffs' intention in this respect. The proceedings have been on foot for over seven months. No satisfactory explanation was given by the Plaintiffs yesterday as to why they had not taken this step before 5 May 2011. 17I turn to the Attorney General's intervenor application. Submissions for the Attorney General identify the applicable principles where an application of this type is made, and the arguments as to why the Court should make such orders in this case. The submissions of the Plaintiffs contended that the orders sought by the Attorney General should not be made in this case for a number of reasons. The written submissions are on file and the transcript of the hearing yesterday will reflect the oral submissions made. It is not necessary to recite the submissions made. I can turn directly to my decision in the matter. 18Rule 6.24(1) Uniform Civil Procedure Rules 2005 ("UCPR") provides that the Court may order that a person be joined as a party, if joinder of that person is necessary to the determination of all matters in dispute in the proceedings. Further, the Supreme Court has all jurisdiction which may be necessary for the administration of justice in New South Wales: s.23 Supreme Court Act 1970 . The Court has power to grant leave to an individual to be joined as an intervenor or as amicus curiae flowing from the Court's inherent jurisdiction to regulate its own procedures: Levy v State of Victoria [1997] HCA 31; 189 CLR 579 at 601. 19The Attorney General may take the role of substantial contradictor to ensure compliance with the principles in R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; 144 CLR 13. The Attorney General may be granted leave to intervene if the interests of justice so require. The Attorney General has a particular and important role in relation to the administration of justice. He is the appropriate public officer to represent the public interest in the administration of justice: Attorney General v Times Newspapers Limited [1974] AC 273 at 311 (per Lord Diplock). 20Cases such as New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 and Wentworth v Wentworth (NSWSC, Santow J, 4 October 1996, unreported, BC9604796) support the present application by the Attorney General. The lack of an effective contradictor is relevant to the application. There is no contradictor at present, and even if the proposed Defendants are added to the proceedings, the likely course is that submitting appearances would be filed. 21There remains, in any event, the certain need for an effective contradictor in each set of proceedings. Further, an effective contradictor is required in the context of proceedings in which allegations are made against judicial officers. The Court will be assisted by an intervenor as a party who would put alternative arguments to those of the Plaintiffs. 22The Attorney General submits, correctly, that the present proceedings touch upon the administration of justice in that they seek to challenge the decision of Magistrate Heilpern to refuse to authorise the commencement of criminal proceedings against judicial officers of the Supreme Court in the exercise of their judicial duties. 23I am satisfied that this is the case whether or not the now proposed Defendants are added to the proceedings. The Attorney General is the appropriate public officer to represent the public interest in the administration of justice, which will be touched upon in these proceedings in the ways I have already mentioned. 24I am satisfied that the appropriate order is that the Attorney General be granted leave to appear as an intervenor in both sets of proceedings. The effect of that order will be that the Attorney General will become a party to the suit in each case and will have the rights of a party to call evidence, make submissions and appeal and may be liable to an order for costs. 25I am satisfied as well that the making of the intervenor order will serve the objects contained in s.56 Civil Procedure Act 2005 in proceedings which already have a protracted history in this Court. 26As I propose to make an intervenor order in each set of proceedings, in terms of paragraph 1 of the Attorney General's Notice of Motion filed on 6 December 2010, it is not necessary to consider the alternative claim that the Attorney General have leave to appear as amicus curiae. 27In each of the proceedings, I make an order that leave be granted to the Attorney General of New South Wales to appear as an intervenor in the proceedings. 28I will shortly make orders for the filing and service of a Further Amended Summons in each set of proceedings with the Attorney General identified as a party to the proceedings. Before doing so, I will inquire of each Plaintiff whether he presses his application to join other Defendants to the proceedings. [Submissions were made] 29I have recently given judgment on the Attorney General's application for leave to intervene in the proceedings, and I have made an order to that effect. As mentioned in that judgment, for the first time yesterday in the seven-month history of this litigation, the Plaintiffs proposed that the three judicial officers be joined as parties to the two sets of proceedings. 30The Plaintiffs now contend that this course is effectively mandatory because of Rule 50.5 UCPR. The submission of the Attorney General is that, firstly, the Attorney General is now a party to the proceedings and, secondly, that when one looks at the Amended Summons in each case filed on 11 January 2011, the orders sought seek that the judgment of Magistrate Heilpern be set aside. There is no order which directly affects the three proposed Defendants nominated as of yesterday by the Plaintiffs, although it may be said that each of them, because of the subject matter of the litigation, is affected by it. 31The correct construction and application of Rule 50.5 UCPR requires the Court to consider the nature of the relief sought, and also the identity of parties to the proceedings who will fulfil the functions of assisting the Court in the resolution of the real issues in dispute. The Attorney General is now a party who will exercise that function. In my view, the litigation does not require, nor does Rule 50.5 UCPR mandate, that the three nominated Defendants be added as parties to the proceedings. The Attorney General of New South Wales, exercising the functions which I have identified in my judgment, will be the appropriate contradictor in these cases. 32It remains of course for any of the three proposed Defendants, if they wish, to seek to be joined to the litigation. But that is a matter for them. Their joinder as parties is not required. 33Magistrate Heilpern has filed a submitting appearance in each case. Each Plaintiff now seeks to have Magistrate Heilpern removed as a Defendant to the proceedings. The Attorney General does not oppose that course. I make an order that Magistrate Heilpern be removed from the proceedings. 34Accordingly, the proceedings in each case will have as the single Defendant the Attorney General of New South Wales. 35The order I make is that the Plaintiff file and serve a Further Amended Summons in each case, which identifies as the sole Defendant in the proceedings the Attorney General of New South Wales. 36I direct the Plaintiff in each proceeding to file and serve a Further Amended Summons, amended so as to identify the Attorney General of New South Wales as the Defendant in each case, by 4.00 pm on Tuesday 10 May 2011. 37I grant leave to the Attorney General of New South Wales to file and serve by 4.00 pm on 20 May 2011 a Notice of Motion seeking summary dismissal of the proceedings in each case. The Notices of Motion will be returnable at 10 am on 25 May 2011 before the Duty Judge. On that day, the Duty Judge will consider what course should be taken having regard to the applications and motions which are before the Court at that time.