Markisic v State of New South Wales & Ors (No 3)

1. [1]

   His Honour: In Markisic v Department of Community Services & Ors [2012] NSWSC 1197, I referred to the question as to whether Dragan Markisic, the plaintiff, should be granted leave to file a proposed amended statement of claim (other torts) (MFI A). For the sake of convenience, the proposed pleading will be referred to by the acronym ‘ASOC’. The proposed defendants are the State of New South Wales (the State) and the Commonwealth of Australia (the Commonwealth).

2. [2]

   Both Ms Hartstein, who appeared for the State and Mr Robinson SC, who appeared for the Commonwealth, argued that the ASOC was precluded by the judgment of the Court of Appeal in Markisic v Department of Community Services of New South Wales & Ors (No 2) (‘Markisic (No 2)’) [2006] NSWCA 321. The State and the Commonwealth contend that leave should not be granted and the current proceedings should be formally dismissed.

3. [3]

   The plaintiff submitted that when the ASOC was compared to the pleading that was considered by the Court of Appeal, the pleadings are completely different. Further facts had come to his knowledge after the court's judgment, which he had used in drafting the ASOC. The causes of action were founded on other torts that were never before the Court of Appeal. The plaintiff drew my attention to the following passage that appears in Bryson JA's judgment in Markisic v Department of Community Services & Ors (Unreported, Supreme Court of New South Wales Court of Appeal, Bryson JA, 29 January 2007) at 7:

4. [4]

   The plaintiff contended that Bryson JA explained that there was nothing in the Court of Appeal's judgment that prevented him coming before the court with another pleading.

5. [5]

   The proceedings were adjourned for further argument on this issue which was heard in April and November 2014. The hearing was delayed by the grave illness of the plaintiff’s brother.

Background

1. [6]

   In Markisic (No 2), Giles JA detailed the history of the proceedings between the plaintiff, the State, the Commonwealth and various other defendants and no further elaboration is required here. However, it is useful to recount what occurred in Markisic (No 2).

2. [7]

   The plaintiff's principal claim in the Court of Appeal was for leave to appeal from the decision of Smart AJ in Markisic v Department of Community Services of New South Wales [2005] NSWSC 1373, 1374, 1375 (conveniently referred to as ‘Markisic (No 1)’) upon the plaintiff's application for leave to file an amended statement of claim. Smart AJ ordered that the plaintiff's application for leave to file the draft amended statement of claim be dismissed. He dismissed the proceedings against various defendants including the State, Flohm J, Nicholson CJ and Rowlands J. As to the Commonwealth, his Honour granted the plaintiff:

3. [8]

   The Commonwealth applied for leave to cross-appeal against Smart AJ's grant of leave to the plaintiff to apply to amend his statement of claim.

4. [9]

   In Markisic (No 2) at [88]-[90], [91]-[93] (Giles JA with whom Santow and Ipp JJA agreed) said:

5. [10]

   Accordingly, Giles JA granted the plaintiff leave to appeal that was limited to leave to apply to re-plead the defamation claims against the State and the Commonwealth. He was granted leave to apply to a judge in the Defamation List for leave to file an amended statement of claim re-pleading the defamation claims. On the Commonwealth's application for leave to cross-appeal, the appeal was allowed, Smart AJ's order was set aside and the proceedings against the Commonwealth, save as to the defamation claims, were dismissed.

6. [11]

   By a notice of motion filed 17 April 2007, the plaintiff sought leave to file an amended statement of claim entitled Amended Statement of Claim – Defamation Claim (the defamation proceedings). In Markisic v State of New South Wales & Ors (No 2) [2012] NSWSC 1353 at [120] the plaintiff’s application for leave to file the Amended Statement of Claim (defamation claim) was refused by me.

Further submissions

1. [12]

   The pleading before the Court of Appeal (ex A) consisted of 229 paragraphs, only 25 of which related to the defamation claim. The ASOC contains 121 paragraphs.

2. [13]

   The plaintiff’s oral submissions were lengthy and repetitive. For the purpose of succinctness, his oral submissions are summarised in the table below:

3. [14]

   The plaintiff argued that he had established beyond any doubt that the case is not the same case as before the Court of Appeal. In relation to considerations of cause of action estoppel and issue estoppel, the plaintiff stated (T27 48-50):

4. [15]

   The plaintiff contended that the principles of estoppel do not apply and that he should therefore be granted leave to file the ASOC (T60 38-46).

5. [16]

   Ms Hartstein submitted that Mr Makisic failed to comply with pleading requirements and that “there is no tenable or viable cause of action pleaded no matter how you look at what is alleged” (T64 37-40). She pointed out that there had previously been a large number of statements of claim that made allegations “of one sort or another” which had been dealt with by other judges of this court. Ms Hartstein provided the court with a 42 page table (MFI B) which attempts to draw together:

6. [17]

   Ms Hartstein drew the court’s attention to 15 paragraphs in Smart AJ’s judgment that dealt with the cause of action for conspiracy (T72 1-50; T73 1-50). She submitted that the sixth and seventh conspiracies in particular, dealt with at paragraphs [28] and [32] of the judgment “seems to be exactly what Mr Markisic’s alleging in a number of different ways in the current document” (T73 23-24).

7. [18]

   Another submission was that nervous shock is not a cause of action by itself, but the damage that Mr Markisic alleges being nervous shock has been dealt with by both the Court of Appeal and Smart AJ (MFI B p24). Ms Hartstein argued that the fact that “Mr Markisic now pleads it in many paragraphs as opposed to a few paragraphs before another judge or another court does not increase his chances of having psychological injury as a result of the removal of his daughter… to be a matter for which the State and the Commonwealth are liable given that there are orders of the Full Court authorising that removal”: (T110 5-13); Sullivan v Moody [2001] HCA 59; 207 CLR 562.

8. [19]

   Ms Hartstein submitted that there is nothing pleaded that is not covered by the Court of Appeal judgment and the judgment of Smart AJ (MFI B; T117 32-35). She said that the Court of Appeal did not grant leave to re-plead anything other than the defamation claims as was held in Markisic (No 2) at [90] and [91].

9. [20]

   Another submission was that if the court was minded to find that there was some claim that had viability, then that claim would be statute barred. She contended that the ASOC is a claim for personal injury and the plaintiff would be restricted to a three year limitation period (T118 6-7).

10. [21]

    Mr Robinson contended that the Court of Appeal’s orders precluded the plaintiff from ventilating any matter other than the defamation proceedings. He stated (T155 24-36):

11. [22]

    Mr Robinson submitted that action estoppel applied in the present proceedings in “its extended sense… in the sense of an abuse of process” (T166 19-20). He argued that the ASOC should not be allowed because it constitutes an abuse of process within the formulation of Reichel v Magrath (1889) 14 App Cas 665 at 668. He contended that the ASOC is an attempt to re-litigate issues expressly or impliedly which have been authoritatively decided by the Family Court of Australia (T168 22-25). Mr Robinson relied on the judgment of Giles JA in Markisic (No 2) at [45] and the cases of Cabassi v Vila (‘Cabassi’) [1940] HCA 41; (1940) 64 CLR 130 and Cachia v Westpac Financial Services [2005] NSWCA 239 to show that judgments of the Family Court cannot be ignored and stepped around by pleading different facts to the ones before the Court of Appeal. Furthermore, he submitted that there can be no collateral attack on the Court of Appeal’s judgment: Cabassi (T173 42-45).

12. [23]

    The final submission made by Mr Robinson, was that the form of the ASOC is defective because it is unclear what actions and omissions the Commonwealth is said to be liable or accountable for, or whom on behalf of the Commonwealth, did what action or made what omission (T191 8-11).

Decision

1. [24]

   At the heart of the ASOC are the plaintiff’s assertions that there were no proceedings in the Family Court of Australia between the Director-General of the Department of Community Services (the Director-General) and himself, and that the orders of the Family Court were fabricated (ASOC 9, 15, 17a, 17b, 25a and 25b).

2. [25]

   In Markisic v The States of New South Wales & Ors [2012] NSWSC 1237 at [9]-[13], I detailed the exchange between myself and the plaintiff as to the contention that he was not a party to the proceedings in the Family Court where the Director-General was the applicant and he was the respondent. The plaintiff’s attention was directed to his application in 2008 to adjourn the defamation proceedings to enable him to apply to set aside the orders of the Family Court and the Full Court of the Family Court that were made in proceedings between the Director-General and himself. Exhibits A, B, C, G, F and ex one are copies of those orders. The plaintiff’s argument was that these orders were in evidence in the defamation proceedings but not in evidence in his application for leave to file the ASOC. Furthermore, he argued that the exhibits are “fabricated and false documents”.

3. [26]

   As I recounted in Markisic v The State of New South Wales & Ors (No 2) [2012] NSWSC 1353 at [6], the plaintiff informed the court that nothing had happened in the Family Court, that no judgments or orders were set aside.

4. [27]

   Contrary to the plaintiff’s submission, the orders of the Family Court cannot be ignored. In my view, it was unnecessary for the State and the Commonwealth to tender those orders in the present motion. Both motions involve an application to file an amended statement of claim and the same parties. In any event, the integrity of the system of administration of justice would be seriously undermined if the court was obliged to disregard its knowledge of the Family Court proceedings and the falsity of the plaintiff’s claim of the non-existence of proceedings between the Director-General and himself.

5. [28]

   The plaintiff has been reminded on many occasions that he cannot collaterally attack the orders of the Family Court. This prohibition extends beyond the orders of the Family Court to the conduct of the judicial officers of that court. As was said in Markisic (No 2) at [45] (Giles JA with whom Santow and Ipp JJA agreed):

6. [29]

   By making assertions in the ASOC of dishonest and deceitful conduct particularly on the part of Rowlands J, the plaintiff has ignored the prohibition apparently in the belief that the orders of the Family Court and the judgment of the Court of Appeal can be avoided by pleading different facts to those that were before Smart AJ in Markisic (No 1). Smart AJ observed at [32]:

7. [30]

   The scandalous accusations dealt with by Smart AJ bear a strong similarity to the allegations in the ASOC. In reality, by ignoring the camouflage, the plaintiff is attempting to re-litigate the issues which he lost in Markisic (No 1) and Markisic (No 2).

8. [31]

   A similar observation is to be made about the assertion in the ASOC paragraph 27 that the AFP was not involved in the taking of Elena into the care of DOCS. It seems to me that it makes no difference in the plaintiff’s claim against the defendants whether “the executors” were members of the AFP or were pretending to be the AFP.

9. [32]

   In Reichel v Magrath (1889) 14 App Cas 665, Lord Halsbury L.C. said at 668:

10. [33]

    Handley JA in Rippon v Chilcotin [2001] NSWCA 142 quoted with favour at [31] what was said by Hunt CJ at CL in Haines v Australian Broadcasting Corporation [1995] NSWSC 136; (1995) 43 NSWLR 404 at 414:

11. [34]

    In Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 258 ALR 14 at [33] (French CJ observed):

12. [35]

    Broadly stated, the issues of the falsity of the Family Court orders and the subsequent removal of the child were of fundamental importance in Markisic (No 1) and Markisic (No 2). The issues proposed to be raised in the ASOC when the camouflage is removed are identical in substance to those determined by the Court of Appeal in Markisic (No2). By continuing to collaterally attack the judicial officers of the Family Court and the orders of the court and by seeking to re-litigate issues determined in the previous proceedings, the ASOC is oppressive and unfair to the State and the Commonwealth.

13. [36]

    What was said by Bryson JA (see [3] above) did not concern the principles of abuse of process. The integrity of the system of administration of justice will be undermined if leave was granted to file the ASOC. In my opinion the proposed ASOC is an abuse of process.

Order

1. [37]

   Accordingly, I make the following order: