Attorney-General in the State of NSW v Markisic

Supplimentary Judgment

1. [1]

   This judgment is made as a result of a written application made by Dragan Markisic and Oliver Markisic on 4 November 2011, in relation to the reasons for judgment issued on 28 October 2011, ('the prior reasons') and the orders made by the Court in this matter.

2. [2]

   The applicants on the motion, which was dismissed on 28 October 2011, have raised certain alleged errors of fact in the prior reasons. There are some minor errors that have been corrected. None of those errors affect the exercise of discretion and the errors have been corrected in the published version of the reasons for judgment issued on 28 October 2011. That judgment was ex tempore and issued shortly after the conclusion of the hearing.

3. [3]

   The second aspect of the note on 4 November 2011 is an application for reconsideration of the exercise of discretion.

4. [4]

   It is true, in the nature of ex tempore judgments, that all of the issues were not explained as fully as might otherwise be the case. The reference to section 16 of the Evidence Act 1995 in the original reasons for judgment was a reference to section 16(2) of that Act. The subpoenas, or some of them, which were directed at judges in Australia related to whether or not those judges issued orders. The issue of orders is, for the purposes of section 16(2) of the Evidence Act , the exercise of a judicial power, where the involvement is in an Australian or overseas proceeding. As such, absent leave of the Court, no judge is compellable.

5. [5]

   Further to the extent that it is otherwise suggested, I take the view that "a judge in an Australian or overseas proceeding" is not confined to a State judge.

6. [6]

   Further, and more importantly, the current application misses the major point of the previous reasons for judgment. The issues relating to judges and politicians were examples only. The Court refused leave to issue subpoenas because no forensic purpose could be shown in the subpoena and no likely probative value was disclosed in the evidence that would be adduced from any of the witnesses.

7. [7]

   The Court came to the view on the material before it, that the application for leave to issue subpoenas was a "fishing expedition" in which the applicants sought to investigate their suspicions by compelling witnesses to attend and give evidence without knowing the evidence they will give or having a basis (other than suspicion) for, or an expectation of, the evidence that would be adduced.

8. [8]

   Nothing in the application of 4 November 2011 gives rise to a basis upon which I am prepared to reconsider the exercise of jurisdiction on 28 October 2011. The application for reconsideration is refused.