MARKISIC v DEPARTMENT OF COMMUNITY SERVICES OF NSW & ORS [2007] NSWCA 30 (26 February 2007)

Last Updated: 27 February 2007

NEW SOUTH WALES COURT OF APPEAL

CITATION: MARKISIC v DEPARTMENT OF COMMUNITY SERVICES OF NSW & ORS [2007] NSWCA 30


FILE NUMBER(S):
40739/05

HEARING DATE(S): 19/02/2007

JUDGMENT DATE: 26 February 2007

PARTIES:
Cl: Dragan Markisic
Opp 1: Department of Community Services of NSW
Opp 2: State of NSW
Opp 3: Commonwealth of Australia
Opp 4: The Trustees of the Roman Catholic Church for the Archdioces of Sydney
Opp 5: Qantas Airways Ltd
Opp 6: Ms Justice Robyn Flohm
Opp 7: Mr Justice Alistair Nicholson
Opp 8: Mr Justice Alwynne R.O. Rowlands


JUDGMENT OF: Bryson JA

LOWER COURT JURISDICTION: Compensation Court

LOWER COURT FILE NUMBER(S): SC 20698/00

LOWER COURT JUDICIAL OFFICER: Smart AJ

LOWER COURT DATE OF DECISION: 31 May 2005

LOWER COURT MEDIUM NEUTRAL CITATION:
Markisic v Department of Community Services of New South Wales [2005] NSWSC 1373

COUNSEL:
Cl: D. Markisic in Person
Opp 1: V. Harlstein
Opp 4: Khon
Opp 5: K. Sexton SC /J. Young


SOLICITORS:
Opp 1 & 2: Crown Solicitors Office
Opp 3: Australian Government Solicitor
Opp 4: Makinson & D’Apice
Opp 5: Dawson Waldron Lawyers


CATCHWORDS:
PRACTICE and PROCEDURE - abuse of process, repeated applications - in appeal proceedings the claimant made many unproductive applications - proceedings complicated by joinder of parties against whom he did not obtain remedy - after adverse judgment, claimant made two further Notices of Motion which were dismissed as abuse of process - consideration of elaborate history of appeal, a satellite appeal and CLD proceedings in which an order restraining further applications was made - order restraining further applications without leave of Judge of Appeal.

LEGISLATION CITED:


CASES CITED:
Hillston v Bar-Mordecai [2002] NSWSC 477
Markisic (Dragan) v Department of Community Services & Ors [2006] NSWCA 149
Markisic (Oliver) v The Commonwealth [2006] NSWCA 150
Markisic v Department of Community Services NSW & Ors [2006] NSWCA 106
Markisic v Department of Community Services of New South Wales & Ors (No 2) [2006] NSWCA 321
Markisic v Department of Community Services of New South Wales [2005] NSWSC 1373
Wentworth v Graham & Anor [2003] NSWCA 307

DECISION:
Restrain further Notices of Motion; see [33]


JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40739/05

BRYSON JA

MONDAY 26 FEBRUARY 2007

DRAGAN MARKISIC v DEPARTMENT OF COMMUNITY SERVICES OF NSW & ORS

Judgment

1 BRYSON JA: These reasons relate to several Notices of Motion filed by opponents. The first and second opponents are Department of Community Services and State of New South Wales. (They are so named by the claimant in his Ordinary Summons. To be exact, these are both references to the State and there is only one opponent, but the claimant's documents have always treated them as two). Their Notice of Motion was filed on 19 January 2007 and the claim under my consideration is Claim 3.

That the claimant shall not, without the leave of this Court, institute or continue any proceedings in this Court against the first and second opponents.

The fourth opponent is the corporation named the Trustees of the Roman Catholic Church for the Archdiocese of Sydney, which applies by Notice of Motion of 29 January 2007 for various orders including Claim 3 in similar terms restraining proceedings against it. So too does the fifth opponent Qantas Airways Ltd in Claim 3 of its Notice of Motion of 22 December 2006. I disposed of some other claims in these notices of motion on 29 January 2007.

2 A recurring difficulty and source of injustice arises from the circumstance that by making applications to the Court, usually by a Notice of Motion in writing, a litigant involves other parties in the need to consider their positions and attend on the hearing of the Notice of Motion, and in trouble and expense for which an order for costs will not be an effective remedy. Even if the costs are paid, the attention, pains and trouble which a litigant must give to an application is not recompensed by an order for costs; which only extends to professional legal attendances and expenses. Excessive and excessively complex Notices of Motion are burdensome and can be oppressive. There is also a public interest aspect of restraining abuses which take the form of repeated applications and make inappropriate use of the time of the Court and public resources. There is a well-established practice of making orders restraining a litigant from bringing further interlocutory applications without first having obtained the leave of a judge. The powers and practices of the Court were considered and restated in Wentworth v Graham & Anor [2003] NSWCA 307; see particularly paras 6, 27 and 30. See too Hillston v Bar-Mordecai [2002] NSWSC 477 and cases there referred to. The basis of this practice is the inherent power of the Court to protect its process from abuse. The right of a litigant to make an application to the Court and have the application considered and determined is a valuable right and has a close relation with the duty of the Court to hear and determine litigation and to observe just procedures. Even where a litigant has actually been shown to have abused the processes of the Court, the possibility remains that there might be some appropriate occasion for a further application to be made, and restraint imposed on the litigant should leave open some avenue for an application to be made, and for the Court to consider whether the application ought to receive further attention.

3 In support of the claims to impose controls upon the commencement by the claimant of further proceedings, including interlocutory proceedings, I was referred to many applications and events in the course of proceedings in the Court of Appeal. The facts which I was asked to consider appear from the Court's own records, of which I take notice.

4 The claimant's principal claim in his Ordinary Summons filed on 13 September 2005 was for leave to appeal from decisions of Smart AJ in Markisic v Department of Community Services of New South Wales [2005] NSWSC 1373, 1374, 1375 upon the claimant’s application for leave to file an Amended Statement of Claim. The Commonwealth of Australia, the third opponent in the Court of Appeal and the third defendant in the Common Law Division, applied for leave to cross appeal. These applications were disposed of in the judgment of the Court of Appeal [2006] NSWCA 321 on 23 November 2006. The short effect of the Court of Appeal's orders is that the claimant succeeded on appeal to the extent that the dismissal of defamation claims against the State of New South Wales and the Commonwealth was reversed and he was given leave to apply to the Judge in the Defamation List for leave to file an Amended Statement of Claim repleading defamation claims. He has not taken up this leave, but the possibility of pursuing his proceedings against the State and the Commonwealth for defamation has been kept alive. On the cross appeal the Commonwealth obtained orders which overruled leave which Smart AJ had granted the claimant to apply to amend his statement of claim in a limited way which could have kept alive a claim for damages for nervous shock.

5 In the Ordinary Summons filed on 13 September 2005 the first to fifth opponents inclusive were the opponents. The application for leave to appeal and the Commonwealth’s cross application first came before the Court of Appeal (Giles, Santow, and Ipp JJA) on 1 May 2006 – [2006] NSWCA 106. In the course of the hearing in the Court of Appeal the claimant told the Court of Appeal that he wished to replead certain parts of the statement of claim although he did not have a fresh draft - see Giles JA at [23], [24] and [25]. This and other circumstances led to the decision of the Court of Appeal [2006] NSWCA 106 to adjourn the leave applications, to give leave to amend by joining the sixth, seventh and eighth opponents as parties and to give directions for service of a fresh draft Amended Statement of Claim with an accompanying affidavit.

6 At that hearing the claimant made known that he wished to appeal in a way which affected 3 persons who had been named as defendants in the Amended Statement of Claim leave to file which Smart AJ had refused; he had not joined those persons as opponents in his Summons or served them with process in the Court of Appeal as parties to the application for leave to appeal. Those persons were two of the judges of the Family Court of Australia and a barrister who appeared in proceedings in the Family Court of Australia in 1998: and later became a judge. The claimant also told the Court of Appeal that he intended to revise the proposed Amended Statement of Claim. Orders made by the Court of Appeal, which adjourned the applications, included leave to amend the Summons by joinder of the sixth, seventh and eighth opponents, directions for serving the revised Statement of Claim and accompanying affidavit evidence, an order that the claimant pay the costs thrown away by reasons of the adjournment assessed at $3000 in the case of each of the second, third, fourth and fifth opponent; and other orders. The Court of Appeal appointed a directions hearing before Giles JA.

7 The claimant took no significant steps before the Directions Hearing on 13 June 2006 apart from issuing a Notice of Motion which was then returnable on 19 June 2006. Justice Giles noted that the proceedings were stayed and gave other parties leave to make applications on 19 June if they wished to do so.

8 On 9 June 2006 the claimant applied by Notice of Motion for several orders relating to subpoenas including a subpoena to the Secretary of the Commonwealth Attorney General's Department to provide the addresses of two Family Court judges, by then retired judges, on whom the claimant wished to serve process. A subpoena was not appropriate: what he needed were directions for service or an order for substituted service. This Notice of Motion came before Handley JA on 19 June 2006 when leave was granted to effect substituted service upon the Australian Government Solicitor; other applications in the Notice of Motion were dismissed, some procedural directions were made and the claimant was ordered to pay the costs of the first, second, third, fourth and fifth opponents of the Notice of Motion; they were not interested in service of process on additional opponents, and other claims which may have affected them were dismissed. The arrangement or order which the claimant obtained on 19 June 2006 did not affect the first and second opponents or the fourth or fifth opponents, and their involvement in the application was not justified by the agreement of the sixth, seventh and eighth opponents to accept service, which did not concern them.

9 On 14 June 2006 the fifth opponent Qantas applied by Notice of Motion for an order dismissing the proceedings. It appears that this application was not pursued on 19 June 2006. The involvement of the first and second opponents and the fourth opponent in the Notice of Motion returnable on 19 June 2006 was unnecessary and the involvement of Qantas in attendance on that day was necessary only because Qantas had responded by applying for dismissal of the proceedings.

10 On 5 July 2006 the Registrar made an appointment for hearing the part heard application for leave to appeal on 9 and 10 October 2006 and on 14 September 2006 this appointment was varied to 8 and 9 November 2006. The claimant asked the Registrar to vary the further appointment; the Registrar was not willing to do this. On 10 October 2006 the claimant applied by Notice of Motion returnable on 16 October 2006 for an order setting aside the appointment, allocating three days and not two days, and fixing a new hearing date after 1 February 2007. This Notice of Motion came before Giles JA on 16 October 2006. The first to fifth opponents inclusive were represented. The Notice of Motion was dismissed. In disposing of the application Giles JA said:

HIS HONOUR: No, it does not Mr Markisic. I have read your affidavit. Now, you listen very carefully to me, I do not think that you have any right of review of what the Registrar did in allocating a hearing date. Assuming that you do, I can see no error whatsoever in what the Registrar did.

You must be ready to conduct your proceedings, when you are the appellant, at the time the Court states and there is nothing wrong with the proximity of your proceedings involving the Department of Community Services and your proceedings involving the publisher.

You appear to think that you are going to have unlimited time, you are wrong. You, like any other litigant, are expected to use the valuable time of the Court and of other litigants in a suitable manner and that means that you must be prepared to present your appeal in a brief and convenient way.

The time which has been allocated for the appeal involving the Department of Community Services will stand, the date will stand, and you will be expected to present your case briefly, you will not have the time t hat you seem to think that you will have. Do you understand that?

11 On 26 October 2006 the Australian Government Solicitor, representing the third opponent and also the persons who had been referred to as the sixth, seventh and eighth opponents, wrote to the Registrar asking that the matter be listed "to clear up the position in relation to the sixth, seventh and eighth opponents." The Australian Government Solicitor explained that the claimant had been given leave on 19 June 2006 to effect substituted service of the proceedings on the seventh and eighth opponents, that he had not done so and had not replied to correspondence directed to establishing whether he intended to proceed against them. By that time the claimant had not amended his Summons so as to add the additional opponents, and he had not given other parties his revised proposed Amended Statement of Claim. He had not effected substituted service of the Summons under the arrangements made on 19 June 2006.

12 On 27 October 2006 the claimant filed an Amended Ordinary Summons for leave to appeal in which the sixth, seventh and eighth opponents were named as opponents. At the same time he sent the Registrar a letter enclosing a copy of his letter to the Australian Government Solicitor dealing with why he had not done this earlier.

13 The sixth, seventh and eighth opponents, Justice Flohm, Chief Justice Nicholson and Justice Rowlands of the Family Court of Australia were not, in my understanding, ever defendants in the proceedings in the common law division. As appears from the judgment of Smart AJ on 31 May 2005, the statement of claim filed on 20 December 2000 was struck out on 19 April 2001 by Master Malpass, who told the claimant that he could apply to be allowed to file an Amended Statement of Claim. He applied by Notice of Motion of 15 August 2003 for leave to file an Amended Statement of Claim in which for the first time the sixth, seventh and eighth opponents were named as defendants. They do not appear to have been named as respondents in the Notice of Motion of 15 August 2003, which was disposed of by Smart AJ on 31 May 2005. Smart AJ refused the application for leave to file the proposed Amended Statement of Claim, so the sixth, seventh and eighth opponents did not ever become parties in the proceedings in the Common Law Division. Smart AJ was of the view (paragraph [4]) that "there is no sufficient basis for adding these three persons to the proceedings and the proceedings against them are dismissed". His Honour also said [183] "it is noted that there was no evidence of service upon Justices Flohm, Nicholson and Rowlands; the Court taking the view that there was no tenable or arguable cause of action against any of them and that in such circumstances and for the avoidance of unnecessary costs the better course was to dismiss the proceedings against them."

14 On 8 and 9 November 2006 the applications for leave to appeal and cross application were heard by the Court of Appeal (Giles, Santow, Ipp JJA), and judgment was reserved. The Court of Appeal gave judgment on 23 November 2006 [2006] NSWCA 321 and made orders at length the short effect of which I set out earlier. The Court of Appeal’s reasons show that the claimant did not show any intelligible basis for bringing any claim against the fourth, fifth, sixth, seventh and eighth opponents.

15 In the Court of Appeal the leave applications developed into consideration of a substantially different Amended Statement of Claim on which Mr Markisic wished to rely - see Giles JA at Para [1]. That is to say, the claimant did not bring forward the statement of claim on which he wished to rely either when filing the statement of claim or in the extended proceedings before Master Malpass and Smart AJ. As the claimant did not obtain leave to file any form of Amended Statement of Claim in which the sixth, seventh and eighth opponents were parties, and the very limited opportunity to apply for leave to amend which the orders of the Court of Appeal left open to him could not involve these opponents, their involvement at all has been a useless complexity in the involvement of other opponents.

16 On 29 November 2006 the claimant filed a Notice of Motion returnable on 29 January 2007 in which he claimed orders, purportedly under the Slip Rule, altering the reasons for judgment which the Court had published in 23 respects and making a number of general complaints about matters with which it was said that the reasons omitted to deal.

17 On 6 December 2006 the claimant filed Notice of Motion returnable on 29 January 2007 and sought the following orders:

1. The Court to set aside judgment of their Honours Giles J, Ipp J and Santow J from 23.11.2006 under rule 36.15 and 36.16 of the Uniform Civil Procedure Rules on the ground that the above judgment was given against good faith, i.e. in bad faith towards the following persons/bodies:

i) Dragan Markisic, the father of the child Elena Markisic
ii) child Elena Markisic
iii) the members of the public of the State of NSW and Australia and in particular the specific class of persons being children, fathers, parents and their relatives and their friends
iv) the members of the international community
v) Parliament of the Commonwealth of Australia

2. The Court to set aside judgment of their Honours Giles J, Ipp J and Santow J from 23.11.2006 under rule 36.15 and 36.16 of the Uniform Civil Procedure Rules on the ground that the above judgment was obtained illegally or irregularly (i.e. in fraud or by misrepresentation of the truth) by the Opponents.

3. The legal representatives of the Opponents to pay the costs of the proceedings.

4. Further orders as required.

18 On 12 December 2006 the claimant filed a Notice of Motion returnable on 19 February 2007 in which he claimed "1. The Court to grant a stay of the lower court proceedings or in alternative to extend the time under order A 2 (2.4 and 2.5) of the Court of Appeal for filing of the application mentioned therein”. He had not then made the application to the Common Law Division for which he was granted leave on 23 November 2006.

19 On 20 December 2006 the claimant filed an application to the High Court of Australia for special leave to appeal against the whole of the judgment of the Court of Appeal of 3 November 2006. That application lapsed in some way and on 29 January 2007 the claimant applied by Summons to the High Court of Australia for reinstatement. These applications to the High Court of Australia are not relevant to the applications which I am now considering.

20 The notices of motion came before me on 29 January 2007. The claimant sought to rely on an affidavit which contained scandalous assertions, expressed in terms of the claimant's belief and not of the facts, about the conduct of Mr Robinson SC for the Commonwealth, and attributing improper motivation to Mr Robinson in observations he made when addressing the Court of Appeal on 9 November 2006. The statements relating to Mr Robinson had no substance and the affidavit was scandalous. It was plain from the claimant's submissions before me that there was no basis for contending that the judgment of the Court of Appeal was given against good faith, or that the judgment was obtained illegally or irregularly in fraud and by misrepresentation of the truth by the opponents. I was of the view that the Notice of Motion was a scandalous document and not a sincere attempt to put a contention that the Court of Appeal acted against good faith or that counsel did so and that it should be struck out as an abuse of process. For reasons then stated I dismissed the Notices of Motion of 29 November 2006 and 6 December 2006. I varied the appointment for the return of the Notice of Motion dated 12 December 2006, dealt with it on 29 January 2007 and extended the period made available under the orders of the Court of Appeal so as to allow time for him to make his application for special leave to appeal.

21 Closely related to the present proceedings were proceedings 40631 of 2005 in the Court of Appeal commenced by the claimant on 2 November 2005 in which he sought leave to appeal from dismissal by Grove J. on 18 July 2005 of his Notice of Motion for orders in respect of various events in the proceedings before Smart AJ. I refer to these as the satellite proceedings.

22 In the satellite proceedings the claimant claimed an order that persons named “show cause why not be held in contempt of the Supreme Court of NSW” and that certain of them who were lawyers "show cause why not be taken of the list of practising solicitors/barristers of the Supreme Court of NSW.” Accompanying the Notice of Motion were documents which were or purported to be statements of charges for contempt of court. The persons who were subject to the application for orders to show cause included the fourth opponent the Trustees of the Roman Catholic Church, the fifth opponent Qantas Airways Ltd, and six lawyers and four law offices or law firms which had represented opponents in various ways. On 18 July 2005 Grove J. dismissed the motion, for reasons stated at length. His Honour also made orders relating to payment of costs of respondents to the motion, and made this order:

(e) Subject to the order by Smart AJ granting leave to apply to amend his statement of claim, the plaintiff is restrained from filing further motion in these proceedings against any of the respondents to the Notice of Motion filed on 20 June 2005 or bringing fresh proceedings against any of those respondents without leave of the Court first being obtained.

23 The order is still in effect and restrains applications in the proceedings in the Common Law Division.

24 Grove J.'s reasons gave a history of the proceedings in the Common Law Division and two related proceedings including an application disposed of by McClellan J on 14 December 2001 in which the claimant and his brother sought to prosecute 17 defendants on charges to similar effects. After reviewing the statements of charge his Honour expressed views in various ways to the effect that the charges were not supported, and referred to recklessness in seeking orders against legal practitioner respondents. His Honour said "this motion is highly misconceived". His Honour said:

48 I am satisfied that there is reasonable apprehension that, unless restrained, the plaintiff will institute further baseless claims against the respondents. The conduct of the plaintiff and his brother at the hearing was fortifying of the conclusion that such an apprehension would be harboured. It is sought that any such order extend also to the plaintiff’s brother, who assisted him not only at the hearing, but, it was conceded by the plaintiff, in preparing the matters that were brought before the Court. I do not regard it as appropriate to make any order regarding Oliver Markisic, bearing in mind my view that restraint should be limited to these particular proceedings in which Oliver Markisic is not a party.

25 The claimant sought to file Notice of Appeal but the Registrar declined to file the document, being of the view that there was no right of appeal. On 24 August 2005 the claimant filed a Notice of Motion seeking to set aside the Registrar's decision. That Notice of Motion came before the Registrar on 19 September 2005 and was struck out as an abuse of process. The claimant then filed an Ordinary Summons for leave to appeal on 2 November 2005, which came before the Court of Appeal on 23 May 2006 and was dismissed on 16 June 2006 - [2006] NSWCA 149. The Court of Appeal was of the view that there was no right of appeal from the judgment of Grove J. regardless of the question of leave. See para [33] and see also Markisic (Oliver) v The Commonwealth [2006] NSWCA 150 at [7] to [12].

26 In my view, upon reading the judgment of Grove J., there were manifestly no grounds upon which that judgment could be challenged on appeal, if there had been any available right of appeal. The reasons of Grove J. showed fully that there was no substance in the attempts to prosecute a number of persons for contempt. The first to fifth opponents were involved in the satellite proceedings, and in the attendances at court and in preparation for and conduct of the hearing of the appeal, altogether needlessly. They obtained several orders for costs, but these orders are ineffective as the claimant told me on several occasions and in several contexts that he is without significant resources and can not meet the orders for costs.

27 The claimant contended that he had not been given an opportunity to prepare submissions in reply in those of Ms Hartstein, counsel for the first and second opponents, because she gave him copies of case law to which she referred when she was putting her submissions (and not earlier), and that Mr Sexton SC counsel for the fifth opponent "did the same thing”. A later inquiry showed that Mr Sexton had given to Mr Markisic a copy of written submissions he proposed to put before me about the time I came into court, which was about 10:35 a.m. The claimant told me that he needed time to look at the case law and make submissions; I interpreted this as a contention that I should adjourn the proceedings. On Monday 19 February I heard a number of applications which were referred to me by the Registrar, as well as the present applications which I had adjourned from 29 January. After I heard counsel for the first and second opponents for some time I turned aside for about one hour to hear and dispose of other applications of greater urgency; and then returned to the present application. There was ample time after 29 January to the claimant to inform himself about relevant case law and any other matter of preparation for the hearing; it was for his assistance and not in compliance with any order or direction that counsel gave him written material they proposed to use in the hearing and an opportunity to see what it said. The claimant also complained that he had not been provided in advance with the history of the proceedings to which counsel referred me. The claimant has had much experience in conducting court hearings in person. I was satisfied that there was no unfairness and it was appropriate to continue the hearing and not to adjourn it.

28 The claimant pointed out that he had had some successes, and referred to the arrangement for service on the sixth, seventh and eighth respondents in the appeal to be accepted which was made at the hearing before Handley JA on 19 June 2006. In my view this minor success does not assist the claimant. If it was appropriate to join these respondents in the application for leave to appeal, he could have done so in the first place and asked the Australian Government Solicitor to accept service on those who were officers of the Commonwealth. In any event it was altogether clear that they had the immunity available for judges and counsel in the conduct of litigation, and there was no purpose in joining them in the proceedings in the Court of Appeal.

29 The claimant also pointed out that Handley JA had granted him an extension of time to file the White Book. He submitted that it was open for him to ask the Court for legal steps to be taken, and whether he was successful or not those steps were not an abuse of process. He contended that the contempt proceedings before Grove J. were not relevant and went on to contend that he brought the contempt proceedings to protect the authority of the Court. He also submitted that the order for costs on the indemnity basis which had been made by the Court of Appeal on 23 November 2006 was enough punishment, and that any more would be excessive, and that the opponents were making undue use of the situation that he lost on 29 January 2007 when two notices of motion were dismissed. He contended that he had sometimes been successful, sometimes unsuccessful, and that the orders now sought were going in the direction of preventing him from being successful in the proceedings, in which he believed that he would be ultimately successful. He said that the orders sought would be oppressive punishment and were unnecessary.

30 The proceedings have involved superfluous complexities. Interlocutory applications have typically involved correction of procedural failures by the claimant. Involvement of the fourth, fifth, sixth, seventh and eighth opponents in the Court of Appeal proceedings can be seen with hindsight to have been altogether futile, and with the benefit of the reasons of the Court of 23 November 2006 it should be said that there never was any reasonable prospect of obtaining any remedies against them. Indeed, the reasons of Smart AJ also show this. The burden placed on each has been increased by the involvement of other superfluous respondents. Their involvement has increased the burden imposed on the second and third opponents, who are affected by the remedy which the claimant obtained on appeal, to the very limited extent of that remedy.

31 The history of the present proceedings and of the satellite proceedings, and particularly the interlocutory applications which the claimant has made in them, including two of the interlocutory applications he has made since judgment was given, show in my opinion that there have been abuses of the processes of the Court in his making a number of insubstantial, unnecessary and misconceived applications. There have also been useless complexities and unproductive attendances which the claimant could and should have avoided by conducting business with timely efficiency. There have been many of them. The burden imposed on the opponents of dealing with these applications, preparing to meet them and attending court on numerous occasions has become an oppression and injustice which the Court should not allow to continue. A control of the kind which have already been imposed on the Common Law Division should now be imposed in the present appeal proceedings.

32 The order I will make is modelled on the orders in Hillston v Bar-Mordecai and Wentworth v Graham & Anor.

33 My orders are:

(1) Order that Dragan Markisic is not to be allowed to file and is hereby restrained from filing and also from serving any notice of motion, and is not to be allowed to make and is hereby restrained from making any oral application in these proceedings without the leave of a Judge of Appeal.

(2) Order that in case Dragan Markisic shall, without the leave of a Judge of Appeal file or serve any Notice of Motion, other parties are not to attend at the return of the notice of motion and they are not to participate in proceedings upon the Notice of Motion unless the Court or a Judge of Appeal shall otherwise direct: and further order that unless the Court shall think fit to give such direction any such Notice of Motion shall be dismissed without being heard.

(3) Leave pursuant to Order 1 is to be sought by written application setting out the full basis on which leave is sought and the full basis of the claim for relief with a copy of the proposed notice of motion. No oral hearing will take place on an application for leave, which will be determined without notice to other parties, unless the Judge otherwise directs.

(4) Order that Dragan Markisic the appellant pay the costs of each respondent of:

(a) the first and second respondents’ Notice of Motion of 19 January 2007

(b) the fourth respondent’s Notice of Motion of 29 January 2007

(c) the fifth respondent’s Notice of Motion of 22 December 2006

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LAST UPDATED: 26 February 2007