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Supreme Court of New South Wales |
Last Updated: 25 February 2010
NEW SOUTH WALES SUPREME COURT
CITATION:
Markisic v Commonwealth of
Australia [2010] NSWSC 24
JURISDICTION:
FILE NUMBER(S):
20369/01
HEARING DATE(S):
19/10/2009; 21-23/10/2009;
26-29/10/2009.
JUDGMENT DATE:
25 February 2010
PARTIES:
Oliver Markisic (First Plaintiff)
Marika Markisic (Second
Plaintiff)
JUDGMENT OF:
Davies J
LOWER COURT
JURISDICTION:
Not Applicable
LOWER COURT FILE NUMBER(S):
Not
Applicable
LOWER COURT JUDICIAL OFFICER:
Not
Applicable
COUNSEL:
In Person (Plaintiffs)
D P Robinson SC
(Defendant)
SOLICITORS:
Australian Government Solicitor
(Defendant)
CATCHWORDS:
PROCEDURE - judgments and orders -
amending, varying and setting aside - whether given or entered irregularly,
illegally or against
good faith. PROCEDURE - pleadings - verification of
pleadings - who can verify. PROCEDURE - amendment of pleadings - late
application
for amendment - no evidentiary basis for proposed amended pleading.
PROCEDURE - courts and judges - disqualification for apprehended
bias. PROCEDURE
- abuse of process - limited resources of courts - Plaintiffs' desire to pursue
futile claims - proceedings stayed.
COSTS - costs thrown away by failure of
Plaintiffs to comply with Court orders - summary assessment of costs by Court -
direction
that costs to be paid forthwith or proceedings
stayed.
LEGISLATION CITED:
Australian Federal Police Act 1979
(Cth)
Civil Procedure Act 2005
Evidence Act 1995
Legal Profession Act
1987
Legal Profession Act 2004
Supreme Court Act 1970
Uniform Civil
Procedure Rules
CATEGORY:
Procedural and other rulings
CASES
CITED:
Aon Risk Services Australia Ltd v Australian National University
[2009] HCA 27; [2009] HCA 27; (2009) 83 ALJR 951
Applicants A1 and A2 v G E Brouwer (No. 2)
[2007] VSCA 269
Dawson v Deputy Commissioner of Taxation (1984) 71 FLR 364
Dragan Markisic v Department of Community Services of NSW (No. 2) [2006]
NSWCA 321
Dragan Markisic & Anor v USA & Anor (unreported, Latham J,
19 September 2006)
Dragan Markisic & Anor v USA & Anor
(unreported, Nicholas J, 12 December 2006)
Ebner v Official Trustee in
Bankruptcy [2000] HCA 6; (2000) 205 CLR 337
General Steel Industries Inc v
Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Livesey v NSW Bar
Association [1983] HCA 17; (1983) 151 CLR 288
Markisic v Commonwealth of Australia [2009]
NSWSC 284
Markisic & Anor v Commonwealth [2001] NSWSC 533
Markisic
& Anor v Commonwealth of Australia [2002] NSWSC 698
Markisic v Department
of Community Services of NSW & Ors [2006] NSWCA 106
Markisic v Department
of Community Services of NSW and Ors [2007] NSWCA 30
Markisic v Middletons
Lawyers [2007] NSWSC 1147
Mead v Watson [2005] NSWCA 133
Oliver Markisic
& Anor v Commonwealth of Australia [2007] NSWSC 201
Oshlack v Richmond
River Council (1998) 193 CLR 72
Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189
CLR 146
Sali v SPC Limited [1993] HCA 47; (1993) 67 ALJR 841
State of NSW v Lepore [2003]
HCA 4; (2003) 212 CLR 511
Webb v R [1994] HCA 30; (1994) 181 CLR 41
Wentworth v Rogers
(No. 5) (1986) 6 NSWLR 534
Wentworth v Wentworth (unreported – Santow J
– 6 February 1998)
TEXTS CITED:
Balkin & Davis, Law
of Torts (4th ed) LexisNexis Butterworths, 2009
DECISION:
(1) Dismiss
the Plaintiffs’ Notices of Motion filed 25 July 2008, 2 July 2009, 27 July
2009, 1 September 2009 and the Amended
Notice of Motion filed 3 August 2009.
(2) The Plaintiffs are to pay the Defendant’s costs of those Notices of
Motion including
the Amended Notice of Motion. (3) The proceedings are
permanently stayed. (4) Order that the Plaintiffs are not to be allowed to
file
and are hereby restrained from filing and also from serving any Notice of
Motion, and are not to be allowed to make and are
hereby restrained from making
any oral application in these proceedings without the leave of a judge of this
Court. (5) Order that
in case the Plaintiffs shall, without the leave of a judge
of this Court, 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 otherwise
directed by a judge of
this Court: 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. (6)
Leave pursuant to Order (5) 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
either party, unless the
Judge otherwise directs. (7) The Plaintiffs to pay the
Defendant’s costs thrown away by reason of the failure of the Plaintiffs
to comply with the orders of Registrar Bradford made 28 May 2008 and 11 July
2008 (excluding the costs of the Defendant’s Notice
of Motion) assessed at
$3000. (8) The Plaintiffs to pay the Defendant’s costs of the
Defendant’s Amended Notice of Motion
assessed at $5000. (9) In the event
that the stay referred to in Order (3) is lifted the proceedings are further
stayed until the
Plaintiffs pay to the Defendant the sum of $1500 of the costs
ordered to be paid in Orders (7) and (8). (10) The Defendant’s
Amended
Notice of Motion is otherwise dismissed.
JUDGMENT:
- 1 -
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DAVIES J
25 FEBRUARY 2010
20369/01 OLIVER MARKISIC & ANOTHER v COMMONWEALTH OF AUSTRALIA
JUDGMENT
Background
1 On 29 September 1998 certain persons attended at a property at 17 Edward Street, Arncliffe. The people who resided at that property were Oliver Markisic (the First Plaintiff), Marika Markisic (the Second Plaintiff), Dragan Markisic and Dragan Markisic’s infant daughter Elena Markisic. Oliver and Dragan Markisic are brothers and Marika Markisic is their mother.
2 On the day in question the only persons present in the property at the time these persons attended the property were Marika and Elena Markisic.
3 The persons who attended the property claimed to be members of the Australian Federal Police. They presented documents to Marika Markisic and requested the child Elena to be handed over to them. They took the child and drove away from the property.
4 At that time Dragan Markisic had commenced Family Court proceedings against his former wife Katerina (who resided in Macedonia) seeking custody of Elena.
5 As a result of those persons taking the child away from the property Oliver and Marika Markisic have commenced proceedings against the Commonwealth of Australia in which they claim damages for trespass both to the person and to land, for negligence resulting in nervous shock and for deceit.
6 The above facts are the only matters concerning the background and the events giving rise to the cause of action which are accepted as correct by both parties to the present proceedings.
7 This judgment does not concern the substantive issues in the proceedings but deals with a number of Notices of Motion filed by both parties to the proceedings. So that the issues raised by the Notices of Motion can be better understood I shall briefly summarise the Commonwealth’s factual assertions in relation to the matter. These matters are disputed by the Plaintiffs.
8 In short, the Commonwealth says that the child was taken by officers of the AFP pursuant to orders of the Family Court that had been sought by the Director-General of the Department of Community Services of NSW pursuant to the provisions of the Hague Convention on the Civil Aspects of International Child Abduction. The Commonwealth points to the various judgments in the Family Court, particularly the judgment of Judicial Registrar Johnston which was ultimately upheld on an appeal to Rowlands J and subsequently to the Full Court of the Family Court.
9 That judgment recites that Mr Dragan Markisic and his wife were separated in Macedonia. The mother claimed that Dragan came to see the child and said he was taking her for a walk and would bring her back at a particular time. She claimed that what in fact happened was Dragan brought the child from Macedonia to Australia where they arrived on 14 April 1998.
10 The mother then approached a court in Macedonia. That Court made orders for the return of the child and it was as a result of those orders and the approach of the Republic of Macedonia to Australian authorities to undertake proceedings in accordance with the Hague Convention that the Director-General commenced the Family Court proceedings.
11 As I have said, it was pursuant to the orders of the Family Court that the Commonwealth says the child was taken by representatives of the Australian Federal Police. The orders required her to be, and she was, delivered to a named person at the Department of Community Services. Shortly after that time she was taken back to Macedonia and reunited with her mother.
12 Despite what appears in the Further Amended Statement of Claim filed by the Plaintiffs on 23 July 2009 (a matter to which I will return presently) the Plaintiffs say in response to the Commonwealth’s assertions that:
(a) There were never proceedings in the Family Court commenced by the Director-General;
(b) There were never orders made by the Family Court which authorised the taking of the child by the Australian Federal Police or anybody else;
(c) The child was not taken by members or officers of the Australian Federal Police but illegally by other persons, who were paedophiles and predators for whom the Commonwealth is vicariously liable.
(d) The child was not taken to DOCS.
13 These assertions of the Plaintiffs go to the heart of a number of matters that I have to determine on the Notices of Motion before me, and they go to the heart of the substantive claim of the Plaintiffs. For that reason, and also because in the Notices of Motion before me the Plaintiffs seek to overturn and/or challenge parts of various judgments made by judicial officers in this Court in the proceedings, it is necessary to set out at some length the various pleadings filed by the Plaintiffs and the history associated with them.
History of the proceedings
14 The Statement of Claim in the matter was filed on 9 May 2001. The Claim, which was verified by both of the Plaintiffs in the usual form, was pleaded as follows:
The first and second plaintiffs plead their cause of action as follows:
1. At all material times the first defendant was liable to be sued in its own name under the Judiciary Act.
2. The first plaintiff and Mr. Dragan Markisic (further referred hereto as Dragan) are brothers and both are sons of the second plaintiff. The first and second plaintiffs at that material time lived and still live in the same house.
3. In July 1998 the officers of the first defendant initiated proceedings at the Family Court of Australia under the Hague Convention for the return of Dragan's daughter Elena Markisic, born 03.05.1997 to Macedonia (further referred hereto as child).
4. There was on 09.09.1998 an interim order of His Honour J Rowlands for the return of the child to Macedonia.
5. Dragan appealed to the Full Court of the Family Court against the decision of His Honour Justice Rowlands.
6. Due to the engagements with the Family Court case and in need of help with his child from his mother (the second plaintiff), Dragan moved with his child for a short time to live with his mother (the second plaintiff) and his brother (the first plaintiff). The second plaintiff at that material time was 64 years old. The first and second plaintiff were at that material time carers of the child.
7. On 29.09.1998 the first plaintiff and Dragan, due to the engagements with the appeal at the Full Court, left the child with the second plaintiff.
8. On the same day the first plaintiff, as a next friend, and Dragan attended the hearing of the appeal. The Full Court of the Family Court of Australia, consisting of His Honour Chief Justice Nicholson, His Honour J. Ray and His Honour J. O'Ryan dealt with the appeal in this order:
Dragan's application for extension of time and adjournment of the appeal on the grounds of the Dragan's health condition and of the short time to prepare the appeal was dismissed by the Full Court. The Full Court disregarded Dragan's medical certificate and Dragan's argument of speedy and unfair trials from the beginning of the court proceedings. His Honour Chief Justice Nicholson said to the effect that if Dragan is not in a condition to continue with the appeal then the Full Court will decide without him on basis of the material contained in the appeal book. Dragan seeing that he is not given a fair trial from the Full Court too, asked the Full Court to the effect he to be excused from the appeal and asked for permission to leave the Court to go to the High Court of Australia and there to lodge an appeal on the same grounds as in that appeal. His Honour Chief Justice then made submissions for the application for Warrant to take possession of the child for the Respondent in the appeal (the first defendant) and invited the Respondent in the appeal to make an oral application for Warrant to take possession of the child.
9. On invitation from His Honour, the Respondent in the appeal (the first defendant) made an oral application for the Warrant to take possession of the child and the Full Court issued the said Warrant to take effect forthwith.
10. Dragan not having any other option and in an attempt to avoid incoming harm to his child made an oral application for dismissal or stay of the Warrant issued on the grounds to the effect that that is not in accordance with the Family Law Act, not in the spirit of the Hague Convention and that the child is going to experience great deal of harm if separated from Dragan and asked the Court to consider the best interest of the child. But the Full Court refused all arguments and dismissed Dragan's oral application. Then His Honour Chief Justice made an application and submissions for the Respondent in the appeal (the first defendant) for care application and His Honour then made an order for care of the child.
11. Then the Full Court of the Family Court of Australia issued a Warrant to take possession of the child and the child to be delivered to the Manager of the St. George Community Services Centre Hurstville Mr. Tim McDonald and the child to be in care of the Director General of the DOCS of NSW pending any appeal to the High Court of Australia or pending her return to Macedonia.
12. His Honour Chief Justice then requested from Dragan to continue with his appeal or the Full Court will continue without him and on basis of the material contained in the appeal book.
13. Dragan was forced under very stressful conditions for him to continue with the appeal and being aware that that is the last and only chance to save his child from the coming harm. Dragan believed that if he wins the appeal that there would be no grounds the Respondent in the appeal (the first defendant) to take his child and with it to prevent the harm to the child and that was the only thing a father could do to save his daughter. Dragan collected the last remaining strength to proceed with his submissions.
14. When Dragan asked Their Honours in regards to his parental rights, His Honour replied to the effect "I do not want to talk about that".
15. At the end of the appeal the Full Court of the Family Court of Australia made the following orders:
a) appeal is dismissed
b) the child is placed in the care of the Director General of the DOCS of NSW pending determination of the application for special leave to appeal to the High Court of Australia
c) the order of His Honour J Rowlands is stayed for seven days to allow Dragan to lodge an application for special leave to appeal to the High Court
PARTICULARS 1
1) The officers of the first defendant (Ms. Carmel Niland, Mr. Roderick Best, Ms. Gina Vizza, Mr. David Wales, Ms. Doreen Muirhead, Ms. Nan Levett, Mr. John Mcginnes) knowingly acted in misfeasance in public office and in excess of statutory powers arising from Family Law (Child Abduction Convention) Regulations requesting from the Court, in oral application, a Warrant to take possession of the child causing the Court to issue the Warrant to take possession of the child and furthermore causing the AFP officers unjustifiably and out of authority execute the Warrant to take possession of the child failing to establish seriousness and urgency as required in the order 1. (iv) of the Orders of the Full Court, i.e., Warrant to take possession of the child, and knowingly and intentionally to inflict harm to the first and second plaintiffs, Ab Initio causing wrongdoings as particularised in PARTICULARS 3, as a result of which actions the first and second plaintiffs have suffered loss and damage as particularised in Particulars - injuries, losses and damages
2) The officers of the first defendant (Ms. Carmel Niland, Mr. Roderick Best, Ms. Gina Vizza, Mr. David Wales, Ms. Doreen Muirhead, Ms. Nan Levett, Mr. John Mcginnes) knowingly acted in misfeasance in public office and in excess of statutory powers arising from Family Law (Child Abduction Convention) Regulations ignored Dragan's warning that the separation of the child from Dragan will cause harm to the first and second plaintiffs and to the child and requested from the Court, in oral application, a Warrant to take possession of the child causing the Court to issue the Warrant to take possession of the child and furthermore causing the AFP officers unjustifiably and out of authority execute the Warrant to take possession of the child failing to establish seriousness and urgency as required in the order 1. (iv) of the Orders of the Full Court, i.e., Warrant to take possession of the child, and knowingly and intentionally to inflict harm to the first and second plaintiffs, Ab Initio causing wrongdoings as particularised in PARTICULARS 3, as a result of which actions the first and second plaintiffs have suffered loss and damage as particularised in Particulars - injuries, losses and damages
3) The officers of the first defendant (Ms. Carmel Niland, Mr. Roderick Best, Ms. Gina Vizza, Mr. David Wales, Ms. Doreen Muirhead, Ms. Nan Levett, Mr. John Mcginnes) knowingly acted in nonfeasance in public office and in failing to exercise statutory duties imposed by Family Law (Child Abduction Convention) Regulations, Regulation 2, Schedule 1, to prevent further harm to the child or prejudice to the interested parties by taking or causing to be taken provisional measures, requesting and accepting the issue of the Warrant to take possession of the child from the Court, in oral application, causing the Court to issue the Warrant to take possession of the child and furthermore causing the AFP officers unjustifiably and out of authority execute the Warrant to take possession of the child failing to establish seriousness and urgency as required in the order 1. (iv) of the Orders of the Full Court, i.e., Warrant to take possession of the child, and knowingly and Intentionally to inflict harm to the first and second plaintiffs, Ab Initio causing wrongdoings as particularised in PARTICULARS 3, as a result of which, actions the first and second plaintiffs have suffered loss and damage, as particularised in Particulars - injuries, losses and damages, knowing that:
a) the child
was not in need of care and there was no urgency or seriousness
b) the
Director General of the DOCS of NSW has not established a standard of care for
taking a child not in need of care and knowing
that the Director General of the
DOCS of NSW can not establish such a standard for such standard would be
unauthorised by the Parliament
of New South Wales
c) the Director General of
the DOCS of NSW has not established a guidelines for accepting children into
care in Hague Convention matters
and knowing that the Director General of the
DOCS of NSW can not establish such guidelines for such guidelines would be
unauthorised
by the Parliament of New South Wales
d) the DOCS of NSW does not
have enough resources to properly care for the child
e) the child is closely
tied to the first and second plaintiffs and the separation will result in harm
of each of them
4) The judicial officers of the first defendant (His Honour C J Nicholson, His Honour J Ray and His Honour J O'Ryan) knowingly, intentionally and maliciously erred in excess of jurisdiction to comply with the Court Rules, principles of natural justice and fairness, principles of the adversarial system - failing to act independently and impartially, and provisions of the Imperial Acts Application Act in relation to due process causing the AFP officers unjustifiably and out of authority execute the Warrant to take possession of the child failing to establish seriousness and urgency as required in the order 1. (iv) of the Orders of the Full Court, i.e., Warrant to take possession of the child, and knowingly and intentionally to inflict harm to the first and second plaintiffs, Ab Initio causing wrongdoings as particularised in PARTICULARS 3, as a result of which actions the first and second plaintiffs have suffered loss and damage as particularised in Particulars - injuries, losses and damages, by:
a) making submissions for the
Respondent in the appeal for the Warrant to take possession of the
child
b) inviting the Respondent in the appeal to apply for Warrant to take
possession of the child
c) making application for the Respondent in the
appeal for Warrant to take possession of the child
d) rectifying the
requested order for Warrant to take possession of the child in the application
of the Respondent in the appeal (application
in the lower Court
proceedings)
e) issuing Warrant to take possession of the child before the
appeal has been heard
f) issuing Warrant to take possession of the child
knowing that appeal to the said order is not available
g) issuing Warrant to
take possession of the child without full and separate hearing of the matter to
establish all the necessary
conditions in relation to the care of the child
5) The judicial officers of the first defendant (His Honour C J Nicholson, His Honour J Ray and His Honour J O'Ryan) knowingly, intentionally and maliciously erred in exercise of jurisdiction issuing invalid Warrant to take possession of the child causing the AFP officers unjustifiably and out of authority execute the Warrant to take possession, of the child failing to establish seriousness and urgency as required in the order 1. (iv) of the Orders of the Full Court, i.e. , Warrant to take possession of the child, Ab Initio causing wrongdoings as particularised in PARTICULARS 3, as a result of which actions the first and second plaintiffs have suffered loss and damage as particularised in Particulars - injuries, losses and damages. The Warrant to take possession of the child was invalid for the following reasons:
a) issued without due process of law
b) issued
without statutory authority for enforcement of a civil claim of this
nature
c) the Respondent in the appeal did not instituted cross appeal by
filling a Notice of cross appeal to the said appeal, according
to the Court
Rules, and the said judicial officers by surprise to the Applicant in the appeal
instituted the said cross appeal assuming
orders of such a Notice of cross
appeal should contain
d) issued in excess of powers under the Family Law
(Child Abduction Convention) Regulations
e) issued knowingly out of
jurisdiction in children care and protection matters - Commonwealth Powers
(Family Law Children) Act, Children
(Care and Protection) Act
f) issued
knowingly out of jurisdiction in children care and protection matters - the
child was not in need of care and there was
no urgency or
seriousness
g) knowingly out of jurisdiction - Family Court has no
jurisdiction of wardship
h) the warrant in the form "Warrant to take
possession of the child" is:
1h) unconstitutional
2h) contrary to the Part 3, Regulation 14 (5) of the Family Law (Child Abduction Convention) Regulations
i) the Warrant was issued to inflict additional mental distress during the period of pending institution of an appeal to the High Court of Australia making prejudice to the Applicant in the appeal
j) issue of the Warrant by the said judicial officers to the effect of "to protect the child from possibility of removal from its present address, to another part of Australia, or elsewhere by father (Dragan)", were unjustifiable for the following reasons:
1j) there was no evidence for such conclusion
2j) Dragan's passport and the child's passport were already surrendered to the Court
3j) constitutes wrongful restraint upon the liberties of Dragan, the child and the first and second plaintiffs
k) the ground for the issue of the Warrant to take possession of the child by the said judicial officers to the effect of "any order of the Court will be defeated by the action of the father (Dragan)" were unjustifiable for the following reason: Dragan's statement in his affidavit "I was waiting for 37 years of my life for this baby to be born and I was not going to give up on her at any cost" was taken out of context
I) the Warrant to take possession of the child was issued without consent of the father (Dragan)
m) the Warrant to take possession of the child was in effect unjustified punishment of the Applicant in the appeal for the expressed wish to appeal to the High Court of Australia even before the appeal has been heard by:
1m) harming Dragan and the first and second plaintiffs with separation from the child
2m) harming the child with separation from Dragan and the first and second plaintiffs
n) the issue of the Warrant to take possession of the child will place the child in such intolerable situation as to render the detention unlawful and will amount to a false Imprisonment
The first defendant is vicariously liable for the above actions of their respective officers and judicial officers.As a result of the above actions of the first defendant the first and second plaintiffs have suffered loss and damage as particularised in Particulars - injuries, losses and damages
16. The Warrant to take possession of the child was forwarded to the AFP and the Federal agent Christopher Noble was responsible for execution of the same. The AFP entered the above Warrant to take possession of the child in their computer system as "Execution of Family Law Recovery Order".
17. On 29.09.1998, while the first plaintiff and his brother Dragan were in the Family Court and the appeal was pending, three AFP officers visited the first and second plaintiffs's home. They rang on the door, introducing themselves as AFP officers, presented the Warrant to take possession of the child, photos of Dragan and his child and wanted to take the child. The second plaintiff have shown the child to the AFP officers through the flyscreen door, the AFP officers to see there is no matter of seriousness or urgency in regards to the child, but after they insisted to enter the house, or they will break the door by force they were allowed to enter the house.
18. The child seeing them at the door started to cry and scream. Two of the said AFP officers entered and the third officer stayed outside. The second plaintiff told the AFP officers to the effect that she can not give the child without permission and presence of her son Dragan and that Dragan is at that moment in the Court. The AFP officers said to the effect that they have a Warrant to take the child and they will take the child by force. The second plaintiff then rang her third son Neven Markisic to come and help her with dealing with the AFP officers due to her limited knowledge of English language, due to her age and because Neven, as a oversees qualified barrister, was better skilled at law. Mr. Neven Markisic arrived with his then 8-year old son Mario in 10-15 minutes.
19. The AFP officers requested from Neven Markisic to order to his mother (the second plaintiff) to give them the child, that they have a Warrant from the Family Court and that they will take the child by force in any case. Neven answered to them to the effect that he can not order that to his mother, that she was instructed from her son Dragan to look after his child till he comes back from the Court, that she is the child's grandmother, very attached to the child and that the paper being Warrant is issued for the human being in first place and not for a thing
20. The second plaintiff tried to ring her son Dragan again or her other son Oliver (the first plaintiff) on mobile phone, but one of the AFP officers stormed towards the second plaintiff, pulled out the phone handset from her hands, thrust her and the second plaintiff lost her balance still holding the child in the other hand. Then the AFP officer ripped the phone cord line. The second plaintiff was sitting on a sofa bed with the child in her arms while the same agent tried twice to take the child by force, but the child was running away from him constantly screaming and holding harder her grandmother (the second plaintiff).
21. When the second plaintiff asked for permission to go with the child in another room to change the nappies to the child, the AFP officers first declined It, but then allowed it. Then the second plaintiff again sat on the sofa bed with the child in her arms. The child being scared from the AFP officers cried and screamed all the time, from the time she saw them at the door. Then the AFP officers decided not to wait any longer and while one of them was keeping the second plaintiff's hands at her back, another officer took the child from her arms and run out of the house with the child in his hands, slamming the doors on the way out. The other two AFP officers followed him in the same manner running out of the house.
22. The child, being in panic and shock, cried and screamed more loudly at the moment they took her by force. In that action of taking the child by force the AFP officers ripped off one of the child's ear ring. The second plaintiff, Neven and; his son Mario ran after them, crying, screaming, in big panic and shock. The child was screaming and crying deafeningly loud. The AFP officers put the child In a baby seat in their car, fasten the seat belt around the child while the child constantly cried and screamed after her grandmother and her brother Mario "Granny, Granny..." (in Serbian).
23. The whole family went out crying, screaming and begging the AFP officers not to take the child away. The second plaintiff then asked the AFP officers to allow her to kiss the child for the last time, but she was not allowed. The AFP officers left the scene very fast.
24. The three AFP officers scared, stressed and traumatised the second plaintiff, the child and other extended family members. The three AFP officers took the child in a condition of nervous chock, crying, screaming, very lightly dressed, without one shoe, hungry, without any food and clothes for changing. There was nowhere to be seen any female welfare officer to look after the child.
25. The three AFP officers left the scene leaving the second plaintiff and other family members devastated, in nervous shock, panic, fear, cry, anguish and worries.
26. The AFP officer Noble left a copy of the Warrant to take possession of the child and his business card for Dragan to call him. The three AFP officers delivered the child to Mr. Tim McDonald and Mrs. Lily Anthony at the St. George Community Services Centre Hurstville. Mrs. Lily Anthony took the child and placed the child in the care of "Centacare", with foster parents Christine and Mike Robertson.
27. The Australian Federal Police took the child knowing that the child was not in need of care, there was no urgency or seriousness and knowing that the child was properly looked by three families.
PARTICULARS 2
1) The officers of the first defendant executing the Warrant to take possession of the child (the Australian Federal Police officers, Mr. Christopher Noble and two other AFP officers) unjustifiably and out of authority executed the Warrant to take possession of the child failing to established seriousness and urgency as required in the order 1. (iv) of the Orders of the Full Court, i.e. , Warrant to take possession of the child, and knowingly and intentionally inflicted harm to the first and second plaintiffs, Ab Initio causing wrongdoings as particularised in PARTICULARS 3, as a result of which actions the first and second plaintiffs have suffered loss and damage as particularised in Particulars - injuries, losses and damages.
The first defendant is vicariously liable for the above actions of their respective officers. As a result of the above actions of the first defendant the first and second plaintiffs have suffered loss and damage as particularised in Particulars - injuries, losses and damages
28. When the first plaintiff and his brother Dragan left the Full Court of the Family Court, under lot of mental distress and trauma of everything what happened in the Court, the first plaintiff received a phone call from his family members. They in cry tried to explained to the first plaintiff and Dragan what happened while they were in the Court, that the Australian Federal Police took the child by force.
29. The first plaintiff and his brother Dragan both felt a big shock, big pain in their chest and in their soul disbelieving that it could have happened while Dragan was doing his submissions before the Full Court.
30. The first plaintiff and Dragan realised that Dragan was not even given a chance to finish his submissions for the appeal when the AFP officers took the child.
31. The first plaintiff, himself being in shock, somehow helped his brother Dragan to recover a little bit and to collect the power to come home. When the first plaintiff and his brother Dragan reached their home, they found the whole family in great mental distress, shock, panic and dismay. They all cried trying to explain to the first plaintiff and Dragan what happened. They did not know where the AFP officers took the child disbelieving that something like that could have happened to them in a free and democratic country like Australia.
32. The first and second plaintiff were in shock and panic for the child, in disbelieve, depressed; anxious of everything happened. The whole family was crying, did not know where the child was and in what condition. They felt that the child somewhere suffers, being hungry and in shock and emotional distress. The second plaintiff and Dragan took tranquillising pills to get through the night and through the following days.
33. Mrs. Lily Anthony entered the child in the DOCS of NSW computer system as:
a) child Elena Markisic (540335)b) child entered in system 14.08.1998
c) assessment commencement date 17.08,1998
d) child who was not at risk
e) actual harm, criminality, high risk not confirmed
f) no safety, risk or well-being issue
PARTICULARS 3
1) The AFP officers executing the Warrant to take possession of the child performed the following wrongdoings:
a) wrongfully trespassed the first and second plaintiffs's home from the moment the AFP officers entered the said home by force, threatening to break the door
b) wrongfully arrested the second plaintiff by:
1b) forbidding the second plaintiff to move from the sofa
2b) forbidding the second plaintiff to make a phone call
3b) holding the second plaintiff's hands while the AFP officer took the child from her
c) wrongfully imprisoned the second plaintiff by:
1c) forbidding the second plaintiff to leave the room
2c) forbidding anyone to enter or leave the house
d) wrongfully trespassed the second plaintiff with assault and battery by:
1d) attempting twice to take by force the child from the second plaintiff
2d) storming towards the second plaintiff, pulling out the phone handset from her hands and thrusting the second plaintiff causing the second plaintiff to lose her balance while holding the child in the other hand
3d) holding the second plaintiff's hands while the AFP officer took the child from her
e) caused loss of service to the first plaintiff by wrongfully arresting and imprisoning the second plaintiff
f) interfered with the first and second plaintiffs and the child causing loss of service to the first and second plaintiffs by wrongfully arresting and imprisoning the child
g) inflicted nervous shock to the first plaintiff when the first plaintiff heard of the wrongful arrest and imprisonment of the child over the mobile phone from his extended family members
h) inflicted nervous shock to the first plaintiff when the first plaintiff heard of the wrongful arrest and imprisonment of the second plaintiff after the first plaintiff returned home
i) inflicted nervous shock to the second plaintiff by wrongfully arresting and imprisoning the child
j) inflicted additional nervous shock to the second plaintiff by causing nervous shock to the child
k) damaged the first and second plaintiffs's reputation in following ways: the neighbours witnessing the AFP officers coming to the house, entering the house, taking of the child, leaving the area, the community learning through the word of mouth and newspapers publishing in Australia and Macedonia and through the television in Macedonia about the above
The first defendant is vicariously liable for the above potions of their respective officers. As a result of the above actions of the first defendant the first and second plaintiffs have suffered loss and damage as particularised in Particulars - injuries, losses and damages.
34. The conduct of the officers of the first defendant caused and continue to cause pain, suffering and worries to the first and second plaintiffs and damage to the health to the second plaintiff. The second plaintiff as a result of the above misconduct of the officers of the first defendant developed a heart condition.
35. The first plaintiff claims from the first defendant damages, aggravated damages, exemplary damages, interest and costs.
36. The second plaintiff claims from the first defendant damages, aggravated damages, exemplary damages, future medical expenses, interest and costs.
PARTICULARS - INJURIES, LOSSES AND DAMAGES
PARTICULARS OF DAMAGES
The conduct of the officers of the first defendant caused:
a) the first and second plaintiffs be abused, oppressed, damaged and traumatised and consequently to suffer mental and nervous shocks, damaging the first plaintiff health and substantially damaging the second plaintiff health
b) the child to be abused, oppressed, damaged and traumatised and consequently to suffer mental and nervous shocks, damaging the first plaintiff health and substantially damaging the second plaintiff health
c) permanent separation of the first and second plaintiffs from the child, to whom child the first and second plaintiffs were carers, damaging the first plaintiff health and substantially damaging the second plaintiffs health
d) the first and second plaintiffs's reputation to be damaged and consequently to suffer health damage. The plaintiffs as a result of the said proceedings were unfavourable portraited in newspapers in Macedonia and Australia and on television in Macedonia and in the community through the word of mouth
PARTICULARS OF INJURIES
The conduct of the officers of the first defendant caused the first plaintiff to suffer, and continues to suffer from illnesses of:
a) depressionb) anxiety
c) insomnia
The conduct of the officers of the first defendant caused the second plaintiff to suffer, and continues to suffer from illnesses of:
a) depressionb) anxiety
c) hypertension
d) heart condition
PARTICULARS OF LOSSES
The conduct of the officers of the first defendant caused the first plaintiff to lose his enjoyment of life.
The conduct of the officers of the first defendant caused the second plaintiff to lose her enjoyment of life.
PARTICULARS OF DISABILITIES
The conduct of the officers of the first defendant caused the second plaintiff to suffer reduced psychical activity.
PARTICULARS OF AGGRAVATED DAMAGES
a) in the removal of the child the officers of the first defendant acted with a conscious and contumelious disregard for the welfare and rights of the first and second plaintiffs and the child or with a wanton cruel and reckless indifference to the first and second plaintiffs and the child's welfare and rights, thereby causing the first and second plaintiffs substantial distress, humiliation and injury to their feelings.b) The officers of the first defendant never expressed any apology, retraction or compassion towards the first and second plaintiffs
c) The officers of the first defendant failed to provide any counselling to the first and second plaintiffs
d) The officers of the first defendant caused long term, the first and second plaintiffs's lifetime, pain, suffering and worries due to the mental and physical harm inflicted by their misconduct
PARTICULARS OF EXEMPLARY DAMAGES
In the removal of the child the first defendant acted with a conscious and contumelious disregard for the welfare and rights of the first and second plaintiff and the child or with a wanton cruel and reckless Indifference to the first and second plaintiff and the child's welfare and rights, thereby causing substantial distress to the first and second plaintiffs, humiliation and injury to their feelings, and the first and second plaintiffs are entitled to exemplary damages.
The conduct of the officers of the first defendant is of such malicious and harmful nature that it would be required the first defendant to pay exemplary or punitive damages to the first and second plaintiffs j; a deterrence from any such future misconduct due to the statutory law provisions insufficiency and inability to deter them.
The first plaintiff claims:
- Damages, aggravated damages, exemplary damages
- Interest
The second plaintiff claims:
- Damages, aggravated damages, exemplary damages, future medical expenses
- Interest- Costs
15 The Plaintiffs then filed an Amended Statement of Claim on 5 June 2001 but from a pleading point of view it was in identical terms to the original Statement of Claim.
16 On 15 May 2001 the Commonwealth filed a Notice of Motion to strike out the Amended Statement of Claim pursuant to Pt 15 Rule 26 Supreme Court Rules and/or pursuant to Pt 13 Rule 5 SCR. That Notice of Motion was heard by Master Harrison (as her Honour then was), and in a judgment on 28 June 2001 (Markisic & Anor v Commonwealth [2001] NSWSC 533) she ordered that the Statement of Claims and the proceedings be dismissed on the grounds that the claims were hopeless and that they were an abuse of process.
17 The Plaintiffs appealed and the appeal came before Bell J (as her Honour then was in this Court). Her Honour partly upheld the appeal (Markisic & Anor v Commonwealth of Australia [2002] NSWSC 698) saying:
[43] 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.”
18 What her Honour did was to allow the appeal and to strike out the Amended Statement of Claim but she then made this order:
[46] ... (3) Grant the plaintiffs leave to file a further amended statement of claim within twenty-eight days of today’s date limited to their claims arising out of the actions of members of the AFP in trespass and, with respect to the second plaintiff, in false imprisonment, assault and negligence.
19 Apparently pursuant to that order the Plaintiffs filed a Further Amended Statement of Claim on 24 September 2002 in which they again pleaded that the child was taken by 3 members of the AFP. There was no mention in this pleading about the Family Court proceedings. It was asserted that the warrant produced by the AFP was a false one and that the child was taken to a place unknown to the Plaintiffs and members of the family.
20 The Commonwealth filed a Motion on 7 February 2007 to strike out parts of the Further Amended Statement of Claim, it would seem on the basis that the pleading went beyond what Bell J permitted in her order. That Notice of Motion was heard by Patten AJ who delivered judgment on 9 March 2007 (Oliver Markisic & Anor v Commonwealth of Australia [2007] NSWSC 201) striking out those parts of the Statement of Claim which the Commonwealth said should be struck out. The actual order made by Patten AJ was Order 2 as follows:
Order as asked in paragraph 1 of Defendant’s Notice of Motion, filed in court 7 February 2007.
The Notice of Motion had sought this order:
1. That the Statement of Claim entitled Further Amended Statement of Claim filed on 24 September 2002 be struck out in part as indicated in the attachment annexed to this Notice of Motion and marked “A”.
21 On 28 May 2008 Registrar Bradford ordered the re-engrossment of the Statement of Claim as altered by Patten AJ’s judgment.
22 On 18 July 2008 the Plaintiffs filed in the Registry a document entitled Further Further Amended Statement of Claim. The document was not simply a re-engrossing of the Statement of Claim as amended by Patten AJ but was a complete re-pleading of claims by the Plaintiffs. The document is a significant one for the issues that arose on the Notices of Motion before me and it is necessary to set it out in its entirety. It pleads the claims in this way:
RELIEF CLAIMED
The both Plaintiffs claim from the Defendant damages, aggravated damages, exemplary damages, future medical expenses, interest and costs
PLEADING AND PARTICULARS
The both Plaintiffs rely on the following facts and assertions
1. At all material times the Defendant is liable to be sued in its own name under section 56 of the Judiciary Act.
2. Defendant is vicariously liable for the torts done by its servants and agents as a joint tortfeasor.
3. First Plaintiff and Mr Dragan Markisic, father of the child Elena Markisic born 03 05 1997 (herein after referred to as the "father" and "child" respectively), are brothers and both are sons of the Second Plaintiff. The Second Plaintiff at the material time was 64 years old.
4. First and Second Plaintiffs at the material time lived in their rented house and the land at 17 Edward Street Arncliffe, NSW, 2205, jointly since 1997. At the material time the father and the child lived in the same house with the First and Second Plaintiffs.
5. At the material time the First and Second Plaintiff had care, control, custody, parental responsibilities and all other powers under the law towards the child The First Plaintiff was master of the household.
6. At all the material time the First Plaintiff and the father were software developers. At the beginning of 1995 they commenced developing a Point of Sale System consisting of Point of Sale software ("InterPOS"), a computer system and point of sale equipment. In the beginning of 1996 they as partners registered a business name 'Markisoft International". The main business of Markisoft International" was production and sale of business oriented integrated computer systems and Point of sale systems.
7. From second part of 1997 the First Plaintiff was running the business from his office located at his home in Arncliffe. In the period from April 1998 the First Plaintiff and the father were engaged with further development of the system and preparation of the system for the introduction from 01 07 2000 of GST (the new tax system in Australia).
8. In or about July 1998 certain Commonwealth's public officers (herein after referred to as "organisers") with the assistance of certain Commonwealth's public officers and its agents (unlawfully) instituted proceedings in the Family Court of Australia with the father as respondent. The above proceedings were instituted with an improper purpose to (unlawfully) gain possession and control of the child from the possession, custody and care of the child by the Plaintiffs. The organisers were paedophiles and/or child predators.9. On 29.09.1998 early in the morning the First Plaintiff and the father left their home to attend the hearing of the father's appeal at the Full Court of the Family Court of Australia (herein after referred to as "Full Court"). They left the child in the custody and care of the Second Plaintiff.
10. The above appeal was an appeal from a fabricated decision, fabricated by the organisers and some other certain Commonwealth's public officers and its agents and after that sent to the father as if issued by the court. They fabricated the said decision to enable them to (unlawfully) gain possession and control of the child from the possession and custody of the child by the Plaintiffs.
11. During the hearing of the above appeal the organisers with the assistance of certain Commonwealth's public officers and agents fabricated another two documents: orders in relation to the arrest and possession of the child ("possession orders") and orders for care of the child ("care orders"). The organisers fabricated the said orders as if issued by the Full Court with a purpose to enable them to (unlawfully) enter the Plaintiffs' land and house and gain possession and control of the child from the possession and custody by the Plaintiffs.
12. The organisers gave the "possession orders" to a group of men (herein after referred to as "executors"). They advised the executors that the said documents are false. They ordered them to raid the Plaintiffs' home, to present themselves as the Australian Federal Police, to present the "possession orders" as a warrant of the Full Court, to enter the Plaintiffs' land and house and to abduct the child from the Plaintiffs by deceit and by use of force.
13. The organisers, executors and the Commonwealth's public officers and agents who assisted them are herein after referred to as "abductors".
14. The organisers are jointly and severally liable with the executors, the Commonwealth's public officers and agents for all unlawful acts and/or omissions they have done towards the Plaintiffs and the child as causing them directly or indirectly.
15. On 29 09 1998, at or about 14.30h the executors raided the Plaintiffs home. The First Plaintiff and the father were not yet returned home.
16. The executors behaved at the front of the house aggressively and violently. They rang on the door and told to the occupants that they are the Australian Federal Police. They presented a paper claiming that it was a warrant, presented photos of the father and the child and demanded the child to be handed over to them. They were slamming on the door demanding the door be unlocked and the child be given to them threatening to break the door and take the child by force.
17. The Second Plaintiff believed, as been so deceived by the executors, that they are police but she did not permit them to enter the house. The Second Plaintiff in fear from the executors' threats and in order to save the child from any harm has shown the child through the fly screen door the executors to see the child and to see that there is no matter of seriousness or urgency in regards to the child.
18. Upon seeing the executors at the door, upon hearing that they demanded hand over of the child, upon hearing that they made threats that they will break the door, upon hearing that they had made threats that they will take the child by force, and upon seeing and hearing their aggressive and violent conduct at the front door the Second Plaintiff suffered nervous shock.
19. Because of the threats the door's lock was unlocked and the executors pushed the door open and entered the house. Two of them executors entered the house and then the room where the Second Plaintiff was with the child and one stayed outside to prevent anyone from leaving or entering the house.
20. At the time the executors knew that they do not posses a judicial warrant to enter the Plaintiffs land and house and to take possession of the child but despite that they unlawfully entered the Plaintiffs' land and house and committed trespass. The organisers who have sent and directed the executors to enter the Plaintiffs' land and house trespassed the Plaintiffs' land and house as well. By entering the house and one staying at the front door to prevent entry or exit of any other person, the executors also wrongfully arrested and imprisoned the Second Plaintiff and the child and trespassed the Second Plaintiff and the child.
21. The executors continued with their aggressive and violent conduct inside the house They were demanding the hand out of the child and making threats of using force and charging and prosecuting the occupants for obstructing the police The violent conduct of the executors frightened the Second Plaintiff and the child who started to cry and scream which aggravated the Second Plaintiff's mental condition
22. The Second Plaintiff told the executors, and also demonstrated that with her behaviour, to the effect that they are not welcome in her house and that she is not handing out the child to them.
23. The Second Plaintiff being traumatised by the inconsiderate conduct of the executors and in need of help to save the child from incoming harm rang her third son Neven to come. In about 10 to 15 minutes after her call Neven arrived with his then 8-year old son Mario.
24. The executors ordered to the Second Plaintiff to sit on the sofa and not to move away from the sofa. With the above act the executors wrongfully arrested and imprisoned the Second Plaintiff and the child and trespassed the Second Plaintiff and the child. The above act aggravated the Second Plaintiff's mental condition.
25. While the Second Plaintiff was sitting on the sofa with the child in her arms the executors twice physically attacked her and the child attempting by force to take the child from her hands. The child in fear was running away from the executors, screaming and holding harder into the Second Plaintiff. With the above act the executors committed assault and battery of the Second Plaintiff and the child and trespassed them. The above act aggravated the Second Plaintiff's mental condition.
26. When the Second Plaintiff tried to ring the First Plaintiff on his mobile phone one of the executors physically attacked her and the child again. He stormed towards her, pulled out the phone handset from her hands, thrusting her and ripping the phone cord line. As a result of thrusting the Second Plaintiff lost her balance while still holding the child in the other hand. With the above act the executors committed assault and battery of the Second Plaintiff and the child. The above act aggravated the Second Plaintiff's mental condition.
27. When the Second Plaintiff asked the executors for permission to be allowed to go with the child in another room to change its nappies the executors first declined it but upon insistence of other occupants they allowed it. Upon returning the Second Plaintiff was again ordered to sit on the sofa and not to move from there. With the above act the executors again wrongfully arrested and imprisoned the Second Plaintiff and the child and trespassed the Second Plaintiff and the child. The above act aggravated the Second Plaintiff's mental condition.
28. The child's condition of fear and constant cry and screaming further aggravated the Second Plaintiffs mental condition. The Second Plaintiff suffered from uncertainty and anxiety in relation to the child, her family and herself which further aggravated her mental condition.
29. After approximately one hour from their unlawful entry the executors decided not to wait any longer and to take the child immediately by force. They physically attacked the Second Plaintiff and the child. One by force twisted the Second Plaintiff's arms at her back while another seized the child from her breasts. With the above act the executors committed assault and battery of the Second Plaintiff and the child. After obtaining the physical possession of the child from the Plaintiffs' possession and custody the executors run out of the house with the child through the narrow corridors of the house with many doorsteps slamming the doors on the way out.
30. At the moment of twisting and holding the Second Plaintiff's arms the executors wrongfully arrested and imprisoned the Second Plaintiff. At the moment they took the child in their hands from the Second Plaintiff they wrongfully arrested and imprisoned the child. With the above acts the executors trespassed the Second Plaintiff and the child. By using unlawful force and unlawfully obtaining possession, custody and control of the child the executors abducted the child from the Plaintiffs custody and house.
31. Upon suffering the above assault and battery; upon seeing the executors assaulting and battering the child at front of her; upon realizing that the executors took the child from her and upon seeing the executors running out of the house with the child in their hands, through narrow corridors with many doorsteps in the house, slamming the doors on the way out, the Second Plaintiff suffered another nervous shock.
32. All three above nervous shocks suffered by the Second Plaintiff and described in preceding paragraphs were caused by unlawful acts committed by the executors and organisers. They had an intention to produce a harm to the Second Plaintiff with the result of their particular act or omission as described above or they were recklessly indifferent as to the risk that the particular act or omission could inflict nervous shock and could produce a harm to the Second Plaintiff which could result from their act or omission.
33. Consequently to the above unlawful acts or omissions as described in the paragraphs above resultant nervous shocks and further impacts on the nervous system together with condition of uncertainty and anxiety were sustained directly by the Second Plaintiff and the Second Plaintiff suffered recognised psychiatric injury and illness flowing directly from such nervous shocks, other impacts on the nervous system and the uncertainty and anxiety.
34. During the above assault and battery the executors ripped off one of the child's ear rings. The child now cried and screamed more loudly, frightened from the executors and from the physical pain, which further aggravated the Second Plaintiffs mental condition.
35. The Second Plaintiff, Neven and Mario in panic and shock ran after the executors out of the house, crying, screaming and begging them not to take the child away.
36. The Second Plaintiff asked the executors to permit her to kiss her grand-daughter for the last time but they denied it. The executors put the child in a baby seat in their car, fasten the seat belt around her while the child cried and screamed. The above acts further aggravated the Second Plaintiff's mental condition.
37. The executors left the scene very fast taking the child with them to an unknown destination. The child was taken in a condition of nervous shock, crying, screaming and very lightly dressed, without one shoe, hungry, without any food. The Second Plaintiff was left without her grand-daughter, devastated, traumatised, in panic, fear, cry, anguish and worries, in physical and emotional suffering. Because of the above the Second Plaintiff suffered from uncertainty and anxiety in relation to the child, her family and herself which further aggravated her mental condition.
38. The executors delivered the child to the organisers at an unknown destination and handed out the child into their possession, custody and control. The organisers by unlawfully obtaining possession, custody and control of the child from the executors continued with the abduction of the child from the Plaintiffs custody and home.
39. The same day at or about 4.30pm the First Plaintiff received a phone call from his home from his family members. They through cry explained to him what happened in his house that afternoon while he was absent. Upon hearing that the executors entered his house by force; upon hearing that they assaulted and battered the Second Plaintiff and the child; upon hearing that they seized the child by force and upon hearing that they took the child to an unknown destination the First Plaintiff suffered trauma and nervous shock.
40. On a way to his home the First Plaintiff suffered from uncertainty and anxiety in relation to the child, his family and himself which further aggravated his mental condition.
41. At or about 5.30pm the First Plaintiff and the father returned home. The First Plaintiff found the whole family traumatised, mentally distressed, in shock, panic and dismay. They all through cry explained to him what happened that afternoon while he was absent. Upon not finding the child at his home; upon hearing how the child and the Second Plaintiff were assaulted battered and abused by the executors; upon hearing how the child was seized by force, upon hearing that the child was taken to unknown destination and in a condition as explained above; upon seeing the traumatic condition of his family and how deeply his whole family was traumatised and in particular how distressed was the Second Plaintiff as a result of the mistreatment by the executors the First Plaintiff suffered another nervous shock.
42. The above two nervous shocks described in preceding paragraphs were caused by unlawful acts of the organisers and the executors as described above. They had an intention to produce such harm to the First Plaintiff with the result of their particular act or omission or they were recklessly indifferent as to the risk that their particular act or omission will inflict nervous shock to the First Plaintiff and could produce a harm to the First Plaintiff which could result from their act or omission.
43. Consequently to the above unlawful acts or omissions as described in the paragraphs above resultant nervous shocks and further impacts on the nervous system together with condition of uncertainty and anxiety were sustained directly by the First Plaintiff and the First Plaintiff suffered recognised psychiatric injury and illness flowing directly from such nervous shocks, other impacts on the nervous system and the uncertainty and anxiety.
44. During the following hours the both Plaintiffs were suffering from uncertainty and anxiety not knowing the whereabouts and well-being of the child and fearing that the child somewhere suffers being traumatised further assaulted and abused, which further aggravated their mental condition. The Second Plaintiff took tranquillising pills to get her through the night and through the following days.
45. When the executors committed the above acts of wrongful arrest, imprisonment, assault, battery and abduction towards the child as described in preceding paragraphs they unlawfully interfered with the domestic relations between the First Plaintiff and the child and interfered with the future performance of services of the child for the First Plaintiff causing loss of service to the First Plaintiff from the child.
46. When the executors committed acts of wrongful arrest, imprisonment, assault and battery towards the Second Plaintiff as described in preceding paragraphs they unlawfully interfered with the domestic relations between the First Plaintiff and the Second Plaintiff and interfered with the performance of services of the Second Plaintiff for the First Plaintiff causing loss of service to the First Plaintiff from the Second Plaintiff.
47. When the executors committed acts of wrongful arrest, imprisonment, assault battery and abduction towards the child as described in preceding paragraphs they unlawfully interfered with the domestic relations between the Second Plaintiff and the child and interfered with the future performance of services of the child for the Second Plaintiff causing loss of service to the Second Plaintiff from the child.
48. When the First Plaintiff returned home he found a paper with the "possession orders" left by the executors. The First Plaintiff had no prior knowledge of the existence and content of that paper.
49 The abductors kept the child in wrongful imprisonment and harbouring. For about 10 days the organisers had actual possession and control of the child. They permitted the Plaintiffs to have about three supervised visit to the child, an hour each visit.
50. The organisers directed the Commonwealth's public officers and agents who were assisting that when coming into contact with the Plaintiffs they not to disclose any information of the whereabouts of the child and to deceive the Plaintiffs by falsely presenting to them as if the child is in the care of the DOCS of NSW. To further support the above deceit the organisers were organizing contact with the child through the DOCS where at the contact one woman was bringing the child at the DOCS's premises falsely presenting herself as if she is the child's foster carer.
51. The abductors by keeping the child in wrongful imprisonment breached the law, breached their statutory duties and obligations and common law duties of care towards the Plaintiffs and the child, interfered with the domestic relations of the Plaintiffs, trespassed the child, unlawfully deprived the Plaintiffs of the custody of the child and consequently caused to the Plaintiffs losses and damages as set herein below.
52. On the first visit the Plaintiffs found the child in great degree of trauma, depression and anxiety, mentally distressed, hungry, thirsty, distant and under the influence of illicit drugs. The child did not recognise the Plaintiffs. The mouth of the child was stinking of acetone as a result of malnourishment. The child was unstable, loosing balance and was very weak on it's legs. The child appeared as being lost a lot of weight for just of few days in imprisonment. The child had marks and scratches on her body. The child behaved disoriented, distraught, running from one to other end of the room, hitting her head against the wall crying, screaming and trying to find a way out to escape from abuse, scratching and fighting around. The Plaintiffs feared that the child's life will end up in the imprisonment.
53. Upon witnessing the above described child's condition the both Plaintiffs suffered nervous chock and they still suffer from that trauma.
54. The above nervous shock was caused by unlawful acts committed by the abductors. They had an intention to produce harm to the Plaintiffs with the result of their particular act or omission as described above or they were recklessly indifferent as to the risk that their particular act or omission will inflict nervous shock to the Plaintiffs and could produce harm to the Plaintiffs which could result from their act or omission.
55. Consequently to the above unlawful acts or omissions as described in the paragraphs above resultant nervous shocks and further impacts on the nervous system together with condition of uncertainty and anxiety were sustained directly by the Plaintiffs and the Plaintiffs suffered recognised psychiatric injury and illness flowing directly from such nervous shocks other impacts on the nervous system and the uncertainty and anxiety.
56. During the child's wrongful imprisonment the organisers have dealt with the child with cruelty and heartlessness. The child was not provided with reasonable care and living conditions as: it was physically and mentally abused and neglected, it was not provided with adequate food and drinks, it was not allowed to sleep, urinate or defecate. The child was dressed inappropriate for her age (for two year old girl) and was intentionally dressed by organisers to look older and provocative.
57. During the child's wrongful imprisonment the Plaintiffs were also subjected to mental suffering witnessing on each visit that the child's condition was the same as explained above and witnessing the results of the child's assault, physical and mental abuse and neglect. The Plaintiffs suffered from uncertainty and anxiety in relation to the child's well-being which further aggravated their mental condition.
58. On 09.10.1998 it was the last visit to the child. In the period immediately after 09.10.1998 (before 12.10.1998) the child vanished. The organisers directed the Commonwealth's public officers and agents who assisted them that when coming into contact with the Plaintiffs they not to disclose any information in relation to the whereabouts of the child.
59. Upon realising that the child vanished forever; upon realising that the child was permanently removed from the Plaintiffs' custody, control and life; upon realising that the child stayed permanently in mercy of her abusers in such poor condition without any protection of the Plaintiffs the Plaintiffs suffered nervous shock.
60. The above nervous shock was caused by unlawful acts of the abductors as described above. They had an intention to produce a harm to the Plaintiffs with the result of their particular act or omission or they were recklessly indifferent as to the risk that their particular act or omission will inflict nervous shock to the Plaintiffs and could produce a harm to the Plaintiffs which could result from their act or omission.
61. Consequently to the above unlawful acts or omissions as described in the paragraphs above resultant nervous shocks and further impacts on the nervous system together with condition of uncertainty and anxiety were sustained directly by the Plaintiffs and the Plaintiffs suffered recognised psychiatric injury and illness flowing directly from such nervous shocks, other impacts on the nervous system and the uncertainty and anxiety.
62. From 09.10.1998 the First Plaintiff never again saw the child. For years the Plaintiffs feared that the child either died in detention or was given for adoption somewhere in Australia for the Plaintiffs to never find her.
63. In the period immediately after 09.10.1998 (before 12.10.1998) the abductors took the child out of Australia in secrecy on one of Commonwealth Government's vessel. The child was transported out of Australia without company of any of her relatives. The child was deported and exiled from Australia and the State of NSW regardless of her Australian citizenship. The abductors did not have lawful justification to take the child out of Australia.
64. The child was taken out of Australia in breach of provisions of the Family Law Act which prohibited the child be taken out of Australia at the middle of instituted custody proceedings. The persons involved in the taking of the child out of Australia failed to discharge their statutory obligations as imposed by s.65Z of the Family law Act 1975 which applied after the father instituted in the Family Court custody proceedings.
65. From 09.09.1998 till today the Plaintiffs are in constant grief, pain and worries for the child. The Plaintiffs suffer from uncertainty and anxiety in relation to the child's well-being and whereabouts, in relation to their family and themselves which further aggravated their mental condition.
66. From 29.09.1998, the First Plaintiff and the father, as result of the unlawful acts committed by the abductors as described in all preceding paragraphs, became unfit to work in their profession. They became unable, adequately or at all, to attend to the software development of "InterPOS" and to run the business of "Markisoft International". As a consequence, their business, which relied on both of them, failed to establish in the retail market and capture the expected market share in the promising new economic opportunity climate, ceased to operate and consequently caused to the Plaintiffs injuries, losses and damages as particularised hereinafter.
67. The unlawful acts or omissions, as described in all above paragraphs, were committed by the abductors (organisers, executors and Commonwealth's public officers and agents who assisted them) in misfeasance in public office. When committing the said acts the public officers and their agents abused their power given to them by statute.
68. The public officers and their agents committed the above mentioned acts or omissions maliciously, with intent to oppress and to cause harm or they performed them in negligence or in reckless indifference as to the Plaintiffs' and the child's welfare and rights. Furthermore at the time of committing the said unlawful acts the public officers and their agents had knowledge of the illegality of their particular act or omission or they were recklessly indifferent as to the illegality.
69. In performing the said illegal acts and/or omissions the public officers and their agents acted in bad faith toward the Plaintiffs and the child. They knew or must have known that their particular act or omission could probably injure the Plaintiffs and/or the child or they were recklessly indifferent as to the risk of injury to the Plaintiffs and the child and as to the probability of damage or loss to the Plaintiffs.
70. As a consequence of their misfeasance the Commonwealth's public office and agents committed various torts and other wrongdoings as referred to in all above paragraphs and consequently caused to the Plaintiffs injuries, losses and damages as particularised hereinafter.
71. The both Plaintiffs as a result of all above unlawful and/or negligent acts or omissions of the abductors as described in all preceding paragraphs developed heart condition. In 2000 it was performed a surgery of coronary angioplasty on the Second Plaintiff's heart at St George Hospital Kogarah, NSW. In 2008 the First Plaintiff suffered a heart attack and it was performed a surgery of coronary angioplasty on the his heart at St George Hospital Kogarah, NSW.
72. On 29.09.1998 the abductors (executors, presenting themselves and behaving as if police) unlawfully caused damage to the Plaintiffs' reputation when the neighbours witnessed the executors:
a) came to the Plaintiffs' houseb) forcefully entered the Plaintiffs' house
c) blocked the entry to the house
d) ran out of the house with the child in their hands
e) left the scene fast with the child in their car and the child being in condition of nervous shock
and caused the neighbours to think less of the Plaintiffs i.e.
i) that the Plaintiffs are criminals
ii) that the Plaintiffs are abusive or neglective carers of the child such that the child's life is endangered if the child is not removed immediately
iii) that the Plaintiffs are bad relatives of the child such that the child's life is endangered if the child is not removed immediately
73. The abductors (executors, presenting themselves and behaving as if police) unlawfully caused damage to the Plaintiffs' reputation when the community learned about the coming of the executors to the Plaintiffs house, forceful entry into the Plaintiffs' house, blocking of the Plaintiffs' house and forceful taking of the child from the Plaintiffs' custody and house and taking the child with them and caused the members of the community to think less of the Plaintiffs i.e.
i) that the Plaintiffs are criminals
ii) that the Plaintiffs are abusive or neglective carers of the child such that the child's life is endangered if the child is not removed immediately
iii) that the Plaintiffs are bad relatives of the child such that the child's life is endangered if the child is not removed immediately.
74. The abductors caused to the both Plaintiffs losses and damages as particularised in Particulars - injuries, losses and damages.
75. The both Plaintiffs claim from the Defendant damages, aggravated damages, exemplary damages, future medical expenses, interest and costs.
PARTICULARS - INJURIES, LOSSES AND DAMAGES
PARTICULARS OF INJURIES
76. The conduct and committal of unlawful acts and/or omissions of the abductors as described in all above preceding paragraphs caused the First and Second Plaintiffs to suffer, and continues to suffer from illnesses of:
a) post traumatic stress disorderb) depression
c) anxiety
d) insomnia
e) heart condition
PARTICULARS OF LOSSES
77. The conduct and committal of unlawful acts and/or omissions of the abductors as described in all above preceding paragraphs caused the Plaintiffs to lose:
a) enjoyment of lifeb) reputation
c) peaceful enjoyment of premises
d) contact with the child
e) enjoyment of the child's company
and in addition the First Plaintiff to lose:
f) sense of achievement in businessg) the business
h) a business opportunity
i) future earnings from the business and the software
j) future earnings in his profession
PARTICULARS OF DISABILITIES
78. The conduct of the abductors as described in preceding paragraphs caused the Plaintiffs to suffer possible reduced life span and reduced psychical and mental activity.
PARTICULARS OF AGGRAVATED
DAMAGES
79. In relation to the aggravated damages the Plaintiffs rely upon the matters and facts alleged in all of the preceding paragraphs.
80. In addition to the above the following caused aggravated damages to the Plaintiffs.
a) the abductors acted in all of the above preceding paragraphs with a conscious and contumelious disregard for the Plaintiffs' and the child's welfare and rights or with a wanton cruel and reckless indifference to the Plaintiffs' and the child's welfare and rights which consequently caused to the Plaintiffs damage to their health, substantial distress, humiliation and injury to their feelings
b) the abductors took the child to some undisclosed destination and then out of Australia causing to the Plaintiffs to be permanently separated from the child which caused to the Plaintiffs substantial distress, humiliation and injury to their feelings
c) the Commonwealth never investigated the allegations and circumstances of the child abduction from the Plaintiffs custody and home, unlawful imprisonment of the child, the allegations of physical, sexual and mental abuse and neglect of the child, the allegations of mental abuse of the Plaintiffs, allegations of unlawful deportation of the child from Australia etc.
d) the Commonwealth never disclosed any official information on well-being and whereabouts of the child and never expressed any apology, retraction or compassion towards the Plaintiffs
e) the Commonwealth failed to provide any counselling to the Plaintiffs
f) the Commonwealth caused long term pain (the Plaintiffs' lifetime), suffering and worries from the mental and physical harm inflicted upon them and the child by unlawful acts and misconduct of its public officers and agents
g) substantial number of the Commonwealth's public officers and agents involved in the committal of unlawful acts towards the Plaintiffs and the child were persons of legal profession who were supposed to uphold and respect the law and to respect the Plaintiffs' and the child's rights and freedoms
h) the Commonwealth acted during these court proceedings with a conscious and contumelious disregard for the Plaintiffs' and the child's welfare and rights or with reckless indifference as to the Plaintiffs and the child's welfare and rights despite being aware of the Plaintiffs' damaged health consequently causing to the Plaintiffs further mental distress, humiliation and injury to their feelings which all of it resulted in further damage to the Plaintiffs' health
PARTICULARS OF EXEMPLARY DAMAGES
81. In relation to the exemplary damages the Plaintiffs rely upon the matters and facts alleged in the preceding paragraphs.
82. In addition to the above the unlawful acts and unlawful conduct of abductors (the public officers and agents the Commonwealth) as described in the preceding paragraphs further warrants the Commonwealth to pay exemplary damages to the Plaintiffs because of the following:
a) the Plaintiffs are entitled by the law to be awarded exemplary damages for the following torts:
1) trespass to the Plaintiffs' land and property
2) false imprisonment and arrest of the Second Plaintiff
3) infliction of nervous shock onto the Plaintiffs
4) abduction of the child
5) interference with the domestic relations of the Plaintiffs
6) misfeasance in public office
7) assault and battery of the Second Plaintiff
b) the abductors acted at all material times being aware that their acts are unlawful
c) the abductors acted in all of the preceding paragraphs with a conscious and contumelious disregard for the Plaintiffs' and the child's welfare and rights or with a wanton cruel and reckless indifference to the Plaintiffs' and the child's welfare and rights which consequently caused to the Plaintiffs damage to their health, substantial distress, humiliation and injury to their feelings
d) the abductors took the child to some undisclosed destination and then out of Australia causing to the Plaintiffs to be permanently separated from the child which caused to the Plaintiffs substantial distress, humiliation and injury to their feelings
e) the Commonwealth never investigated the circumstances of the child abduction from the Plaintiffs' custody and home, unlawful imprisonment of the child, the allegations of physical, sexual and mental abuse and neglect of the child, the allegations of mental abuse of the Plaintiffs, allegations of unlawful deportation of the child from Australia etc.
f) the Commonwealth never disclosed any official information on well-being and whereabouts of the child and never expressed any apology, retraction or compassion towards the Plaintiffs
g) the Commonwealth caused long term pain (the Plaintiffs' lifetime), suffering and worries from the mental and physical harm inflicted upon them and the child by unlawful acts and misconduct of its public officers and agents
h) substantial number of the Commonwealth's public officers and agents involved in the committal of unlawful acts towards the Plaintiffs and the child were persons of legal profession who were supposed to uphold and respect the law and to respect the Plaintiffs' and the child's rights and freedoms
i) the Commonwealth acted during these court proceedings with a conscious and contumelious disregard for the Plaintiffs' and the child's welfare and rights or with reckless indifference as to the Plaintiffs' and the child's welfare and rights despite being aware of the Plaintiffs' damaged health consequently causing to the Plaintiffs further mental distress, humiliation and injury to their feelings which all of it resulted in further damage to the Plaintiffs' health
j) the abductors were at all times motivated by malice towards the Plaintiffs and the child
k) the conduct of the Commonwealth's public officers and agents was of such malicious and harmful nature that it would be required the Commonwealth to pay exemplary or punitive damages to the Plaintiffs as a deterrence from any such future misconduct due to the statutory law provisions insufficiency and inability to deter its public officers and agents”. (emphasis added)
23 This Statement of Claim was verified by the Plaintiffs in the usual form.
24 A few important matters (compared with the earlier pleading) should be noted. First, paragraph 8 alleged that certain officers of the Commonwealth instituted unlawfully proceedings in Family Court against Dragan Markisic with an improper purpose to gain possession and control of the child and these persons were paedophiles and other child predators.
25 Paragraph 10 alleges that the decision from which the father appealed was a fabricated decision, and paragraph 11 alleges that during the hearing of the appeal the Commonwealth public officers and agents fabricated documents, being court orders, to assist them in the purpose of wrongfully taking the child.
26 Paragraphs 12 – 31, in referring to the taking of the child, make no mention of members or officers of the AFP but refer instead to “executors”. I note in passing at this point that the Commonwealth alleges that the reason for that significant change in the pleadings is that section 64B of the Australian Federal Police Act 1979 prevents the Commonwealth being liable for exemplary damages for torts committed by the Australian Federal Police.
27 Finally, paragraph 38 alleges the child was taken to an unknown destination.
28 In any event, because this document did not comply with Registrar Bradford’s order, on 11 July 2008 he refused to accept the Further Further Amended Statement of Claim but extended the time for compliance with his previous order to 18 July 2008.
29 In fact the Plaintiffs did not comply with his order to file a re-engrossed statement of claim as amended by Patten AJ until 23 July 2009. On that day a document was filed by the Plaintiffs entitled Further Amended Statement of Claim and, in the form of the pleading, it complied with the amendments made by Patten AJ in his order. Again, because of the significance of this document to the issues on the Notices of Motion it is necessary to set out the document at some length although some of the particulars have been omitted.
30 It provides:
PLEADING AND PARTICULARS
The both Plaintiffs rely on the following facts and assertions:
The first and second plaintiffs plead their cause of action as follows:
1. At all material times the defendant is liable to be sued in its own name under section 56 of the Judiciary Act.
2. By section 64B of the Australian Federal Police Act the defendant is vicariously liable for the torts done by the members of the AFP as a joint tortfeasor.
3. The first plaintiff and Mr. Dragan Markisic (further referred hereto as the father of the child Elena Markisic born 03.05.1997 (further referred hereto as the child)) are brothers and both are sons of the second plaintiff. The second plaintiff at the material time was 64 years old.
4. The first and second plaintiffs at the material time lived and still live in the rented house and the land at 17 Edward Street Arncliffe, NSW, 2205, jointly since 1997.
5. The father and the child lived with the first and second plaintiffs from 14.04.1998 till 20.06.1998 and the first and second plaintiff helped the father with the care of the child.
6. From 20.06.1998 the father rented a fiat in Kogarah for himself and the child. From that day the first and second plaintiff continued to help the father, with the care of the child in Kogarah or frequently at their home in Arncliffe.
9. On 29.09.1998 at or about 9am the first plaintiff and the father left the plaintiffs home and left the child in the care of the second plaintiff.
10. On 29.09 1998, at or about 14.30h three members of the Australian Federal Police (Federal agent Christopher Noble and two other members of the AFP further referred hereto as "three members of the AFP") raided the plaintiffs home. The first plaintiff and the father were not yet returned home. The three members of the AFP rang on the door, introduced themselves as members of the AFP, presented false warrant, photos of the father and the child, and requested the child to be handed over. The second plaintiff, being in nervous shock caused by the intimidation of the three members of the AFP who requested hand-over of her grand-daughter, in fear from the threat of the three members of the AFP and in order to save the child, have shown the child to the three members of the AFP through the fly screen door they to see that there is no matter of seriousness or urgency in regards to the child. The three members of the AFP insisted to enter the house, or they will break the door by force and they were allowed to enter the house. Two-members of the AFP entered the house and the third one stayed outside to prevent anyone from leaving or entering the house.
11. The three members of the AFP knew that they do not posses a warrant to enter the plaintiffs land and home and entering the plaintiffs land and home without warrant trespassed the plaintiffs land and home.
12. The violent conduct of the three members of the AFP traumatised the child who started to cry and scream which further aggravated the nervous shock to the second plaintiff.
13. The second plaintiff told to the three members of the AFP to the effect that she can not give the child without permission and presence of the father on what they responded to the effect that they have a warrant to take the child and they will take the child by force. The second plaintiff, traumatised by the inconsiderate conduct of the three members of the AFP, in need of help to save the child from incoming harm rang her third son Mr. Neven Markisic to come and help her in dealing with the three members of the AFP. Neven immediately, in 10 to 15 minutes, arrived with his then 8-year old son Mario.
14. The three members of the AFP requested from Neven to order to the second plaintiff to hand over the child, that they have a warrant and that they will take the child by force in any case. Neven answered to them to the effect that he can not order that to the second plaintiff, that she was instructed from the father and the first plaintiff to look after the child till they come back home.
15. When the second plaintiff tried to ring the father or the first plaintiff on their mobile phones one of the three members of the AFP stormed towards the second plaintiff, pulled out the phone handset from her hands, thrust her and the second plaintiff lost her balance white still holding the child in the other hand. Then the said member of the AFP ripped the phone cord line.
16. The second plaintiff was ordered by the members of the AFP to sit on a sofa and not to move away from the sofa. The second plaintiff was sitting on a sofa with the child in her arms while a member of the AFP tried twice to take the child by force from her hands. The child was running away from the said member of the AFP constantly screaming and holding harder the second plaintiff. The order not to move from the sofa, the attempt of the member of the AFP to take the child from the second plaintiff by force and the child's screaming further aggravated the nervous shock to the second plaintiff.
17. When the second plaintiff asked for permission to go with the child in another room to change the nappies to the child, members of the AFP first declined it, but then allowed it. Then the second plaintiff again sat on the sofa with the child in her arms following the orders of the members of the AFP. The child being traumatised from the three members of the AFP cried and screamed all the time.
18. After approximately one hour after the unlawful entry in the plaintiffs home and land the three members of the AFP decided not to wait any longer and to take the child by force. One of them by force twisted the second plaintiff's arms at her back while another member of the AFP seized the child from her breasts and run out of the house with the child in his hands, through narrow corridors with many doorsteps in the house, slamming the doors on the way out. The other two members of the AFP followed him in the same manner running out of the house.
19. The child, also being traumatised, cried and screamed more loudly at the moment they seized her by force. In that action of taking the child by force the members of the AFP ripped off one of the child's ear rings which further aggravated the nervous shock to the second plaintiff.
20. The second plaintiff, Neven and his son Mario ran after the members of the AFP, crying, screaming, in panic and shock, begging them not to take the child away. The second plaintiff asked the three members of the AFP to allow her to kiss the child for the last time, but she, was not allowed. The child was screaming and crying, deafeningly loud. All of the above further aggravated the nervous shock to the second plaintiff.
21. The three members of the AFP put the child in a baby seat in their car, fasten the seat belt around the child while the child constantly cried and screamed after the second plaintiff and her cousin Mario. Seeing the child in that condition further aggravated nervous shock to the second plaintiff. There was nowhere to be seen any female welfare officer to look after the child. The three members of the AFP left the scene very fast. The three members of the AFP left, a copy of the false warrant in the plaintiffs home.
22. The three members of the AFP scared, stressed and traumatised the second plaintiff, the child and other extended family members. After the abduction of the child or wrongful removal of the child the second plaintiff and other family members were left without child, devastated, traumatised, in panic, fear, cry, anguish and worries, in physical and emotional suffering. The second plaintiff and the family did not know where the three members of the AFP took the child.
23. The three members of the AFP took the child in unknown destination, in a condition of nervous shock, crying, screaming, very lightly dressed, without one shoe, hungry and without any food, without clothes for changing, which caused, or alternatively further aggravated, the nervous shock to the second plaintiff.
24. On 29.09.1998 at or about 4.30pm the first plaintiff received a phone call from his family members. They in cry tried to explain to the first plaintiff and to the father what happened, that three members of the AFP seized the child by force. Upon hearing that the first plaintiff and the father both felt a big shock, big pain in their chest and in their soul disbelieving it.
25. On 29:09.1998 at or about 5.30pm the first plaintiff and the father returned home. They found the whole family traumatised, in mental distress, shock, panic and dismay. They all tried, through cry, to explain what happened. The first plaintiff suffered trauma and nervous shock not finding the child at plaintiffs home for being abducted by the three members of the AFP and seeing the traumatic condition of his family, the second plaintiff in particular.
26. During the following hours the whole family was crying, did not know the whereabouts and well-being of the child. The first and second plaintiffs suffered knowing that the child somewhere suffers, traumatised, being, hungry, being in shock and emotional distress. The second plaintiff took tranquillising pills to get through the night and through the following days.
27. The actions and the conduct of the three members of the AFP caused trauma to the plaintiffs and caused damage to their health and continue to cause pain, suffering and worries to the plaintiffs and damage the health of the plaintiffs.
30. The second plaintiff as a result of the misconduct of the members of the AFP described in preceding paragraphs developed a heart condition.
31. The three members of the AFP caused to the plaintiffs losses and damages as particularised in Particulars - injuries, losses and damages.
32. The first plaintiff claims from the defendant damages, aggravated damages, interest and costs.
33. The second plaintiff claims from the defendant damages, aggravated damages, future medical expenses, interest and costs.
PARTICULARS OF TRESPASS TO THE PLAINTIFFS
LAND AND HOME
35. The three members of the AFP, either intentionally, or negligently entered the plaintiffs land thus trespassed the plaintiffs land and home.
PARTICULARS OF TRESPASS TO THE FIRST PLAINTIFF
39. The three members of the AFP, either intentionally or negligently trespassed the first plaintiff.
PARTICULARS OF TRESPASS TO THE SECOND PLAINTIFF
41. The three members of the AFP, either intentionally, or negligently trespassed the second plaintiff.
42. The Commissioner of Police or alternatively the Deputy Commissioner of Police, either intentionally, knowingly, maliciously and fraudulently or negligently or with reckless indifference, unjustifiably and out of authority caused the wrongdoings set out in the preceding paragraph.
PARTICULARS OF WRONGFULL IMPRISONMENT OF
THE SECOND PLAINTIFF
45. The three members of the AFP, either intentionally, or negligently imprisoned the second plaintiff by:
a) confining the second plaintiff to a room in the plaintiffs house
b) forbidding anyone to enter or leave the plaintiffs house
PARTICULARS OF ASSAULT AND BATTERY OF
THE SECOND PLAINTIFF
47. The three members of the AFP, either intentionally, or negligently assaulted and battered the second plaintiff by:
a) attempting twice to take by force the child from the second plaintiff's arms
b) storming towards the second plaintiff, pulling out the phone handset from her hands and thrusting the second plaintiff causing the second plaintiff to lose her balance while holding the child in the other hand thus endangering the child's life
c) twisting and holding the second plaintiff's arms at her back while member of the AFP seized the child from her
PARTICULARS OF NERVOUS SHOCK TO
THE SECOND PLAINTIFF
50. The three members of the AFP, either intentionally, knowingly, maliciously and fraudulently or negligently or with reckless indifference, unjustifiably and out of authority inflicted nervous shock to the second plaintiff when:
a) the second plaintiff saw the three members of the AFP on her door requesting to hand over the child
b) the three members of the AFP made threats to the second plaintiff that they will break the door if not allowed to enter the house
c) the three members of the AFP made threats to the second plaintiff that they will take the child by force
d) the three members of the AFP thrust the second plaintiff while she held the child in her arms causing she to lose her balance while stilt holding the child in her arms
e) the three members of the AFP attempted twice to seize the child by force from the second plaintiff's arms
f) the three members of the AFP twisted the second plaintiff's arms at her back while another member of the AFP seized the child from her breasts
g) she saw the members of the AFP running out of the house with the child in their hands, through narrow corridors with many doorsteps in the house, slamming the doors on the way
h) the members of the AFP did not allow the second plaintiff to kiss the child for farewell
i) she saw the members of the AFP assaulting and battering the child at front of her
j) she saw the three members of the AFP leaving the scene very fast and in unknown direction with the child and the child being in condition of abuse
PARTICULARS OF NEGLIGENCE OF
THE MEMBERS OF THE AFP
62. The three members of the AFP in discharging of their duties, when they dealt with the second plaintiff negligently failed:
a) to consider that the second plaintiff is an older person and a woman
b) to consider that the second plaintiff holds a very young child in her arms
c) to consider that the second plaintiff have a special duty of care towards the very young child and not to interfere between the second plaintiff and the child.
d) to take precaution not to endanger the child's life.
31 The significant matter about this document is to be found in the section headed “Affidavit Verifying” where each of the Plaintiffs says this (quoting here the First Plaintiff’s affidavit):
2. I do not believe anymore that all the allegations of fact in the Statement of Claim set out above to the best of my knowledge are true. I have to make the above allegations in this form to comply with the order/directions of Registrar Bradford of the Supreme Court of New South Wales from 03.07.2009 and 28. 05.2008.
The Notices of Motion
32 Since the order of Registrar Bradford refusing to accept the Further Further Amended Statement of Claim the Plaintiffs have filed a number of Motions, 5 of which came before me for determination. It would ordinarily be appropriate to identify what was sought in each Motion but there is some duplication of those orders in the various Notices of Motion.
33 Combining all of the Notices of Motion, what the Plaintiffs seek is as follows:
(1) Default judgment against the Commonwealth. (Motion filed 1/9/09 prayers 1, 2, 3 & 4; Motion filed 3/8/09 prayers 2 & 6)
(2) Strike out the Commonwealth’s defence filed 16 December 2002. (Motion filed 3/8/09 prayer 5)
(3) Strike out the Commonwealth’s defence filed 20 August 2009. (Motion filed 1/9/09 prayer 2)
(4) Summary judgment for the Plaintiffs. (Motion filed 1/9/09 prayer 5)
(5) As an alternative to (1), (2), (3) & (4), orders re-verification of the defence. (Motion filed 1/9/09 prayer 6)
(6) Set aside the orders of Master Harrison of 22 June 2001. (Motion filed 2/7/09 prayer 2)
(7) Set aside the judgment and orders of Bell J on 13 August 2002. (Motion filed 2/7/09 prayer 2)
(8) Set aside the judgment and order of Patten AJ on 1 March 2007. (Motion filed 25/7/08 prayer 1)
(9) Remit to the Court of Appeal these proceedings and proceedings 40739/2005 (Dragan Markisic v Department of Community Services). (Motion filed 3/8/09 prayer 9)
(10) Review the decision of Registrar Bradford on 27 July 2009 not to disqualify himself. (Motion filed 3/8/09 prayer 12)
(11) Review and set aside the orders of Registrar Bradford made on 28 May 2008 and 3 July 2009. (Motion filed 27/7/09 prayer 4; Motion filed 3/8/09 prayer 13)(12) Order that the Further Further Amended Statement of Claim filed on 18 June 2008 be accepted. (Motion filed 25/7/08 prayer 3)
(13) Alternatively to (12), leave to amend the Further Amended Statement of Claim by the filing of the Further Further Amended Statement of Claim. (Motion filed 25/7/08 prayer 4)
(14) Directions for case management. (Motion filed 2/7/09 prayer 1; Motion filed 27/7/09 prayer 1; Motion filed 3/8/09 prayer 1)
(15) Order that the Commonwealth not be permitted to make any further applications in the proceedings without leave (Motion filed 3/8/09 prayers 15-17)
In each case costs were sought.
34 There was also before me an Amended Notice of Motion by the Commonwealth seeking that the proceedings be dismissed, that the Commonwealth have the costs of the Motion and costs thrown away by the Plaintiffs’ failure to comply with court orders and an order that the Plaintiffs not be able to file further Motions without the leave of a judge or make any further oral applications in the proceedings without leave.
35 These Motions were heard over 8 days with the vast majority of the hearing time taken up with submissions and numerous oral applications by the Plaintiffs. The Plaintiffs were unrepresented and I permitted Mr Dragan Markisic to appear both on behalf of the Second Plaintiff (who I was told speaks very little English) and to assist his brother, the First Plaintiff. It was frequently difficult to persuade the Plaintiffs to focus on the issues that were to be determined on the Notices of Motion. At various times I was forced to impose time limits on the oral submissions and in that regard I bore in mind that the Plaintiffs had filed extensive written submissions in advance of the hearing.
Applications for disqualification
36 On 9 occasions the Plaintiffs interrupted the hearing to make applications that I disqualify myself on the grounds of bias or apprehended bias. These applications were frequently made after I had made a ruling on evidentiary or other matters contrary to the Plaintiffs’ interests. On each occasion I declined to disqualify myself. I did so bearing in mind that the test was whether a fair minded lay observer with knowledge of the material objective facts might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the questions before me – see in this regard Webb v R [1994] HCA 30; (1994) 181 CLR 41 at 47, Livesey v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293-294, Wentworth v Wentworth (unreported– Santow J – 6 February 1998) and Ebner v Official Trustee in Bankruptcy [2000] HCA 6; (2000) 205 CLR 337.
37 The view I took was that the authorities established that I was not under a duty automatically to disqualify myself whenever requested to do so on the grounds of apprehended bias.
38 The Plaintiffs put forward various bases to suggest that I was actually biased in the matter. These included rulings which I had given that I would admit into evidence certain affidavits read by the Commonwealth and in particular the affidavit of Roshana Dilani Wikramanayake sworn 14 June 2001, and rulings that I would not permit cross-examination of the deponents of those affidavits.
39 The affidavit of Ms Wikramanayake featured prominently and repeatedly in the hearing before me. The Plaintiffs challenged its admissibility and challenged the truth and validity of documents annexed to the affidavit.
40 The Plaintiffs raised a number of issues about the admissibility of this affidavit. These were the hearsay nature of material annexed to the affidavit, the fact that the affidavit annexed an affidavit of Doreen Edith Muirhead, and that it was not shown Ms Wikramanayake had any personal knowledge of the events in question. I formed the view that the affidavit was admissible on the applications before me and I refer in that regard to the reasons that I gave in 2 interlocutory judgments during the course of the hearing on 22 October 2009 on the admissibility of a death certificate in relation to Doreen Edith Muirhead and on 26 October 2009 on the admissibility and use of Ms Wikramanayake’s affidavit. I did not consider it was appropriate to permit Ms Wikramanayake to be cross-examined when her affidavit, in substance, entirely consisted of annexures and was sworn as a matter of formality so that those annexures would be before the Court. Although originally used on the Commonwealth’s application for summary dismissal before Master Harrison, the material in it had clear relevance to what was raised by the Plaintiffs in their various Motions.
41 The Plaintiffs also asked me to disqualify myself on the basis that I invited the Commonwealth to put the affidavit of Ms Wikramanayake into evidence. A perusal of the transcript shows that Mr Robinson of Senior Counsel who appeared for the Commonwealth sought to tender the affidavit of Ms Wikramanayake a considerable time before I expressed my opinion that the affidavit should be formally read. This was in accordance with a view that I held and still hold that, ordinarily, affidavits should be read whether in final or interlocutory proceedings rather than being tendered as exhibits.
42 A further basis for asking me to disqualify myself was that I was a personal friend of another Judge of this Court who had heard 2 interlocutory matters in related proceedings brought by Dragan Markisic. The allegations arising from this sufficiently appear from the transcript. It is sufficient to say that the assertions made have no basis and are untrue. For that reason I declined to disqualify myself on the basis put forward.
The issues on the Notices of Motion
43 The Plaintiffs were really trying to achieve two things by the hearing of these Motions. First, they were endeavouring to avoid a trial on liability on the basis that the Commonwealth did not show any answer to their claim that the taking of the child was wrongful. Secondly, the Plaintiffs wanted to be allowed to substitute their new view of what transpired, particularly their view that the AFP were no longer involved in the taking of the child, thereby enabling them to claim the punitive damages that s 64B would otherwise preclude. Although it was not articulated by the Plaintiffs it appeared to be their view that if they were entitled to some sort of default or summary judgment and they were entitled to proceed with the pleading rejected by Registrar Bradford, there would not be any further right given to the Commonwealth to put on a defence to the new claim. The way the Motions were conducted suggested that the Plaintiffs’ view was that the Commonwealth had no defence to the claim they made however it was formulated and pleaded.
44 It seems clear from the pleading contained in the original Statement of Claim and the Amended Statement of Claim that the Plaintiffs originally accepted that the Director-General commenced proceedings in the Family Court pursuant to obligations under the Hague Convention, that orders were made by the Family Court (although it can be accepted that the Plaintiffs considered that the orders were unjust and should not have been made), that a warrant was forwarded to the AFP pursuant to the orders of the Court and that the AFP took the child pursuant to the Family Court orders and delivered the child to the care of the Department of Community Services at Hurstville.
45 The first defence filed by the Commonwealth, once Bell J had determined that some of the causes of action were arguable, was that the Commonwealth was justified in acting the way it did through the medium of the AFP by reason of the Family Court orders that were made. The contentious affidavit of Roshana Wikramanayake sworn 14 June 2001 was (as I have said) sworn and served in support of the Commonwealth’s Motion to strike out the claim that was initially heard by Master Harrison and subsequently on appeal by Bell J. Master Harrison summarises in her judgment the material that is to be found annexed to Ms Wikramanayake’s affidavit and which I have summarised briefly at the outset of this judgment.
46 However, the position has now changed. First, the Plaintiffs do not accept that the Director-General made an application. In this regard, they point to the fact that annexure “C” to Ms Muirhead’s affidavit (itself an annexure to Ms Wikramanayake’s affidavit) is said to be Form 16 under the Family Court forms. Despite the fact that this document is headed “Application”, and, on its face and by reason of its annexing documents, appears to be an application by the Director-General, the Plaintiffs say that Form 16 in the Family Court forms is the form for an affidavit, and that this shows no application was ever made.
47 In the alternative (it appears) they say that an application was made but the proceedings were fraudulent and were instituted for an improper purpose (see paras 8, 10 and 11 of the Further Further Amended Statement of Claim set out in para 22 above).
48 Further, their case now is certainly that all of the orders and judgments of the Family Court were fabricated and that, therefore, whoever it was that took the child had no power to do so. They do not accept that anything is proved by the seals of the Family Court on the documents nor the signatures of apparently authorised persons, maintaining that, in the face of the evidence of Dragan Markisic, s 157 Evidence Act 1995 does not assist the Commonwealth in relation to the copies of the documents.
49 Section 157 Evidence Act provides:
Evidence of a public document that is a judgment, act or other process of an Australian court or a foreign court, or that is a document lodged with an Australian court or a foreign court, may be adduced by producing a document that purports to be a copy of the public document and that:
(a) is proved to be an examined copy; or
(b) purports to be sealed with the seal of that court; or
(c) purports to be signed by a judge, magistrate, registrar or other proper officer of that court. (emphasis added)
50 The evidence of Dragan Markisic is that he was present at every hearing before Judicial Registrar Johnston, at the hearing before Rowlands J and at the hearing before the Full Court of the Family Court. He says he was assisted by his brother Oliver. In relation to each judicial officer or body he says:
I’m not aware, I did not hear and I did not see, that Judicial Registrar Johnston [Rowlands J, the Full Court] made any judgment and orders and there was no pronouncement of any judgment and orders by him at any of the above hearings.
51 In the face of copies of judgments and orders of the Family Court apparently signed and sealed and apparently regular on their face, it cannot be said (at least at any interlocutory hearing such as I was determining) that there was no arguable case that judgments and orders were made by the Family Court.
52 More particularly, as I have said, the Plaintiffs now assert that these persons were not members of the AFP and, as the Plaintiffs made perfectly clear in their submissions, the result of that is that they are entitled (they say) to punitive damages against the Commonwealth which would be otherwise denied to them.
53 This belief that the AFP were not involved, as the Plaintiffs had first thought, appears to come from some discussion that Dragan and Oliver Markisic had with a Mr Christopher Noble who had been employed by the AFP at some time prior to that discussion. The explanation is set out in the affidavit of Dragan Markisic filed 2 October 2009 and derives from the fact that Mr Noble, in the discussion, said that he did not know anything about the events involving Dragan Markisic’s daughter and that he was not involved in the case at all although Dragan Markisic said that he found Mr Noble’s business card at his home. It seems also to be related to the fact that the persons who took the child from the house were not dressed as police officers, were not driving cars marked as police cars and had no interpreter to converse with the Second Plaintiff.
54 It was difficult to ascertain clearly from the Plaintiffs when the change in their beliefs about what happened in the matter came about and what was the cause or causes for the changes in those beliefs. It was not apparent that any event had taken place that provided the evidentiary basis for the new beliefs about the events and the new formulation of the claim except, possibly, the discussion with Christopher Noble. It is not made clear precisely when this discussion was but it was said to have been sometime in 2007 when a subpoena was apparently issued to Mr Noble and the Plaintiffs were endeavouring to serve it on him.
55 It was difficult not to form the view that the beliefs of the Plaintiffs, which brought about their desire to reformulate the claim and to take the course they did over the hearing of these Notices of Motion, were attended with some irrationality and paranoia. Copies of judgments and orders of the Family Court, regular on their face, and apparently signed and sealed in accordance with the procedures of the Court were said to be fabricated and concocted despite, as I have said, the Plaintiffs’ earlier acceptance that those judgments and orders were issued. A death certificate tendered to say that Doreen Muirhead was deceased was challenged as being a fabricated document, partly on the basis that the Plaintiffs had a view that death certificates issued by the relevant authority should appear in a different form from the one that was tendered. Doubt was expressed that Doreen Muirhead was dead (at one stage one of the Plaintiffs suggested her body needed to be viewed to be sure). It was also suggested that if she was dead her affidavit was sworn by someone else after her decease.
56 Indeed, the whole of the pleading in the Further Further Amended Statement of Claim that suggested a scheme by paedophiles and predators to get orders from the Family Court and abduct the child rather demonstrated the irrationality which surrounded the whole of the Plaintiffs’ claim.
57 In my view, at least for the purposes of the interlocutory applications that I was determining, but probably also at a final hearing of the matter, the copies of the various judgments and orders of the Family Court annexed to the affidavit of Ms Wikramanayake and otherwise tendered in the Commonwealth bundle of documents, satisfied s 157. My task, particularly in relation to summary judgment (as I frequently reminded the Plaintiffs), was not to determine whether those documents should be preferred over the evidence of Mr Dragan Markisic that cast doubts on those orders. There was, without any doubt, evidentiary support for the Commonwealth’s defence that the child was taken pursuant to orders of the Court.
58 There is a small side issue about the warrant. Investigations seem to have shown that in fact there was no warrant issued pursuant to the orders of the Family Court that the Commonwealth maintains provided the authority for the actions of the AFP. This position was recognised by the time the matter was before Bell J. The Commonwealth appears to accept that there was no warrant but maintains, nevertheless, that the actions of the AFP were justified in law by reason of the orders of the Family Court. The absence of a warrant did not appear to be of any significance in the hearing before me, even in the approach taken by the Plaintiffs.
59 The issue of the material in Ms Wikramanayake’s affidavit was not a matter that only affected the question of summary judgment. The Plaintiffs made it clear that one principal reason they wanted to set aside the order of Master Harrison was that she recited the factual material contained in Ms Wikramanayake’s affidavit, and in a similar way Bell J relied on those facts in coming to the views she did about the matter. Similarly, the Court of Appeal, when considering Dragan Markisic’s appeal from Smart AJ, used those facts on which to base their decision. It was that Court of Appeal judgment that the Plaintiffs wanted to challenge and in respect of which they sought to remit the present proceedings.
60 Whilstever the material contained in Ms Wikramanayake’s affidavit remained before the Court for consideration, the Plaintiffs were not able to achieve the purposes they set out to achieve in bringing the various Notices of Motion and ultimately the proceedings. It was also for that reason that there were such vociferous and prolonged challenges to Ms Wikramanayake (and for that matter Doreen Muirhead) as deponents of the affidavits that identified that material, and to Vicky Kanellopoulos who swore the affidavit verifying the defence.
61 Again and again through the course of the 8 days of hearing the Plaintiffs returned to Ms Wikramanayake’s affidavit and the material annexed to it. There was also no doubt that it was my acceptance of that affidavit and rejection of the various arguments put by the Plaintiffs against the material contained in it that led to the frequent applications to me to disqualify myself on the grounds of actual or apprehended bias.
62 It is in the light of that discussion that I turn to consider each of the orders sought in the various Notices of Motion.
(1) Default judgment against the Commonwealth
(5) Re-verification of defence
63 The basis for the claim for default judgment is that the affidavit verifying the defence which is entitled Defence to Further Amended Statement of Claim filed 23 July 2009, is sworn by Vicky Kanellopoulos. She describes herself in the affidavit as being the Acting-Manager of the AFP Legal Team.
64 The Plaintiffs say that Vicky Kanellopoulos is not the appropriate person to swear the affidavit verifying the defence and that that means there is not in truth an affidavit verifying the defence thereby resulting in the Defendant being “in default” as set out in Rule 16.2(1)(b) UCPR.
65 The Plaintiffs say in this regard, first, that Ms Kanellopoulos is not an officer of the Crown and, secondly, that she cannot be accepted as a qualified person to swear the affidavit because she was not involved in the events in issue and was not present when matters referred to in the defence took place.
66 The substance of the Commonwealth’s defence is to be found in paragraph 5 which provides:
[5] In answer to paragraphs 10 to 21 of the Further Amended Statement of Claim the Defendant says that on 29 September 1998 the Full Court of the Family Court made an order that a warrant issue authorising and directing inter alia all officers of the Australian Federal Police to enter and search any premises where there is reasonable cause to believe the child Elena Markisic may be and to take possession of the child Elena Markisic and deliver her to Tim McDonald of the Department of Community Services at 390 Forrest Road, Hurstville. A sealed copy of the order was served upon the Australian Federal Police. In the afternoon of that day five Federal Police officers attended the premises at 17 Edward St, Arncliffe. After conversation at the door of the premises, during which the officers of the Australian Federal Police explained to the occupants, including the Second Plaintiff, their intention to deliver the child to the Department of Community Services, three Australian Federal Police officers were permitted to enter the premises. Telephone calls were made by the occupants of 17 Edward St, Arncliffe. Relatives of the occupants of 17 Edward St, Arncliffe then also attended the premises. The Second Plaintiff explained that she would not permit the child to be taken without the presence of the child's father. After approximately 45 minutes the Australian Federal Police officers removed the child Elena Markisic from the custody of the Second Plaintiff and delivered her into the custody of officers of the Department of Community Services. Otherwise the allegations contained in paragraphs 10 to 21 of the Further Amended Statement of Claim are denied.
Paragraph 7 identifies the address of the Department of Community Services as 390 Forrest Road, Hurstville and alleges that the child was taken to and delivered to officers of the Department at that address on 29 September 1998.
67 In my opinion, the Plaintiffs’ submissions concerning Ms Kanellopoulos and the verification of the defence should be rejected for the following reasons.
68 Rule 35.3 UCPR relevantly provides:
(1) If a party is required by these rules to file an affidavit or to verify any matter by affidavit, such an affidavit may be made by the party or:
(c) if the party is a body of persons lawfully suing or being sued:
(i) in the name of the body, ...
by a member or officer of the body, or
(d) if the party is the Crown or an officer of the Crown suing or being sued in his or her official capacity, by an officer of the Crown, ...
(2A) If more than one person is qualified to make an affidavit on behalf of a party, it is sufficient for such an affidavit to be made (subject to subrules (1) and (2)) by any one or more of them.
(3) Subject to any order of the court, the person by whom an affidavit is made must be a person having knowledge of the facts deposed to in the affidavit.
...
69 Rule 14.22 UCPR provides:
(1) This Division [which concerns the verification of pleadings] does not apply to pleadings in proceedings for the recovery of damages for:
...(c) false imprisonment, or
(d) trespass to the person, or
...
(f) personal injury.
...
70 The Statement of Claim with which the Court is now concerned makes only one claim in respect of which verification of pleadings is required and that is the claim for damages for trespass to land. The main claims in the proceedings are clearly claims for personal injury being the nervous shock said to have been suffered by the Plaintiffs as a result of the entry by the persons (whoever they were) on 29 September 1998.
71 Form 7A of the UCPR Forms lays down the form of the affidavit which must be sworn in relation to the verification of a defence. The affidavit sworn by Ms Kanellopoulos follows that form. It is clear from the wording of the required affidavit that the person who swears the affidavit is entitled to make enquiries and to form a belief as a result of what the person is told in order to swear the affidavit. That points strongly to the fact that the person can acquire the necessary knowledge to swear the affidavit not by having been personally involved in the events in issue but by being informed of those matters in one way or another. It is frequently the case where statutory bodies or legal persons such as local councils, area health services or the Crown in any of its capacities are sued (and I venture to suggest in almost all such cases) that the person swearing the affidavit verifying pleadings does not themselves have personal knowledge of the events concerned in the sense that that person was involved in them. Nothing in Rule 35.3, Rule 14.23 nor prescribed form 7A suggests that personal involvement is required for such a deponent.
72 In my opinion, Ms Kanellopoulos is an officer of the Crown by virtue of her position as Acting-Manager, AFP Legal. The provisions of the Australian Federal Police Act 1979 and particularly ss 6(c), 17, 23 and 64B, when considered in the light of what was said by the Victorian Court of Appeal in Applicants A1 and A2 v G E Brouwer (No. 2) [2007] VSCA 269, point strongly to the fact that the AFP is an agency of the Commonwealth.
73 If I am wrong in that conclusion, an interesting question arises whether the word “may” in Rule 35.3(1) is permissive generally or is permissive only in the sense that it allows one of two alternatives being (1) the party or (2) a person specified in one of the sub-paragraphs, here, an officer of the Crown. I am inclined to think it is permissive generally because if it had been intended to confine it either to a party or to a person listed in one of the sub-paragraphs the word “must” could have been used. That word was used in sub-s (3). It seems to me, therefore, that the only requirement is that the person who verifies the pleading must be a person having knowledge of the facts deposed to in the affidavit. In those circumstances Ms Kanellopoulos fulfils the requirements of sub-s (3), particularly when there is no suggestion that the knowledge the deponent must have is knowledge only from personal involvement. It must, as I have said, include knowledge from having been informed about matters. The Plaintiffs do not show that she did not have the knowledge the Rule requires – they simply asserted (probably correctly) that she was not personally involved in the events complained of.
74 If I am wrong in these conclusions I consider it appropriate to dispense with the strict requirement of Rule 35.3(d) to enable Ms Kanellopoulos to be the appropriate person to swear the affidavit verifying. The Commonwealth in the present case is sued as being vicariously liable under s 64B Australian Federal Police Act for the acts of the AFP. If the AFP had also been sued Ms Kanellopoulos would have been an appropriate person under the Rule 35.3(c) to swear the affidavit verifying. She is no less the appropriate person simply because the Commonwealth alone has been sued. I bear in mind in this regard again that the only requirement for verification concerns one small aspect of the claim made by the Plaintiffs.
75 Contrary to the Plaintiffs’ submission it is not necessary in an affidavit verifying the defence for the deponent to set out otherwise than their position (here, with the AFP) to bring themselves within Rule 35.3(4). Nor is it necessary, as the Plaintiffs have submitted, for more than one deponent to verify the defence on the basis that one person does not have personal knowledge of all of the matters set out. Rule 35.3(2A) makes it clear that it is sufficient for one person to make the affidavit although more than one person might be able to do so.
76 In my opinion, the defence is appropriately verified and there is no default justifying a default judgment in favour of the Plaintiffs.
(2) Strike out the Commonwealth’s Defence of 2002
(3) Strike out the Commonwealth’s Defence of 2009
(4) Summary judgment
77 Although the order sought in the Amended Notice of Motion filed 3 August 2009 was for the Commonwealth’s Defence filed 16 December 2002 to be struck out the argument from the Plaintiffs proceeded on the basis that they wanted the Commonwealth’s Defence filed on 20 August 2009 to be struck out. At the time the Amended Notice of Motion was filed the extant Commonwealth’s Defence was the Defence filed on 16 December 2002. By the time the Notices of Motion came on for hearing before me the Commonwealth had filed its Defence to the Further Amended Statement of Claim filed by the Plaintiffs on 23 July 2009. Nothing turns on the distinction between the 2 Defences because, in substance, they are the same and, in particular, paragraph 5 (which sets out the substantive answer to the Plaintiffs’ claim) was in identical terms.
78 The claim to strike out the defence was, in essence, a claim for summary judgment under Rule 13.1 UCPR.
79 The evidence relied upon principally by the Plaintiffs for summary judgment is contained in various affidavits sworn by Dragan Markisic. In his affidavit sworn 2 July 2009 Mr Markisic relevantly says this:
[8] On 30 July 1998 I instituted the Family Court of Australia's proceedings No. SY6727/98 by filing my initiating application for final custody and residence orders under Part VII of the Family Law Act for my daughter Elena. Copy of the above application is attached to this affidavit and marked "A".
[9] In the above Family Court's proceedings there were only two parties: I was the Applicant and my former wife Katerina was the Respondent. In the above Family Court's proceedings the Director-General of the DOCS of NSW was not a party. It is unknown to me how and in what capacity the Crown Solicitor got involved in my above Family Court's custody and divorce proceedings.
[10] During the period of July - October 1998 I had no other proceedings in the Family Court of Australia apart from the above proceedings No. SY6727/98.
...
[14] I was not served in 1998 with any initiating application filed by the then Director-General of the DOCS of NSW. I was only served in July 1998 by the Crown Solicitor with a false, fake and fabricated affidavit which only looked like as if it was swom by David Kenyon Wells and which document contained false material facts and fake, fabricated and counterfeit documents.
[15] My recollection is that the Family Court of Australia did not make any order or judgment in relation to my child in the period between July - October 1998 inclusively. I recollect that I did not hear or saw the court making any order or judgment (apart from dismissal of the appeal by the Full Court of the Family Court) and I was not present at any publication or pronouncement of any judgment or order in the above period.
(The reference to the fabricated affidavit is a reference to the affidavit verifying what, on its face, appears to be the application by the Director-General to the Family Court.)
80 That material really forms the basis of the Plaintiffs’ submission that no orders of the Family Court were made that justified the removal of the child. It was, of course, repeated in a number of the affidavits filed and relied upon by the Plaintiffs.
81 Dragan Markisic swore a much longer affidavit on 2 October 2009 which deals with the identity of various people said by the Commonwealth to have been involved in the case including Ms Muirhead, Mr David Kenyon Wells, and Christopher Noble who was said to be involved in the removal of the child. The affidavit also deals at some length with the various annexures to Ms Wikramanayake’s affidavit to refute the happening of the matters that those documents tend to disclose including the making of orders by the Family Court.
82 There are in evidence copies of the judgments of Judicial Registrar Johnston of the Family Court dated 17 August 1998, Rowlands J dated 9 September 1998 and 2 judgments of the Full Court of the Family Court of 29 September 1998 together with a copy of the application made by the Director-General of the Department of Community Services of 16 July 1998 which annexes the various documents including the request from the Ministry of Labour and Social Policy of the Republic of Macedonia that gave rise to the application. The judgments and orders of the Family Court are, on their face, signed and/or sealed by relevant officers of that Court. On their face, those documents support the defence pleaded by the Commonwealth and justify the actions taken by the AFP in removing the child from the Plaintiffs’ house.
83 If, as the Plaintiffs assert, the application to the Family Court (the Form 16) and the orders made were fabricated documents or the application was fraudulently made, those are matters of fact to be determined at the trial. It cannot possibly be said that the Plaintiffs satisfy the tests for summary judgment discussed in such cases as General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129-130.
84 The Plaintiffs have strong beliefs about the matter and have the view that the Commonwealth is not telling the truth in the defence it has filed. So, for example, at one point the First Plaintiff said in submissions:
I will tell you what I do not believe your Honour. I do not believe that Australian Federal Police came to my house. I do not believe that the child was taken to the Department of Community Services. I do not believe or not just believe, I am certain there was no order sought in the Family Court because I was there. I am an eyewitness. So no orders. I believe that the child was not handed out further from the DOCS officers for first appearance or whatever and I do not believe that the child was taken pursuant to any orders of the Family Court because there were no orders.
85 The Plaintiffs referred again and again to the evidence identified in the Commonwealth’s affidavits being false, fabricated, concocted and being lies. This was because, they said, the Plaintiffs were the only eyewitnesses of what occurred at the Family Court and at the Arncliffe property. The Plaintiffs had difficulty comprehending that what happened could be other than as deposed to by them. They had difficulty understanding that the jury at the final hearing might not believe their evidence. Although I endeavoured to explain to the Plaintiffs that issues of fact, which included the question of credibility of witnesses, were matters to be decided only at a final hearing by the jury and not on an application for summary judgment, the Plaintiffs persisted with their submissions that the evidence of the Commonwealth was false and concocted evidence. On the basis of the evidence before me there are issues of fact which cannot properly be determined on a summary judgment application.
86 I note that the Plaintiffs applied for summary judgment at an earlier time and such application was heard by Simpson J and resulted in a judgment (Simpson J – unreported - 10 February 2003). In that judgment Simpson J held that the defence filed by the Commonwealth put in issue factual matters asserted in the Further Amended Statement of Claim and the factual conflicts were not suitable for resolution by summary judgment. As I have indicated, the form of the defence is relatively identical to the present defence and the factual matters asserted in the then Further Amended Statement of Claim are relatively identical with the matters asserted in the present form of that pleading.
87 Similarly, on 16 June 2004 the Plaintiffs issued a further Notice of Motion in which summary judgment was sought. This Motion was heard by Smart AJ who delivered judgment (Smart AJ – unreported - 31 May 2005). His Honour found that there were live factual issues of importance to be resolved at the trial and that they were not suitable to be determined on a summary judgment application.
88 I have independently come to the view that there are real issues of fact to be determined at trial based on the current form of the pleading. However, if I had had any doubt about the matter (and I do not) I consider that I should in any event follow the determinations of Simpson J and Smart AJ on relevantly identical pleadings.
89 The Plaintiffs further submit that because the Defence makes reference to “officers” of the AFP, whereas the Australian Federal Police Act is not concerned with “officers” but “members” of the AFP, that is a reason to strike it out. This, the Plaintiffs say, is relevant to the question of exemplary damages under s 64B of that Act.
90 Whilst paragraph 5 of the Defence makes reference to officers of the AFP paragraph 2 makes clear that what is being spoken of are members of the AFP with the result that the Commonwealth admits that it is liable in respect of torts committed by members of the AFP.
91 In my view, nothing turns on the use of the word “officers” in paragraph 5 of the defence that justifies either that paragraph being struck out or that would enable summary judgment to be given in favour of the Plaintiffs.
92 In my opinion, there is no basis on which the Defence should be struck out. The Plaintiffs’ claim in that regard fails.
(6) Set aside the orders of Master Harrison of 22 June 2001
93 The application to set aside Master Harrison’s judgment on orders was said to be based on Rules 36.15 and 36.16. Because of the significant reliance by the Plaintiffs on these Rules it is worth setting out the principles that govern such applications as articulated by Kirby P, with whom Hope and Samuels JJA agreed, in Wentworth v Rogers (No. 5) (1986) 6 NSWLR 534 at 538-9:
It is useful to state a number of principles which are established by law and which govern proceedings of the kind which the appellant wishes to bring.
First, the essence of the action is fraud. As in all actions based on fraud, particulars of the fraud claimed must be exactly given and the allegations must be established by the strict proof which such a charge requires: Jonesco v Beard [1930] AC 298 at 301; McHarg v Woods Radio Pty Ltd (at 497).
Secondly, it must be shown, by the party asserting that a judgment was procured by fraud, that there has been a new discovery of something material, in the sense that fresh facts have been found which, by themselves or in combination with previously known facts, would provide a reason forsetting aside the judgment: see Lord Selborne LC in Boswell v Coaks (No 2) (1894) 6 R 167 at 170, 174; 86 LT 365 at 366, 368; Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130 at 147; McDonald v McDonald [1965] HCA 45; (1965) 113 CLR 529 at 533; Everett v Ribbands (1946) 175 LT 143 at 145, 146; Birch v Birch [1902] P 130 at 136, 137-138; Ronald v Harper [1913] VicLawRp 80; [1913] VLR 311 at 318. This rule has an ancient lineage: see, eg, Shedden v Patrick (1854) 1 Macq 535 at 615, 622; Halsbury's Laws of England, 4th ed, vol 26, par 560 at 285. It is based upon a number of grounds. There is a public interest in finality of litigation. Parties ought not, by proceeding to impugn a judgment, to be permitted to relitigate matters which were the subject of the earlier proceedings which gave rise to the judgment. Especially should they not be so permitted, if they move on nothing more than the evidence upon which they have previously failed. If they have evidence of fraud which may taint a judgment of the courts, they should not collude in such a consequence by refraining from raising their objection at the trial, thereby keeping the complaint in reserve. It is their
responsibility to ensure that the taint of fraud is avoided and the integrity of the court's process preserved.
Thirdly, mere suspicion of fraud, raised by fresh facts later discovered, will not be sufficient to secure relief: Birch v Birch (at 136, 139); McHarg v Woods Radio Pty Ltd (at 498); Ronald v Harper (at 318). The claimant must establish that the new facts are so evidenced and so material that it is reasonably probable that the action will succeed. This rule is founded squarely in the public interest in finality of public litigation and in upholding judgments duly entered at the termination of proceedings in the courts.
Fourthly, although perjury by the successful party or a witness or witnesses may, if later discovered, warrant the setting aside of a judgment on the ground that it was procured by fraud, and although there may be exceptional cases where such proof of perjury could suffice, without more, to warrant relief of this kind, the mere allegation, or even the proof, of perjury will not normally be sufficient to attract such drastic and exceptional relief as the setting aside of a judgment: Cabassi v Vila (at 147, 148); Baker v
Wadsworth (1898) 67 LJQB 301; Everett v Ribbands (at 145, 146). The other requirements must be fulfilled. In hard fought litigation, it is not at all uncommon for there to be a conflict of testimony which has to be resolved by a judge or jury. In many cases of contradictory evidence, one party must be
mistaken. He or she may even be deceiving the court. The unsuccessful party in the litigation will often consider that failure in the litigation has been procured by false evidence on the part of the opponent and the witnesses called by the opponent. If every case in which such an opinion was held gave rise to proceedings of this kind, the courts would be even more burdened with the review of first instance decisions than they are. For this reason, and in defence of finality of judgments, a more stringent requirement than alleged perjury alone is required.
Fifthly, it must be shown by admissible evidence that the successful party was responsible for the fraud which taints the judgment under challenge. The evidence in support of the charge ought to be extrinsic: cf Perry vMeddowcroft [1846] EngR 1070; (1846) 10 Beav 122 at 136-139; [1846] EngR 1070; 50 ER 529 at 534, 535. It is not sufficient to show that an agent of the successful party was convicted of giving perjured evidence in the former proceeding, the result of which it is sought to impeach. It must be shown that the agent, in so acting, was in concert with the party who derived the benefit of the judgment: Ronald vHarper (at 318); Shedden v Patrick (at 643).
Sixthly, the burden of establishing the components necessary to warrant the drastic step of setting aside a judgment, allegedly affected by fraud or other relevant taint, lies on the party impugning the judgment. It is for that party to establish the fraud and to do so clearly. In summary, he or she must establish that the case is based on newly discovered facts; that the facts are material and such as to make it reasonably probable that the case will succeed; that they go beyond mere allegations of perjury on the part ofwitnesses at the trial; and that the opposing party who took advantage of the judgment is shown, by admissible evidence, to have been responsible for the fraud in such a way as to render it inequitable that such party should take the benefit of the judgment.
94 As the Plaintiff’s submissions make clear the real point being made by them here is that the judgment was obtained, they say, against good faith because the Commonwealth relied on the affidavit of Ms Wikramanayake. The Plaintiffs contend, as I have noted, that the matters in that affidavit (more strictly, the matters contained in annexures to that affidavit) were false and fabricated.
95 In my opinion the orders of Master Harrison should not be set aside for these reasons:
(a) Master Harrison’s judgment was appealed and Bell J set aside the orders made by Master Harrison.
(b) It became clear that it was not the orders of Master Harrison that concerned the Plaintiffs but the recitation of the factual matters set out in her judgment. Whilst an appeal court might make different factual findings from a judge at first instance, that is incidental to the main task of the appeal court which is to decide if the judgments and orders should be set aside or varied. But I am not an appeal court from Master Harrison. As I have said, her judgment went on appeal to Bell J where her orders were set aside and fresh orders substituted.
(c) The basis for the setting aside of Master Harrison’s judgment is said to derive from Rule 36.15. The Plaintiffs must show that the judgment was given irregularly, illegally or against good faith. Putting aside for the purpose of this discussion what I have said in (a) and (b) above, it is clear that there was no irregularity, illegality or lack of good faith. At the time Master Harrison gave her judgment both parties to the proceedings believed the Family Court orders had been made on the application of the Director-General. Both parties believed that the AFP at least purported to act pursuant to those orders. It is only latterly that the Plaintiffs have changed their beliefs about those matters. However, they were, as I have observed, unable to articulate the evidentiary basis for their changed beliefs, nor were they able to point to what it was that caused them to change those beliefs. Had some startling new fact emerged that cast doubt on the whole basis of the decision it may have been able to be argued that there was an irregularity or a lack of good faith, but nothing of the sort is shown here. The Plaintiffs do not satisfy the matters discussed by the Court of Appeal in Wentworth v Rogers.
(d) No explanation has been given for the delay in moving to set aside the judgment of Master Harrison from the time that the Plaintiffs say they came to a different view about the events in question until the Motion was filed on 2 July 2009. That seems to me to be a matter of some significance because, in particular, there was a contested interlocutory hearing before Patten AJ in March 2007 by which time the Plaintiffs had come to their present views about the matter. Given that Patten AJ was dealing with the form of pleading of the Statement of Claim, as a matter of discretion I would refuse to set aside Master Harrison’s judgment on this ground even if all the other factors for setting it aside justified such an order.
(7) Set aside the judgment and orders of Bell J of 13 August 2002
96 For similar reasons the Plaintiffs seek to set aside the judgment and orders of Bell J under Rules 36.15 and 36.16. The complaint again is that the Commonwealth relied on the affidavit of Ms Wikramanayake and that affidavit, the Plaintiffs assert, contains false and fabricated matters.
97 In the first place, it may be wondered what the Plaintiffs have to achieve by setting aside the judgment of Bell J for it was that judgment that permitted them to bring the claim. However, the Plaintiffs made clear that their main purpose in relation to the judgment of Bell J was to vary Order 3 (set out in para 18 above) so that it reads:
(3) Grant the plaintiffs leave to file a further amended statement of claim limited to their claims arising out of the actions of servants and agents of the Defendant in trespass, negligence and, with respect to the second plaintiff, in false imprisonment, assault and negligence.
At one point the Plaintiffs indicated that they wished to add a claim for misfeasance in public office (against whom it was not made clear) but the above redrafted order (3) is what was carefully outlined to me by the Plaintiffs on two different occasions during the hearing.
98 The Plaintiffs’ approach seems misconceived. As Senior Counsel for the Commonwealth submitted, all of these judgments sought to be set aside are interlocutory judgments. If the Plaintiffs are in a position to show new facts that would justify an amendment to the existing pleading they can simply apply to amend in that way without the necessity of having to set aside earlier interlocutory judgments that were given on the basis of the facts as then understood. For that reason, it is not necessary to set aside any of the earlier judgments but merely to consider the position on the evidence now presented by the Plaintiffs to see if they should be permitted to amend the existing form of the Statement of Claim.
99 But, in any event, I do not consider that the Plaintiffs have established that the judgment of Bell J was made irregularly, illegally or against good faith. The basis for the claim is, as I have said earlier, the Plaintiffs assertions that the material contained in and referred to in the affidavit of Ms Wikramanayake is false, concocted and/or fabricated. Particularly in the light of s 157 Evidence Act there is at least a prima facie inference that the various documents are genuine and valid documents including judgments and orders of the Family Court. As noted earlier, the Plaintiffs have presented scant evidence to cast doubt on that prima facie view. However, it seems to me, for the reasons given, the real issue is not the setting aside of Bell J’s judgment but whether or not the Plaintiffs should be permitted to amend their existing Statement of Claim.
100 It cannot, however, be said on the evidence before me that the judgment of Bell J was obtained irregularly, illegally or against good faith.
(8) Set aside the judgment and orders of Patten AJ of 1 March 2007
101 This application is made on the same basis, namely, that the judgment and orders were made irregularly, illegally or against good faith. Principally, the same arguments were mounted, namely the false and fabricated documents in evidence that the Commonwealth was said to have presented through the affidavit of Ms Wikramanayake. For the reasons I have given in relation to the judgments of Master Harrison and Bell J in this regard, there is no basis for making the order sought.
102 The Plaintiffs rely on two additional matters. First, they assert that at the hearing before Patten AJ Mr Robinson of Senior Counsel drew his Honour’s attention to the Court of Appeal’s judgment in Dragan Markisic v Department of Community Services of NSW (No. 2) [2006] NSWCA 321. The Plaintiffs say that Mr Robinson did this without advising Patten AJ that that judgment was itself obtained irregularly, illegally or against good faith or by fraud because (it would seem) the same evidence and material was relied upon by the Commonwealth (which was also a party to those proceedings). That judgment of the Court of Appeal has not itself been set aside on any basis nor overturned. In those circumstances it cannot possibly be said that there was anything irregular, illegal or in bad faith about the Commonwealth relying on that judgment if it was otherwise appropriate to do so.
103 A further reason to reject this matter is that the Plaintiffs sought leave to appeal from Patten AJ’s decision. The Notice of Appeal contained this ground:
[14] His Honour Patten AJ erred by superimposing the judgment of the Court of Appeal in the case of Dragan Markisic onto the Plaintiffs and especially onto the Second Plaintiff.
Accordingly, the issue of the use of that judgment was squarely raised for consideration by the Court of Appeal.
104 On 14 May 2008 the Court of Appeal heard the leave application and dismissed it. The judgment of Mason P, with whom Handley AJA agreed, relevantly said:
In my view, there is no prospect of persuading the Court at a full hearing of an appeal that his Honour erred in what was essentially a matter of practice and procedure in an interlocutory application.
105 The Plaintiffs thereafter sought special leave to appeal from that judgment of the Court of Appeal, but on 3 September 2008 the High Court dismissed the Special Leave application.
106 The second matter is a little difficult to understand from the Plaintiffs’ written submissions but the complaint seems to be that because the Commonwealth drew attention to particular matters in an affidavit filed by Dragan Markisic in his proceedings, in particular to identify the judgments and orders of the Family Court, that was done in bad faith because (once again) the Plaintiffs assert that those judgments and orders were concocted and fabricated.
107 The matter comes back again to the Plaintiffs’ belief about the validity and veracity of the Family Court judgments and orders. There is no basis on the evidence before me for seriously doubting the validity of those documents (particularly bearing in mind s 157 Evidence Act) and there is, therefore, no evidence to suggest that the judgment of Patten AJ was obtained irregularly, illegally or in bad faith.
(9) Remit to the Court of Appeal
108 The Plaintiffs made it clear that what they wanted pursuant to this order was that I should remit the present proceedings to the Court of Appeal so that the Plaintiffs could ask the Court of Appeal to set aside the judgment of the Court of Appeal in Dragan Markisic v Department of Community Services of NSW (No. 2) [2006] NSWCA 321. The present Plaintiffs are not parties to those proceedings but they say that they are affected by the decision in that case which was obtained irregularly, illegally or against good faith. The reasons for that are the same reasons put forward for setting aside the other judgments.
109 The power to remove or remit the proceedings to the Court of Appeal is ultimately derived from s 51 Supreme Court Act 1970, and the process is further facilitated by Rule 1.21 UCPR. Given what the Plaintiffs desire to do, if I thought it was otherwise appropriate to remove or remit the proceedings to the Court of Appeal I would certainly do so because, despite the width of Rule 36.15 and, assuming it gives power to a single judge to set aside an order of the Court of Appeal (which I doubt), it would be inappropriate for a single judge to do that.
110 However, there are a number of reasons why I consider in the present case the proceedings should not be remitted to the Court of Appeal to enable the Plaintiffs to invoke Rule 36.15 in respect of that Court’s judgment in Dragan Markisic.
111 First, it does not seem to me that the present Plaintiffs have standing to argue that a judgment in a matter to which they are not parties should be set aside. In that regard, I note that Mr Oliver Markisic informed me that he was present at the hearing in the Court of Appeal in that matter but was not permitted by the Court of Appeal to address them although he was assisting his brother in the conduct of the appeal. Assuming that to be the case, that points to a difficulty the present Plaintiffs are likely to have in being able to claim standing were these proceedings to be removed.
112 Secondly, if, as Mr Oliver Markisic now submits, the Commonwealth told lies and presented false evidence to the Court of Appeal in Dragan Markisic’s appeal and that conduct detrimentally affected the present Plaintiffs, the correct time to have raised the matter by the present Plaintiffs was at the hearing of the Court of Appeal. The Plaintiffs accept that they did not raise the matter and they accept that Dragan Markisic on their behalf did not raise the matter. No explanation has been given for that failure.
113 But in any event, on 6 December 2006 Dragan Markisic applied to the Court of Appeal (Bryson JA) for an order setting aside the judgment in his matter in the Court of Appeal under Rule 36.15. Bryson JA held:
There is no basis for the contention that the judgment was obtained illegally or irregularly, in fraud or by misrepresentation of the truth, in any evidence or in any reasoning which Mr Markisic has produced.
114 His Honour also said:
It is quite clear to me that the Notice of Motion truly has the character which a first reading of its terms suggests, a scandalous document and not in a truth 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.
115 When it is borne in mind that the attack made on the Court of Appeal’s judgment by the present Plaintiffs, and indeed on the judgments of Master Harrison, Bell J and Patten AJ, is based on the same material and contentions, the same conclusion can be reached in relation to those parts of the present Notices of Motion that purport to allege a defect under Rule 36.15.
116 The Plaintiffs did not bother to draw my attention to either the application made to the Court of Appeal to set aside the judgment in the Dragan Markisic matter nor to the judgment of Bryson JA. Nor when it was drawn to my attention by Mr Robinson did they offer any answer to what Bryson JA said in that judgment except (in a different context and mistakenly as it transpired) to point out a passage which it was said did not assist the Commonwealth.
117 Thirdly, the Commonwealth is not the only other party apart from the Markisics in Dragan Markisic’s proceedings. If I were to remove or remit the proceedings to the Court of Appeal to enable the Plaintiffs to argue the propositions they wish to argue, there would be the necessity to have those other parties joined to the present proceedings for that to take place. I can see no justification for the inconvenience and expense to which those parties would be put if that were to happen.
118 Fourthly, when pressed by me to identify the orders of the Court of Appeal the Plaintiffs wished to have set aside, the Plaintiffs were unable to do so. Rather, as in the case of Master Harrison’s judgment, they made it clear that what concerned them about the Court of Appeal’s judgment was its reliance on the facts with which they now disagree, and which for present purposes derive from Ms Wikramanayake’s affidavit. Rule 36.15 is not concerned with fact finding in judgments with which an applicant disagrees.
119 Fifthly and in any event, no evidence is put forward before me to suggest that that decision of the Court of Appeal was obtained irregularly, illegally or against good faith even if I assume that it was obtained by the use of Ms Wikramanayake’s affidavit, something not proved before me. This is for the reasons that I have given when dealing with setting aside the judgments of Master Harrison and Bell J.
(10) Review the decision of Registrar Bradford of 27 July 2009 not to disqualify himself
120 No submissions were made about this matter. I note from an examination of the File Inquiry document that the 1st order made on 27 July 2009 was a refusal to disqualify himself by the Registrar. Otherwise, I know nothing about the matter. No transcript of the hearing on that day was tendered.
121 This prayer in the Notice of Motion must fail.
(11) Review and set aside orders of Registrar Bradford made 28 May 2008 and 3 July 2009
(12) Order that the Further Further Amended Statement of Claim filed 18 June 2008 be accepted
(13) Alternatively, grant leave to amend by filing the Further Further Amended Statement of Claim
122 As I have noted above, if the Plaintiffs were not able to obtain default judgment or summary judgment on the issue of liability, the other principal aim of the filing of the various Notices of Motion was, in effect, to amend the Further Amended Statement of Claim that Patten AJ and Registrar Bradford had directed (the document set out at para 30 above) by substituting for it the document which had been improperly filed on 18 July 2008 entitled Further Further Amended Statement of Claim (para 22 above). The claim contained in this pleading differed considerably from the claims hitherto made up to that time in respects I have identified in para 12 above, namely:
(a) There are no orders of the Family Court;
(b) It was not the AFP who took the child;
(c) The child was not taken to DOCS.
123 These orders sought by the Plaintiffs amount in substance to an application to amend the Further Amended Statement of Claim that resulted from Patten AJ’s judgment. The question for determination here is, therefore, whether the Plaintiffs should be permitted to amend their pleading, particularly in the light of the history of the matter and also on the basis of evidence presented before me on the hearing of these Notices of Motion.
124 The position of amendment is governed first by s 64 Civil Procedure Act 2005 which relevantly provides:
(2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.
125 Regard then must be had to s 58 which relevantly provides:
(1) In deciding:
(a) whether to make any order or direction for the management of proceedings, including:
(i) any order for the amendment of a document, ...
the court must seek to act in accordance with the dictates of justice.
(2) For the purpose of determining what are the dictates of justice in a particular case, the court:
(a) must have regard to the provisions of sections 56 and 57, and
(b) may have regard to the following matters to the extent to which it considers them relevant: ...
126 The matters listed in s 58(2)(b) that I consider relevant to the present proceedings are these:
(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,
(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,
(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),
(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,
(vii) such other matters as the court considers relevant in the circumstances of the case.
I include consideration (vii) because it is a relevant and important consideration whether an amendment, if permitted, is likely to be futile.
127 I further note for completeness that s 56(3) provides:
A party to civil proceedings is under a duty to assist the court to further the overriding purpose [i.e. to facilitate the just, quick and cheap resolution of the real issues] and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.
128 I have already noted the correct submission of the Commonwealth that the judgments of Master Harrison, Bell J, Patten AJ and the Court of Appeal, (all of which were thought to stand in the way of the Plaintiffs’ real desire to put the case they now wish to argue) are interlocutory judgments, and that if the Plaintiffs were able to demonstrate new facts such as to justify an amendment to their pleading, none of those judgments would stand in the way of leave being granted for such amendments. It must be determined, therefore, whether or not the Plaintiffs have demonstrated an arguable case that the events they assert took place did so in the way they have described. The other issues that I have identified from s 58 must then be brought to bear on any application the Plaintiffs make to amend.
129 When Dragan Markisic applied in the Court of Appeal for an adjournment so that he could replead his Statement of Claim arising out of the same facts, the Court of Appeal (Markisic v Department of Community Services NSW and Ors [2006] NSWCA 106 at [11]) determined that any proposed Statement of Claim:
... be accompanied by affidavit evidence showing that there are facts which probably can be proved which, if proved, would support the allegations in the revised Statement of Claim. The terms should be imposed because the history of the proceedings, and the nature of the proposed Amended Statement of Claim, suggest that the allegations themselves begin against a background of improbability, and thus there is particular need to see, before exercising a power in favour of the claimants, that there is a point in doing so. (emphasis added)
130 Those remarks are extremely pertinent to the application before me to amend the Statement of Claim. However, the matter before me is one stage advanced. Affidavits have been read and submissions have been made to support the amended claim which the Plaintiffs now seek to bring. It is on the basis of that evidence and those submissions that I must consider whether there is any point in permitting the amendments desired to be made.
131 In considering the matter I must bear in mind also that the events complained of took place in September 1998 (almost 10½ years ago), the proceedings were commenced on 9 May 2001 (almost 9 years ago) and that it was not until around the time or a little after the judgment of Patten AJ in March 2007 (almost 3 years ago) that the Plaintiffs desired to change the basis of their claim.
132 I also bear in mind that the Plaintiffs are not legally represented but, it would have to be said, that they appear to have a fairly extensive knowledge and experience of the Court’s processes and Rules in a way that did not seem to disadvantage them when conducting these proceedings generally and arguing the Motions before me. Further, and despite many allegations to the contrary against the Commonwealth and its legal advisors by the Plaintiffs, as far as I could ascertain and observe, the Commonwealth and its legal advisors acted with complete propriety and did not seek to take any advantage from the fact that the Plaintiffs were unrepresented.
133 One of the difficulties I have had (as I have said) is understanding what new facts emerged or what events occurred that even brought about the change in the belief of the Plaintiffs about the events in question. In relation to the taking of the child on 29 September 1998, the only new matter which appears to have occurred in more recent times was the visit the Markisic brothers paid to Christopher Noble whose card they had found at the house. Mr Noble allegedly denied any knowledge or involvement in the matter and that appears to have sparked the thought in the Plaintiffs, because Mr Noble had previously been a member of the AFP, that the AFP had never been involved. Why, in those circumstances, Mr Noble’s card should have been found at the house was never explained.
134 The Plaintiffs can point to no new facts concerning the making of the orders of the Family Court, but only as to a change in their belief about what must or must not have happened. From the Plaintiffs’ point of view the facts were always the same. Dragan Markisic had commenced the Family Court proceedings against his wife, and no orders of the sort relied upon by the Commonwealth to justify their actions were ever made in the presence and hearing of the Markisic brothers although they were in Court on the various dates identified. However, Mr Dragan Markisic had previously thought that orders had been made by Rowlands J in Chambers and that was why he had never heard the orders pronounced.
135 It seems that at some time which is not specified he came to understand that orders in the Family Court could not be made in Chambers (this was never proved) and that led him to the belief that Rowlands J in fact made no orders at all and nor did the Full Court of the Family Court. Taken together with the belief that had started to form about the AFP because of what Christopher Noble allegedly denied, that seems to have brought the Plaintiffs to their present position. Of course, this notion that no orders were made by the Family Court is somewhat inconsistent with the allegations in paras 8, 10 and 11 of the Further Further Amended Statement of Claim (highlighted above in para 22). It is to be remembered that those paragraphs allege some sort of a conspiracy of certain Commonwealth officers to get control of the child and that the proceedings in the Family Court were instituted unlawfully and improperly to do that.
136 There is absolutely no evidence supporting the assertion that the persons who improperly commenced the proceedings and/or took the child were servants or agents of the Commonwealth. I pressed the Plaintiffs to identify how they knew that these persons were servants and agents of the Commonwealth, but they were unable to give any clear answers. One cannot escape the feeling that the purpose of the subpoenas that they sought to issue and which was determined against them by Hislop J on 24 April 2009 (Markisic v Commonwealth of Australia [2009] NSWSC 284) was a fishing expedition to try to back up their beliefs in this regard.
137 The extent of the evidence put before me to justify any right to amend the pleading consisted only of the evidence of the Markisic brothers that they heard no Family Court orders pronounced when they were at Court (that is not new evidence but something that they had known from the outset) and evidence that, on their account of events, Mr Christopher Noble, formerly of the AFP, denied any knowledge or involvement in the taking of the child despite his card having been found at the Plaintiffs’ home. Everything else is speculation and supposition on the part of the Plaintiffs. In the present case there is considerably more than “a background of improbability”. There is simply no evidentiary basis for permitting the amendments which the Plaintiffs seek to make.
138 Although I can accept that there is no absolute proof of the making of the Family Court orders (and that is a factual issue which may well need to go to trial if the proceedings are permitted to continue), the evidence that there were such orders is strong. Against only the statements of the Markisic brothers that they did not hear the orders pronounced in the Family Court are copies of a number of documents that contain the seal and apparently authorised signatures of officers of the Court tending to show that the orders relied upon by the Commonwealth were made. Whilst I can accept the Plaintiffs’ assertions that documents can be readily fabricated and forged they present no evidence at all that these documents were fabricated and forged. They asked for an inference to be drawn about them simply because they did not hear orders pronounced in the Family Court. For the purpose of considering whether there is any evidence in favour of the amendments and for considering whether there is utility involved in the making of any amendments I consider that the evidence is persuasive that Family Court orders were made (as the Plaintiffs had previously asserted in their pleadings over a 6 year period or longer) and as the Commonwealth has always asserted.
139 The evidence of the Plaintiffs regarding Mr Noble (even if accepted in its entirety) does not in any way cast doubt on the involvement of the AFP with the taking of the child. But if it was not the AFP there is not a shred of evidence that the persons who did take the child had anything to do with the Commonwealth. In that regard, no purpose would be served by permitting the amendment.
140 The Plaintiffs face another considerable hurdle in relation to the proposed amendments. If, as is alleged, the persons who took the child were paedophiles and/or predators and/or were part of a conspiracy to take the child wrongly and were servants or agents of the Commonwealth, it is difficult to see how the Commonwealth could be liable for their acts when those acts amounted to intentional criminal conduct – see State of NSW v Lepore [2003] HCA 4; (2003) 212 CLR 511; and see the discussion in Balkin & Davis, Law of Torts (4th ed) LexisNexis Butterworths, (2009) at paras 26.53 – 26.55.
141 For these reasons, I do not believe it is appropriate to permit the Plaintiffs to amend their pleading. In addition, it does not seem to me to be consistent with the dictates of justice for the Plaintiffs to reformulate their claim at this very late stage when the Plaintiffs can point to no new facts of any significance that provided justification for the amendment. Bearing in mind the number of interlocutory applications and appeals (the vast majority of which have been brought by the Plaintiffs) and the amount of costs involved in all of those which must have been incurred by the Commonwealth, it does not seem to me that it would be fair to the Commonwealth to permit an amendment. The Commonwealth will never be able to be compensated by costs orders because the Plaintiffs are in no position to pay orders for costs made against them except, perhaps, for the most token of amounts.
142 The High Court has recently discussed the question of amendment and particularly late amendment in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 83 ALJR 951. The plurality judgment said this:
[99] In the past it has more readily been assumed that an order for the costs occasioned by the amendment would overcome injustice to the amending party's opponent. In Cropper v Smith Bowen LJ described an order for costs as a panacea that heals all. Such a view may largely explain the decision of this Court in Shannon v Lee Chun, which upheld a decision allowing the plaintiff to raise a new case at the second trial, but which imposed a condition as to costs. The modern view is that even an order for indemnity costs may not always undo the prejudice a party suffers by late amendment. In the present case it is difficult to see that such an order could be sufficient compensation, given that Aon would be required to again defend litigation which was, effectively, to be commenced afresh.
[100] The views expressed by Lord Griffiths in Ketteman v Hansel Properties Ltd, that justice cannot always be measured in money and that a judge is entitled to weigh in the balance the strain the litigation imposes upon litigants, are also now generally accepted. In Bomanite Pty Ltd v Slatex Corp Aust French J said of Bowen LJ's statements in Cropper v Smith:
"... That may well have been so at one time, but it is no longer true today ... Non-compensable inconvenience and stress on individuals are significant elements of modern litigation. Costs recoverable even on an indemnity basis will not compensate for time lost and duplication incurred where litigation is delayed or corrective orders necessary."
...
[102] The objectives stated in r 21 [the rough equivalent of s 56 UCPA] do not require that every application for amendment should be refused because it involves the waste of some costs and some degree of delay, as it inevitably will. Factors such as the nature and importance of the amendment to the party applying cannot be overlooked. Whilst r 21 assumes some ill-effects will flow from the fact of a delay, that will not prevent the parties dealing with its particular effects in their case in more detail. It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case. Much may depend upon the point the litigation has reached relative to a trial when the application to amend is made. There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates. Rule 21 makes it plain that the extent and the effect of delay and costs are to be regarded as important considerations in the exercise of the court's discretion. Invariably the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment.
...
[111] An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in J L Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases. On the contrary, the statements are not consonant with this Court's earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future.
143 The plurality judgment made it clear that the starting point for any application to amend must be the rules governing such applications in the relevant jurisdiction (para [58]). That, of course, in NSW includes those sections of the CPA to which I have made reference.
144 Especially when considered against the very weak evidentiary basis for the amendments, the course of the present proceedings and the extensive delays significantly brought about by the vast array of interlocutory applications, appeals and associated proceedings, point clearly to a refusal to permit the Plaintiffs to amend the existing form of the Statement of Claim.
145 It is not strictly necessary to review the orders of Registrar Bradford that required the filing of the existing Statement of Claim because, in a sense, the present application the Plaintiffs make to be allowed to rely upon the Further Further Amended Statement of Claim (an amendment application in substance) supersedes the Registrar’s orders. However, relevant to the issue of delay that I have already referred to, I note that the Notice of Motion to review Registrar Bradford’s orders of 28 May 2008 and 3 July 2009 did not include such prayers for relief until it was amended on 3 August 2009. The original Notice of Motion itself had only been filed on 2 July 2009 with no reference to Registrar Bradford’s orders.
146 Any relief associated with the Further Further Amended Statement of Claim including the application to be permitted to rely on it is refused.
(14) Case management
147 The only submissions made by the Plaintiffs in relation to case management concerned case management of the Notices of Motion. These submissions seemed to entail a breaking up of the hearing of the Notices of Motion that were before me so that certain matters could be determined first and other matters at a later unspecified time. In this regard I was asked at various times to deliver judgment on specific matters and specific prayers in Notices of Motion before the hearing of other parts of the Notices of Motion proceeded.
148 I declined to break up the hearing of the Notices of Motion for 2 reasons. First, they had all been directed to be heard by me at the one time. Secondly, it became clear fairly early on in the hearing that most or all of the relief sought in the various Notices of Motion were closely interrelated in the way I have described in paras 43-48 above.
149 I did not consider that it was necessary to make any orders concerning case management of the Notices of Motion.
(15) Orders restraining the Commonwealth
150 It was fairly apparent that these orders were sought only because the Commonwealth had sought such orders in its Amended Notice of Motion filed 29 July 2009. No proper basis has been shown for making the orders sought against the Commonwealth. To the extent that the Commonwealth has brought applications during the long history of the proceedings, those applications have been largely, but not completely, successful. There is no evidence of the Commonwealth misusing the processes of the Court either to oppress or delay the Plaintiffs in the prosecution of their claim (as the Plaintiffs assert) nor for purposes not germane to the Commonwealth’s proper defence of the claims made by the Plaintiffs.
151 These orders sought by the Plaintiffs should be refused.
Motion by the Commonwealth
152 In its Amended Notice of Motion filed 29 July 2009 the Commonwealth seeks the following:
1. The proceedings be dismissed for want of prosecution.
2. The Plaintiffs pay the Commonwealth’s costs of the Motion which should be assessed and payable forthwith in the sum of $13,000.
3. The Plaintiffs pay the costs thrown away by reason of non-compliance with the Court’s orders about the filing of a Statement of Claim in accordance with Patten AJ’s judgment, such costs being assessed at $8000 and payable forthwith.
4. The proceedings be stayed until the costs orders are complied with.
5. The Plaintiffs be prevented from filing and serving any Notices of Motion and from making any oral applications in the proceedings without the leave of a judge of the Court. Certain ancillary orders are sought in relation to this.
153 The Commonwealth now accepts that it is not appropriate to dismiss the proceedings for want of prosecution because the Plaintiffs eventually complied with Registrar Bradford’s orders on 23 July 2009. What the Commonwealth principally seeks now is costs thrown away by reason of non-compliance with the Court’s order about the filing of a Statement of Claim and the costs of this Motion made necessary by the failure. In that regard, a little further history is necessary.
154 The judgment of Patten AJ was given on 9 March 2007. On 28 May 2008 Registrar Bradford made orders for the re-engrossment of the Statement of Claim as altered by Patten AJ’s judgment. That was to be done by 18 June 2008.
155 On 18 June 2008 the Plaintiffs filed the Further Further Amended Statement of Claim (para 22 above) which did not comply with that order because it was not the Statement of Claim as altered by Patten AJ’s judgment.
156 On 11 July 2008 there was a further hearing before Registrar Bradford. The Registrar extended time for compliance with his order of 28 May 2008 until 18 July 2008. On 18 July 2008 another copy of the Further Further Amended Statement of Claim was left at the offices of the Australian Government Solicitor. That and the failure to comply again with the Registrar’s order led the AGS to write to the Plaintiffs on 22 July 2008 (the letter is wrongly dated 22 July 2007). The letter recited the significant events from the time of Patten AJ’s judgment.
157 The letter then went on to say this:
8. We put you on notice that, if we do not receive the re-engrossed Statement of Claim by 2:00pm on Wednesday 23 July 2008, we shall file a Notice of Motion seeking an order that the proceedings be dismissed for want of prosecution with costs. We shall also seek special orders as to the cost of the Notice of Motion, the costs thrown away and we shall seek an order that the proceedings be stayed pending the satisfaction of costs orders.
9. We specifically draw your attention to Markisic v Department of Community Services (2006) NSWCA 106 and to various orders made in Supreme Court proceedings number 20286 of 2004 by Justice Latham and Justice Nicholas and the unsuccessful application for leave to appeal heard by the Court of Appeal on 6 July 2007.
10. Should you attempt to serve the re-engrossed Statement of Claim in accordance with the orders made by Acting-Justice Patten, please do so by 2:00pm on 23 July 2008.
158 The matter came back before Registrar Bradford on 24 July 2008. The Registrar ascertained that the Plaintiffs had not filed a Statement of Claim in accordance with the amendments made by Patten AJ. The Registrar gave leave to the Commonwealth to file a Notice of Motion and supporting affidavit which it proceeded to do. That Notice of Motion, the amended form of which I am now dealing with, sought the orders now sought except for the orders restraining the Plaintiffs from filing or making further applications in the proceedings. In particular, the Motions sought that the proceedings be dismissed for want of prosecution and that the Plaintiffs should pay the costs thrown away by reason of the non-compliance with the Courts orders. The Notice of Motion sought that the costs be assessed and payable in the sums of $8000 and $13,000 as in the present Amended Notice of Motion.
159 Despite what the Registrar said on 24 July 2008 and despite the filing of the Commonwealth’s Notice of Motion the Plaintiffs did not comply with the Registrar’s order until 23 July 2009.
160 In the meantime, they filed their Motion on 25 July 2008 which sought orders in relation to the Further Further Amended Statement of Claim that they wished to proceed on. Why it took from 25 July 2008 until 19 October 2009 for the Motion to be brought on for hearing was not explained. However, it is apparent that the hearing before Hislop J in respect of which he delivered his judgment of 24 April 2009 was at least part of the reason for that. It will be recalled that Hislop J dealt with an application to issue 23 subpoenas to witnesses to attend to give evidence at the hearing of one of the orders in that Notice of Motion being the order to set aside the judgment of Patten AJ of 1 March 2007. The setting aside of that judgment was (as was made clear before me and is apparent from Hislop J’s judgment) a preliminary aspect to the Plaintiffs’ request to file the Further Further Amended Statement of Claim.
161 Nevertheless, the fact remains that the Plaintiffs failed to comply with the order of Registrar Bradford made 28 May 2008 until 23 July 2009. In addition, they did nothing to advance the prosecution of the proceedings from the date of Patten AJ’s judgment on 9 March 2007, although it can be accepted that they sought leave to appeal against Patten AJ’s judgment.
162 There can be no doubt about the appropriateness of the Commonwealth having filed its Notice of Motion on 24 July 2008 when there had been no compliance with the order of Registrar Bradford of 28 May 2008 and his subsequent order of 11 July 2008 extending the time for compliance with the earlier order. Moreover, it is clear from a perusal of the transcripts of 28 May, 11 July and particularly 24 July 2008 that the Plaintiffs did not intend to comply with Registrar Bradford’s orders because they were fixated on the new case that they wished to bring set out in the Further Further Amended Statement of Claim. The Plaintiffs’ Motion of 25 July 2008 and the application before Hislop J is further clear evidence of this.
163 In addition, the Plaintiffs were put on clear notice by the letter from the AGS of 22 July 2008 that if they did not serve the re-engrossed Statement of Claim by a further deadline nominated by the Commonwealth (a deadline beyond the last expiry date that Registrar Bradford had allowed) a Notice of Motion would be filed seeking the orders that it ultimately did.
164 Further, to put the matter beyond any doubt, the AGS drew attention to 4 decisions with which the Plaintiffs would have been very familiar being other proceedings commenced by the Plaintiffs and/or members of their family in respect of the same events. Two of these judgments, being Dragan Markisic & Anor v USA and Anor (unreported, Latham J, 19 September 2006) and (unreported, Nicholas J, 12 December 2006) concerned situations where the AGS had written to the Plaintiffs noting that they were obliged to comply with some order or direction and threatening that if they did not do so costs orders would be sought including orders that costs be paid forthwith. In both cases those Judges assessed a lump sum for the costs and ordered them to be paid forthwith. In doing so, they followed the approach of the Court of Appeal in Markisic v Department of Community Services of NSW & Ors [2006] NSWCA 106.
165 Mr Robinson informed me that in the matters before Latham J and Nicholas J both those Judges had evidence from Gregory Kathner, the Solicitor of the AGS who is the Team Leader of the Civil Litigation Team having overall responsibility for the cases brought by the Plaintiffs against the Commonwealth. I similarly have evidence from Mr Kathner estimating the costs of the Commonwealth but this evidence was objected to by the Plaintiffs on the basis that it should not be admitted unless they were permitted to cross-examine Mr Kathner. I gave reasons in 2 interlocutory judgments delivered on 29 October 2009 for not permitting the Plaintiffs to cross-examine Mr Kathner. These included the fact that he was absent overseas on a holiday that had long been arranged before the Motions were fixed for hearing before me. Those reasons also relied on the fact that, in the absence of the Plaintiffs having any specialised knowledge of legal costs and having no contrary evidence about those costs, there could be no sensible or meaningful cross-examination about those costs by them.
166 However, it is apparent from a reading of the judgment of Markisic in the Court of Appeal that it is not necessary for specific evidence to be given because the Court itself is regarded as having sufficient knowledge to be able to make an assessment.
167 Mr Kathner’s affidavit says that the total costs thrown away by the Commonwealth as a result of the Plaintiffs’ failure to comply with orders made by Registrar Bradford in relation to the Statement of Claim would be not less than $8000. He summarises the work that was involved leading to that assessment.
168 He further gives evidence that the additional costs incurred by the Commonwealth in bringing a Notice of Motion seeking the orders that it does would not be less than $5000.
169 In my opinion, it is appropriate to make a costs order in favour of the Commonwealth by reason of the failure of the Plaintiffs to comply with the orders of Registrar Bradford. In my opinion, those costs, in part, will be inextricably linked with the costs of the Notice of Motion. The Commonwealth was forced into the position of having to file a Notice of Motion in an endeavour to secure compliance with Registrar Bradford’s orders. The Plaintiffs were put on clear notice that their failure to comply was likely to result in the filing of the Notice of Motion together with costs being sort. In the light of the decisions of Latham J, Nicholas J and the Court of Appeal, they could scarcely have been in any doubt that a failure to comply was likely to result in costs orders and that those costs orders were likely to be ordered to be payable forthwith and that the proceedings were likely to be stayed until that had been done.
170 An examination of the 3 judgments concerned shows that the Court has in each case assessed the costs in a relatively modest sum. I do not have evidence of what figures were put to the Court in each case whether by way of the evidence of Mr Kathner or (in the case of the Court of Appeal) in statements from the bar table. Because of the summary nature of the assessment I consider that I should err in relation to any uncertainty in favour of the Plaintiffs. It would also be unrealistic of me not to take into consideration the fact that it is most unlikely that anything but a small portion of any costs assessed will ever be paid by the Plaintiffs.
171 In relation to the costs thrown away by reason of the failure of the Plaintiffs to comply with the orders of Registrar Bradford (and excluding the costs of the present Notice of Motion brought by the Commonwealth) I would assess the costs payable in the sum of $3000.
172 In relation to the Notice of Motion it seems to me appropriate to assess the costs bearing in mind that the Commonwealth should be entitled to an order for indemnity costs on the Motion. The behaviour of the Plaintiffs in not complying with orders of Registrar Bradford made on 2 separate occasions was conduct of an unreasonable kind and demonstrates the sort of relevant delinquency in the conduct of the proceedings referred to in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [44]; see also Mead v Watson [2005] NSWCA 133 at [8] - [10].
173 The Commonwealth gave the Plaintiffs the further opportunity to comply with the orders and made it clear that if they did not a Notice of Motion would be filed with the costs consequences identified in the letter. In those circumstances I consider it appropriate to assess the costs of the Notice of Motion to be payable by the Plaintiffs at $5000.
174 The next question that arises is what part each such amount should be ordered to be paid forthwith failing which there will be a stay of proceedings. The Court of Appeal in Markisic at [20] made it clear that it would not be a proper exercise of discretion to order the whole of sums such as I have assessed to be paid forthwith where it is clear that the Plaintiffs are impecunious. Giles JA said:
[I]t seems to me that the Court should not do nothing, but should at least mark the necessity for acting “carefully in a measured way” by requiring payment forthwith of a sum which, while not stultifying the proceedings, will at least ensure that the claimant does not continue with the proceedings on the basis that, as an impecunious person, costs are not a factor in his consideration.
175 The Court of Appeal went on to order payment of a sum of $250 to each of the 3 opponents.
176 In the Motion before Latham J she required payment of the sum of $2000 forthwith failing which a stay would be granted.
177 In the matter before Nicholas J he required payment of the sum of $1000 to each of the Defendants.
178 But for the order I intend to make permanently staying the proceedings generally (discussed in the next section of this judgment) I would have considered it appropriate to order that of the sums assessed by me the Plaintiffs should pay the sum of $1500 forthwith failing which the proceedings would be stayed until such payment.
179 The other matter for consideration on the Commonwealth Motion is the request that the Plaintiffs be restrained from making any further applications in any form without the leave of a judge of the Court. I consider it appropriate to make this order. I can briefly state my reasons without encumbering this judgment with a full history of all interlocutory applications made by the Plaintiffs since the proceedings commenced.
180 There have undoubtedly been a vast number of interlocutory applications which have taken up a considerable amount of Court time. The File Enquiry Record of 17 August 2009 contains 28 full pages of the history of the proceedings.
181 As I identified earlier I have been dealing with 5 Motions filed by the Plaintiffs, a number of which seek the same orders as are sought in others.
182 At least since the hearing before Patten AJ in early 2007 the various applications and Notices of Motion filed by the Plaintiffs in substance deal with the changed case they now wish to present, a case which I have found has no evidentiary basis.
183 During the hearing before me the Plaintiffs handed up a further Notice of Motion they wished to proceed on which included an application for subpoenas to be issued to a list of persons that included judges of the Family Court and also Doreen Muirhead who, despite the existence of her death certificate, the Plaintiffs refused to accept was dead. The Notice of Motion also sought to obtain leave to prosecute Ms Wikramanayake for perjury.
184 On the 4th day of the hearing before me, I was asked to let the Plaintiffs file an application to have Mr Robinson SC punished for contempt of Court and for attempting to pervert the court of justice. This was because he had read affidavit evidence, particularly that of Ms Wikramanayake, that the Plaintiffs consider is false.
185 I refused to permit the Plaintiffs to make these applications.
186 As mentioned earlier, the Plaintiffs made 9 applications during the course of the 8-day hearing for me to disqualify myself, none of which applications had any merit at all. Considerable amounts of time, in particular, were taken up by the applications for disqualification.
187 In related proceedings brought by Dragan Markisic against the Department of Community Services and others, including the Commonwealth (Dragan Markisic v Department of Community Services of NSW and Ors [2007] NSWCA 30) Bryson JA said at [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.
188 Bearing in mind those principles and in the light of the history of the matter I consider that it is appropriate to make the orders that the Commonwealth asks in this regard. What Bryson JA went on to say in paras [30] – [31] of that judgment and what Harrison J said in Markisic v Middletons Lawyers [2007] NSWSC 1147 at [34] is equally applicable in the present proceedings.
189 In my opinion, even though I intend to stay the proceedings generally, I consider it necessary to require the Plaintiffs to seek leave from a judge of the Court before any application is made whether orally or by Notice of Motion.
Abuse of process
190 A further and significant matter for the future of the proceedings is raised by reason of the failure or refusal of the Plaintiffs to verify the existing form of the Statement of Claim in the manner required by the Rules of Court. I raised this issue with Mr Robinson to ascertain if he was seeking a stay of the proceedings based on that failure or refusal but he informed me that he was not.
191 I also raised the issue with the Plaintiffs and they made some submissions on the matter.
192 One of the purposes of introducing the rule requiring verification of certain pleadings (the current version is found in Rules 14.22 to 14.24 UCPR) was to assist in the process of weeding out of baseless claims. The process was considerably enhanced by the insertion into the Legal Profession Act 1987 of what became Div 5C. That Division was, in substance, reproduced as Div 10 of the Legal Profession Act 2004. It imposed restrictions on solicitors and barristers providing legal services on claims for damages unless the legal practitioner concerned held the reasonable belief in the success of the claim or defence set out in s 345.
193 Quite plainly Div 10 only applies to legal practitioners and not to litigants who act in person. That perhaps emphasises, however, the importance of the rules associated with verification of pleading at least in the matters for which verification is required.
194 Although it might be said on behalf of the Plaintiffs in the present proceedings that verification is only required in respect of that part of the Statement of Claim that deals with trespass to the land, the repeated assertions by the Plaintiffs during the hearing of these Notices of Motion that they do not believe in a number of the principal allegations made in the existing Further Amended Statement of Claim and, that they will, in effect, be seeking to prove the opposite of those allegations (namely, that there were no orders of the Family Court, that the AFP were not involved, and that the child was not taken afterwards to DOCS) squarely raises the issue of abuse of process by the Plaintiffs in continuing with the present proceedings.
195 Although the Plaintiffs wished to alter the pleading of the Statement of Claim, for the reasons I have given earlier in this judgment, they produced no evidence of any significance to justify that course. The present form of pleading (the existing Further Amended Statement of Claim set out in para 30 above) is the case the Plaintiffs must prove to succeed in their claim. However, they have made it very clear that they will not attempt to prove the matters set out in that Statement of Claim because they no longer believe that they are true. The case they wish to bring is a case that I have held they are not permitted to bring because it is not based on evidence that should be allowed to go to trial. The position is not in any doubt in this regard, not only because of what the First Plaintiff said in his submissions (set out in para 84 above) but also because of the evidence filed by both Oliver and Dragan Markisic on the present motions. The Plaintiffs made it perfectly clear that that is the case they wish to present at trial.
196 Although the Commonwealth has not asked for a permanent stay there can be no doubt that the Court has the power to act if it is of the opinion that the proceedings constitute an abuse of process. Section 67 provides a statutory power to stay proceedings permanently but, in any event, the Court has an inherent power to control proceedings and such inherent power also extends to staying proceedings permanently on the basis that they are an abuse of process.
197 In Aon Risk Services Australia Ltd the Court was concerned with a late amendment application and the correctness of the High Court’s earlier decision in Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146. JL Holdings had distinguished Sali v SPC Limited [1993] HCA 47; (1993) 67 ALJR 841, a case which had emphasised proper principles of case management and how those principles impacted on the way individual proceedings were to be treated in terms of amendment and adjournment. Although JL Holdings did not overrule Sali, the emphasis on case management and the effect of amendments and adjournments on other litigants was certainly considered to have been diminished by the decision in JL Holdings.
198 Whilst the High Court in Aon did not expressly overrule JL Holdings it is made clear that the approach in JL Holdings is not to be at least generally regarded as the approach to be followed. So, for example, the plurality judgment said at [111]:
Statements in J L Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases. On the contrary, the statements are not consonant with this Court's earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future.
199 French CJ quoted with approval passages from the judgment in Sali which emphasised the importance of other litigants and the administration of justice generally. He referred to the joint judgments of Brennan, Deane and McHugh JJ where they said at 844:
What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources.
200 Toohey and Gaudron JJ said (at 849):
The contemporary approach to court administration has introduced another element into the equation or, more accurately, has put another consideration onto the scales. The view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard are pressing concerns to which a court may have regard.
201 French CJ also referred to what King CJ had said in Dawson v Deputy Commissioner of Taxation (1984) 71 FLR 364 at 366, that it was:
... the responsibility of judges to ensure, “so far as possible and subject to overriding considerations of justice", that the limited resources which the State commits to the administration of justice are not wasted by the failure of parties to adhere to trial dates of which they have had proper notice.
202 French CJ himself made reference to the fact that the Judicature Act Rules and what he referred to as “various Australian offspring” generally left the progress of proceedings to the parties because that was seen as an aspect of the adversarial system. He went on to say at [23]:
In this respect, however, the adversarial system has been qualified by changing practices in the courts directed to the reduction of costs and delay and the realisation that the courts are concerned not only with justice between the parties, which remains their priority, but also with the public interest in the proper and efficient use of public resources.
203 I acknowledge that the various statements in the cases to which I have referred have principally been concerned with amendment and adjournment. There is nothing in the passages, particularly from Sali and Aon, which confines those statements to such considerations. If there is a public interest in the proper and efficient use of public resources and if there is a concern about the failure of the limited resources provided for the administration of justice, those principles must be equally applicable to a situation such as the present.
204 A history of these proceedings shows the extent to which public resources within the Court have been put to enable the present proceedings to have advanced (if that is really the appropriate word) to the point that they have. If almost 9 years after these proceedings commenced the Plaintiffs are only in the position where they wish, in effect, to start again by the making out of a fundamentally different case in respect of which they have provided no credible evidence, it seems to me that the point has been reached where the Court must step in and say that the present proceedings constitute an abuse of process that is resulting in the limited resources provided to the administration of justice being squandered.
205 Whilst every regard must be given to impecunious litigants to pursue cases arising out of legitimate grievances notwithstanding their inability to pay the Court fees, not to mention legal costs of the other party where appropriate, the Court must now also have regard to the abuse of its generosity in permitting these Plaintiffs to have conducted the proceedings in the way they have throughout those almost 9 years.
206 I do not think it is appropriate at this stage to dismiss the proceedings because there is at least a faint possibility that the Plaintiffs may realise that it is in their best interests to pursue the case that Bell J and Patten AJ considered was at least an arguable case, and which forms the basis of the present form of the Statement of Claim. If I were to dismiss the proceedings at this point and the Plaintiffs realised that that was their better course, there would be a considerable waste of resources and likely limitation problems for the Plaintiffs in commencing new proceedings.
207 It is not, however, appropriate that the proceedings should progress any further in the present circumstances. The Plaintiffs will be at liberty to apply to have the permanent stay lifted but only in the event that they are prepared to prosecute the case set out in the Further Amended Statement of Claim filed on 23 July 2009, and they will seek leave in accordance with paras (5) and (6) of the Orders which follow.
208 If no attempt is made by the Plaintiffs to take that course it will obviously be open to the Commonwealth at some appropriate time to apply to have the proceedings dismissed.
Costs of the Plaintiffs’ Notices of Motion
209 The Plaintiffs have been wholly unsuccessful on their Notices of Motion and there is no reason why they should not be ordered to pay the Commonwealth’s costs of those Notices of Motion.
Conclusion
210 I therefore make the following orders:
(1) Dismiss the Plaintiffs’ Notices of Motion filed 25 July 2008, 2 July 2009, 27 July 2009, 1 September 2009 and the Amended Notice of Motion filed 3 August 2009.
(2) The Plaintiffs are to pay the Defendant’s costs of those Notices of Motion including the Amended Notice of Motion.
(3) The proceedings are permanently stayed.
(4) Order that the Plaintiffs are not to be allowed to file and are hereby restrained from filing and also from serving any Notice of Motion, and are not to be allowed to make and are hereby restrained from making any oral application in these proceedings without the leave of a judge of this Court.
(5) Order that in case the Plaintiffs shall, without the leave of a judge of this Court, 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 otherwise directed by a judge of this Court: 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.
(6) Leave pursuant to Order (5) 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 either party, unless the Judge otherwise directs.
(7) The Plaintiffs to pay the Defendant’s costs thrown away by reason of the failure of the Plaintiffs to comply with the orders of Registrar Bradford made 28 May 2008 and 11 July 2008 (excluding the costs of the Defendant’s Notice of Motion) assessed at $3000.
(8) The Plaintiffs to pay the Defendant’s costs of the Defendant’s Amended Notice of Motion assessed at $5000.
(9) In the event that the stay referred to in Order (3) is lifted the proceedings are further stayed until the Plaintiffs pay to the Defendant the sum of $1500 of the costs ordered to be paid in Orders (7) and (8).
(10) The Defendant’s Amended Notice of Motion is otherwise dismissed.
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LAST UPDATED:
25 February 2010
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