Markisic v Department of Community Services of New South Wales & Ors (No 2) [2006] NSWCA 321

New South Wales Court of Appeal

CITATION: Markisic v Department of Community Services of New South Wales & Ors (No 2) [2006] NSWCA 321 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 1 May 2006, 8 & 9 November 2006

JUDGMENT DATE: 23 November 2006

JUDGMENT OF: Giles JA at 1; Santow JA at 95; Ipp JA at 96

DECISION: A. On the application for leave to appeal: (1) Refuse leave to appeal save as stated in order 2; (2) Grant leave to appeal limited to leave to apply to re-plead the defamation claims, and (2.1) allow the appeal in that respect; (2.2) set aside the orders made on 21 June 2005 dismissing the proceedings against State of New South Wales and Commonwealth of Australia but only so far as the defamation claims were dismissed; (2.3) enter the proceedings in the Defamation List in the Common Law Division; (2.4) grant leave to apply to a judge in the Defamation List for leave to file an amended statement of claim re-pleading the defamation claims; (2.5) direct that the application in 2.4 be made within 21 days of today's date accompanied by the proposed amended statement of claim. B. On the application for leave to cross-appeal: (1) Grant leave to appeal and direct the filing of the notice of appeal within seven days; (2) Appeal allowed; (3) Set aside order 6 made on 21 June 2005; (4) Dismiss the proceedings against Commonwealth of Australia save as to the defamation claims. C. As to both applications and the appeal, order that Mr Markisic pay ninety per cent of the costs of the State of New South Wales, ninety per cent of the costs of Commonwealth of Australia and the whole of the costs of the other opponents. D. In these orders "the defamation claims" means the claims pleaded in paras [193]-[223] of MFI 1.