Markisic v Department of Community Services & 4 Ors [2005] NSWSC 1375

New South Wales Supreme Court

CITATION : Markisic v Department of Community Services & 4 Ors [2005] NSWSC 1375

HEARING DATE(S) : 14 July 2005

JUDGMENT DATE : 14 July 2005

JUDGMENT OF : Smart AJ at 1

DECISION : See para 19

LEGISLATION CITED : Nil

CASES CITED : Nil

PARTIES : Dragab Markisic v Department of Community Services of NSW & 4 Ors

FILE NUMBER(S) : SC 20698/00

COUNSEL : No appearance by arrangement

SOLICITORS : No appearance by arrangement

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SMART AJ

Thursday 14 July, 2005

20698/00: DRAGAN MARKISIC v DEPARTMENT OF COMMUNITY SERVICES OF NSW & 4 ORS JUDGMENT 1. On 21 June 2005 I reserved the question whether all or any of the defendants were entitled to costs on an indemnity basis. I was prepared to make orders for costs in favour of the defendants on a party and party basis. Since argument concluded Qantas has advised that it does not seek costs on an indemnity basis and that it will be content with costs on a party and party basis. 2. I raised with the defendants whether there was any point in seeking indemnity costs when the plaintiff appeared to be in receipt of Social Security payments and the Registry had waived the payment of fees. The plaintiff told me that he became a disability pensioner this year and that he has been on sickness benefits for seven years. The Commonwealth doctor had made the requisite recommendations. 3. The various defendants contended that they were entitled to indemnity costs and that they would subsequently determine whether to enforce any order in whole or in part when they had investigated his financial position. 4. It was again pointed out that because of the Crown Proceedings Act, s 5, the Department was not a proper defendant in the proceedings. The plaintiff had also joined the State of New South Wales. Both the Department and the State were represented by the same counsel and the same solicitor. The incorrect joinder did not add to the length of the hearing or materially increase costs. The incorrect joinder would not lead me to award indemnity costs. 5. The Department and the State contended that many of the matters raised in the proposed amended statement of claim, and upon which I have ruled, were discussed on the earlier application of the plaintiff to file an amended statement of claim and commented upon by Master Malpass. The Master pointed out that certain alleged causes of action did not exist and that in substance the proceedings were an abuse of process. 6. Counsel reminded me that in the proceedings before the Master she had supplied the plaintiff an outline of argument which substantially made the same points as to the conspiracy counts and the nervous shock claim that were made in the judgment of 31 May 2005. For example, see paras 15, 17 and 18 of counsel's outline before Master Malpass and paras 159 and 168 of the judgment. Further, in para 24 of the outline attention was drawn to an absolute privilege in the defamation cases. In para 175 of the judgment such a privilege is acknowledged. 7. The Department and the State complained that the plaintiff had not learnt from the proceedings before the Master and that they had had to return and re-argue the same matters. They had again succeeded. The defendant and the State accepted that while the wording of the proposed amended statement of claim differed from that in the document propounded before Master Malpass in respect of some of the causes of action the substance did not materially differ and the same points were argued. 8. The Commonwealth and the Trustees of the Roman Catholic Church (Centacare) adopted the arguments advanced on behalf of DOCS and the State. 9. In reply Mr Markisic repeated that I was biased against him. Mr Markisic told the court that because of the actions of the defendants and the effect they had had upon him, he became a disability pensioner and everything he had was destroyed. He had not had contact with or seen his child for seven years. He submitted that he had been greatly punished by the defendants. He lost his business and everything of value in his life. Every order made against him amounted to a punishment of him and oppression. 10. An order for costs which is made against a party is not a punishment. A losing party in civil proceedings usually has to pay the costs of the successful party. Costs usually follow the result of the action or application. 11. A litigant in person frequently experiences much difficulty in drawing pleadings and affidavits and representing himself or herself. This difficulty is magnified when the proceedings are complex. Where a party cannot afford legal representation and legal aid of any description is not available to a party such party is virtually forced to represent himself or herself. 12. The defendants received their costs of the application before Master Malpass. They were able to utilise much of the work that they had done for that hearing in the hearing before me. The plaintiff faced formidable difficulties in pleading his causes of action because of the unusual nature of many of them. This is not the fault of the defendants. Questions of law were raised. 13. The Court has a difficult balancing exercise to undertake. On the one hand there is no wish to discourage litigants by the fear of indemnity costs orders. On the other hand defendants should not be put to any unnecessary expense through sundry applications and actions which have little or no prospect of success. I am cautious about making indemnity costs orders against litigants who are unable to or are not working and are on a Social Security pension, such as a disability pension because of the discouraging effect of such orders. As I understand it the Social Security Authorities look at a person's assets before deciding whether to grant a pension. There may be cases where it is appropriate to make indemnity costs orders against a Social Security pensioner. For example, the plaintiff's case may plainly be without any merit or it may be malicious. The hearing before Master Malpass was expeditious but I doubt if the plaintiff would have absorbed fully the import of all that was said. The hearing before me was of a different kind with the parties, and particularly Mr Markisic, wishing to explore matters in much greater detail and at greater length. The plaintiff was entitled to have his case considered by a judge. While his application was an interlocutory one, the effect of the orders made is to dismiss his case as against DOCS, the State of New South Wales, Centacare (Trustees of Roman Catholic Church for the Archdiocese of Sydney) and Qantas Airways Limited. 14. I have given separate consideration to the question of the costs of the motion of 15 August 2003 (leave to file the proposed amended statement of claim) and those of the motion for reconsideration and disqualification. While I did not think that the motion for reconsideration and disqualification had any merit, the plaintiff correctly assumed that he should first ask me to disqualify myself on the ground of actual or apprehended bias. While this was, in my opinion, a borderline case, it falls marginally short of entitling the defendants to an order for indemnity costs. 15. I decline to make an order for indemnity costs. The usual costs order for payment of costs on a party and party basis should be made. In so concluding I have considered the case of each defendant individually. As no order was made permitting the joinder of A B Nicholson, A R O Rowlands and R S Flohm, they were apparently not served, did not appear and, so far as I am aware, incurred no expense, no order will be made as to their costs. DOCS and the State of New South Wales should receive their costs on a party and party basis. However, as they were represented by the one solicitor and the one counsel essentially there should be one set of costs between them but an extra allowance should be made for additional work and any additional expense incurred as a result of both of them being joined. 16. The Trustees of the Roman Catholic Church for the Archdiocese of Sydney (Centacare) should receive their costs of the application on a party and party basis as should Qantas. 17. The State of New South Wales raised the question of subpoenas to produce documents addressed to the NSW Attorney General, NSW Minister for Family and Community Services and the NSW Director General of DOCS (Ms Carmel Niland). Pursuant to a motion of 31 May 2004 it is sought to set these aside as it is contended that they were not issued for any legitimate forensic purpose. 18. There was no time left to deal with that matter on 21 June 2005 after a long and exhausting day. I have not seen the subpoenas. The applicants on the motion are at liberty to have it listed for hearing before the appropriate officer, if so advised. I was informed that the applicants would be seeking their costs of such an application and their costs in collating material in response to the subpoenas. 19. I make these orders: 1. The applicant plaintiff Dragan Markisic pay the party and party costs of his application for leave to file the proposed amended statement of claim (attached to the plaintiff's affidavit of 14 August 2003) and the costs of the motion for reconsideration and disqualification of: (a) DOCS and the State of New South Wales – essentially one set of costs but allowing for additional work, costs and expense incurred as a result of the joinder of DOCS.