Oliver Markisic & Anor v Commonwealth of Australia [2007] NSWSC 201

New South Wales Supreme Court

CITATION : Oliver Markisic & Anor v Commonwealth of Australia [2007] NSWSC 201 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 26, 27 February 2007

JUDGMENT DATE : 9 March 2007

JUDGMENT OF : Patten AJ at 1

DECISION : See paragraph 26.

LEGISLATION CITED : Australian Federal Police Act 1979

CASES CITED : Asghar v Ahmed (1983) 17 HLR 25 R v Enever (1906) 3 CLR 969

Oliver Markisic - First Plaintiff PARTIES : Marika Markisic - Second Plaintiff Commonwealth of Australia

FILE NUMBER(S) : SC 20369 of 2001

COUNSEL : Mr O.Markisic (in person) - Plaintiffs Mr D Robinson SC - Defendant

SOLICITORS : Australian Government Solicitor - Defendant

- 9 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Patten AJ

9 March 2007

No: 20369 of 2001 Oliver Markisic & Anor v Commonwealth of Australia

JUDGMENT 1 Before the court are the Defendant's motion to strike out parts of the Further Amended Statement of Claim and the Plaintiffs' motion that the Defendant's motion be struck out as an abuse of process. 2 There have been a number of interlocutory hearings in this matter, most of which are recited in my judgment of 7 February last. It is unnecessary to repeat what I said then. Suffice to say that the Plaintiffs' motion, as I understand it, is based on the quite reasonable proposition that the relief now sought by the Defendant should have been sought in one of the earlier proceedings. For instance, before Greg James J in December 2002 there was an application which directly attacked the Further Amended Statement of Claim. However, so I was informed, it came before His Honour as duty judge in a very busy list. In the result, there was no detailed consideration of the matters agitated before me and His Honour was not called upon to deliver a judgment. The pleading was maintained, with the Plaintiffs confirming, as noted by His Honour, that they did not plead a cause of action outside the terms of paragraph 43 of the judgment delivered by Bell J on 13 August 2002. 3 Since the proceedings before Greg James J however, there have been two developments which I regard as significant, viz the parties have exchanged statements of witnesses and the Court of Appeal has delivered judgment in relation to a Statement of Claim in somewhat similar terms, filed by Mr Dragan Markisic, the brother and son of the present plaintiffs (Markisic v Department of Community Services of NSW and ors [2006] NSWCA 321, 23 November 2001). 4 Although there is, in my view, a good deal to be said for the position taken by the Plaintiffs on their motion, I have ultimately reached the conclusion that it should only be reflected in costs. This matter is to go for trial by jury and, in my opinion, it is very much in the interests of justice, particularly the saving of costs, that the issues be refined as much and as early as possible. Accordingly, I refuse to strike out the Defendant's motion. 5 Some of the relevant facts to be gleaned or inferred from the pleadings are not in dispute. On 29 September 1998, the Full Court of the Family Court (Nicholson CJ, Kay and O'Ryan JJ) made these orders: 1. That until further order a warrant issue authorising and directing the Marshall and Deputy Marshal of the Family Court of Australia and all officers of the Australian Federal Police and all officers of the Police Forces in the Commonwealth of Australia to take possession of the child Elena Markisic born 3 May 1997 and deliver such child to Tim McDonald, Manager St George CSC Department of Community Services, 390 Forrest Road Hurstville and that for the purposes of the exercise of the foregoing powers and with such assistance as is necessary and reasonable by force, to i) stop, enter and search any vehicle, vessel or aircraft; or