Supreme Court New South Wales Medium Neutral Citation: Attorney General in and for the State of New South Wales v Markisic [2012] NSWSC 433 Hearing dates: 14 November 2011, 15 November, 2011, 16 November 2011, 15 March 2012 Decision date: 08 May 2012 Jurisdiction: Common Law Before: Schmidt J Decision: 1. The defendants' application for summary dismissal of the Attorney General's summons be dismissed. 2. The defendants' motions of 26 September 2011 and 16 November 2011 be dismissed, other than in relation to the documents referred to in order 4. 3. Leave to amend the Commonwealth's motion of 18 August 2011 is granted and the notices to admit facts and to produce documents served on the Commonwealth is set aside. 4. The correspondence referred to in Ms Kavanagh's affidavit of 8 March 2011 at paragraph [4] be produced. Catchwords: PROCEDURE - various motions and oral applications - application by defendants for summary dismissal of Attorney General's summons - application refused - motion seeking leave to issue subpoenas - refused - application for trial by jury - application previously heard and refused - leave sought to proceed on defendants' proposed statement of claim - leave not granted - notices to admit facts served on Attorney General - refused - summary judgment on notice to admit facts served on the Commonwealth - notice set aside - leave sought by Commonwealth to amend its motion to set aside notices to produce documents granted - motion to set aside notices to produce documents - granted - notices to produce served on Attorney General - motion seeking production of documents by Attorney General - production of certain documents required, motion otherwise dismissed Legislation Cited: Australian Federal Police Act 1979 (Cth) Civil Procedure Act 2005 Crimes Act 1900 Evidence Act 1995 Family Law Act 1975 (Cth) Interpretation Act 1987 Supreme Court Act 1970 Uniform Civil Procedure Rules 2005 Vexatious Proceedings Act 2008 Cases Cited: Ainsworth v Burden [2005] NSWCA 174 Attorney General in and for the State of New South Wales v Markisic [2011] NSWSC 1436 Attorney General v Chan [2011] NSWSC 1315 Attorney-General in the State of NSW v Markisic [2011] NSWSC 1304 Attorney-General in the State of NSW v Markisic [2011] NSWSC 1333 Bodikian v Sproule [2009] NSWSC 599; (2009) 72 ACSR 598 British American Tobacco Australia Ltd v Peter Gordon [2006] NSWSC 1473 Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 Frinty v Landmax Developments [2010] NSWSC 734 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 HML v R; SB v R; OAE v R [2008] HCA 16; (2008) 235 CLR 334 Portal Software v Bodsworth [2005] NSWSC 1115 Reichel v Magrath (1889) 14 App Cas 665 Sidebottom v Cureton) (1937) 54 WN (NSW) 88 Shaw v State of New South Wales [2012] NSWCA 102 Category: Procedural and other rulings Parties: Attorney General in and for the State of New South Wales - Plaintiff/First Cross Defendant Dragan Markisic - First Defendant/First Cross Claimant Oliver Markisic - Second Defendant/Second Cross Claimant The Commonwealth of Australia - Second Cross Defendant Representation: Counsel: Mr JS Emmett (Plaintiff) Mr DP Robinson SC (Second Cross Defendant) Solicitors: IV Knight, Crown Solicitor (Plaintiff) Oliver Markisic (In Person) Dragan Markisic (In Person) File Number(s): 2011/76594 Publication restriction: None Judgment 1By summons filed in March 2011 the Attorney General in and for the State of New South Wales ('Attorney General') sought orders under s 8(7) of the Vexatious Proceedings Act 2008 ('the Act'), prohibiting the defendants, Mr Dragan Markisic and Mr Oliver Markisic, from instituting proceedings in New South Wales, without leave of the Court. The summons was supported by an affidavit sworn by the Attorney General's solicitor, Ms Kavanagh. 2In June 2011 the defendants filed a first cross-summons. The defendants named were the Attorney General and the Commonwealth of Australia. Amongst other things what was there sought was directions for case management; interrogatories; a hearing by jury; declarations in relation to the conduct of various proceedings in State and Federal Courts; and that the Attorney General, the State of New South Wales, the Attorney General of the Commonwealth of Australia and the Commonwealth of Australia be declared vexatious litigants under the Act. Other relief sought was: * various declarations and orders in relation to various documents purporting to be copies of judgments given in various courts, which are annexed to Ms Kavanagh's affidavit. Various of these documents are alleged to be false, counterfeit, void, irregular or illegally obtained, against good faith or by fraud. * various declarations in relation to the conduct of various employees and agents of the State of New South Wales and the Commonwealth, who it is claimed conspired in 1998 to breach the Family Law Act 1975 (Cth) by taking the child Elena Markisic out of the country, while Family Law Act proceedings were pending. * declarations in relation to various judgments and transcripts of proceedings which are claimed to be fabricated or counterfeit. * declarations in relation to the conduct of various judges of this Court, alleged to involve, for example blackmail, insult, inducing the defendants to give false testimony, slander and the commission of various offences. * declarations in respect of the Commonwealth's counsel and solicitor. * a declaration that the NSW Attorney General's Department is a criminal organisation. * summary judgment in relation to torts and other claims pursued in other proceedings brought in this Court in 2000 and 2001 . * leave to proceed under s 338 of the Crimes Act 1900 in relation to the offence of perjury, in relation to named persons, including the Attorney General, the Crown Solicitor and Ms Kavanagh. 3The defendants have also made other applications, including: * a requisition for trial by jury, filed on 26 October 2011; * a motion filed on 26 September 2011 seeking amongst other things, orders for case management; leave to issue subpoenas to give evidence to named people; trial by jury; summary judgment in respect of certain notices to admit facts; the dismissal of the summons initiating the proceedings; summary judgment in tort; an assessment of damages by jury; and costs; * a motion filed on 20 October 2011 seeking amongst other things that the 26 September motion be dealt with; that orders made by the Registrar be set aside; that leave be granted to issue subpoenas to 54 named persons, including the former Prime Minister, John Howard and named former and sitting judges of various courts and that there be a trial by jury; * a motion filed on 7 November 2011 seeking amongst other things, orders for case management; for the Registrar's orders fixing a 3 day hearing to commence on 14 November to be set aside; and for the proceedings to be stayed pending hearing of an appeal from a judgment given by Rothman J on 28 October 2011; * various oral applications, including applications for the issue of certain warrants and subpoenas; * a motion filed on 16 November 2011 seeking the production of various documents; and * a motion filed on 14 March 2012 seeking leave to file a second cross-claim; orders that the Crown Solicitor and the solicitor on the record be removed from the proceedings on the basis of a conflict of interest; and that the Commonwealth's counsel and solicitor be removed on the basis of a conflict of interest. 4The Commonwealth filed a motion on 18 August 2011 seeking orders that notices to produce and a notice to admit facts served by the defendants be set aside. 5On 21 March 2012, the Attorney General filed a motion seeking orders that the questions raised by its summons be dealt with as a preliminary question. 6At the commencement of the hearing the defendants pressed to have their application for summary dismissal of the Attorney General's summons heard and determined, as well as other interlocutory applications, which had not previously been dealt with, before the Attorney General's summons was heard. I acquiesced to that course, over the Attorney General's objection. While it was anticipated that these applications could be shortly heard, that proved not to be the case. The defendants also pursued other oral applications, including repeated applications that I disqualify myself from hearing the matter. Those applications were all refused (see Attorney General in and for the State of New South Wales v Markisic [2011] NSWSC 1436). 7This judgment deals with the defendants' summary dismissal application, as well as various motions and reasons for refusal of an oral application made by the defendants at the hearing on 15 March 2012. It does not deal with the motions filed in 2012. The 20 October 2011 motion 8It is relevant to note that Rothman J gave judgment on 28 October 2011 in relation to the defendants' 20 October motion, refusing the defendants leave to issue the proposed subpoenas and the application for a trial by jury (see Attorney-General in the State of NSW v Markisic [2011] NSWSC 1304). 9On 7 November, his Honour gave a supplementary judgment, refusing an application brought by the defendants for reconsideration of the decision reached (see Attorney-General in the State of NSW v Markisic [2011] NSWSC 1333). His Honour there explained that he had refused leave to issue the proposed subpoenas because no forensic purpose or probative value of any evidence which the proposed witnesses could give, had been shown (at [6]). His Honour considered the exercise to be a 'fishing expedition' whereby the defendants sought to investigate suspicions which they held by compelling witnesses to attend and give evidence, without knowing the evidence they would give, or having a basis, other than suspicion, for an expectation as to the evidence that would be adduced (at [7]). The 7 November 2011 motion 10This motion, which included an adjournment application, was not pressed by the defendants. Order 3 sought a stay of these proceedings pending an appeal. No appeal has been filed against Rothman J's judgment. At the hearing the defendants elected to press their summary dismissal application and other interlocutory applications, which had not previously been dealt with. Oral applications 11During the course of the hearing the defendants made various oral applications, including disqualification applications, applications for the issue of warrants for the possession of certain computers, the issue of a subpoena to the Associate to Justice Rothman and for the production of certain documents. I declined various of those applications, for reasons discussed in Attorney General in and for the State of New South Wales v Markisic [2011] NSWSC 1436. For similar reasons and because I took the view that the defendants were either seeking to pursue irrelevant matters, or wished to engage in impermissible fishing expeditions, I also declined other oral applications made by the defendants, including that the Attorney General's counsel and others be called to give evidence about various matters. 12In the circumstances before the Court, where oral applications were repeatedly being made by the defendants during the course of their submissions, without prior notice, I took the view that the usual course, namely, filing a motion with a supporting affidavit, had to be adhered to by the defendants, if they wished to make further applications. Thus it was, for example, that I declined to permit the defendants to make an oral application that the Attorney General be required to produce various documents, they being dissatisfied with the response which they had been given in June 2011, to the notices to produce which they had served. 13The defendants then explained that they had not earlier pursued their dissatisfaction with the production given, by the filing of a motion, because they were impecunious unrepresented litigants, who were dissatisfied with the way in which they had been dealt with in the past, when they had made applications that the fees payable in respect of the filing of a motion would be waived. That dissatisfaction, they submitted, was a proper basis upon which the Court's discretion under Rule 18.2 should be exercised. That Rule provides: "18.2 Requirement for notice (cf SCR Part 19, rule 2; DCR Part 16, rule 2; LCR Part 15, rule 2) (1) A person may not move the court to make any order unless notice of motion has been filed and served on each person affected by the proposed order. (2) Despite subrule (1), a person may move the court to make an order without notice of motion having been filed or served on a person if: (a) that person consents to the making of the order, or (b) the preparation, filing or service of the notice would cause undue delay or other prejudice to the person by whom the order is sought, or (c) the court dispenses with the requirement for such notice to be filed or served, or (d) under these rules or the practice of the court, the motion may be made without the prior filing or service (as the case may be) of notice of motion." 14In my view the defendants' dissatisfaction with the way in which their past applications for fee waiver had been dealt with, was not a basis upon which the discretion granted by Rule 18.2 could be exercised. That did not provide a proper basis for departure from the usual course, which obliges a party who seeks interlocutory relief, to formulate the orders which are sought, to serve the motion and the supporting affidavit on the other party or parties to the proceedings, so that they may have an opportunity to consider what is sought and if it is to be opposed, to put on their evidence as to the matters in issue, before the parties are heard. That the discretion should not be exercised, as the defendants urged, was reinforced by the time at which this application was made, during the course of the defendants' submissions in support of their summary dismissal application. 15Despite this, at the hearing on 15 March 2012, the defendants announced that in a hearing before Price J, his Honour had made a ruling that a particular judgment on which the Attorney General wished to rely in these proceedings was not 'authentic'. The defendants sought an opportunity to lead evidence about this, which they argued was relevant to their summary dismissal application. This was resisted by the other parties, given the time at which the application was made. That his Honour had made such a ruling was also disputed. It was submitted that at this stage of these proceedings, the evidence which the Attorney General sought to rely on had to be taken at its highest. If there was such a ruling, it might be relevant at the hearing of the Attorney General's summons, but not on the defendants' summary dismissal application. 16I accepted those submissions, having in mind the onus which falls on the defendants on the summary dismissal application, which I will discuss below. The application would have necessitated a further adjournment so that the defendants could lead evidence as to the ruling, they having not taken any steps prior to the resumed hearing, to enable them to lead such evidence. It appeared that the disputed ruling applies to only one of the documents on which the Attorney General seeks to rely. It could not be determinative of the matters over which the parties have joined issue. In the circumstances, I was satisfied that the course for which the defendants pressed was not one which justice could permit, consistently with the requirements of the Civil Procedure Act 2005. The summary dismissal application The parties' cases 17The defendants sought that the Attorney General's summons be summarily dismissed in accordance with Rule 13.4 of the Uniform Civil Procedure Rules 2005, which provides: "13.4 Frivolous and vexatious proceedings (cf SCR Part 13, rule 5; DCR Part 11A, rule 3; LCR Part 10A, rule 3) (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1)." 18The defendants pressed their case for summary dismissal on various bases, including: * the terms of the initiating summons, which was said to be hopelessly deficient for various reasons, including that no particulars were there provided as to the basis upon which it was alleged that either defendant fell within the provisions of s 8(1) of the Act. The summons was said to be so deficient that it ought to have been rejected at the outset by the Registrar, who had erred and failed to meet his obligations, in not rejecting the document; * the Attorney General's ulterior purposes, namely, the pursuit of a vendetta against the defendants, they being unrepresented litigants, who it was hoped would be exhausted, so that they would give up their ongoing litigation against the Commonwealth and the State of New South Wales; and to cover up wrongs perpetrated against the Markisic family since 1998; * the alleged repeated misconduct of various persons, including Mr Ian Knight, the Crown Solicitor and others purportedly representing the Attorney General; * that there was no evidence that while these proceedings had been brought in the name of the Attorney General, he had authorised the application; * the absence of any evidence that the various alleged proceedings existed; * the reliance on inadmissible evidence and false documents, namely purported judgments obtained inappropriately as the result of wrongdoing; and the failure to place before the Court transcripts of the relevant proceedings; or to call evidence from people who had witnessed the publication of the alleged judgments, which could only be proven by production of an original document, not by a copy; * the failure of the Attorney General and the Commonwealth to respond to notices to admit facts which had been served upon them, in accordance with the requirements of the Rules, with the result that the defendants were entitled to a judgment in their favour on those facts under Part 17 of the Rules and, in addition, to have the Attorney General's summons dismissed; * the requirements of the Evidence Act 1995 as to proof of matters in issue, including s 157 in relation to proof of court documents, including judgments on which the Attorney General wished to rely; * the absence of evidence as to the defendants' conduct in various proceedings, other than by what was contained in alleged judgments, by which the Attorney General would be unable to prove the matters lying in issue between the parties; and * the nature of the Attorney General's past conduct towards the defendants, in relation to a range of matters. 19The defendants put in issue the authenticity of most of the judgments and orders on which the Attorney General wishes to rely, submitting that the documents relied on could not establish the case sought to be advanced, their authenticity being disputed and they being in any event, inadmissible. Their case was that they had shown that the Attorney General could not succeed against them, both because of pleading deficiencies in the summons on which the Attorney General seeks to proceed and because the evidence on which the Attorney General seeks to rely is not admissible or relevant and even if it was, could not establish a basis for the orders sought. 20The Attorney General seeks to establish that the defendants have frequently been involved in vexatious proceedings. That case is sought to be proven by the tender of various judgments. 21For the Attorney General, it was explained that the cases sought to be advanced against the two defendants are not identical. They were not both parties to all of the litigation on which the Attorney General wishes to rely. It was also explained that the application rests on a history of vexatious proceedings in which the defendants have each been involved. In such proceedings, it was explained, the defendants had been involved in conduct which fell within the definition of vexatious proceedings in the Act. For example, they had made repeated applications to various judges, seeking reconsideration of rulings made or judgments given, indicative of an inability to accept decisions made; they had made repeated disqualification applications to a wide range of judicial officers; they had frequently sought to pursue criminal prosecutions of persons involved in various proceedings, including contempt proceedings; and they had made frequent applications in respect of the issue of subpoenas against a large number of people, which had been repeatedly rejected. 22What must be established, before the orders sought by the Attorney General may be made, is provided for in s 8 of the Act. That section provides: "8 Making of vexatious proceedings order (1) When orders may be made An authorised court may make an order under this section (a vexatious proceedings order) in relation to a person if the court is satisfied that: (a) the person has frequently instituted or conducted vexatious proceedings in Australia, or (b) the person, acting in concert with a person who is subject to a vexatious proceedings order or who is referred to in paragraph (a), has instituted or conducted vexatious proceedings in Australia. (2) For the purposes of subsection (1), an authorised court may have regard to: (a) proceedings instituted or conducted in any Australian court or tribunal (including proceedings instituted or conducted before the commencement of this section), and (b) orders made by any Australian court or tribunal (including orders made before the commencement of this section). (3) An authorised court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard. (4) Orders may be made on court's own motion or on application An authorised court may make a vexatious proceedings order of its own motion or on the application of any of the following persons: (a) the Attorney General, (b) the Solicitor General, (c) the appropriate registrar for the court, (d) a person against or in relation to whom another person has instituted or conducted vexatious proceedings, (e) a person who, in the opinion of the court, has a sufficient interest in the matter. (5) An application for a vexatious proceedings order may be made by a person referred to in subsection (4) (e) only with the leave of the authorised court. (6) A judicial officer, member or registrar of a court or tribunal may make a recommendation to the Attorney General that he or she consider making an application for a vexatious proceedings order in relation to a specified person. (7) Orders that may be made by Supreme Court The Supreme Court may make any one or more of the following vexatious proceedings orders in relation to a person: (a) an order staying all or part of any proceedings in New South Wales already instituted by the person, (b) an order prohibiting the person from instituting proceedings in New South Wales, (c) any other order that the Court considers appropriate in relation to the person." 23The Attorney General will seek to establish that while not all of the litigation in which the defendants have been involved are 'vexatious proceedings', as defined in s 6(a)(b) and (c) the Act, the litigation does fall within the definition, because of the defendants' conduct, being conduct which falls within s 6(d). The definition provides: "6 Meaning of "vexatious proceedings" In this Act, vexatious proceedings includes: (a) proceedings that are an abuse of the process of a court or tribunal, and (b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and (c) proceedings instituted or pursued without reasonable ground, and (d) proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose." 24The defendants are approaching the proceedings on the basis that the Attorney General is to be put to strict proof of the matters sought to be established against them, including in relation to the authenticity of the documents sought to be relied on. Even so, the defendants are obliged to act in accordance with their obligations under the Civil Procedure Act 2005, as provided in s 56(3) and (3A) as follows: "(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. (3A) A party to a civil dispute or civil proceedings is under a duty to take reasonable steps to resolve or narrow the issues in dispute in accordance with the provisions of Part 2A (if any) that are applicable to the dispute or proceedings in a way that is consistent with the overriding purpose." 25In that respect, it is relevant to note that the defendants' initiating process, affidavits on which they relied and submissions which they have advanced, referred to litigation in which they have been involved since 1998, litigation in which, on that material, it appears that various judgments and orders have been made. 26In affidavits sworn by Mr Dragan Markisic, for example, reference is made to proceedings in which he and his brother have been involved, including defamation proceedings brought in 1999 against various publishers; proceedings brought in 2000 against various parties including the State of NSW, the Department of Community Services of NSW, Qantas and the Catholic Church and in 2001 against the Commonwealth. He also refers to various litigation in which he was involved in the Family Court and in the Court of Appeal. Mr Dragan Markisic gives an extensive explanation of what he said occurred in those proceedings. In written submissions which the defendants later advanced, reference is also made to proceedings commenced by Mr Dragan Markisic in 1998 in the Family Court, as well as proceedings which both defendants commenced in this Court in 2004. 27Given the provision of the Rules and relevant authorities as to the effect of admissions made by a party, whether express or implied, it is not readily apparent that the Attorney General will not be able to establish that the defendants have been involved in litigation and that judgments and orders have been made in such proceedings (see Rule 17). Whether or not the Attorney General can establish that any of the proceedings in issue were vexatious proceedings, as defined, is a different matter. 28In their written submissions the defendants complained that during the course of receiving submissions I had already found that the disputed documents establish that there had been proceedings on foot. Reference was made to my observation that: "HER HONOUR: Mr Markisic, these submissions are directed to what the Attorney General says will be able to be proved by the documents which appear in annexures to exhibit 1 if they are received at trial. Now I'm being taken to the written submissions which appear at MFI 4, at paragraph 17 where it is said that there were Family Court proceedings in 1998. The one thing which is clear from your own affidavits is that there were proceedings in the Family Court." 29This was an observation directed to an objection taken, as soon as the Attorney General's counsel turned to address written submissions which had been filed, which sought to explain what it was claimed that the documents relied on would establish, such as, for example that a criminal prosecution had been brought against the former Chief Justice of the Family Court, which had been dismissed. Amongst other things, the defendants were concerned that these submissions amounted to evidence being given from the bar table. They thus resisted, by repeated objections to the same effect, the submissions being put, alleging amongst other things that the Attorney General was engaging in tricks; a flagrant abuse of process; and an attempt to establish a basis for the submissions on their summary dismissal application, to be later used as evidence in the proceedings. 30It was also submitted that 'the Attorney cannot make submission about matters as if it is proven that they are facts' and that because facts asserted in the summons cannot be proven, it must be dismissed. 31None of those objections were accepted, although I eventually observed, given the way in which the cases were being advanced, that I might later receive submissions as to the way in which the parties had respectively conducted themselves in these proceedings. 32The observation about which the defendants complained itself reveals that there was no finding then made about any proceedings, merely an observation about matters revealed in the defendants' own documents. The observation led to the following exchange, which sheds some light on the defendants' approach to their pursuit of their summary dismissal application: "FIRST DEFENDANT: Don't take -- HER HONOUR: There is -- FIRST DEFENDANT: Don't take my affidavit to prove the material facts for the Attorney General, your Honour, with respect. HER HONOUR: Mr Markisic FIRST DEFENDANT: He has to provide his own evidence to prove his case. HER HONOUR: Mr Markisic, I have to decide what arises before me on all of the evidence which is before me, no matter who has led the evidence -- FIRST DEFENDANT: With respect, that is not the case. HER HONOUR: -- and I am not going to engage in a debate with you. Please take a seat. SECOND DEFENDANT: Also please, your Honour, I would like to add that he cannot Mr Emmett cannot rely in his submissions on the facts in the judgments to rely on them as if proved. The law says the facts in the judgment are not facts which can be proven by those judgments, so that's not open. FIRST DEFENDANT: For these proceedings. HER HONOUR: Mr Markisic, that is a debate which you will have. Please take a seat. SECOND DEFENDANT: Yes, thank you. FIRST DEFENDANT: Your Honour, he can make a perjury from bar table. HER HONOUR: Mr Markisic-- FIRST DEFENDANT: If this is a federal proceedings because of the involvement of the Commonwealth, involvement of the federal laws, any tendering of any kind of material facts from bar table or witness box or orally or in written form is the same. HER HONOUR: Mr Markisic, please take a seat. I have heard your objection, I don't uphold it. Please take a seat. FIRST DEFENDANT: But I am telling you HER HONOUR: Please take a seat. FIRST DEFENDANT: --they are going to commit perjury. HER HONOUR: Please take a seat. FIRST DEFENDANT: And you have to protect us from crime. EMMETT: Your Honour, the evidence in support of paragraph 17 appears behind tabs A1 and A3 of the two volume exhibit. A1 is the decision of Judicial Registrar Johnston and A3 is the decision of Justice Rowlands. Behind A8 is the decision of the Full Family Court, Chief Justice Nicholson, Justice Kay and Justice O'Ryan, in which the Full Family Court dismissed Mr Dragan Markisic's appeal from Justice Rowlands' decision. That is behind tab A8. Mr Dragan Markisic appealed to or sought a stay of Justice Rowlands' order from the High Court pending special leave to appeal and Justice Gaudron appealed that application on 13 October and the evidence of that is behind tab A10. FIRST DEFENDANT: Your Honour, there is no application at all before the Family Court he's referring to. HER HONOUR: I understand that's your case. FIRST DEFENDANT: But what he is putting, some material facts which never happened. HER HONOUR: Mr Markisic, that's your case. FIRST DEFENDANT: That's not my case, that's the truth. HER HONOUR: That's your case and -- SECOND DEFENDANT: Your Honour, that's only evidence before your Honour. There is no evidence contrary to our evidence, so he cannot put any evidence contrary to our evidence if he didn't put the evidence before your Honour, so it's only our evidence before your Honour. HER HONOUR: Mr Markisic, the objection is the same. I didn't accept it, I don't accept it now. FIRST DEFENDANT: I am asking you don't listen such evidence through submissions. HER HONOUR: Please take a seat. FIRST DEFENDANT: I heard many judges in this Court is asking straightaway, "Do we have any evidence what you've stated?" HER HONOUR: Mr Markisic FIRST DEFENDANT: I heard judges saying to the legal representative, "Are you prepared to put in affidavit what you've stated to me in written submissions in relation to formal proceedings?" HER HONOUR: Mr Markisic -- FIRST DEFENDANT: Why you not saying that, your Honour? HER HONOUR: You can't interrogate me. I don't accept the objection. Take a seat. FIRST DEFENDANT: I make an application for disqualification, your Honour. HER HONOUR: I won't hear that application right now. We will return to it at the end of the submissions. FIRST DEFENDANT: Thank you." The defendants' application must be refused 33An onus fell upon the defendants to make out the case which they advanced in support of their application that the Attorney General's summons be summarily dismissed. If that onus is not satisfied, the application must be refused. It is not for the Attorney General yet to prove the case advanced in the summons, but for the defendants to establish that there is no real question to be tried, taking the Attorney General's case against them at its highest. 34For reasons which follow, I am satisfied that the summary dismissal application must be refused, the defendants not having satisfied the onus which falls upon them. The defendants have not established that the Attorney General's summons raises no real question to be tried. The test 35The test is that discussed in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129. It was observed (at [8] - [9]): "The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense". At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance"." 36The test has recently been discussed again in Shaw v State of New South Wales [2012] NSWCA 102 at [30] - [32]. Summary dismissal is a jurisdiction which may only be used in a clear case. It is only if a clear decision can be reached, which could not be affected by any evidence led at trial, that the order sought may be made (see Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 84 per Latham CJ (at [26])). Such an order is not appropriate where there is any serious conflict as to any matter of fact, as there clearly is in this case (see Sidebottom v Cureton (1937) 54 WN (NSW) 88). 37In considering whether the onus which falls upon the defendants has been met, the Attorney General's case must be approached on the basis that at this stage, the evidence sought to be relied on must be taken at its highest (see, for example, Austen J's discussion in Bodikian v Sproule [2009] NSWSC 599; (2009) 72 ACSR 598 at [2] - [4].) 38The requirements of the Civil Procedure Act must also be considered. It requires that in the management of proceedings before it, the Court follow the dictates of justice, having in mind the overriding purpose established in s 56, namely facilitating the 'just, quick and cheap resolution of the real issues in the dispute or proceedings' and having in mind the efficient disposal of the business of the Court, the efficient use of available judicial and administrative resources, the timely disposal of the proceedings, and other proceedings in the Court, at a cost affordable by the respective parties. 39The obligations which the Civil Procedure Act imposes on the parties by s 56 must also be born in mind. The evidence 40Evidence was led by the defendants and by the Attorney General. Ms Kavanagh, the Crown Solicitor with carriage of the matter, was required for cross-examination, as to the circumstances in which she was sent an email document from Rothman J's Associate. Mr Dragan Markisic also gave some oral evidence about what had transpired in proceedings before his Honour and his later communications with his Honour's Associate. As it transpired that evidence shed but little light on what now arises to be resolved. Pleading deficiencies 41The defendants' case was that it was the Attorney General who was acting vexatiously, by failing to identify in the summons the case which would be advanced against them. The originating process was argued to be embarrassing, because it did not disclose the nature of the case to be brought. This defect, it was submitted, could not be corrected by the evidence sought to be relied on, or by the submissions advanced. The summons should be struck out, it was explained in reply, because the defendants had not been put on notice of what would be put against them. 42I am satisfied that these submissions may not be accepted. 43The relief claimed in the originating summons filed in March 2011 is: "1. Orders pursuant to s.8(7)(b) of the Vexatious Proceedings Act 2008 prohibiting the first defendant from instituting proceedings in New South Wales without leave of the Court. 2. Orders pursuant to s.8(7)(b) of the Vexatious Proceedings Act 2008 prohibiting the second defendant from instituting proceedings in New South Wales without leave of the Court. 3. Such further or other order as the Court considers appropriate. 4. Costs." 44The summons does not provide particulars of the basis upon which it is claimed that the relief sought may be granted. That is, the summons does not specify the matters which will be relied on to establish a basis for the orders sought under s 8(7) of the Act. The summons is, however, sought to be supported by Ms Kavanagh's 27 March affidavit, which was also served on the defendants, to which is annexed two volumes of judgments and orders on which the Attorney General seeks to rely. 45That approach accords with the requirements of the Rules. Proceedings may be commenced by two types of initiating process, a statement of claim or a summons. Proceedings brought under the Act are not required to be commenced by statement of claim (see Rule 6.3). Rule 6.4(1)(i) requires them to be commenced by summons. While Part 15.1 of the Rules requires that a 'pleading' must provide particulars of a claim, that requirement does not apply to a summons, which is not a 'pleading' as defined in the Dictionary to the Rules. 'Pleading' is there defined as: "... includes a statement of claim, defence, reply and any subsequent pleading for which leave is given under Part 14, but does not include a summons or notice of motion." 46As discussed by Brereton J in British American Tobacco Australia Ltd v Peter Gordon [2006] NSWSC 1473 at [8]: '... cases are conducted on Summons alone and in such a case, the issues are determined by the relief claimed, the law that relates to that relief claimed, and the affidavit or other evidence deployed in support of or against it.' 47Rule 6.12 requires that the relief claimed be specified in the summons. What is sought in this case is identified in the summons, namely orders under s 8(7) prohibiting the defendants from instituting proceedings in New South Wales, without leave of the Court. Under the Act, such orders may only be made in the circumstances dealt with in s 8, relevantly in this case, s 8(1)(a), which provides that such orders may only be made if the Attorney General establishes that each of the defendants have frequently instituted or conducted vexatious proceedings in Australia. That is what is sought to be established by the documents annexed to Ms Kavanagh's affidavit. That is the only question which arises for determination on the summons, in the case of each defendant. If that is established, the Court's discretion to make the orders sought will be enlivened. 48In the circumstances, there is no deficiency in the approach adopted by the Attorney General to the initiation of the proceedings. The defendants did not seek any particulars of the Attorney General's case. The nature of that case was revealed both by the summons and Ms Kavanagh's affidavit. It has now also been extensively explained in the submissions advanced on the summary dismissal application. The defendants are undeniably on notice of what is alleged against them and how the Attorney General seeks to establish the case advanced. 49The defendants dispute that the case so advanced against them can be established on the documents on which the Attorney General seeks to rely. There is no basis, however, in the alleged pleading deficiencies, for the summary dismissal of the Attorney General's summons. The construction of the Act 50The Attorney General seeks to rely on the documents in question, in order to establish, in accordance with s 8(1) of the Act that the defendants have 'frequently instituted or conducted vexatious proceedings in Australia'. 51The defendants dispute the relevance and authenticity of various of those documents to that question. They also submit that s 8(1) of the Act only relates to proceedings which themselves are vexatious, that is proceedings which they have themselves commenced. Their case is that their conduct in proceedings commenced by others, is not relevant to the Attorney General's application. In their written submissions they argued that the Attorney General was behaving as a vexatious litigant in the construction of the Act advanced, seeking to intimidate the Court into granting something not available to be gained. By a detailed analysis of the submissions advanced for the Attorney General, it was argued that it was apparent from questions which I had asked and how they were answered, that the Attorney General was seeking to bully his way out of the difficulty which existed with the pleadings. 52In reply the defendants also argued that it is only State proceedings which are relevant to the Attorney General's application and that any Federal proceedings in which they have been involved, are irrelevant. 53The last submission may immediately be disposed of. The Act does not have the limitation for which the defendants contend. Not only does s 8(1) refer to proceedings 'in Australia', the word 'proceedings' is widely defined in s 4 of the Act. It is not limited to proceedings before a State Court. The definition provides: "4 Meaning of "proceedings" In this Act, proceedings includes: (a) any cause, matter, action, suit, proceedings, trial, complaint or inquiry of any kind within the jurisdiction of any court or tribunal, and (b) any proceedings (including any interlocutory proceedings) taken in connection with or incidental to proceedings pending before a court or tribunal, and (c) any calling into question of a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way." 54Given the definition of 'vexatious proceedings' in s 6(d) as including 'proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose', the submission that it is only proceedings which the defendants have commenced and which fall within the definition of vexatious proceedings in s 6(a), (b) or (c), on which reliance can be placed by the Attorney General, may also not be accepted. 55If there has been conduct on the part of the defendants falling within the definition in s 6(d), in any Australian proceedings, as defined, whether or not the defendants commenced the proceedings and whether or not the proceedings themselves are vexatious, because they fall within s 6(a), (b) or (c) of the definition, such conduct is relevant to the application which the Attorney General has made. 56It follows that the conclusion that the documents on which the Attorney General seeks to rely are irrelevant to the matters lying in issue between the parties, even if otherwise admissible, given the proper construction of the Act, may not be accepted. If the documents on which the Attorney General seeks to rely evidence conduct falling within s 6(d), then they will plainly be relevant. The admissibility of the disputed documents 57The Attorney General seeks to rely on judgments and orders given in various proceedings to establish the case pursued. Copies of those judgments and orders are said to be annexed to Ms Kavanagh's affidavit. 58The defendants' case is that the Attorney General cannot prove the case brought against them simply by the tender of judgments and orders and that, in any event, many of the documents purporting to be judgments and orders are fabricated, counterfeit documents, including documents which purport to be judgments given by members of this Court. In some cases it is alleged that judgments are the result of fraud, or that they were obtained on the basis of false evidence; in other cases that they were not produced in accordance with the requirements of the relevant Court's Rules and that, accordingly, they are not judgments of those courts. Other documents are argued not to be admissible, because they are not original judgments either signed or sealed as s 157 of the Evidence Act requires. The defendants also rely on the provisions of s 91 of the Evidence Act and Rule 36 of the Uniform Civil Procedure Rules. 59In their written submissions, by reference to each document annexed to Ms Kavanagh's affidavit the defendants explained why the documents were not admissible, because, for example they had not been sealed, or signed by a judge or Registrar of the relevant court and were thus inadmissible, given the requirements of s 157 of the Evidence Act. 60Section 157 provides: "157 Public documents relating to court processes 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." 61Rule 36 relevantly provides: "36.2 Written reasons for judgment (cf SCR Part 40, rule 2; DCR Part 31, rule 9; LCR Part 26, rule 2) (1) If the court gives any judgment, or makes any order or decision, and its reasons for the judgment, order or decision are reduced to writing, it is sufficient for the court to state its judgment, order or decision orally, without stating the reasons. (2) After a judgment, order or decision has been stated orally under subrule (1), a written copy of it, including the court's reasons for it, must then be delivered to an associate, registrar or some other officer of the court for delivery to the parties or may instead be delivered directly to the parties. "36.3 Reserved decision (cf DCR Part 2A, rule 7, Part 31, rule 10) (1) If in any proceedings a judicial officer reserves his or her judgment or decision on any question, he or she: (a) may give the judgment or decision, either in open court or in the absence of the public: (i) at the venue for those proceedings, or (ii) at any other place at which he or she is authorised to hear or dispose of those proceedings, or (b) may reduce the judgment or decision to writing, sign it and forward it to the registrar at the venue for the proceedings. (2) If a registrar receives a judgment or decision forwarded under subrule (1) (b): (a) the registrar must appoint a time for the judgment or decision to be read, and (b) the registrar must give at least 24 hours' notice to the parties, in writing or otherwise, of the appointed time, and (c) at the appointed time, the judgment or decision must be read by another judicial officer of the court, or by the registrar, whether or not the court is sitting at that time. (3) A judgment or decision given under subrule (1) (a) or read under subrule (2) (c) takes effect on the day on which it is so given or read and is as valid as if given by the judicial officer at the hearing of the proceedings to which the judgment or decision relates. (4) Rule 36.2 applies to a judgment or decision referred to in this rule in the same way as it applies to a judgment or decision referred to in that rule. 36.4 Date of effect of judgments and orders (cf SCR Part 40, rule 3; DCR Part 31, rule 13A (2)) (1) A judgment or order takes effect: (a) as of the date on which it is given or made, or (b) if the court orders that it not take effect until it is entered, as of the date on which it is entered. (2) Despite subrule (1), if an order of the court directs the payment of costs, and the costs are to be assessed, the order takes effect as of the date when the relevant cost assessor's certificate is filed. (3) Despite subrules (1) and (2), the court may order that a judgment or order is to take effect as of a date earlier or later than the date fixed by those subrules." 62The Attorney General's position was that its case could be established other than by tender of a court file or an original judgment. It was explained that the Attorney General intended to establish, by the tender of the documents annexed to Ms Kavanagh's affidavit, the views of the judicial officers who had dealt with the proceedings, of the defendants' conduct in the proceedings. The Attorney General would also rely on the defendants' conduct in these proceedings, to establish the case advanced. 63An explanation was given as to why the Court would come to accept the authenticity of the documents sought to be relied on, given the proper construction of various sections of the Evidence Act, which permits evidence of a judgment to be given by the tender of a document which satisfies the requirements of s 157, or by other means there provided. 64In the case of some of the documents, they were submitted to be judgments which were admissible under s 157. Other of the documents were said to be admissible, given the provisions of s 48 Proof of contents of documents and s 153 Gazettes and other official documents. It was also explained that in order to advance the case, the Attorney General would rely on the provisions of s 183 Inferences of the Evidence Act. 65It was also explained that the documents were sought to be relied on for a non-hearsay purpose, that is, to establish statements of opinions expressed by judicial officers about the defendants' conduct in proceedings before that judicial officer. They were accordingly admissible under s 60 of the Evidence Act. Section 64 of that Act, which provides an exception to the hearsay rule, would also be relied on, it being foreshadowed that notices under s 67 of the Evidence Act would be given, judges not being compellable to give evidence in the absence of leave (see 16(2) of the Evidence Act). 66The defendants dispute that the Attorney General can establish a case against them in this way. They rely on s 157 and s 91 of the Evidence Act. Their case is that the other provisions of the Evidence Act on which the Attorney General seeks to rely are not relevant. 67Whether or not these issues will be resolved in the manner for which the defendants contend, does not arise for determination at this stage of the proceedings. What the defendants have to show is that the case which the Attorney General seeks to bring against them, does not admit of reasonable argument. That has not been established. 68Amongst other things, the matters over which the parties join issue involve questions of the proper construction of the Evidence Act. The arguments advanced for the Attorney General as to these matters have not been shown to be obviously untenable. It follows that these are matters about which the parties must be heard, in the context of the particular documents sought to be relied on. They may not simply be dismissed as groundless, at this stage of the proceedings. 69Whether or not the contents of the documents, if admitted, will prove the case which the Attorney General seeks to establish is another matter, which can only be determined once the admissibility of the various documents in issue has been resolved. At this stage, the matter must be approached on the basis of the Attorney General's case being taken at its highest. On that basis, the evidence on which the Attorney General wishes to rely may not be dismissed as simply irrelevant and incapable of establishing the case sought to be advanced. 70To the contrary, that the defendants on their own cases have been parties to various proceedings since proceedings in the Family Court in 1998 involving Mr Dragan Markisic, suggests that the real issues in the proceedings are, in reality, somewhat narrower than the defendants' submissions suggest. It is the authenticity and admissibility of the documents sought to be relied on and what they may prove, over which the parties differ and which must be resolved. 71This is not the time to come to any conclusions about these matters. It is however, pertinent to note that the defendants rely on s 91 of the Evidence Act. The section provides: "91 Exclusion of evidence of judgments and convictions (1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding. (2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose." 72In its terms this section does not preclude a judgment being tendered as evidence in other proceedings. To the contrary, it is settled that a judgment may be tendered in other proceedings in order to establish things other than the truth of the facts found in the proceedings (see Ainsworth v Burden [2005] NSWCA 174 at [109]). The no evidence submission 73The defendants argued that the Attorney General's case that they had engaged in conduct falling within s 6(d) of the Act could not be proven by reliance placed on judgments, but would require evidence to be led from people who had observed the alleged conduct. 74For the Attorney General it was explained that reliance would be placed on the approach of Adamson J in Attorney General v Chan [2011] NSWSC 1315 at [46] - [47]: "46 The evidence adduced by the Plaintiff comprises, in the main, judgments and decisions of tribunals in respect of proceedings in which the Defendant is involved. The Plaintiff, in the absence of the Defendant, but noting the Defendants' objection to the admissibility of such judgments, contended that the judgments were not tendered for the purpose of establishing a tendency on the part of the Defendant. Furthermore, Mr Emmett submitted that the tender, and use, of the judgments relied upon did not infringe s 91 of the Evidence Act 1995 (NSW), which relevantly provides that evidence of the decision or a finding of fact in an Australian proceedings is not admissible to prove the existence of a fact that was in issue in the proceedings. He contended that the judgments were adduced to establish matters other than facts in issue in the proceedings: namely, the outcome of the proceedings and the course they had taken. Furthermore, he contended, in so far as they contained judicial statements that reflected the views of judicial officers of the Defendants' conduct or the merit of the proceedings, they were relevant for the reasons set out in the authorities referred to above. 47 I accept the Plaintiff's submissions. The judgments establish the procedural matters and the outcome of various applications made by, and against, the Defendant, in the proceedings relied upon by the Plaintiff. Furthermore, they also record the Defendants' conduct in the course of the proceedings. These matters do not constitute findings of facts in issue in the proceedings. Whether such judgments contain statements which express judicial views on the merit, or otherwise, of the Defendants' stance in proceedings, the judgments are the best, if not the only, evidence of such views. Accordingly, I admitted the evidence tendered by the Plaintiff, notwithstanding the Defendants' objection on that basis. Nonetheless I am cognisant of s 91(1) and have not used such judgments for the proscribed purpose." 75The defendants argued that her Honour's approach was wrong and was one which would not be followed in this case, with the result that the Attorney General would have no evidence to rely on. That question may also not be resolved at this stage of the proceedings. What her Honour's conclusions reveal, however, is that the Attorney General's approach of seeking to establish matters on which it wishes to rely as to the defendants' conduct, by reference to judgments given in proceedings in which the defendants have been involved, is not an obviously untenable one. To the contrary, it is an approach which has been accepted in other proceedings brought under the Act. 76It follows, in the circumstances, that it must be concluded that the defendants have not established that there is no real question to be tried, in respect of the matters over which the parties have joined issue; nor have they satisfied the General Steel test. In the result their application for summary dismissal of the Attorney General's summons must be refused. The 26 September motion 77If the Attorney General's summons is to proceed, the defendants pressed order 2 of this motion, that being an application for leave to issue subpoenas that 52 people give oral evidence in the proceedings. The defendants made a similar application in relation to 54 named people in the motion dealt with by Rothman J, many of them referred to again in this motion. In short, his Honour refused that application, the defendants not having satisfied him that there was any forensic purpose in the calling of these people; that there was no likely probative value in evidence which might be called from them; and that the application was a fishing expedition, embarked on when the defendants did not know what evidence such witnesses might give. 78They also sought to press order 3, by which they sought an order for trial by jury. Order 4 was an order dismissing the Commonwealth's motion. Orders 5 and 6 sought summary judgment in their favour against the Attorney General and the Commonwealth, on the basis of admitted facts. Order 7 sought the summary dismissal of the Attorney General's summons. Order 8 dealt with costs. Order 9 sought leave to proceed on a statement of claim annexed to an affidavit sworn by Mr Dragan Markisic; orders 10 and 11 sought summary judgment against the Attorney General and the Commonwealth on that statement of claim and order 11, trial by jury as to the assessment of damages against the Attorney General and the Commonwealth. 79The defendants have already been heard on their application for a hearing before a jury. That application was refused by Rothman J. The proceedings have been allocated to me for hearing in the absence of a jury. If dissatisfied with that result, it cannot be appealed or revisited by the making of a further application in these proceedings for the same relief. That order for trial by jury must be refused. 80I have dealt with the summary dismissal application. For reasons which I will explain, it is also clear that the defendants are not entitled to summary judgment on the basis of their notices to admit facts. It follows that the orders which depend on those notices, orders 5 and 6, must also be refused. 81The statement of claim in respect of which leave was sought (orders 9 to 11) was marked MFI 7. It raised certain matters already dealt with in the cross-summons, but, it was explained, also raised additional relief. What precisely those additional claims were, was not explained. 82The defendants have also filed a further motion in which they seek leave to amend the cross-summons. It is not necessary to undertake a comparison of the proposed statement of claim with the cross-summons or this further initiating process. What is clear is that these proceedings cannot justly be pursued on the basis of two different initiating processes. 83At present, it is unclear to me what initiating process the defendants seek to press, given the application for amendment of the cross-summons. The defendants must elect what originating process they wish to pursue. Until that is clarified, leave to proceed on the proposed statement of claim, should not be granted. The 16 November motion, the defendants' notices to produce and to admit facts and the Commonwealth's August motion 84The defendants had served four notices to admit facts, two each on the Attorney General and the Commonwealth. They also served a number of notices to produce documents on the Attorney General, as well as a notice to produce on the Commonwealth. The Attorney General served notices disputing the asserted facts and provided a response to the notices to produce, in which objections to much of what was sought were taken. By its November motion the Commonwealth sought orders that the notice to produce and the first notice to admit facts be set aside. It later foreshadowed an application to amend the motion, to refer to the second notice to admit facts. 85The defendants' September motion sought an order that the Commonwealth's motion in relation to notices to admit facts which they had served be dismissed and summary judgment be ordered in their favour. That order was pressed, as was an order for summary judgment in relation to the notices to admit facts served on Attorney General, as well as an order for its summons to be summarily dismissed on the basis of those admitted facts. Their November motion pressed an order for the production of the disputed documents. The notices to admit facts served on the Attorney General 86The defendants seek summary judgment on the basis of the facts provided in their notices, which included such facts as, for example, that servants and agents of the State of New South Wales abducted the child Elena Markisic. That relief must be refused. 87The defendants' case was that they were entitled to summary judgment, because the Attorney General's notices disputing facts did not strictly adhere to the requirements of Rule 17 of the Uniform Civil Procedure Rules, with the result that the facts asserted were admitted and they were entitled to summary judgment in their favour. They also sought to rely on the admitted facts, in support of their summary dismissal application. 88The defendants also argued that the Attorney General's dispute of various of the facts alleged was not sincere; that a position had been taken to spite the defendants; the denial did not rest on any evidence which had been provided; that it was intellectually challenged, dishonest and should be punished. These submissions may not be accepted. 89The notices to admit facts have been disputed. The defendants will be put to proof of the claims which they seek to advance. In pursuing the litigation both parties are bound by their obligations under the Civil Procedure Act. That does not require that the facts which the defendants seek to have admitted be conceded if they are in dispute, or that the Attorney General must provide an evidentiary basis for pursing such a dispute. 90The Attorney General's departure from Rule 17 lay with the use of the words 'does not admit' identified facts, rather than 'disputes' those facts. There was, it was argued by the defendants, no discretion in the Court to permit any departure from the strict requirements of the Rule. The result was that the notices disputing facts should be struck out. 91This submission is plainly wrong. Both the Interpretation Act 1987 (s 80) and the Civil Procedure Act, are relevant. Section 80(1) of the Interpretation Act provides that strict compliance with the form is not necessary and that substantial compliance is sufficient. Section 63 of the Civil Procedure Act, deals with 'a failure to comply with any requirement of this Act or of rules of court, whether in respect of time, place, manner, form or content or in any other respect.' Such a failure is an irregularity, which, subject to any order of the Court 'does not invalidate the proceedings, any step taken in the proceedings or any document, judgment or order in the proceedings' (s 63(2)(b)). In the circumstances, were it necessary, which it is not, the discretion given the Court by s 64 to permit the amendment of the notice disputing facts, to use the word 'disputes', in place of the words 'does not admit' would be available to be exercised. 92An irregularity such as the one here in question does not invalidate the replies given by the Attorney General to the notices to admit facts. Amendment of the replies is not necessary. It is entirely clear from those documents that the Attorney General has not accepted the facts which the defendants asserted and asked to be admitted as accurate. The departure from the words used in the Rule has not given rise to any ambiguity as to the Attorney General's position in relation to the asserted facts, nor could any fair reading of the documents have led to any misunderstanding of the Attorney General's position on the defendants' part. To the contrary, they have not given evidence of any such misunderstanding. 93Nevertheless, they seek to take advantage of the irregularity, in a way which the Civil Procedure Act does not contemplate, particularly having in mind the obligation imposed upon the Court by s 56, to ensure the 'the just, quick and cheap resolution of the real issues in the dispute or proceedings.' It is apparent that there is a real issue lying between the parties as to the relevant facts, which cannot justly be resolved on the basis for which the defendants contend. 94Nor do the Rules require that the Attorney General provide any evidentiary basis for the notice it has served disputing the asserted facts. Rule 17.3 merely provides: "17.3 Notice to admit facts (cf SCR Part 18, rule 2; DCR Part 15, rule 2; LCR Part 14, rule 2) (1) The requesting party may, by a notice served on the admitting party (the requesting party's notice), require the admitting party to admit, for the purposes of the proceedings only, the facts specified in the notice. (2) If, as to any fact specified in the requesting party's notice, the admitting party does not, within 14 days after service on the admitting party of the requesting party's notice, serve on the requesting party a notice disputing that fact, that fact is, for the purposes of the proceedings only, taken to have been admitted by the admitting party in favour of the requesting party only. (3) The admitting party may, with the leave of the court, withdraw any such admission." 95The notices which the defendants served and which were disputed did not support their application for summary dismissal of the Attorney General's summons, nor did they provide a basis for the making of an order for summary judgment in their favour. The relief which the defendants sought by relying on these notices must be refused. The notices to admit facts served on the Commonwealth 96The defendants also sought to rely on the facts which they claimed the Commonwealth had admitted, in support of their summary dismissal application, the Commonwealth having failed to serve a notice disputing those facts, as Rule 17 required. They also sought 'summary judgment' in their favour, on the basis of the admitted facts. What part of the cross-summons such judgment was intended to relate to, is not clear. 97By the cross-summons, as well as the dismissal of the Attorney General's summons, (order 11) the defendants seek orders that the Attorney General, the State of New South Wales, the Attorney General of the Commonwealth and the Commonwealth be declared vexatious litigants (orders 12, 13, 14 and 15), as well as orders in relation to other proceedings to which the Commonwealth is a party (order 16). Orders for summary judgment and an assessment of damages are sought in other proceedings, matter numbers 20698 of 2000 and 20369 of 2001. Declarations are sought in respect of the documents annexed to Ms Kavanagh's affidavit which the Attorney General seeks to prove are judgments and orders made by various courts, to the effect that they are false, counterfeit, void irregular or illegal (orders 5, 6, 7 and 8). Other declarations are sought in relation to an alleged conspiracy between identified employees of the State and Commonwealth to take the child Elena Markisic out of the country in breach of the Family Law Act 1975 (order 9). Amongst the various relief pressed, other declarations are sought in relation to conspiracies between identified persons, including judges of this Court and other courts, as to the fabrication of judgments and transcripts of both State and Federal proceedings, as well as the commission of various alleged offences by various judges and the Commonwealth's legal representatives. 98For its part the Commonwealth pressed its application to have the notices set aside, its case being that the notices were an abuse of process, being a device designed to avoid or circumvent existing court orders, almost all of the relief sought having already been litigated in earlier proceedings. It sought leave to amend its motion to refer to both notices to admit facts served upon it by the defendants, as it had earlier foreshadowed. The defendants, who disputed that the Court had the power to make such orders, opposed that application. 99I am satisfied in the circumstances that the Commonwealth's application must be granted. The power to permit such an amendment is dealt with in s 64 of the Civil Procedure Act. It is to be exercised in order to allow all necessary amendments 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.' (s 64(2)). The amendment sought is plainly a necessary one in order that the issues lying between the parties as to the notices to admit facts may be resolved. The grant of the leave sought is consistent with the facilitation of the just, quick and cheap resolution of the real issues in the proceedings, as s 56 requires. 100The defendants also opposed the orders sought in the Commonwealth's motion, arguing that there was no right on its part, to seek an order setting aside the notices which they had served upon it and if there was, given the undue delay in the orders sought, it would not be granted, such relief being contrary to the requirements of the Civil Procedure Act, particularly the requirements of s 56. 101Part 18 of the Rules deals with motions. Rule 18.1 requires applications for interlocutory orders to be made by way of motion. There can be no question that the Court has power to order that a notice to admit facts be set aside. By s 23 of the Supreme Court Act 1970, the Court is given all jurisdiction necessary for the administration of justice in the State. In civil proceedings such as this, the Court's powers must be exercised in accordance with the guiding principles established in Division 1 part 6 of the Civil Procedure Act. By s 56 the Court must exercise its powers to facilitate the just, quick and cheap resolution of the real issues in dispute. By s 57 it must have regard to various objects, including not only the just determination of the proceedings, but also the efficient disposal of the business of the court, the efficient use of available resources and the timely disposal of proceedings. In making orders it must follow what the dictates of justice require (see s 58). 102The notice to admit facts addressed to the Commonwealth was dated 10 June 2011. Rule 17.6 and 17.7 provide: "17.6 Restricted effect of admission (cf SCR Part 18, rule 6; DCR Part 15, rule 6; LCR Part 14, rule 6) An admission made under this Part in connection with any proceedings: (a) may not be used in those proceedings except in favour of the party in whose favour it was made, and (b) is taken to have been made for the purposes of those proceedings only. 17.7 Judgment on admissions (cf SCR Part 18, rule 3; DCR Part 15, rule 3; LCR Part 14, rule 5) (1) If admissions are made by a party, whether by his or her pleadings or otherwise, the court may, on the application of any other party, give any judgment or make any order to which the other party is entitled on the admissions. (2) The court may exercise its powers under this rule even if the other questions in the proceedings have not been determined." 103In this case the notice was responded to promptly, with the advice given that it was considered to be an abuse of process and that an application would be made to have it set aside. That occurred in August when the motion was filed. There was no delay of a kind which would warrant the Commonwealth's motion not being entertained. There was a second notice later served and advice given that the motion would be amended to include that notice. This course of conduct is not consistent with the Commonwealth admitting the facts asserted. They are clearly in contention. 104In any event, judgment on admissions is discretionary. Whether the discretion will be exercised depends on the nature and quality of the admissions in question (see Frinty v Landmax Developments [2010] NSWSC 734). If the judgment sought is contested and the asserted admissions are contrary to the true facts, judgment on an admission will not be made. The Court will only grant the relief which the admissions properly justify. 105The first notice to admit facts sought, for example, that the Commonwealth agree to facts such as that persons who entered the defendants' home in 1998 were not sent by any employee of the Australian Federal Police and were not members or employees of the Australian Federal Police; that they did not have various valid declarations or certificates; that they were employees of Interpol; that they were sent by servants or agents of the Commonwealth and by the then Prime Minster, John Howard and the then Commonwealth Attorney General; the then Premier of New South Wales and the then Minister for Justice and other identified individuals. Other facts asserted relate to information contained in various computer systems. Other facts asserted were couched in the negative, that certain pronouncements were not made in identified proceedings. Other facts asserted that identified judgments and orders made in identified proceedings had been fabricated. 106In written submissions, detailed explanations were given by the defendants as to the relevance of the facts sought to be admitted, to the claims which they variously sought to pursue in the cross-summons. For example, it was explained that the facts asserted related to alleged breaches of the Crimes Act in relation to the abduction of Elena Markisic; and that various Courts have been misled, and lied to, over a period of more than a decade about the circumstances, with the result that the State and the Commonwealth were liable to pay the defendants damages. Other facts asserted related to claims that there had been no proceedings of various kinds in which the defendants had been involved and that no judgments had been given in such proceedings. Other submissions were advanced as to the dishonesty of the Commonwealth's lawyers, who are alleged to have a conflict of interest and to hate the defendants. 107The Commonwealth's position is, clear. It defends the cross-summons. In support of its motion it argued that the notice to admit facts sought to avoid or circumvent orders made in various proceedings which presently bind the defendants and that even if admitted, the asserted facts could not provide a foundation for the summary judgment which the defendants pursued against it. 108It argued, for example, that Mr Oliver Markisic was a party to the 2001 proceedings, which have been stayed and that Mr Dragan Markisic was a party to the 2000 proceedings, which have been partially stayed. Its case in relation to the 2001 proceedings is that Mr Oliver Markisic's application for leave to appeal from the stay order was refused; that in February 2011, Gummow J refused leave to issue proceedings against Davies J; and that the High Court refused special leave to appeal in April 2011. In the case of the 2000 proceedings, the Commonwealth's position is that Mr Dragan Markisic is presently pursuing part of those proceedings before Price J, following orders made by the Court of Appeal, which permitted him to pursue a claim in defamation, but otherwise stayed the proceedings. 109In the circumstances, there can be no question that the order sought by the Commonwealth must be made. The defendants cannot make out the case which they wish to pursue by their cross-summons, by means of their notice to admit facts. That is a course which justice could not permit. 110If orders have been made in relation to the 2000 and 2001 proceedings, for example, which bind the defendants, they cannot be ignored in these proceedings, by the admissions which they seek to have the Commonwealth make. It has long been accepted, as Lord Halsbury LC observed in Reichel v Magrath (1889) 14 App Cas 665 at 668 that: "... it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again ... there must be an inherent jurisdiction in every Court of Justice to prevent such an abuse of its procedure ..." 111If the defendants are entitled to pursue claims in the 2000 and the 2001 proceedings, they face the obvious difficulty of establishing a basis for the pursuit of that relief in these proceedings. The parties must be heard in relation to these matters. 112Given the parties' respective positions and the other relief which the defendants seek to pursue in their cross-summons, it is also apparent that amongst other things, questions of estoppel will arise to be determined, in light of the applicable principles, discussed for example in Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [70] - [77]. 113The asserted facts are not admitted by the Commonwealth. The defendants cannot establish their case on the cross-summons, on the basis of those facts. Nor could an order dismissing the Attorney General's summons, be justly made in favour of the defendants on the basis of the notices served on the Commonwealth. In the circumstances, it must be set aside. The notices to produce served on the Attorney General 114By the 16 November motion the defendants sought orders that the Attorney General and the Commonwealth produce documents pursued in the notices to produce. The motion was supported by an affidavit sworn by Mr Dragan Markisic. 115The production sought did not accord with the requirements of the Rules in certain respects. In some instances what was sought was clearly impermissible discovery, given that the production sought was in relation to classes of documents, rather than specific documents. The production of documents prior to hearing is dealt with in Rule 21.10. Other than documents referred to in originating process, pleadings, affidavits or witness statements, only specific documents clearly identified in the notice, which are relevant to a fact in issue may be required to be produced (see Brereton J's discussion in Portal Software v Bodsworth [2005] NSWSC 1115). The onus of establishing relevance falls on the party seeking production. That depends on the cases which the parties are respectively seeking to advance as to the real issues which are lying between them. 116In this case, the issues lying between the parties in respect of the Attorney General's summons are relatively clear. Given that the defendants have on foot an application to amend their cross-summons and that the plaintiff and the Commonwealth dispute the defendants' right to pursue the relief which they seek in respect of other proceedings, what the real issues lying between the parties on the case which the defendants wish to pursue, is not yet entirely clear. 117The production sought of the Attorney General in the first notice to produce of 18 May 2011, required the production of documents showing the authorisation or direction given by the Attorney General, Mr Smith to the Crown Solicitor, Mr Knight, to represent him in the proceedings. The second notice of 10 June sought production of correspondence Ms Kavanagh said in her affidavit she had sent to the Local Court, the Family Court, the Supreme Court and the Court of Appeal, seeking copies of judgments. The third notice of 14 June and the fourth notice of 12 August sought production of 'Original documents (judgments)' referred to in Ms Kavanagh's affidavit. 118There was a response given to the notices to produce by the Attorney General. Privilege was claimed in respect of certain documents and the production of other documents was resisted. A document confirming the Attorney General's retainer of the Crown Solicitor was provided. On the Attorney General's case, there was no legitimate forensic purpose for the defendants' pursuit of other documents relating to the retainer. Nor had any basis for challenging the retainer been identified by the defendants, warranting the pursuit of those documents. 119The defendants' case was that the letter confirming the instructions given to the Crown Solicitor was a sham, which failed to reveal how the writer came to have the knowledge disclosed in the letter and that the failure to produce other documents sought, in respect of which privilege was claimed, had to result in the dismissal of the Attorney General's summons. The Attorney General's production of original judgments was also pursued. 120Orders for the production of original judgments must be refused. They are documents which are not in the Attorney General's possession, despite the views which the defendants hold that the Registrar of the Supreme Court, or a judge's associate are a part of the Attorney General's Department; that the Attorney General is their superior; and that the relevant court files are under the control of the Attorney General, when they are not with a judge of the court and are held in the Registry. The Attorney General is not the 'keeper' of court records and asking the Attorney General to produce a court file, is not the same as asking the Registrar of the court for its production, as the defendants variously argued. 121Contrary to the defendants' case, control of original judgments of this and other courts does not lie in the Attorney General's hands, notwithstanding that the department which the Attorney General administers provides administrative support to the courts of this State. Just like any other party, should the Attorney General seek access to an original judgment held in a court file, an application for access to the file must be made by the Attorney General to the relevant court, in the usual way, as the Rules and the practices of the relevant court provide. 122Judgments are within the custody and control of the relevant courts, where they are kept in the relevant court files. In many cases, of course, nowadays such judgments are published by a court on its website, where they are freely accessible to the Attorney General, the defendants and others. That the Attorney General is not the keeper of the court files and does not possess the original judgments maintained in those files does not result in the position for which the defendants contended, namely to prove that the documents on which the Attorney General seeks to rely are not genuine, but fabricated, invalid or void. 123If the defendants wish to have an original judgment produced, they must pursue such production in the usual way, that is, by way of by application to the relevant court (see for example, Rule 31.11). Such production cannot be required to be given by the Attorney General. 124As to client legal privilege, it is well settled that it applies to communications made with respect to litigation that is actually taking place, or is reasonably apprehended. In the case of a communication between a party's lawyer and a third party, the privilege extends to confidential communications for the dominant purpose of existing or anticipated litigation. Such privilege may be waived, expressly or by implication. Implied waiver does not arise from disclosure of the fact of a communication, but disclosure of the contents of the communication does. 125The defendants sought production of the letters Ms Kavanagh deposed that she had sent to various courts, seeking copies of judgments and orders. It is difficult to see that these are confidential communications and even if they were, that any privilege in the correspondence has not been waived by Ms Kavanagh's disclosure of their contents, namely, requests made of those courts for the production of certain judgments and orders. It seems to me that the Attorney General must produce the correspondence. If there is any question that there has only been a partial disclosure of the contents of the correspondence and that there are aspects of it in which any privilege may persist, then that is a matter on which the parties must be heard further, if access is pursued. 126As to the defendants' pursuit of the production of a Court of Appeal file referred to in Ms Kavanagh's affidavit, it is apparent that they have misunderstood what Ms Kavanagh said in the affidavit. She there referred to the Crown Solicitor's file in a matter before the Court of Appeal. Production of the Court of Appeal's file may not be required of the Attorney General. Access to court files must be pursued by the defendants in accordance with the Rules and practices of the Court of Appeal. It cannot be given the defendants by the Attorney General. 127In so far as it may be understood that the defendants were seeking access to the Attorney General's file in relation to the Court of Appeal proceedings, that file unquestionably contains privileged material, privilege which has not been waived by the reference made to the file, in the affidavit. The defendants are not entitled to production of classes of documents, but may seek production of specified documents. Production of the file may thus not be required. Nor may production of the classes of documents sought in relation to the retainer. Even if they could be required, that they have any relevance to facts in issue in the proceedings, is not apparent. The notices to produce served on the Commonwealth 128The production sought of the Commonwealth by the 12 August notice included documents in relation to various identified persons, such as 'certificates of employment', declarations under s 40B of the Australian Federal Police Act 1979, certificates under s 68 of the Australian Federal Police Act, rosters and log books, badges and ID cards, certificates of appointment, orders and directions given by the Commissioner of the Australian Federal Police, printouts of computer records of the Family Court and various original judgments. 129The order sought by the defendants in respect of this notice must also be refused. The notice was served on 15 June 2011. The Commonwealth advised by letter of 24 June that the notice was considered to be an abuse of process and that a motion would be filed, seeking to have it set aside. The motion was filed in August. 130As I have explained in relation to the Attorney General, the production of the original judgments sought by the defendants cannot be required of the Commonwealth. It is not, as the defendants submitted, 'the keeper' of the files of the Family Court of Australia or of other federal courts. Production of original judgments may not be required of the Commonwealth, but must be pursued in the usual way, by approach to the relevant courts in accordance with their rules and practices. 131Nor do the Rules permit a notice to produce to require discovery of classes of other documents, which the defendants seek to pursue. Apart from these difficulties, it has not been established that the documents in contest, are relevant to the real issues which require determination in these proceedings. As discussed in HML v R; SB v R; OAE v R [2008] HCA 16; (2008) 235 CLR 334 at [4]: "The issues in civil cases are defined by the pleadings or other corresponding procedure. They are determined by the principles of substantive law that apply to the dispute, and by choices made by the parties within the boundaries set by those principles." 132The defendants advanced written submissions in relation to their cross-summons (marked MFI 9), in addition to their written replies to the Attorney General's submissions (marked MFI 10 ) and two sets of submissions in relation to the notices to produce and notices to admit facts (marked MFI 11 and MFI 12), which they addressed orally at the further hearing on 15 March 2012. Various of the submissions advanced relate to the defendants 14 March 2012 motion, by which they seek leave to amend the cross-summons and to the matters raised by the Attorney General's 12 March motion. These motions are yet to be heard. 133Despite the many submissions which the defendants have advanced, the position is that requiring the production of documents relevant to relief sought in other proceedings, would not only be a costly exercise, it may well prove to be a futile one. In so far as the documents sought relate to orders sought in respect of the 2000 and 2001 proceedings, for example, it is not apparent that the defendants are entitled to pursue such relief in these proceedings. They are bound by orders made in those proceedings. What they are has not been established. The onus falls on the defendants to establish their right to pursue the relief which they seek. What relief will finally be pressed, will depend on the fate of their 14 March motion. 134It follows that requiring the production sought, at this stage of these proceedings, would also not be consistent with the requirements of the Civil Procedure Act, which in s 56 obliges the Court to exercise its powers in order to 'to facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings'; to act 'in accordance with the dictates of justice' when making procedural orders (s 58) and to resolve the issues lying between the parties 'in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute' (s 60). These requirements would not be met were the production sought required. 135For all of these reasons I am satisfied in the circumstances that the orders sought by the Commonwealth in relation to the notice to produce served on it must be granted. Costs 136The usual order as to costs is that they follow the event. I will hear the parties on costs. Orders 137For now, I order that: 1. The defendants' application for summary dismissal of the Attorney General's summons be dismissed. 2. The defendants' motions of 26 September 2011 and 16 November 2011 be dismissed, other than in relation to the documents referred to in order 4. 3. Leave to amend the Commonwealth's motion of 18 August 2011 is granted and the notices to admit facts and to produce documents served on the Commonwealth is set aside. 4. The correspondence referred to in Ms Kavanagh's affidavit of 8 March 2011 at paragraph [4] be produced. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 May 2012