Attorney General in and for the State of New South Wales v Markisic [2013] NSWSC 977

Supreme Court New South Wales

Medium Neutral Citation: Attorney General in and for the State of New South Wales v Markisic [2013] NSWSC 977 Hearing dates: 18 July 2013 Decision date: 18 July 2013 Jurisdiction: Common Law Before: Schmidt J Decision: Mr Dragan Markisic's further application for adjournment of the proceedings against him must be refused. Catchwords: PROCEDURE - adjournment application - refused Legislation Cited: Civil Procedure Act 2005 Category: Interlocutory applications 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) Solicitors: IV Knight, Crown Solicitor (Plaintiff) Mr A Markus, solicitor (Second Cross Defendant) Dragan Markisic (In Person) File Number(s): 2011/76594 Publication restriction: None

EX TEMPORE Judgment 1In March of this year, over the objection of the Attorney General, I granted an adjournment of the proceedings which Mr Dragan Markisic sought, in circumstances where his brother, Mr Oliver Markisic, had fallen gravely ill. The adjournment was granted at a time when the matter had been listed for final oral submissions to be made by the two defendants in relation to a number of outstanding motions in respect of which the parties have each filed written submissions. 2I had taken that course, as I explained in the judgment given in March, given the nature of the proceedings and because the defendants appear in the proceedings unrepresented. I also then accepted that it was obvious that, however the motions were determined in the case of Mr Dragan Markisic, that would inevitably have an impact on Mr Oliver Markisic. 3Also to be considered was a decision earlier reached that when the Attorney General's summons is in due course heard, the Attorney will proceed separately against the two defendants. 4In March I granted the adjournment, concluding that the further conduct of the case cannot languish and it cannot drift, if the circumstances proved to be circumstances which I certainly hoped did not come to pass. I said also that if in June it appeared that Mr Oliver Markisic was not in a position where he could sensibly appear in the proceedings and the state of his health was such that further adjournments of the matter were going to be necessary so far as he was concerned, it seemed to me that then, notwithstanding what Mr Dragan Markisic had said about the assistance which his brother provides him in this case, that the proceedings against him will have to continue. 5When the matter came back before me in June, Mr Dragan Markisic sought and I granted, again over objection, a further adjournment of the hearing. Today the Attorney General and the Commonwealth again seek that the matter proceed against Mr Dragan Markisic. 6As I have observed to the Attorney General's Counsel, in the circumstances disclosed by an affidavit sworn by Mr Dragan Markisic on 15 July, to which is annexed a medical certificate of 3 July in respect of Mr Oliver Markisic, it is quite obvious that the proceedings cannot continue, at the present time, so far as Mr Oliver Markisic is concerned. The unfortunate situation disclosed by that certificate is that Mr Oliver Markisic is currently an inpatient at hospital, where he is being treated for cancer of a serious kind, the details of which I do not need to go into. There have also been complications from surgery and he is still to commence chemotherapy. It has been assessed that Mr Oliver Markisic is not going to be able to attend any court hearings for the ensuing three months. 7In those circumstances, being realistic, one has to now consider that there is a real prospect that, so far as Mr Oliver Markisic is concerned, this case may not sensibly be pressed against him for a considerable time, perhaps, if ever. 8It is in those circumstances that Mr Dragan Markisic's application for a further adjournment has to be considered. That application has to be approached in accordance with the requirements of the Civil Procedure Act 2005, which includes in s 56 the obligation imposed on the Court to exercise its discretions having in mind the overriding purpose of the just, quick and cheap resolution of the real issues in the proceedings. 9For his part, Mr Dragan Markisic submits that the proper course is to adjourn the proceedings for another three months in order to see whether Mr Oliver Markisic is then in a position to participate in the proceedings. That is because, on Mr Dragan Markisic's submission, he wants and is entitled to have the benefit of his brother's assistance in the proceedings, in circumstances where they have been brought against both of them and where the outstanding notices have been brought by them both. The written submissions which the defendants have filed were written by Mr Oliver Markisic. They were submissions which Mr Dragan Markisic supported, but he wanted to have the benefit of the oral submissions which his brother might make by way of further explanation of those submissions, and also to himself have the opportunity, then, to add to those submissions. 10His case is that to refuse his application would be unjust and would exhibit obvious bias. He also submitted that the Attorney General must represent the public interest and that there was no public interest requiring the pursuit of these proceedings, in the circumstances which had arisen. Mr Dragan Markisic also relied on the course of other proceedings which he had brought in this Court against the Attorney General and the Commonwealth which he says have languished, to his detriment, for some thirteen years. He submits that, given the as yet but limited delay in these proceedings, there should be no different outcome in the case brought by the Attorney General against him. 11The circumstances are such, regrettably, it seems to me, where Mr Dragan Markisic's application for a further adjournment of the proceedings cannot sensibly be acceded to, on this occasion. On the evidence, there can be no sensible confidence that within yet another three months' adjournment Mr Oliver Markisic will have recovered his health, as everyone hopes he will, so as to be in a position to participate in these proceedings. Mr Dragan Markisic, regrettably, faces the prospect where the proceedings which have been brought will in reality be pressed only against him. That is a very unfortunate situation, one which is much to be regretted, but it is a reality which confronts both him and the Court. 12In the circumstances, it seems to me that there is no proper basis for any further adjournment of the hearing of the proceedings which have been brought against him. Having in mind the requirements of the Civil Procedure Act, the discretion to further adjourn the proceedings cannot sensibly be exercised, notwithstanding the position as to the outstanding notices. For these reasons, Mr Dragan Markisic's further application for adjournment of the proceedings against him must be refused. 13In those circumstances, what needs to happen is for the matter to be listed for short oral submissions to supplement the written submissions which the parties have filed. The basis upon which those submissions are to be advanced has earlier been made clear in the proceedings. It is to supplement the written submissions by way of anything which may have been overlooked or which needs some further explanation. It is not simply to put orally what has already been written.