Attorney General in and for the State of New South Wales v Markisic [2012] NSWSC 1143

Attorney General in and for the State of New South Wales v Markisic [2012] NSWSC 1143

Applications for disqualification of the trial judge based on alleged actual or apprehended bias, stemming from defendants' instigation of criminal proceedings against the judge, do not meet the objective legal test for apprehended bias. The grounds advanced are based merely on disagreement with judicial conclusions, not on any logical connection that would cause a fair-minded lay observer to apprehend a lack of impartiality. The court's directions regarding motions and submissions are made to ensure the just, quick, and cheap resolution of proceedings in line with statutory case management principles.

Parties
Plaintiff/first Cross Defendant: Attorney General in and for the State of New South Wales; First Defendant/first Cross Claimant: Dragan Markisic; Second Defendant/second Cross Claimant: Oliver Markisic; Second Cross Defendant: The Commonwealth of Australia
Jurisdiction
Australia
Judgment Date
21 September 2012
Procedural Posture
Civil / Procedural Ruling Following Applications for Disqualification, Procedural Directions, and Motions Prior to Substantive Hearing of Summons and Cross Claim
Outcome
Disqualification application refused; procedural directions issued; leave granted to Commonwealth to be excused from hearing of summons.
Legal Topics
Disqualification Applications, Vexatious Litigants, Jury Trial Applications, Setting Aside Interlocutory Judgments, Case Management Directions
Civil Procedure Disqualification Applications Vexatious Litigants Jury Trial Applications Setting Aside Interlocutory Judgments Case Management Directions

Case Brief

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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

Procedural Posture

Civil / Procedural Ruling Following Applications for Disqualification, Procedural Directions, and Motions Prior to Substantive Hearing of Summons and Cross Claim

Legal Issues

  1. 1 Whether the trial judge should be disqualified for actual or apprehended bias due to criminal proceedings sought by defendants against the judge
  2. 2 Whether further disqualification applications may proceed
  3. 3 Whether interlocutory judgments should be set aside

Ratio Decidendi

Applications for disqualification of the trial judge based on alleged actual or apprehended bias, stemming from defendants' instigation of criminal proceedings against the judge, do not meet the objective legal test for apprehended bias. The grounds advanced are based merely on disagreement with judicial conclusions, not on any logical connection that would cause a fair-minded lay observer to apprehend a lack of impartiality. The court's directions regarding motions and submissions are made to ensure the just, quick, and cheap resolution of proceedings in line with statutory case management principles.

Court Disposition

Disqualification application refused; procedural directions issued; leave granted to Commonwealth to be excused from hearing of summons.

Orders

  • Leave granted to the Commonwealth to be excused from the hearing of the summons.
  • Each party to file and serve written submissions in support of their motions within 21 days.