Markisic v State of New South Wales & Ors (No 3) [2015] NSWSC 415

Markisic v State of New South Wales & Ors (No 3) [2015] NSWSC 415

Leave to file the proposed amended statement of claim was refused because, when its camouflage was removed, it sought in substance to re-litigate issues already determined in Markisic (No 1) and Markisic (No 2), including the alleged falsity of Family Court orders and the subsequent removal of the child, and continued to collaterally attack Family Court judicial officers and orders. Granting leave would be oppressive and unfair to the State and the Commonwealth and would undermine the integrity of the administration of justice; the proposed pleading was therefore an abuse of process.

Jurisdiction
Australia
Judgment Date
16 April 2015
Procedural Posture
Civil Procedure / Application to File a Proposed Amended Statement of Claim (other Torts)
Outcome
The plaintiff's application to file a proposed amended statement of claim (other torts) was refused, and the plaintiff was ordered to pay the defendants' costs.
Legal Topics
['leave to Amend Pleadings' 'proposed Amended Statement of Claim' 'collateral Attack on Family Court Orders' 're Litigation of Issues' 'estoppel' 'defamation Claims']
['civil Procedure' 'abuse of Process' 'torts'] ['leave to Amend Pleadings' 'proposed Amended Statement of Claim' 'collateral Attack on Family Court Orders' 're Litigation of Issues' 'estoppel' 'defamation Claims']

Case Brief

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Procedural Posture

Civil Procedure / Application to File a Proposed Amended Statement of Claim (other Torts)

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave to file the proposed amended statement of claim (other torts).' 'Whether the proposed amended statement of claim was precluded by the judgment of the Court of Appeal in Markisic v Department of Community Services of New South Wales & Ors (No 2) [2006] NSWCA 321.' 'Whether the proposed amended statement of claim constituted an abuse of process by collaterally attacking Family Court orders and re-litigating issues previously determined.']

Ratio Decidendi

Leave to file the proposed amended statement of claim was refused because, when its camouflage was removed, it sought in substance to re-litigate issues already determined in Markisic (No 1) and Markisic (No 2), including the alleged falsity of Family Court orders and the subsequent removal of the child, and continued to collaterally attack Family Court judicial officers and orders. Granting leave would be oppressive and unfair to the State and the Commonwealth and would undermine the integrity of the administration of justice; the proposed pleading was therefore an abuse of process.

Court Disposition

The plaintiff's application to file a proposed amended statement of claim (other torts) was refused, and the plaintiff was ordered to pay the defendants' costs.

Orders

  • ["The plaintiff's application to file a proposed amended statement of claim (other torts) (ASOC) is refused." "The plaintiff is to pay the defendants' costs."]