Markisic v Department of Community Services of New South Wales & Ors (No 2) [2006] NSWCA 321

Markisic v Department of Community Services of New South Wales & Ors (No 2) [2006] NSWCA 321

Leave to appeal is refused except in relation to the defamation claims, as Mr Markisic’s pleadings are fatally deficient and any damages claimed for loss of the child arise from valid Family Court orders, precluding collateral attack. On defamation, leave to re-plead is allowed so a first instance judge can address whether absolute privilege applies. The Commonwealth’s cross-appeal succeeds to set aside order permitting re-pleading against it apart from defamation.

Parties
Claimant: Dragan Markisic; First Opponent: Department of Community Services of New South Wales; Second Opponent: State of New South Wales; Third Opponent: Commonwealth of Australia; Fourth Opponent: The Trustees of the Roman Catholic Church for the Archdiocese of Sydney; Fifth Opponent: Qantas Airways Ltd; Sixth Opponent: Justice Flohm; Seventh Opponent: Chief Justice Nicholson; Eighth Opponent: Justice Rowlands
Jurisdiction
Australia
Judgment Date
23 November 2006
Procedural Posture
Appeal / Application for Leave to Appeal and Cross Appeal From Decision of Supreme Court (smart Aj) Regarding Leave to File Amended Statement of Claim
Outcome
Leave to appeal refused except as to the defamation claims; appeal allowed to the extent of permitting leave to re-plead defamation claims; Commonwealth's cross-appeal allowed; costs orders made against Mr Markisic.
Legal Topics
Pleading Requirements, Absolute Privilege in Defamation, Collateral Attack on Judgments, Misfeasance in Public Office, Trespass, Interference With Domestic Relations
Civil Procedure Defamation Family Law Torts Pleading Requirements Absolute Privilege in Defamation Collateral Attack on Judgments Misfeasance in Public Office +2 more

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Parties

Dragan Markisic

Claimant

Department of Community Services of New South Wales

First Opponent

State of New South Wales

Second Opponent

Commonwealth of Australia

Third Opponent

The Trustees of the Roman Catholic Church for the Archdiocese of Sydney

Fourth Opponent

Qantas Airways Ltd

Fifth Opponent

Justice Flohm

Sixth Opponent

Chief Justice Nicholson

Seventh Opponent

Justice Rowlands

Eighth Opponent

Procedural Posture

Appeal / Application for Leave to Appeal and Cross Appeal From Decision of Supreme Court (smart Aj) Regarding Leave to File Amended Statement of Claim

Legal Issues

  1. 1 Whether leave should be granted to re-plead causes of action apart from defamation
  2. 2 Whether defamation claims were futile due to absolute privilege
  3. 3 Effect of Family Court orders on claims for damages arising from implementation of child return orders

Ratio Decidendi

Leave to appeal is refused except in relation to the defamation claims, as Mr Markisic’s pleadings are fatally deficient and any damages claimed for loss of the child arise from valid Family Court orders, precluding collateral attack. On defamation, leave to re-plead is allowed so a first instance judge can address whether absolute privilege applies. The Commonwealth’s cross-appeal succeeds to set aside order permitting re-pleading against it apart from defamation.

Court Disposition

Leave to appeal refused except as to the defamation claims; appeal allowed to the extent of permitting leave to re-plead defamation claims; Commonwealth's cross-appeal allowed; costs orders made against Mr Markisic.

Orders

  • Refuse leave to appeal save as to leave to apply to re-plead defamation claims.
  • Grant leave to apply to re-plead defamation claims; appeal allowed in that respect.