Markisic & Anor v Middletons Lawyers & Ors [2007] NSWSC 1147

Markisic & Anor v Middletons Lawyers & Ors [2007] NSWSC 1147

The application to set aside the judgment based on alleged fraud was dismissed because the plaintiffs failed to establish that any fraud occurred; all matters raised had been litigated or could have been raised earlier. There was no basis for disturbing the trial judge's findings, and attempts to issue subpoenas in hope of eliciting supporting evidence amounted to an abuse of process. Further, the court exercised its inherent jurisdiction to restrain the plaintiffs from making further applications without leave due to their persistent pursuit of unmeritorious, repetitive litigation.

Jurisdiction
Australia
Judgment Date
16 October 2007
Procedural Posture
Notice of Motion to Set Aside Judgment, Application for Leave to Issue Subpoenas / Post Judgment; Application Following Dismissal at Trial, Unsuccessful Appeal, and Unsuccessful Special Leave Application to the High Court
Outcome
Applications dismissed with costs; prospective restraint imposed on plaintiffs' ability to file or serve further motions without leave.
Legal Topics
['setting Aside Judgments for Fraud' 'abuse of Process' 'absolute Privilege' 'subpoenas' 'vexatious Proceedings']
['civil Procedure'] ['setting Aside Judgments for Fraud' 'abuse of Process' 'absolute Privilege' 'subpoenas' 'vexatious Proceedings']

Case Brief

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Procedural Posture

Notice of Motion to Set Aside Judgment, Application for Leave to Issue Subpoenas / Post Judgment; Application Following Dismissal at Trial, Unsuccessful Appeal, and Unsuccessful Special Leave Application to the High Court

Legal Issues

  1. 1 ['Whether the judgment delivered on 1 April 2005 should be set aside on the basis of fraud' 'Whether the plaintiffs should be granted leave to issue subpoenas to various individuals' 'Whether further applications by the plaintiffs constitute an abuse of process']

Ratio Decidendi

The application to set aside the judgment based on alleged fraud was dismissed because the plaintiffs failed to establish that any fraud occurred; all matters raised had been litigated or could have been raised earlier. There was no basis for disturbing the trial judge's findings, and attempts to issue subpoenas in hope of eliciting supporting evidence amounted to an abuse of process. Further, the court exercised its inherent jurisdiction to restrain the plaintiffs from making further applications without leave due to their persistent pursuit of unmeritorious, repetitive litigation.

Court Disposition

Applications dismissed with costs; prospective restraint imposed on plaintiffs' ability to file or serve further motions without leave.

Orders

  • ["The plaintiffs' notice of motion dated 13 August 2007 is dismissed with costs." 'Dragan Markisic and Oliver Markisic are restrained from filing or serving any notice of motion, or making any oral application in these proceedings without leave of a Judge of this Court.' 'If the plaintiffs file or serve any notice...