Attorney General in and for the State of New South Wales v Markisic [2012] NSWSC 433

Procedural Posture

Application Under S 8(7) of the Vexatious Proceedings Act 2008, With Cross Summons and Interlocutory Motions / Procedural and Interlocutory Rulings on Summary Dismissal, Subpoenas, Trial by Jury, Notices to Admit Facts, Notices to Produce and Document Production

Legal Issues

1. 1 ["Whether the defendants had established a basis for summary dismissal of the Attorney General's summons under Rule 13.4 of the Uniform Civil Procedure Rules 2005." "Whether the Attorney General's summons was deficient because it did not plead particulars of the alleged vexatious proceedings." 'Whether conduct in proceedings instituted by others, and proceedings in federal courts, could be relevant under the Vexatious Proceedings Act 2008.' "Whether the Attorney General's proposed reliance on judgments and orders from other proceedings was obviously untenable or inadmissible at the summary dismissal stage." 'Whether the defendants should have leave to issue subpoenas or obtain a trial by jury.' 'Whether the defendants were entitled to summary judgment on notices to admit facts served on the Attorney General or the Commonwealth.' 'Whether notices to admit facts and notices to produce served on the Commonwealth should be set aside.' 'Whether the Attorney General was required to produce original judgments, court files, retainer documents, or correspondence referred to in affidavit evidence.']

Ratio Decidendi

The defendants did not satisfy the stringent test for summary dismissal because the Attorney General's summons, supported by affidavit evidence and annexed judgments and orders, raised real questions to be tried about whether the defendants had frequently instituted or conducted vexatious proceedings in Australia. The summons was not defective merely because it did not plead particulars, the Attorney General's construction of the Vexatious Proceedings Act 2008 and proposed evidentiary use of judgments were not obviously untenable, and disputes about admissibility, authenticity and effect of documents had to be resolved at the hearing rather than on summary dismissal. The defendants'...

Court Disposition

The defendants' application for summary dismissal was dismissed; their motions of 26 September 2011 and 16 November 2011 were dismissed except as to specified correspondence; the Commonwealth was granted leave to amend its motion and the defendants' notices to admit facts and to produce documents served on the...

Orders

• ["The defendants' application for summary dismissal of the Attorney General's summons be dismissed." "The defendants' motions of 26 September 2011 and 16 November 2011 be dismissed, other than in relation to the documents referred to in order 4." "Leave to amend the Commonwealth's motion of 18 August 2011 is granted...