Markisic v Commonwealth of Australia [2010] NSWSC 24

Markisic v Commonwealth of Australia [2010] NSWSC 24

The Plaintiffs' Notices of Motion were dismissed as they failed to demonstrate entitlement to default or summary judgment, or to set aside prior interlocutory orders; there was no evidentiary basis for the further amended claims sought to be introduced. The Court found that the Plaintiffs' conduct—persistent, meritless applications and lack of bona fides in pursuing claims they no longer believed—constituted an abuse of process, warranting a permanent stay of proceedings. Costs were ordered against the Plaintiffs, including special orders for costs thrown away by failures to comply with court orders.

Parties
First Plaintiff: Oliver Markisic; Second Plaintiff: Marika Markisic; Defendant: Commonwealth of Australia
Jurisdiction
Australia
Judgment Date
25 February 2010
Procedural Posture
Civil / Interlocutory Judgment on Multiple Notices of Motion and Abuse of Process/stay Applications
Outcome
Plaintiffs' Notices of Motion dismissed; proceedings permanently stayed; costs orders against Plaintiffs; Plaintiffs restrained from further filings without leave; certain costs assessed as payable forthwith
Legal Topics
Abuse of Process, Amendment of Pleadings, Strike Out Applications, Verification of Pleadings, Bias and Disqualification, Summary Judgment, Costs
Civil Procedure Abuse of Process Amendment of Pleadings Strike Out Applications Verification of Pleadings Bias and Disqualification Summary Judgment Costs

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 31 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Oliver Markisic

First Plaintiff

Marika Markisic

Second Plaintiff

Commonwealth of Australia

Defendant

Procedural Posture

Civil / Interlocutory Judgment on Multiple Notices of Motion and Abuse of Process/stay Applications

Legal Issues

  1. 1 Whether the Plaintiffs should be granted default or summary judgment against the Commonwealth; whether the Commonwealth's defences should be struck out; whether leave should be granted for further amendment of the Statement of Claim; whether earlier interlocutory judgments and orders should be set aside; whether the proceedings should be permanently stayed for abuse of process; whether orders should be made restraining further filings by Plaintiffs without leave; assessment of costs thrown away and of Notices of Motion.

Ratio Decidendi

The Plaintiffs' Notices of Motion were dismissed as they failed to demonstrate entitlement to default or summary judgment, or to set aside prior interlocutory orders; there was no evidentiary basis for the further amended claims sought to be introduced. The Court found that the Plaintiffs' conduct—persistent, meritless applications and lack of bona fides in pursuing claims they no longer believed—constituted an abuse of process, warranting a permanent stay of proceedings. Costs were ordered against the Plaintiffs, including special orders for costs thrown away by failures to comply with court orders.

Court Disposition

Plaintiffs' Notices of Motion dismissed; proceedings permanently stayed; costs orders against Plaintiffs; Plaintiffs restrained from further filings without leave; certain costs assessed as payable forthwith

Orders

  • Dismiss the Plaintiffs' Notices of Motion filed 25 July 2008, 2 July 2009, 27 July 2009, 1 September 2009 and the Amended Notice of Motion filed 3 August 2009.
  • Plaintiffs to pay the Defendant's costs of those Notices of Motion including the Amended Notice of Motion.