Markisic & Anor v Commonwealth of Australia [2002] NSWSC 698

Markisic & Anor v Commonwealth of Australia [2002] NSWSC 698

The claims seeking to make the Commonwealth vicariously liable for the conduct of DOCs officers and persons acting under the State Central Authority, and for the conduct of Family Court judges, were manifestly groundless or hopeless. However, the Master stated the effect of valid judicial process too absolutely in relation to AFP officers. In light of the uncertainty about whether a warrant existed and the need to determine the scope of any warrant, claims against the Commonwealth arising from AFP conduct in trespass and, for the second plaintiff, false imprisonment, assault and negligence, were not so obviously untenable that they could not possibly succeed. The defective amended...

Jurisdiction
Australia
Judgment Date
13 August 2002
Procedural Posture
Appeal From a Decision Summarily Dismissing Proceedings on an Amended Statement of Claim / Appeal by Way of Rehearing From Master Harrison's Orders of 28 June 2001
Outcome
Appeal allowed; amended statement of claim struck out; leave granted to file a further amended statement of claim limited to specified AFP-related claims; no order as to costs.
Legal Topics
['summary Dismissal' 'strike Out of Pleadings' 'leave to Replead' 'trespass' 'false Imprisonment' 'assault' 'negligence Causing Psychiatric Injury' 'australian Federal Police Liability' 'judicial Process Valid on Its Face']
['civil Procedure' 'tort Law' 'vicarious Liability' 'judicial Immunity'] ['summary Dismissal' 'strike Out of Pleadings' 'leave to Replead' 'trespass' 'false Imprisonment' 'assault' 'negligence Causing Psychiatric Injury' 'australian Federal Police Liability' 'judicial Process Valid on Its Face']

Case Brief

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Procedural Posture

Appeal From a Decision Summarily Dismissing Proceedings on an Amended Statement of Claim / Appeal by Way of Rehearing From Master Harrison's Orders of 28 June 2001

Legal Issues

  1. 1 ["Whether the Master erred in summarily dismissing the plaintiffs' claims as hopeless and an abuse of process." 'Whether the Commonwealth could be vicariously liable for conduct of the Director-General of the Department of Community Services and persons acting in connection with Family Court proceedings under the Hague Convention arrangements.' 'Whether the Commonwealth could be vicariously liable for conduct of judges of the Family Court.' 'Whether claims arising from conduct of Australian Federal Police members in entering the family home and taking possession of the child were so obviously untenable that they could not possibly succeed.' 'Whether the plaintiffs should be granted leave to file a further amended statement of claim.']

Ratio Decidendi

The claims seeking to make the Commonwealth vicariously liable for the conduct of DOCs officers and persons acting under the State Central Authority, and for the conduct of Family Court judges, were manifestly groundless or hopeless. However, the Master stated the effect of valid judicial process too absolutely in relation to AFP officers. In light of the uncertainty about whether a warrant existed and the need to determine the scope of any warrant, claims against the Commonwealth arising from AFP conduct in trespass and, for the second plaintiff, false imprisonment, assault and negligence, were not so obviously untenable that they could not possibly succeed. The defective amended...

Court Disposition

Appeal allowed; amended statement of claim struck out; leave granted to file a further amended statement of claim limited to specified AFP-related claims; no order as to costs.

Orders

  • ['Allow the appeal and set aside the orders made by Master Harrison on 28 June 2001.' "Pursuant to Pt 15 r 26(1) of the SCR strike out the plaintiff's amended statement of claim filed on 5 June 2001." "Grant the plaintiffs leave to file a further amended statement of claim within twenty-eight days of today's date...