Markisic & Anor v Commonwealth [2001] NSWSC 533

Markisic & Anor v Commonwealth [2001] NSWSC 533

The amended statement of claim disclosed no viable claim and was an abuse of process. The Family Court orders were valid and binding, no jurisdictional error on the face of the record was established, the judicial officers were protected by judicial immunity, and the Australian Federal Police acted under judicial...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
28 June 2001
Procedural Posture
Strike Out Amended Statement of Claim / Notice of Motion by Defendant to Strike Out Amended Statement of Claim or Stay or Dismiss Proceedings; Plaintiffs' Notice of Motion for Directions and Further Orders
Outcome
The defendant's motion succeeded; the amended statement of claim and the proceedings were dismissed, with costs to the defendant.
Legal Topics
['summary Dismissal' 'strike Out Pleadings' 'abuse of Process' 'judicial Immunity' 'execution of Judicial Process' 'misfeasance in Public Office' 'breach of Statutory Duty' 'collateral Attack' 'hague Convention Child Abduction Proceedings']
['civil Procedure' 'torts' 'family Law' 'public Law'] ['summary Dismissal' 'strike Out Pleadings' 'abuse of Process' 'judicial Immunity' 'execution of Judicial Process' 'misfeasance in Public Office' 'breach of Statutory Duty' 'collateral Attack' 'hague Convention Child Abduction Proceedings']

Source-derived case record

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 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Strike Out Amended Statement of Claim / Notice of Motion by Defendant to Strike Out Amended Statement of Claim or Stay or Dismiss Proceedings; Plaintiffs' Notice of Motion for Directions and Further Orders

Legal Issues

  1. 1 ['Whether the amended statement of claim should be struck out under Part 15 r 26 of the Supreme Court Rules or the proceedings stayed or dismissed under Part 13 r 5.' "Whether the plaintiffs' claims arising from Family Court child abduction proceedings, the issue and execution of a warrant, and actions of departmental officers, judicial officers and the Australian Federal Police disclosed a reasonable cause of action." 'Whether judicial immunity protected the Family Court judges from liability for acts done judicially.' 'Whether Australian Federal Police officers executing judicial process valid on its face could be liable in tort for trespass, false imprisonment or assault on the pleaded facts.' 'Whether the proceedings constituted an impermissible collateral attack on valid and binding Family Court orders.']

Ratio Decidendi

The amended statement of claim disclosed no viable claim and was an abuse of process. The Family Court orders were valid and binding, no jurisdictional error on the face of the record was established, the judicial officers were protected by judicial immunity, and the Australian Federal Police acted under judicial process valid on its face. The pleadings were hopeless and doomed to failure, so leave to replead would be futile.

Court Disposition

The defendant's motion succeeded; the amended statement of claim and the proceedings were dismissed, with costs to the defendant.

Orders

  • ['The amended statement of claim and the proceedings are dismissed.' "The plaintiffs are to pay the defendant's costs."]