Oliver Markisic & Anor v Commonwealth of Australia [2007] NSWSC 201

Oliver Markisic & Anor v Commonwealth of Australia [2007] NSWSC 201

The court found that many parts of the Further Amended Statement of Claim sought exemplary damages not permitted by statute, pleaded causes of action outside those previously permitted, or used improper or unnecessary phraseology where legal requirements were simpler. These should be struck out under rule 14.28. The plaintiffs' motion to strike out the defendant's application was refused. No order as to costs was made for either motion.

Parties
First Plaintiff: Oliver Markisic; Second Plaintiff: Marika Markisic; Defendant: Commonwealth of Australia
Jurisdiction
Australia
Judgment Date
09 March 2007
Procedural Posture
Civil / Interlocutory Application – Motion to Strike Out Parts of Pleading
Outcome
Plaintiffs' motion dismissed. Defendant's motion to strike out granted as per paragraph 1 of notice of motion. No order as to costs of either motion.
Legal Topics
Trespass to Property, False Imprisonment, Assault, Negligence, Psychiatric Injury, Exemplary Damages, Striking Out Pleadings, Vicarious Liability
Tort Law Civil Procedure Trespass to Property False Imprisonment Assault Negligence Psychiatric Injury Exemplary Damages +2 more

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Parties

Oliver Markisic

First Plaintiff

Marika Markisic

Second Plaintiff

Commonwealth of Australia

Defendant

Procedural Posture

Civil / Interlocutory Application – Motion to Strike Out Parts of Pleading

Legal Issues

  1. 1 Whether parts of the Further Amended Statement of Claim should be struck out as disclosing no reasonable cause of action or being otherwise embarrassing or beyond previous orders
  2. 2 Whether exemplary damages are recoverable against the Commonwealth under the Australian Federal Police Act 1979 s64B(3)
  3. 3 Whether the plaintiffs' claims exceed the causes of action permitted by previous judicial order

Ratio Decidendi

The court found that many parts of the Further Amended Statement of Claim sought exemplary damages not permitted by statute, pleaded causes of action outside those previously permitted, or used improper or unnecessary phraseology where legal requirements were simpler. These should be struck out under rule 14.28. The plaintiffs' motion to strike out the defendant's application was refused. No order as to costs was made for either motion.

Court Disposition

Plaintiffs' motion dismissed. Defendant's motion to strike out granted as per paragraph 1 of notice of motion. No order as to costs of either motion.

Orders

  • Balance of Plaintiff's motion, filed in court on 26 February 2007, dismissed.
  • Order as asked in paragraph 1 of Defendant's Notice of Motion, filed in court 7 February 2007.