Markisic v Today-Denes [2009] NSWSC 482

Markisic v Today-Denes [2009] NSWSC 482

The plaintiff failed to produce admissible or persuasive evidence that Simpson J's judgment was counterfeit, fake or forged, that the trial did not continue after he left court, that no witness or documentary evidence was received, or that court records or the court website had been tampered with. His contentions were inconsistent with his own earlier affidavits and with matters determined on appeal, and did not satisfy the principles governing attempts to set aside judgments for fraud or irregularity. The alleged admission by counsel for the ninth defendant was not made and in any event had no logical connection with the relief sought. Because the plaintiff's repeated unmeritorious...

Jurisdiction
Australia
Judgment Date
10 July 2009
Procedural Posture
Notice of Motion to Set Aside Judgment and Orders Under UCPR 36.15 and 36.16 in Defamation Proceedings / Post Judgment Application After Dismissal of the Plaintiff's Appeal to the Court of Appeal and Refusal of Special Leave to Appeal to the High Court
Outcome
The plaintiff's notices of motion dated 17 September 2007 and 4 May 2009 were dismissed with costs, and leave restrictions were imposed on further notices of motion or oral applications in the proceedings.
Legal Topics
['application to Set Aside Judgment' 'alleged Fraud or Forgery of Judgment' 'authenticity of Court Records' 'finality of Litigation' 'abuse of Process' 'restraint on Further Applications Without Leave']
['civil Procedure' 'defamation' 'evidence'] ['application to Set Aside Judgment' 'alleged Fraud or Forgery of Judgment' 'authenticity of Court Records' 'finality of Litigation' 'abuse of Process' 'restraint on Further Applications Without Leave']

Case Brief

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Procedural Posture

Notice of Motion to Set Aside Judgment and Orders Under UCPR 36.15 and 36.16 in Defamation Proceedings / Post Judgment Application After Dismissal of the Plaintiff's Appeal to the Court of Appeal and Refusal of Special Leave to Appeal to the High Court

Legal Issues

  1. 1 ['Whether the judgment and orders of Simpson J dated 9 December 2005 were given or entered irregularly, illegally or against good faith under UCPR 36.15 or 36.16.' 'Whether the judgment of Simpson J was genuine and authentic or was a counterfeit, fake or forged document.' 'Whether there was evidence that the court file or court website had been tampered with.' 'Whether the plaintiff could relitigate matters already dealt with in the Court of Appeal, including whether the trial continued after he left court and whether his former wife gave evidence.' "Whether the plaintiff's 4 May 2009 motion for judgment based on an alleged admission by counsel for the ninth defendant had any merit." 'Whether orders should be made restraining the plaintiff from filing or serving notices of motion or making oral applications in the proceedings without leave.']

Ratio Decidendi

The plaintiff failed to produce admissible or persuasive evidence that Simpson J's judgment was counterfeit, fake or forged, that the trial did not continue after he left court, that no witness or documentary evidence was received, or that court records or the court website had been tampered with. His contentions were inconsistent with his own earlier affidavits and with matters determined on appeal, and did not satisfy the principles governing attempts to set aside judgments for fraud or irregularity. The alleged admission by counsel for the ninth defendant was not made and in any event had no logical connection with the relief sought. Because the plaintiff's repeated unmeritorious...

Court Disposition

The plaintiff's notices of motion dated 17 September 2007 and 4 May 2009 were dismissed with costs, and leave restrictions were imposed on further notices of motion or oral applications in the proceedings.

Orders

  • ["The plaintiff's notices of motion dated 17 September 2007 and 4 May 2009 are dismissed with costs." 'Order that the plaintiff is not to be allowed to file and is hereby restrained from filing and also from serving any notice of motion, and is not to be allowed to make and is hereby restrained from making any oral...