Markisic v State of New South Wales & Ors (No 2) [2012] NSWSC 1353

Markisic v State of New South Wales & Ors (No 2) [2012] NSWSC 1353

The proposed amended statement of claim exceeded the Court of Appeal's limited leave in numerous respects by adding publications and imputations; many remaining imputations were incapable of conveying the pleaded defamatory meanings. In any event, all publications A1 to A15 were made for purposes connected with commencing, conducting, implementing or enforcing Family Court Hague Convention return proceedings and arranging the child's care and safe return, and were therefore protected by absolute privilege as publications properly incidental and necessary to judicial proceedings and as communications indispensable to the effective performance of official functions. The plaintiff was also...

Jurisdiction
Australia
Judgment Date
08 November 2012
Procedural Posture
Defamation Proceeding; Application for Leave to File an Amended Statement of Claim / Notice of Motion for Leave to Re Plead Defamation Claims After Court of Appeal Grant of Leave to Apply to Re Plead
Outcome
Application refused.
Legal Topics
['leave to Amend Pleadings' 'absolute Privilege' 'issue Estoppel' 'hague Convention Child Return Proceedings' 'imputations' 'publication' 'futility of Proceedings']
['defamation' 'civil Procedure' 'family Law'] ['leave to Amend Pleadings' 'absolute Privilege' 'issue Estoppel' 'hague Convention Child Return Proceedings' 'imputations' 'publication' 'futility of Proceedings']

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Procedural Posture

Defamation Proceeding; Application for Leave to File an Amended Statement of Claim / Notice of Motion for Leave to Re Plead Defamation Claims After Court of Appeal Grant of Leave to Apply to Re Plead

Legal Issues

  1. 1 ["Whether the proposed amended statement of claim pleaded publications additional to those permitted by the Court of Appeal's grant of leave." "Whether the proposed amended statement of claim pleaded new imputations beyond the Court of Appeal's grant of leave." 'Whether remaining pleaded imputations were capable of conveying the alleged defamatory meanings to the ordinary reasonable reader.' 'Whether the publications were protected by absolute privilege as incidental and necessary to judicial proceedings or as communications between officers of State in the course of official duties.' 'Whether the plaintiff was estopped from re-opening issues concerning the authority of the State Central Authority and officers involved in the Family Court proceedings.' 'Whether granting leave to re-plead would be futile because the defamation claims were so obviously untenable that they could not possibly succeed.']

Ratio Decidendi

The proposed amended statement of claim exceeded the Court of Appeal's limited leave in numerous respects by adding publications and imputations; many remaining imputations were incapable of conveying the pleaded defamatory meanings. In any event, all publications A1 to A15 were made for purposes connected with commencing, conducting, implementing or enforcing Family Court Hague Convention return proceedings and arranging the child's care and safe return, and were therefore protected by absolute privilege as publications properly incidental and necessary to judicial proceedings and as communications indispensable to the effective performance of official functions. The plaintiff was also...

Court Disposition

Application refused.

Orders

  • ["The plaintiff's application for leave to file an amended statement of claim (defamation claim) is refused."]