Citation: Markisic & Anor v Middletons Lawyers & Ors [2007] NSWSC 1147
Court: Supreme Court of New South Wales, Common Law Division
Date: 16 October 2007
Judge(s): Harrison J
Background
The two plaintiffs, who appeared unrepresented, were involved in defamation proceedings against several defendants including a newspaper editor and the law firms and solicitors who had acted for him. The plaintiffs alleged that the defendants had conspired to publish defamatory material and had engaged in collateral abuse of process, arising from the service of a witness statement prepared for those defamation proceedings.
In April 2005, Nicholas J summarily dismissed the plaintiffs' statement of claim. The plaintiffs appealed unsuccessfully to the Court of Appeal, and an application for special leave to appeal to the High Court was also refused.
Despite exhausting those avenues, the plaintiffs filed a further notice of motion in August 2007 seeking to set aside the 2005 judgment on the basis that it had been obtained fraudulently or irregularly. They also sought leave to issue subpoenas to seven individuals, hoping to gather evidence to support that application.
Legal Issues
- Whether the judgment of Nicholas J should be set aside under UCPR r 36.15 on the ground that it was obtained by fraud or irregularity
- Whether leave should be granted to issue subpoenas to seven named individuals for the purpose of supporting the set-aside application
- Whether the plaintiffs' conduct in repeatedly re-agitating resolved proceedings constituted an abuse of process
- Whether the court should exercise its inherent power to restrain the plaintiffs from filing further motions without leave
Decision
Harrison J dismissed the application to set aside the 2005 judgment. The court found that the plaintiffs were attempting to rely on evidence that had been available at the time of the original trial, and were re-agitating arguments that had already been considered and rejected by the Court of Appeal. No basis was demonstrated for disturbing the decision of Nicholas J.
The application for leave to issue subpoenas was also refused. The court characterised it as an attempt to fish for evidence in the hope of finding something to support the set-aside application, rather than a legitimate step in properly constituted proceedings. The court found no proper foundation for issuing the subpoenas.
Harrison J then considered whether the overall conduct of the proceedings amounted to an abuse of process. Drawing on the approach taken by Bryson JA in related proceedings involving one of the same plaintiffs, the court found that the persistent filing of hopeless interlocutory applications caused prejudice both to the other parties and to the community more broadly, by diverting court resources away from meritorious matters.
The court exercised its inherent power to impose filing restrictions on both plaintiffs. The restrictions require prior judicial leave before any further notice of motion can be filed or served, or any oral application made, in these proceedings.
Orders Made
- The plaintiffs' notice of motion dated 13 August 2007 was dismissed with costs.
- Both plaintiffs are restrained from filing or serving any notice of motion, or making any oral application in these proceedings, without the leave of a Judge of the Supreme Court.
- Any notice of motion filed without such leave is to be dismissed without being heard, and other parties are not required to attend or participate unless a Judge directs otherwise.
- Applications for leave must be made in writing, setting out the full basis for the leave sought and attaching a copy of the proposed notice of motion. No oral hearing will take place on a leave application unless a Judge directs otherwise.
Key Takeaways
- Under UCPR r 36.15, an application to set aside a judgment on the ground of fraud will not succeed where the applicant relies on evidence that was available at the original trial and is effectively re-agitating arguments already rejected on appeal.
- A subpoena application made in the hope of eliciting evidence to support an existing application, rather than to compel production of known relevant material, may constitute an abuse of process and will be refused.
- In dismissing the motion, the Supreme Court reinforced that its inherent jurisdiction extends to restraining parties from making unwarranted and repetitive applications, where those applications prejudice both opposing litigants and the administration of justice more generally.
- Filing restrictions of the kind imposed here require leave to be sought in writing, with no oral hearing as of right, reflecting a structured mechanism for filtering plainly hopeless applications before they consume court resources.
- Persistent re-litigation of finally determined matters, including through successive interlocutory applications, may attract restraint orders regardless of whether the applicant is self-represented.
Legislation and Cases Referenced
Legislation
- Uniform Civil Procedure Rules (NSW), r 36.15 and r 7.3
Cases
- Markisic v Department of Community Services of New South Wales and Ors [2007] NSWCA 30
- Port of Melbourne Authority v Anshun Pty Limited (1980-1981) 147 CLR 589
- Wentworth v Graham (2003) 57 NSWLR 741
- Bhamjee v Forsdick (No 2) [2003] EWCA Civ 1113