Markisic and Anor v Vizza and 16 Ors

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : SC 12583/01 LOWER COURT JUDICIAL McClellan J OFFICER :

1st and 2nd Applicants (in person) No appearance (1st, 5th, 8th respondents) COUNSEL : V Hartstein (2nd, 6th, 7th, 9th respondents) D P Robinson (3rd, 4th, 15th, 16th respondents) A Kohn (10th to 14th respondents) G Nell & F Rogers (17th respondent) 1st and 2nd applicants (in person) Australian Government Solicitor (3rd, 4th, 15th, 16th respondents) SOLICITORS : I V Knight (2nd, 6th, 7th, 9th respondents) A Kohn (10th to 14th respondents) Blake Dawson Waldron (17th respondent) CATCHWORDS : JURISDICTION - whether offences capable of prosecution in the Summary Jurisdiction of the Supreme Court - indictable offences - abuse of process - Supreme Court Act 1970, s 76 - inherent jurisdiction - whether appeal to Court of Criminal Appeal competent - costs - ND Crimes Act 1914 (Cth) Criminal Appeal Act 1912 (NSW) Crimes Act 1900 (NSW) Children (Care and Protection) Act 1987 (NSW) LEGISLATION CITED : Family Law Act 1975 (Cth) Family Law (Child Abduction Convention) Regulations 1996 Hague Convention on the Civil Aspects of International Child Abduction Supreme Court Act 1970 Supreme Court (Summary Jurisdiction) Act 1967 Darcey v Pre-term Foundation Clinic (1983) 2 NSWLR 497 Director General, Department of Community Services v Houdek [1999] NSWSC 1031 CASES CITED: Miller v Teale (1954) 92 CLR 406 Pezet v Pezet (1946) 47 SR (NSW) 45; 63 WN (NSW) 238 Proust v Blake (1989) 17 NSWLR 267 R v Barbara (1992) 106 FLR 387 DECISION : Appeal dismissed with costs

IN THE COURT OF CRIMINAL APPEAL 60015/02

STEIN JA DOWD J BARR J

Monday, 4 March 2002 MARKISIC and Anor v VIZZA and Ors Judgment 1 STEIN JA: Early in 1998 the second applicant, Dragan Markisic, removed his daughter, Elena born on 3 May 1997 from Macedonia during a visit. He brought the child back to Australia. The child's mother and former wife of Dragan, Katerina Markisic, obtained custody in Macedonia and applied under the Hague Convention on the Civil Aspects of International Child Abduction (hereafter referred to as the Convention) for the return of the child. 2 Australia and Macedonia are signatories to the Convention which has also been enacted into Australian law under the Family Law Act 1975 and the Family Law (Child Abduction Convention) Regulations 1996. Under the Regulations the Commonwealth Attorney-General appointed the Secretary of the Commonwealth Attorney General's Department to be the Commonwealth Central Authority and also appointed the Director-General of the Department of Youth and Community Services (as it was then called) to be the State Central Agency for New South Wales. 3 The Commonwealth Central Authority forwarded the application from Macedonia to the New South Wales Central Authority and legal officers in the Department of Community Services prepared an application for the return of the child, returnable in the Family Court of Australia. This was filed by the New South Wales Crown Solicitor's Office on 20 July 1998. 4 After a hearing before Judicial Registrar Johnston in the Family Court on 17 August 1998 the court ordered the return of the child. Dragan Markisic applied for a review of that decision but his application was refused by Rowlands J in the Family Court on 9 September 1998. 5 The Full Family Law Court dismissed his appeal against Rowland J's decision on 29 September 1998 and ordered that the child be taken into custody pending her return to Macedonia in the care of her mother. The child was placed in the care of foster parents during this period. 6 On 13 October 1998 Dragan's application for a stay was dismissed by the High Court of Australia and on the following day the child and her mother left Australia pursuant to the Family Court order flying on a Qantas plane. 7 On 20 December 2000 Dragan filed a Statement of Claim in respect of the actions taken by the Commonwealth and the State Central Authorities, their solicitors and counsel, Centacare and Qantas. 8 On 7 September 2001 the applicants, Dragan and his father Oliver Markisic, filed a Summons which came before McClellan J on 5 November 2001 and in respect of which he gave judgment on 14 December 2001. His Honour ordered that the Amended Summons be struck out and that the two applicants be ordered to pay the costs of the defendants'. 9 The applicants seek to appeal against those orders. They filed a Notice of Appeal purporting to be under the Criminal Appeal Act, 1912 (the Act). 10 I should briefly describe the respondents to this application: G Vizza (1st respondent) and D Muirhead (2nd respondent) were legal officers with Department of Community Services. N Levett (3rd respondent) and J McGinness (4th respondent) were legal officers employed by the Commonwealth Attorney-General's Department. T McDonald (5th respondent), C White (6th respondent) and L Anthony (7th respondent) were officers of the Department of Community Services who assisted in the care and placement of the child after she was removed from Dragan. Robbie Flohm (8th respondent) was the counsel briefed to appear for the Central Authority. M Twohill (9th respondent) was the solicitor who instructed Flohm. Centacare Pty Limited is the 10th respondent, and H O'Brien, J Robertson, C Robertson and M Robertson (11 - 14th respondents inclusive) were employees of that organisation who had care of the child between the time of her removal from Dragan and return to her mother. J Hurst and A Bareet (15th and 16th respondents) were officers of the Australian Federal Police who executed the Family Court warrant. Qantas (17th respondent) was the carrier which transported the mother and child from Australia. 11 I mention that the 1st, 5th and 8th respondents were not served with the Summons. 12 The Summons filed by the applicants before the Supreme Court sought orders that the respondents be dealt with by the Supreme Court, in its summary jurisdiction, for numerous and various alleged offences. These included, but were not limited to, offences under the Family Law Act (Cth), the Crimes Act 1914 (Cth), the New South Wales Crimes Act 1900 and the Children (Care and Protection) Act 1987 (NSW). 13 By various Notices of Motion a number, if not all, of the respondents sought that the Amended Summons be struck out as an abuse of process or for want of jurisdiction. They all sought an order that the applicants pay their costs. 14 McClellan J found that the Supreme Court had no jurisdiction to entertain the proceedings. He held that the Supreme Court was not relevantly a court of Summary Jurisdiction with respect to any of the numerous charges sought to be brought by the applicants. There was no statute which provided that the offences could be prosecuted in the court's Summary Jurisdiction. 15 His Honour dealt with each and every charge included in the Amended Summons. Accordingly, his Honour concluded that the Amended Summons should be struck out and, consequent upon that, ordered the applicants to pay the defendants' costs.

Is the Appeal competent? 16 In my opinion the appeal to the Court of Criminal Appeal is incompetent. The court's powers derive from statute together with such implied powers as are necessary to carry out its functions. They do not extend to the broadening of the jurisdiction of the court to hear appeals to which the Act does not apply. 17 A person convicted on indictment may appeal to the Court of Criminal Appeal (s 5(1) of the Act). A person convicted of an offence or against whom an order to pay costs is made by the Supreme Court in its Summary Jurisdiction may appeal to the court (s 5AA(1)). 18 Neither of the applicants have been convicted of an offence within the Summary Jurisdiction of the Court or on indictment. Moreover, neither of the applicants have been ordered to pay costs by the Supreme Court in its Summary Jurisdiction. 19 As his Honour's judgment makes clear, McClellan J's orders were not made in the court's Summary Jurisdiction, they were made in the exercise of the inherent jurisdiction of the Supreme Court to prevent an abuse of its process. The orders were made in the civil Common Law jurisdiction of the Supreme Court upon motions filed by the respondents to strike out the Summons of the applicants. They were not orders falling within s 5AA(1). 20 The Supreme Court (Summary Jurisdiction) Act 1967 provides that the Supreme Court has Summary Jurisdiction to hear criminal matters where an Act provides for this to occur (see s 3(1) and Part 75 rule 7 of the Supreme Court Rules). 21 I should mention in passing that when Mr Markisic addressed the court he accepted that any charge in relation to the Children (Care and Protection) Act was not within the Summary Jurisdiction of the Court and that the jurisdiction lay with the Local Court. However, the applicants persisted in their argument that all other charges were within the Summary Jurisdiction of the Supreme Court. 22 In my view, his Honour was correct to conclude that none of the charges set forth in the amended Summons came within the summary jurisdiction of the court. I agree with his reasons and conclusion. It follows that the Court of Criminal Appeal has no jurisdiction to hear an appeal from his Honour's decision. 23 Notwithstanding the above, the applicants' argument, set out in their Notice of Appeal, and in longer form in a document handed up to the court today entitled 'Outline of Appellant's Submissions Before the Court of Criminal Appeal' is, in my view, lacking in merit and substance. 24 As to the costs order made by his Honour, it is plain that it was not an order made in the Summary Jurisdiction of the court. 25 The costs order made by his Honour was not an order made under s 14 of the Act, it was an order made by his Honour under s 76 of the Supreme Court Act 1970 or, in the alternative, an order made in the inherent jurisdiction of the Court to prevent an abuse of its process. 26 There is ample authority that where a court enquires as to whether it has jurisdiction in a given matter, there is power to order costs. 27 Moreover, there was no reason why his Honour should not have ordered costs to follow the event of the upholding of the respondents' motions and dismissal of the Amended Summons. There was no error in his Honour's discretionary order as to costs.

Costs of the Appeal 28 In their written submissions the respondents' seek costs of the proceeding before the Court of Criminal Appeal. Section 17 of the Act provides that no costs shall be allowed on either side on the hearing or determination of an appeal, but this does not mean that the Court of Criminal Appeal has no jurisdiction to make orders for costs, see, for example, cases stated under s 5B. 29 In Proust v Blake (1989) 17 NSWLR 267 Samuels JA stated [at 272]: It is clear law that the fact that a court has no jurisdiction to determine a matter does not prevent it from dealing with the costs of the proceedings in which its absence of jurisdiction is established: Pezet v Pezet (1946) 47 SR (NSW) 45 at 51; 63 WN (NSW) 238 at 240. This case was disapproved in Miller v Teale (1954) 92 CLR 406 but not in relation to the costs point. It follows that even if the result of this court's determination was to declare that it had no jurisdiction to entertain the stated case (which it is not) there would still be jurisdiction to make an order for the costs of the proceedings which we have heard. 30 Where a court has no jurisdiction to determine a matter sought to be litigated before it, it still has jurisdiction to determine whether it has jurisdiction and, therefore, a jurisdiction to deal with the costs of the proceedings, see authorities cited at p 13 of submissions filed on behalf of the 2nd, 6th, 7th and 9th respondents. 31 While the proceedings purport to be brought under the Act, they in fact were not so brought, and s 17(1) has therefore no power to awarding costs of the court. 32 The Court of Criminal Appeal has implied power to control abuse of its processes. This purported appeal from McClellan J is an abuse of process. It is an incident to such a power to control abuses of its processes that the court has implied (or inherent) power to order the applicants to pay the respondents' costs. See Darcey v Pre-Term Foundation Clinic (1983) 2 NSWLR 497 at 503; R v Barbaro (1992) 106 FLR 387 at 389; and Director General, Department of Community Services v Houdek [1999] NSWSC 1031. The dichotomy between implied and inherent powers matters not in this context. 33 In this matter it was made plain to the applicants that the Court of Criminal Appeal did not have any jurisdiction to entertain their appeal and that costs would be sought against them. Notwithstanding, they have persisted in the appeal and the court has found that it has no jurisdiction. 34 The respondents have been caused costs and expense in order to respond to the appeal and they are entitled to their costs from the applicants. The costs awarded by McClellan J and by this court are compensatory and are not awarded as a punishment of the applicants. 35 I propose that the appeal be dismissed and the applicants be ordered to pay the costs of the respondents on a party and party basis. 36 DOWD J: I agree with the proposed order and his Honour's reasons. 37 BARR J: I also agree. 38 STEIN JA: Accordingly, the orders of the court will be as I have just proposed.

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