Markisic & anor v Nicholson CJ

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

12575/01 - Oliver MARKISIC & anor v Mr Justice Alistair NICHOLSON

JUDGMENT 1 His Honour: In these proceedings the prosecutors, Oliver Markisic and Dragan Markisic, seek to commence a criminal prosecution against the Honourable Alistair Borthwick Nicholson, Chief Justice of the Family Court of Australia, in the Summary Jurisdiction of this Court. 2 The matter was in the Applications List on Monday and I indicated then that I would strike the proceedings out and give my reasons today. On further consideration of the matter I do not consider that to strike out is the appropriate order, but rather dismissal of the summons, and I now give my reasons for so doing. 3 The allegations on which the proposed prosecution is based relate to his Honour's conduct in certain proceedings concerning the custody of the second prosecutor's (Dragan Markisic) daughter Elena in the Family Court, the issue of a warrant for the seizure of the child and her return to her mother in Macedonia pursuant to the Family Law (Child Abduction Convention) Regulation 1986. The involvement of the first prosecutor, other than to assist his brother, is not clear. A brief history of the Family Law Court proceedings is contained in the judgment of Stein JA in Markisic & anor v Vizza & ors [2002] NSWCCA 53. 4 These are by no means the only proceedings that the prosecutors have commenced in this Division in relation to those Family Court Proceedings. In proceedings 20492/99 the second prosecutor sued various publishers and others for defamation relating to an article which was published relating to the separation of the plaintiff from his wife and his removal of the child to Australia. The ultimate outcome of those proceedings is not presently known to me, nor is it relevant for present purposes. 5 In proceedings 20369/01 both the present prosecutors sued the Commonwealth of Australia claiming damages, aggravated damages and exemplary damages for wrongs allegedly suffered by them as a result of the actions of three groups of persons for whom it was alleged the Commonwealth was vicariously liable, namely: 1. Various officers of the New South Wales Department of Community Services involved in the care and disposition of the child after her removal from the prosecutors' house, 2. Three judges of the Family Court, including Nicholson CJ, who made orders authorising the issue of the warrant for the removal of the child, and 3. Three officers of the Australian Federal Police who executed the warrant for the removal of the child. 6 By a judgment delivered on 28 June 2001, Markisic & anor v The Commonwealth of Australia [2001] NSWSC 533, Master Harrison ordered that the proceedings be summarily dismissed. The plaintiffs appealed, and on 13 August 2002 Bell J, [2002] NSWSC 698, allowed the appeal in part and ordered that the Amended Statement of Claim be struck out but granted leave to the plaintiffs to file a Further Amended Statement of Claim limited to claims arising out of the actions of members of the Australian Federal Police for trespass and, with respect to the second prosecutor, for false imprisonment, assault and negligence. 7 In her judgment Bell J affirmed that part of Master Harrison's judgment which held that the judges were immune from civil suit for things done whilst acting in the course of their judicial duties, and that the Commonwealth could not be vicariously liable for the conduct of the judges acting in the course of such duties, see paras [22] to [26]. 8 Finally in proceedings 125823/01 the present prosecutors sought orders that 17 proposed defendants be prosecuted for various offences including, but not limited to, offences under the Family Law Act 1975 (Cth), the Crimes Act 1914 (Cth), the Crimes Act 1900 (NSW), and the Children (Care and Protection) Act 1987 (NSW). The proposed defendants were served and applied for the proceedings to be struck out or summarily dismissed. 9 On 14 December 2001 McClellan J, Markisic & anor v Vizza & ors [2001] NSWSC 1155, found that none of the offences which the prosecutors had set out in the summons were within the Summary Jurisdiction of the Court, and accordingly ordered that the Amended Summons be struck out. An appeal to the Court of Criminal Appeal was dismissed as incompetent: [2002] NSWCCA 53. I have been informed that an appeal to the Court of Appeal is pending. 10 The present proceedings were commenced on 16 August 2001. The original summons is not before me, but the matter came before Sperling J seeking directions as to service, and in a judgment delivered 17 September 2001: Markisic & anor v Nicholson CJ [2001] NSWSC 811, his Honour held that the Summons did not sufficiently specify the offences charged, he ordered that it be struck out but granted the prosecutors leave to file an Amended Summons provided that such summons complied with certain requirements, namely: (a) each alleged offence should be specified with clarity and precision in a separately numbered paragraph; (b) the paragraph in relation to each offence should also specify the statutory provision (if any), by which this Court is given jurisdiction to try the offence in its summary jurisdiction (stating the name of the statute and the section which gives this Court jurisdiction in relation to the particular offence). 11 The Amended Summons which is now before me was filed on 12 October 2001. It does not appear to have been properly served on Nicholson CJ, but that is immaterial as the Supreme Court Rules ("the Rules") Pt 75 r 9 expressly provide that a Summons under Pt 75 r 7, seeking an order under s 4 of the Supreme Court (Summary Jurisdiction) Act 1967 ("the Act"), which provides for the commencement of proceedings shall not be served on the proposed defendants before an order is made under that section unless the Court otherwise directs. The Amended Summons, so far as is material, is in the following form: Summons under the Supreme Court (Summary Jurisdiction) Act 1967 The plaintiffs claim:

1. An order that the defendant, Mr Justice Alistair Nicholson, Chief Justice of the Family Court of Australia, Family Court of Australia, 97-99 Goulburn Street, Sydney, appear before a Judge of the Court to answer to the offense (sic) 1(a) that the above defendant on 29th of September 1998 attempted to obtain or obtained benefit for the Director-General of the DOCS of NSW, solicitors and barristers of the State and Commonwealth Central Authorities, the second plaintiff's ex-wife and himself, when acting as a holder of judicial office under the Commonwealth exercising federal jurisdiction in the Family Court of Australia, Sydney Registry, with the following: (detailed particulars are then set out) in commission of an offense (sic) under Crimes Act 1914, section 32. 12 There follows what I shall, for want of a better term, describe as "the averment" in which the prosecutors refer to a number of provisions by which they claim that this Court has jurisdiction to try the above offence in its Summary Jurisdiction. These provisions are s 3 of the Act, Pt 75 r 7 of the Rules, and s 13 of the Crimes Act 1914 (Cth). 13 The Amended Summons continues: 1(b) that the above defendant on or about September 1998 [sought] to obtain benefit for the Director-General of the DOCS of NSW, solicitors and barristers of the State and Commonwealth Central Authorities, the second plaintiff's ex-wife and himself, when not acting judicially, improperly interfered with the due administration of justice, in agreement with the Respondent to the appeal, directed the appeal to the Full Court of the Family Court of Australia be listed for hearing in only 7 to 10 days time, to facilitate the commission of an offense (sic) under Part VII section 65Z of the Family Law Act by the officers and agents of the Central Authorities and the officers and agents of the DOCS of NSW, in commission of an offence under Crimes Act 1914, section 33. (The averment is then repeated) 1(c) that the above defendant on 29th of September 1998 when acting as a holder of judicial office under the Commonwealth exercising federal jurisdiction in the Family Court of Australia, Sydney Registry, out of interest, i.e. benefit for the Director-General of the DOCS of NSW, solicitors and barristers of the State and Commonwealth Central Authorities, the second plaintiff's ex-wife and himself, acted oppressively, and wilfully (sic) and perversely exercised federal jurisdiction, with the following: (lengthy particulars are then set out running to almost three A4 pages of single spacing) in commission of an offense (sic) under Crimes Act 1914, section 34(b). (The averment is again repeated) 2. That the defendant be dealt with according to law for commission of the above offenses (sic). 14 The document has obviously been drawn without professional help but in an attempt to comply with the requirements specified by Sperling J. The manner and setting out of the charges and the particulars thereof contain obvious defects, but what is clear is that it is sought to charge Nicholson CJ with offences against sections 32, 33 and 34(b) of the Crimes Act 1914 (Cth). 15 Those sections relate to judicial corruption, official corruption including corruption by a judge not acting in a judicial capacity, and a judge acting wilfully and perversely when exercising federal jurisdiction in a matter in which he has a personal interest. Sections 32 and 33 were repealed by the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act No 137, 2000 which commenced on 24 May 2001 but they were still in force at the time of the matters complained of and continue to apply in relation to any offences committed before the repeal: see Schedule 2, Item 418 of the last referred to Act. 16 However, as pointed out by McClellan J in his judgment, where all the relevant statutory provisions are set out, this Court only has jurisdiction to hear and determine proceedings for an offence in its Summary Jurisdiction where an Act (that is an Act of the New South Wales Parliament: Interpretation Act 1987 s 12) expressly so provides. Provision for such jurisdiction is made by s 475A and the Tenth Schedule of the Crimes Act 1900 (NSW), but offences under ss 32, 33 and 34 of the Crimes Act 1914 (Cth) are not included in that table. Accordingly there is no jurisdiction for the charges alleged to be tried in this Court in its Summary Jurisdiction. 17 In the "averments" the prosecutors refer to s 13 of the Crimes Act (Cth). That section is as follows: "Unless the contrary intention appears in the Act or regulation creating the offence, any person may: (a) institute proceedings for the commitment for trial of any person in respect of any indictable offence against the law of the Commonwealth; or (b) institute proceedings for the summary conviction of any person in respect of any offence against the law of the Commonwealth punishable on summary conviction." 18 Offences under the repealed ss 32 and 33, carry maximum penalties of two years as does a breach of s 34(b). Sections 4G and 4H define the distinction between indictable and summary offences, and these offences are therefore all indictable offences, although they may be dealt with summarily with the consent of both the prosecutor and the defendant: s 4J. For the operation of these sections see the judgment of McClellan J at para [26]. 19 "Court of Summary Jurisdiction" is defined by s 26, Acts Interpretation Act 1901 (Cth) to mean: "any justice or justices of the peace or other magistrate of the Commonwealth or part of the Commonwealth, or of a State or part of a State, or of an external Territory, sitting as a court (other than the Federal Magistrates Court) for the making of summary orders or the summary punishment of offences under the law of the Commonwealth or part of the Commonwealth or under the law of the State or external Territory or by virtue of his or their commission or commissions or any Imperial Act." 20 In New South Wales this means the Local Court presided over by a magistrate. It does not include the Supreme Court in its Summary Jurisdiction whose jurisdiction, as I have already observed, is limited by s 31 of the Act and s 475A and the Tenth Schedule of the Crimes Act 1900 (NSW). 21 For these reasons I am satisfied that this Court, in its Summary Jurisdiction, does not have jurisdiction or authority to hear and determine any of the charges alleged in the present proceedings, and therefore it is not appropriate to make any order under s 4 requiring the attendance of the defendant to answer such charges. Accordingly the Summons is dismissed with no order as to costs. **********

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