MARKISIC & ANOR v VIZZA & 16 ORS [2002] NSWCA 384 | Case summary

1 MASON P: Three sets of proceedings are before this Court. Proceedings No 40305 of 2002 is a summons which seeks declaratory and prerogative relief challenging the decision of McClellan J to which I shall later refer. Proceedings No 40693 of 2002 is a Summons which seeks leave to appeal against that decision and an order for an extension of time within which to file that summons. Proceedings No 60694 of 2002 are a notice of appeal and an accompanying motion seeking an order extending the time for the filing of the notice of appeal. 2 The background to these proceedings is that a child was born in May of 1997 and was brought to Australia in 1998 by the claimant Mr Dragan Markisic. Proceedings were then commenced in the Family Court of Australia by the Department of Community Services at the request of the government of Macedonia under the Hague Convention. There were orders made by the Family Court by way of interim relief and on 17 August 1998 Judicial Registrar Johnston made an order that the child be returned to Macedonia. There was an application for review of those orders which was dismissed by Rowlands J on 9 September 1998 and an appeal to the Full Court of the Family Court of Australia which was dismissed on 29 September 1998. On that day the Full Court of the Family Court issued a warrant and the child was taken by the Australian Federal Police and very shortly thereafter returned with her mother to Macedonia. An application for a stay had been dismissed by the High Court in the meantime. 3 Several proceedings have been initiated in the Supreme Court of New South Wales by the father of the child, Mr Dragan Markisic, and his brother Oliver, who are the two claimants today. There were civil proceedings which can be noted but are of no present relevance. 4 The present applications concern the summary dismissal of proceedings commenced in the Supreme Court by the two claimants against a number of people who were involved in various ways in the initiation and prosecution of the Hague Convention application and the custody of the child. The amended summons was filed on 7 September 2001 and invoked the jurisdiction of the Supreme Court of New South Wales under the Supreme Court (Summary Jurisdiction) Act 1967. 5 The two claimants, describing themselves therein as the first and second prosecutors, sought a number of orders directed at the seventeen named defendants. In each case what was sought was an order that named defendants appear before a judge of the Supreme Court to answer to a specified offence. The summons was in the form appropriate to initiate proceedings under the Supreme Court (Summary Jurisdiction) Act. Some of the offences charged were state offences and some were federal offences, contrary to federal statutes or involving allegations of conspiracy or contempt in relation to federal courts. 6 The matter came before McClellan J on 5 November 2001. The two prosecutors appeared unrepresented. Some of the named defendants did not appear, others appeared and were represented. The defendants represented sought to have the proceedings summarily dismissed on the ground that the Supreme Court did not have any summary criminal jurisdiction in the matter or in any of the matters. In some cases the applications were made orally, in other cases they were supported by a notice of motion to similar effect. 7 McClellan J heard argument, reserved judgment and on 14 December 2001 made orders that the amended summons was struck out and that the first and second prosecutors pay the defendants costs (see Markisic and Anor v Vizza and Ors [2001] NSWSC 1155). 8 The prosecutors appealed or sought leave to appeal to the Court of Criminal Appeal. That appeal was itself dismissed on a jurisdictional ground (See Markisic v Vizza [2002] NSWCCA 243). 9 The Court of Criminal Appeal ruled that the proceedings before McClellan J were in effect civil in nature and that the venue in which to challenge his Honour's order was the Court of Appeal. Thereafter three sets of proceedings were brought in this Court. 10 As I have indicated the first was a summons which was filed on 2 April 2002 seeking declaratory and prerogative relief, the second was a summons for leave to appeal with accompanying notice of motion seeking extension of time and the third was a notice of appeal purporting to appeal as of right with an accompanying application for extension of time. 11 There were earlier interlocutory proceedings in this Court before the Registrar and Giles JA. Giles JA in his reasons for judgment (see Markisic v Vizza [2002] NSWCA 243) indicated his view that the prerogative proceedings were incompetent having regard to the fact that the judgment in question was that of a judge of the Supreme Court. However, his Honour declined as a single judge to strike out the prerogative proceedings and they have continued and, as I have indicated, form part of the totality of the proceedings before us today. 12 As I have indicated, the claimants filed process invoking the summary criminal jurisdiction of the Supreme Court, being the jurisdiction conferred by the Supreme Court (Summary Jurisdiction) Act 1967. As McClellan J points out in his reasons for judgment, the summary criminal jurisdiction of the Supreme Court is not at large but so far as state law is concerned depends upon specific statutory conferral. 13 The usual principle is that crimes are prosecuted on indictment. Summary jurisdiction is by way of exception, being statutory exception, and one must find in an enactment the power to prosecute summarily and a conferral of appropriate jurisdiction on an appropriate court. As regards the Supreme Court, it is the combined operation of s 475A of the Crimes Act 1900 and Schedule 10 of that Act which stipulate the various offences that are punishable by the Supreme Court in its summary jurisdiction. 14 McClellan J in his detailed reasons considers paragraph by paragraph the various offences charged in the amended summons and indicates why none of them are offences which may be prosecuted summarily in the Supreme Court. Some of the offences are alleged breaches of commonwealth laws. Others are alleged breaches of state laws, some of which can be prosecuted summarily, but no provision is made for them to be prosecuted summarily in the Supreme Court as distinct from the Local Court. 15 It is I think necessary first to address the question of the jurisdiction of this Court to entertain the various proceedings before us. As regards the summons No 40305 of 2002 the relief sought is a declaration and/or orders in the nature of mandamus, in each case effectively challenging the decision of McClellan J in which he held that he had no jurisdiction to hear and determine the amended summons as a summary criminal prosecution. 16 As Giles JA pointed out in his judgment at para 11:

McClellan J was exercising the jurisdiction of the Supreme Court. The Supreme Court (Summary Jurisdiction) Act s 3 makes that plain. He was the Supreme Court. The Supreme Court will not make an order for prohibition against the Supreme Court, that is, one Judge will not make an order for prohibition directed to another Judge of the Court, even if prerogative relief would be available notwithstanding that the Court is in general a superior court of unlimited jurisdiction. The reasoning of Drummond J in Bird v Free (1994) 126 ALR 474 at 478-9, expressed in relation to the Federal Court of Australia, is equally applicable in that respect. It follows, in my view, that prerogative relief in the nature of mandamus, which is effectively what the claimants sought in their summons, would not be available. 17 His Honour continued by referring to s 48(2) of the Supreme Court Act, which empowers the Court of Appeal to grant prerogative relief of various kinds in relation to specified tribunals. Giles JA stated correctly that a Division of the Supreme Court is not a specified tribunal. 18 For those reasons, which I am content to adopt and with which I entirely agree, there is no jurisdiction in the Court of Appeal to entertain the claims for relief in summons No 40305. If McClellan Js orders are to be challenged they are to be challenged by appellate, not prerogative or declaratory proceedings. 19 Turning then to the appellant lines I should indicate that the Court has had written and well-presented oral submissions from the claimants, in particular Mr Oliver Markisic who primarily spoke on behalf of himself and his brother, Mr Dragan Markisic. Dragan is the father of the child in question. 20 It was submitted that there is an appeal as of right. I would reject that submission. Section 101(2) of the Supreme Court Act states that an appeal shall not lie to the Court of Appeal except by leave of the Court of Appeal from various matters including: (r) a final judgment or order in proceedings of the Court other than an appeal: (i) that involves a matter at issue amounting to or of the value of $100,000 or more, or (ii) it involves directly (or indirectly) any claim, demand or question to or respecting any property or civil right amount to or of the value of $100,000 or more. 21 The present appeal challenges what the claimants accept to be a final judgment, but the appeal does not involve a monetary sum at issue and therefore the primary stipulation that the appeal shall not lie to the Court of Appeal except by leave of the Court of Appeal remains. 22 It was submitted that subs (3) of s 101 is engaged. I disagree. That subsection provides: Subsection (2) does not apply to a judgment given or order made on an application for a writ of habeas corpus ad subjiciendum or to an order for the committal or arrest of any person. 23 No such order has been made by McClellan J. The fact that an order in that nature was sought is not to the point. 24 Some reliance was also placed upon subs (5) which states: An appeal lies to the Court of Appeal from any judgement or order of the Court in a Division in any proceedings that relate to contempt (whether civil or criminal) of the Court or of any other court. 25 As McHugh J recently pointed out in Solomons v District Court of New South Wales (2002) 192 ALR 217 at 226-7 [47]: It is a long-recognised rule of statutory construction that reference to courts, matters, things and persons in the legislation of a state is a reference to courts, matters, things and persons in that state. In New South Wales that rule of construction is enshrined in legislation. 26 And his Honour referred to s 12 of the Interpretation Act 1987. 27 The charges in the amended summons which allege in effect contempt are alleged contempts of the Family Court of Australia and the High Court; and in application of the principles stated by McHugh J it is just not possible to construe s 101(5) of the Supreme Court Act of New south Wales as giving this Court any jurisdiction to entertain an appeal as of right with respect to a charge of contempt of a federal court. 28 For those reasons the proceedings instituted by the notice of appeal in this Court are in my view incompetent and the notice of appeal should therefore be dismissed with costs. 29 That leaves the application for leave to appeal and the accompanying motion to extend time. Although the opponents in their written submissions submit that the application should be dismissed merely because it is out of time I pass over that submission, noting that the claimants did promptly seek to appeal to the Court of Criminal Appeal and that in one sense the proceedings in this Court are a continuation of their attempt to challenge in the appropriate way the judgment of McClellan J. 30 The substantive issue which the claimants seeking leave to appeal wish to raise is that his Honour erred in ruling that the Supreme Court had no summary criminal jurisdiction. The matter has not been developed in any detailed way in the written or oral submissions. In reality the claimants have sought to outpace or outstep that issue by invocation of s 68 of the Judiciary Act 1903 (Cth). 31 I would simply say that in my view I entirely agree with the reasons given by McClellan J when, as he proceeded paragraph by paragraph through the amended summons, he pointed out why none of the charges sought to be preferred fall within the summary criminal jurisdiction of the Supreme Court of New South Wales. 32 As regards the alleged breaches of commonwealth laws his Honour pointed out that no such offences are within Schedule 10 of the Crimes Act. I agree. 33 As regards the alleged state offences his Honour pointed out that none of those charged or sought to be charged fall within Schedule 10. To the extent to which they may be prosecuted summarily in a court of New South Wales that court is not the Supreme Court. 34 In the written submissions of the claimants there were one or two separate challenges to the procedure adopted by McClellan J that I think it appropriate that I should address briefly. They can be dealt with together. 35 In essence the point being raised by the claimants was that his Honour was obliged to deal with the matters before him as if he were exercising criminal jurisdiction. Accordingly complaint is made about the fact that there were notices of appearance filed in the proceedings, and that in some cases the application for summary dismissal proceeded on notices of motion. It is said that there should not have been a costs order because the making of costs orders are not normally done in the criminal jurisdiction. 36 As to each of those submissions there is an underlying fallacy. Each submission assumes the very matter that is in issue. There is no doubt at all that the jurisdiction of the Supreme Court of New South Wales was invoked and it was incumbent on McClellan J to determine as a prior issue whether the Supreme Court had jurisdiction in the matter. His Honour examined the amended summons and saw that it invoked the summary criminal jurisdiction of the Supreme Court and, for reasons which were entirely correct in my view, concluded that that jurisdiction had not been invoked having regard to the nature of the charges the claimants sought to raise. 37 It would only have been if one or more of the charges had duly invoked the summary criminal jurisdiction of the Supreme Court that one would have then been precluded from relying on certain parts of the Supreme Court Rules or driven to apply rules of criminal procedure which may not permit summary dismissal or ordering of costs. But his Honour was entitled, indeed obliged, to consider the jurisdictional issue first and in so doing he was exercising part of the general civil jurisdiction of the Supreme Court. 38 That, by the way, is the reason why the appeal to the Court of Criminal Appeal was inapt and why this Court has jurisdiction subject to a grant of leave to entertain an appeal in the present matter. 39 It was argued that McClellan J should as a final step have transferred those proceedings where there was jurisdiction lying in the Local Court to the Local Court. But there is no power conferred in the Supreme Court (Summary Jurisdiction) Act or otherwise for that to be done. 40 I indicated earlier that one of the arguments sought to be raised both before McClellan J and pressed in this Court was that the sch 10 and s 475A of the Crimes Act were not the last word in the present matter insofar as some of the charges sought to be brought involve alleged federal offences. It was here that the claimants invoked s 68(2) of the Judiciary Act 1903 (Cth). That section is set out in para 24 of the judgment under appeal. 41 As McClellan J pointed out, s 68(2) operates to confer on this Court and other state and territory courts like jurisdiction with respect to commonwealth offences. But again, as he pointed out, it is necessary to have regard to any provisions of the relevant Commonwealth act creating the offence, not only to see what offence is available to be incorporated into the state system via s68(2) but also to see whether specific commonwealth law has provided for the jurisdiction and method of disposal of the matter. 42 Another way of putting that is to say that s68(2) is a general provision which picks up provisions of state law when they are capable of application, but it is to be read against the background of any specific federal enactment which would govern the matter. 43 The Crimes Act 1914 (Cth) creates the framework for determining whether an offence against a commonwealth law is either summary or indictable and how indictable offences may be dealt with summarily (see ss4G, 4H and 4J). 44 We were taken today to one of those sections by Mr Oliver Markisic. To the extent that the Commonwealth Crimes Act permits the summary prosecution of some of the offences that are presently sought to be charged, it does so in a specific way by stipulating that they may be heard and determined by a "court of summary jurisdiction" with the consent of the prosecutor and the defendant (see s4J). 45 The difficulty for the claimants is that the Supreme Court of New South Wales is not relevantly a court of summary jurisdiction. That is because s26 of the Acts Interpretation Act 1901 (Cth) defines that term for the purposes of commonwealth legislation and it does so by saying that it means:

MARKISIC & ANOR v VIZZA & 16 ORS

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