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: