Markisic & Anor v Vizza & Ors

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40305/02 CL 12583/01

22 July 2002 MARKISIC & ANOR v VIZZA & ORS Judgment 1 HIS HONOUR: This matter has become procedurally complicated, and I need to explain what I am going to do. 2 The claimants, Mr Oliver Markisic and Mr Dragan Markisic brought proceedings which were heard by McClellan J. I am not aware of the detail of the proceedings, but they have been described as proceedings brought under the Supreme Court (Summary Jurisdiction) Act 1967 and they sought to have the opponents dealt with for offences against the criminal law. McClellan J ordered that the proceedings be either dismissed or struck out, as I understand it on the basis that there was no jurisdiction to deal with them. 3 The claimants appealed to the Court of Criminal Appeal, but the Court of Criminal Appeal held that that course was not open and that it had no jurisdiction on appeal. By that time the claimants were out of time for an appeal to the Court of Appeal, and it seems that they also needed leave to appeal to the Court of Appeal. The claimants did not take the avenue of a civil appeal. They filed a summons in the Court of Appeal, the terms of which were not entirely congruent with the description of an application for prerogative relief but that is the way in which the relief sought in the summons was regarded by the claimants. The summons in effect sought that McClellan J be ordered to hear the original proceedings. It is apparent that there was a deliberate choice by the claimants, with an understanding of the difference between an application for prerogative relief and an appeal, to take the former course rather than the latter. 4 Various of the opponents filed motions to have the summons struck out. The summons and the motions came before the Registrar on 24 June 2002. 5 The Registrar's reasons show that he considered that the Court of Appeal could not make orders in the nature of prerogative relief in relation to orders made in a Division of the Court and that the only avenue open to the claimants was that of appeal, in this case through an application for leave to appeal. The Registrar said, "I direct that the claimants file an ordinary summons for leave to appeal in substitution for the summons for judicial review", and later said that it was not necessary for him to determine the opponents' motions but that the opponents should have costs orders in their favour "as the summons is to stand dismissed upon the filing of a summons for leave to appeal". 6 The claimants then filed a notice of motion in the summons proceedings in the Court of Appeal, and it is that notice of motion which is before me today. The first two paragraphs in the notice of motion seek an order setting aside the Registrar's direction that the claimants file a summons for leave to appeal and that the Court "make an order the proceedings to continue by way of the Summons filed". The third order seeks in the alternative a declaration that the claimants "have a right to file a Notice of Appeal, instead of Summons for a leave to appeal as directed by [the Registrar], and the court to extend the time for filing of any such Notice of Appeal." The fourth order, again in the alternative, seeks that there be an order transferring the proceedings for determination to the High Court of Australia. 7 I can immediately deal with the fourth order sought. As I have explained to the claimants, I have no power to make that order. 8 To go then to the orders made by the Registrar, it seems that he made the order directing the filing of an ordinary summons for leave to appeal in the exercise of the power granted by s 46(2)(a) of the Supreme Court Act 1970, a power which the Registrar can also exercise. The Registrar did not make an express order that the summons for prerogative relief be dismissed, struck out, or otherwise brought to an end, although it is plain he was of the view that that summons could not succeed. It seems that the Registrar thought that pursuant to s 46 a single Judge of the Court of Appeal could not make such an order, and hence that he could not make such an order, because that would be an order involving the determination of the summons (the summons being "other proceedings" in the Court of Appeal). Instead, the Registrar seems to have contemplated that the summons would "stand dismissed" on the filing of a summons for leave to appeal. I am not sure what the Registrar mean by that, and of course when the claimants have not filed an ordinary summons for leave to appeal the summons which came before the Registrar would appear still to be on foot. 9 I do not decide whether sitting as a Judge of Appeal exercising the powers of the Court of Appeal pursuant to s 46, I can put the summons to rest. I have had the benefit of debate with legal representatives at the Bar table, which debate has include consideration of whether the Registrar could be regarded as a Registrar of the Court, as distinct from a Registrar of the Court of Appeal, and whether I could sit as a first instance Judge, as distinct from a Judge of Appeal exercising the powers of the Court of Appeal, in order to put the summons rest. My present view is that neither proposition would command acceptance, because the summons was filed in the Court of Appeal, and is a proceedings in the Court of Appeal. Even if I can order that the summons be struck out by way of summary disposal, none of the opponents has sought review of the Registrar's decision so far as he did not dismiss, strike out or otherwise bring to an end the summons for prerogative relief. In those circumstances I would be reluctant to add to the procedural difficulties of the matter by taking a course which may not be correct by putting the summons to rest. 10 The result is, I think, that the summons should be brought before a bench of three in order that its fate be determined.

11 I am of the view that the Registrar was correct in considering that the summons can not succeed, and I so state because one thing that is before me and that I can deal with, is whether the Registrar's direction remains. 12 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 475 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. 13 Section 48(2) of the Supreme Court Act empowers the Court of Appeal to grant prerogative relief of various kinds in relation to specified tribunals. But a Division of the Court is not a specified tribunal, and I do not think that that means that the Court of Appeal can grant prerogative relief directed to a Judge sitting in a Division of the Court. 14 Hence it seems to me that the direction of the Registrar was well founded. I do not understand the direction to be a direction which imposes an absolute duty on the claimants, so that if they fail to file an ordinary summons for leave to appeal they will be in contempt of court. The Registrar's purpose, as I understand it, was to ensure that if the claimants were to seek to prosecute what they believe to be their rights, their doing so by way of appeal would be by an application for leave to appeal. The Registrar did not specify a time, and it seems to me appropriate that that be done so that matters can be brought to a head. Further, the application for leave to appeal and any necessary extension of time can most conveniently be brought before the bench of three before whom the summons is brought. 15 I go then to the fourth order sought. The claimants have made clear today, as the declaratory relief claimed in the notice of motion concerning filing a notice of appeal demonstrates, that they consider that they have a right of appeal, or at least that they would have a right of appeal but for being out of time. They will say, as I understand it, that they only fell out of time because they took the wrong course of going to the Court of Criminal Appeal. I have indicated to the claimants that I will not extend the time for filing a notice of appeal, as it is apparent that the opponents contend that the claimants do not have a right of appeal but require leave and that is a matter which is relevant to extending time. If, therefore, the claimants are going to assert an entitlement to appeal as of right, that is without leave, and if they apply for an extension of the time within which to do so, that would most conveniently come before the Court on the same occasion on which the application for leave to appeal is before the court. 16 It is in that rather complicated procedural situation that I dismiss the notice of motion, but my doing so will not preclude the claimants from making an application for an extension of the time within which to appeal as of right, nor of course will it preclude them from making an application for leave to appeal and any concomitant extension of time. I should direct that if the claimants are to make either application they should do so within a defined time so that, as I have previously said, the matter can be brought to a head, and I direct that any application for an extension of the time within which to appeal and any application for leave to appeal and an extension of the time within which to seek leave to appeal be brought by filing of the necessary process within 21 days from today's date. I stand the summons (that is the summons in the Court of Appeal) over to the date on which those applications are returnable before the Registrar, so that from then on the summons and the applications can travel together with a view to all being brought before the Court at the same time and some finality achieved in knowing the rights and obligations of the various parties. 17 In the event that the claimants do not file either of the applications within the 21 days, so that the summons remains on foot, I have no doubt that the opponents will seek to have it brought before the Registrar with a view to the summons itself being listed before the Court. 18 I have dealt with the matter in the absence of two of the opponents named in the notice of motion. One, the fifth opponent, I am told has not been served. The other, the eighth opponent, I am told was served. I am told that she has been in contact with the representative of other of the opponents, and I direct that she be given notice of these reasons.

HIS HONOUR: Anything else you want to ask of me today?

HIS HONOUR: Anything else anyone else wants to ask?

HIS HONOUR: I was wondering if someone would say that. Apart from costs, any problems anyone sees? Do the other parties want costs?

CLAIMANT O MARKISIC: Your Honour, I have written submissions for the Court of Appeal, and I would like, in relation to the costs on what is written in the submissions, basically those initial proceedings before his Honour who are criminal in nature--

HIS HONOUR: Let me stop you for a moment. What I see happening is that there will be an ultimate hearing to sort things out before a bench of three, and I have in mind letting that bench decide what will happen to the costs.

HIS HONOUR: You'll need to work hard to talk me out of it, and that remark is addressed to the opponents. Do you want to try?

HIS HONOUR: I reserve the costs of the application before me, with a view to them being disposed of by the Court which ultimately disposes of the summons and any associated appellate applications.

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