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Supreme Court 14 December 2001

Markisic & Anor v Vizza & Ors

[2001] NSWSC 1155

Other
INDICTABLE OFFENCES SUMMARY OFFENCES

Citation: Markisic & Anor v Vizza & Ors [2001] NSWSC 1155
Court: Supreme Court of New South Wales (Common Law Division)
Date: 14 December 2001
Judge(s): McClellan J

Background

Two prosecutors, acting for themselves, brought proceedings under the Supreme Court (Summary Jurisdiction) Act 1967 (NSW) seeking orders that seventeen defendants be dealt with for a range of alleged criminal offences. The defendants included officers of the Department of Community Services, Commonwealth Attorney-General's Department staff, Australian Federal Police officers, Centacare workers, foster carers, a barrister, Crown Solicitors' officers, and Qantas Airways Limited.

The allegations arose from Family Court proceedings concerning the removal of a child from Australia. In 1998, the second prosecutor had brought his daughter to Australia from Macedonia. Following requests by Macedonia for the child's return, the Family Court made orders for the child's care and ultimately her return to her mother. The Australian Federal Police executed a warrant to take possession of the child, who was subsequently returned to Macedonia in October 1998.

The prosecutors alleged that various defendants had committed offences under both Commonwealth and State legislation, including 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). Multiple defendants moved to have the amended summons struck out, arguing that the Supreme Court lacked jurisdiction to entertain the charges.

  • Whether the offences alleged by the prosecutors were capable of being prosecuted in the summary jurisdiction of the Supreme Court under the Supreme Court (Summary Jurisdiction) Act 1967 (NSW)
  • Whether the Supreme Court had jurisdiction to entertain charges under Commonwealth legislation, including the Family Law Act 1975 (Cth) and the Crimes Act 1914 (Cth)
  • Whether charges under State legislation, including the Crimes Act 1900 (NSW) and the Children (Care and Protection) Act 1987 (NSW), properly fell within the Supreme Court's summary jurisdiction
  • Whether the proceedings constituted an abuse of process

Decision

McClellan J examined each charge in turn and concluded that none of the offences alleged in paragraphs 1(a) through to 1(q) of the amended summons fell within the summary jurisdiction of the Supreme Court as conferred by the Supreme Court (Summary Jurisdiction) Act 1967.

The court's summary jurisdiction under the Act is narrow. It is enlivened only where another Act specifically provides that proceedings for an offence may be taken before the Supreme Court in its summary jurisdiction. The charges brought under various Commonwealth statutes, including certain provisions of the Crimes Act 1914 (Cth), did not satisfy this requirement. Additionally, the Supreme Court does not hold jurisdiction under the Family Law Act 1975 (Cth), which meant that charges under sections 112AD and 112AP of that Act, being remedies available only to courts with Family Law Act jurisdiction, could not be entertained.

Charges brought under the Children (Care and Protection) Act 1987 (NSW) were similarly unavailable in the Supreme Court, as that Act directs summary proceedings to be dealt with before a magistrate in the Local Court. The charge under section 336(2) of the Crimes Act 1900 (NSW) was likewise outside the Supreme Court's summary jurisdiction, as that provision is to be dealt with summarily by a magistrate unless an election is made for trial on indictment.

McClellan J noted that further defects in the charges may have existed but declined to address them, as those matters had not been argued before the court. The amended summons was struck out in its entirety.

Orders Made

  • The Amended Summons is struck out.
  • The first and second prosecutors are ordered to pay the defendants' costs.

Key Takeaways

  • The Supreme Court's summary jurisdiction under the Supreme Court (Summary Jurisdiction) Act 1967 (NSW) is only enlivened where another Act expressly provides for proceedings to be taken before that court in its summary jurisdiction. The jurisdiction is not a general one.
  • Where Commonwealth legislation confines a remedy or power to courts having jurisdiction under that Act (as with sections 112AD and 112AP of the Family Law Act 1975), a court lacking that jurisdiction cannot entertain such charges, regardless of the procedural vehicle used.
  • Offences under the Children (Care and Protection) Act 1987 (NSW) directed by that Act to be dealt with summarily before a magistrate in the Local Court cannot be prosecuted in the Supreme Court's summary jurisdiction.
  • In dismissing the amended summons, the Supreme Court confirmed that the procedural mechanism of the Supreme Court (Summary Jurisdiction) Act 1967 cannot be used to circumvent the jurisdictional limits that ordinarily govern prosecution of particular offences.
  • Where the court identifies defects beyond those argued before it, it will generally decline to rule on those additional matters.

Legislation and Cases Referenced

Legislation:
- Supreme Court (Summary Jurisdiction) Act 1967 (NSW)
- Judiciary Act 1903 (Cth)
- Family Law Act 1975 (Cth)
- Crimes Act 1914 (Cth)
- Crimes Act 1900 (NSW)
- Children (Care and Protection) Act 1987 (NSW)
- Family Law (Child Abduction Convention) Regulations 1996, reg 14
- Acts Interpretation Act 1901 (Cth)

Cases:
- Oliver Markisic & Anor v Commonwealth (2000) 49 NSWLR 321
- Solomons v District Court of New South Wales & Ors [2000] NSWCA 99
- Maguire v Simpson (1977) 139 CLR 362
- Munday v Gill (1930) 44 CLR 38
- Re Colina; Ex Parte Torney (1999) 200 CLR 386
- Porter v The King; Ex Parte Yee (1926) 37 CLR 432
- R v Fletcher; Ex parte Kisch (1935) 52 CLR 248
- John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351
- R v Mills [1986] VR 179