Citation: Markisic & Anor v Nicholson CJ [2001] NSWSC 811
Court: Supreme Court of New South Wales (Common Law Division)
Date: 17 September 2001
Judge(s): Sperling J
Background
Two plaintiffs, appearing in person, filed a summons in the Supreme Court purporting to commence criminal proceedings against the Chief Justice of the Family Court. The summons was filed in Form 74A, the prescribed form for commencing proceedings in the Supreme Court's summary jurisdiction.
The plaintiffs sought directions from the court regarding service of the summons. Before those directions could be considered, Sperling J examined whether the summons was properly constituted.
Legal Issues
- Whether the summons sufficiently specified the offences charged
- Whether the Supreme Court had jurisdiction to hear the proceedings in its summary jurisdiction
- What requirements an amended summons would need to satisfy
Decision
Sperling J noted that the Supreme Court's summary criminal jurisdiction is not a general or inherent one. It arises only where a specific statute confers jurisdiction on the court to hear proceedings for a particular offence in a summary manner. This limitation flows directly from s 3(1) of the Supreme Court (Summary Jurisdiction) Act 1967.
The summons as filed failed to specify the alleged offences with sufficient clarity or precision. It also did not identify any statutory basis granting the Supreme Court jurisdiction to try those offences summarily. On that basis, Sperling J struck out the summons.
The court nonetheless granted the plaintiffs leave to file an amended summons within 28 days, subject to specific formal requirements designed to cure the deficiencies. Each alleged offence would need to be set out clearly in a separate numbered paragraph, with each paragraph also identifying the statutory provision conferring jurisdiction on the court.
Orders Made
- Summons struck out
- Leave granted to file an amended summons within 28 days, on the following conditions:
- Each alleged offence must be specified with clarity and precision in a separate numbered paragraph
- Each paragraph must also identify the statutory provision (if any) by which the Supreme Court is given jurisdiction to try that offence in its summary jurisdiction, including the name of the statute and the relevant section
Key Takeaways
- The Supreme Court's summary criminal jurisdiction is entirely statutory in origin: the court can only hear and determine summary criminal proceedings where an Act expressly confers that jurisdiction in relation to the specific offence charged.
- Under s 3(1) of the Supreme Court (Summary Jurisdiction) Act 1967, jurisdiction to proceed in a summary manner depends on another Act conferring that power for the particular offence.
- A summons commencing criminal proceedings in the Supreme Court's summary jurisdiction must identify each alleged offence with clarity and precision, and must specify the statutory source of the court's jurisdiction for each offence.
- In striking out the summons, Sperling J did not dismiss the proceedings outright but allowed an opportunity to replead, indicating the defect was one of form and specification rather than a finding that the proceedings were necessarily misconceived.
- No question of principle was identified in this decision: the ruling turned on compliance with basic pleading requirements and the established statutory framework for summary jurisdiction.
Legislation and Cases Referenced
Legislation:
- Supreme Court (Summary Jurisdiction) Act 1967 (NSW), s 3(1)
Cases cited: None cited in the judgment.