Citation: Markisic and Anor v Vizza and 16 Ors [2002] NSWCCA 53
Court: Court of Criminal Appeal, New South Wales
Date: 4 March 2002
Judge(s): Stein JA, Dowd J, Barr J
Background
The proceedings arose from a child abduction dispute. The second applicant, the father of a young child, had brought the child to Australia from Macedonia. The child's mother obtained custody orders in Macedonia and successfully applied under the Hague Convention on the Civil Aspects of International Child Abduction for the child's return. After orders from the Family Court were upheld through multiple levels of review, including a failed stay application in the High Court, the child was returned to her mother in October 1998.
The applicants, the father and his own father, subsequently filed proceedings in the Supreme Court by way of Amended Summons. They sought to have the respondents, who included government legal officers, Department of Community Services officers, counsel, a solicitor, Centacare employees, Australian Federal Police officers, and Qantas Airways, prosecuted before the Supreme Court in its summary jurisdiction for a range of alleged criminal offences under both Commonwealth and State legislation.
McClellan J struck out the Amended Summons, holding that the Supreme Court lacked jurisdiction to entertain those proceedings, as no statute conferred on the Supreme Court a summary jurisdiction over any of the offences alleged. He also ordered the applicants to pay the respondents' costs. The applicants then purported to appeal to the Court of Criminal Appeal under the Criminal Appeal Act 1912.
Legal Issues
- Whether the Court of Criminal Appeal had jurisdiction to hear the applicants' appeal under the Criminal Appeal Act 1912
- Whether McClellan J was correct to hold that the Supreme Court had no summary jurisdiction over the offences alleged in the Amended Summons
- Whether the purported appeal constituted an abuse of process
- Whether the Court of Criminal Appeal had power to award costs in circumstances where it found it lacked jurisdiction to hear the appeal
Decision
The Court of Criminal Appeal held that the appeal was incompetent from the outset. The court's appellate jurisdiction derives from statute, and the Criminal Appeal Act 1912 confers rights of appeal only on persons convicted on indictment or convicted of an offence, or against whom a costs order is made, within the Supreme Court's summary jurisdiction. Neither applicant had been convicted of any offence, nor had costs been ordered against them in the exercise of that summary jurisdiction. McClellan J's orders were made in the exercise of the Supreme Court's inherent jurisdiction to prevent abuse of its process, not within its summary jurisdiction, and so the Act did not apply.
The Court confirmed McClellan J's conclusion that the Supreme Court had no jurisdiction to deal with the alleged offences as a summary court. No statute conferred such a jurisdiction on the Supreme Court in relation to any of the charges the applicants sought to bring. Accordingly, the proceedings before the primary judge were properly struck out.
The Court further held that the purported appeal was itself an abuse of its process. Even where a court lacks jurisdiction over the substantive matter, it retains power to determine whether jurisdiction exists and to deal with costs arising from that determination. The Court found that the applicants had been warned the appeal was incompetent and that costs would be sought, yet they persisted. Relying on both implied and inherent powers to control abuses of its processes, the Court ordered the applicants to pay the respondents' costs, emphasising that those costs were compensatory in nature, not punitive.
Orders Made
- Appeal dismissed
- Applicants ordered to pay the respondents' costs on a party-and-party basis
Key Takeaways
- The Court of Criminal Appeal confirmed that its jurisdiction is purely statutory: an appeal lies under the Criminal Appeal Act 1912 only where a person has been convicted on indictment, or convicted and costs-ordered against in the Supreme Court's summary jurisdiction. Neither condition was met here.
- A distinction exists between orders made in the Supreme Court's summary jurisdiction and orders made in the exercise of its inherent jurisdiction to prevent abuse of process. Only the former attract rights of appeal under the Criminal Appeal Act 1912.
- Where no statute confers on the Supreme Court a summary jurisdiction over particular offences, private individuals cannot invoke that court's summary jurisdiction to prosecute those offences against others, regardless of how the application is framed.
- A court that lacks jurisdiction to determine a substantive matter nonetheless retains jurisdiction to determine whether it has jurisdiction, and to make costs orders in connection with that determination. This principle was applied to support costs orders at both the primary and appellate levels.
- Persisting with an appeal after being informed it is incompetent and that costs will be sought may result in a costs order founded on the court's implied or inherent power to control abuses of its processes, even where the court ultimately declines jurisdiction over the appeal itself.
Legislation and Cases Referenced
Legislation:
- Supreme Court Act 1970 (NSW), s 76
- Criminal Appeal Act 1912 (NSW), ss 5(1), 5AA(1), 17(1)
- Supreme Court (Summary Jurisdiction) Act 1967 (NSW)
- Crimes Act 1900 (NSW)
- Crimes Act 1914 (Cth)
- Family Law Act 1975 (Cth)
- Family Law (Child Abduction Convention) Regulations 1986 (Cth)
- Children (Care and Protection) Act 1987 (NSW)
- Hague Convention on the Civil Aspects of International Child Abduction
Cases:
- Darcey v Pre-Term Foundation Clinic (1983) 2 NSWLR 497
- Director General, Department of Community Services v Houdek [1999] NSWSC 1031
- Miller v Teale (1954) 92 CLR 406
- Pezet v Pezet (1946) 47 SR (NSW) 45
- Proust v Blake (1989) 17 NSWLR 267
- R v Barbaro (1992) 106 FLR 387