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Supreme Court 28 August 2002

Markisic & anor v Nicholson CJ

[2002] NSWSC 771

Public order & justice offences
CRIMINAL LAW JURISDICTION SUPREME COURT SUMMARY JURISDICTION OFFENCES UNDER CRIMES ACT 1914 (CTH).

Citation: Markisic & anor v Nicholson CJ [2002] NSWSC 771
Court: Supreme Court of New South Wales, Common Law Division
Date: 28 August 2002
Judge(s): Dunford J

Background

Two brothers, Oliver and Dragan Markisic, appeared as self-represented prosecutors seeking to bring a private criminal prosecution in the Supreme Court's summary jurisdiction against the Chief Justice of the Family Court of Australia. The proposed charges arose from the Family Court Chief Justice's conduct in proceedings involving the custody of Dragan Markisic's daughter, including the issue of a warrant for the child's seizure and return to her mother in Macedonia under the Family Law (Child Abduction Convention) Regulation 1986.

The present proceedings were part of a broader pattern of litigation commenced by the Markisics in relation to the same Family Court proceedings. Prior related proceedings had included a civil claim against the Commonwealth (which was substantially dismissed, with judicial immunity confirmed), and an earlier summons seeking prosecution of 17 proposed defendants (struck out by McClellan J and the appeal dismissed as incompetent by the Court of Criminal Appeal).

The amended summons before Dunford J alleged offences under sections 32, 33 and 34 of the Crimes Act 1914 (Cth), broadly involving obtaining benefits and interference with the administration of justice. The prosecutors relied on section 13 of that Act and the Supreme Court (Summary Jurisdiction) Act 1967 as the basis for jurisdiction.

  • Whether the Supreme Court, sitting in its summary jurisdiction, had jurisdiction to hear and determine charges under sections 32, 33 and 34 of the Crimes Act 1914 (Cth).
  • Whether section 13 of the Crimes Act 1914 (Cth) conferred jurisdiction on the Supreme Court to try those charges summarily.
  • Whether the definition of "Court of Summary Jurisdiction" under the Acts Interpretation Act 1901 (Cth) encompassed the Supreme Court in its summary jurisdiction.

Decision

Dunford J held that the Supreme Court's summary jurisdiction is confined to offences prescribed under section 3 of the Supreme Court (Summary Jurisdiction) Act 1967 and section 475A of, and the Tenth Schedule to, the Crimes Act 1900 (NSW). Offences under sections 32, 33 and 34 of the Crimes Act 1914 (Cth) do not appear in that Tenth Schedule and therefore fall outside the Court's summary jurisdiction.

The prosecutors' reliance on section 13 of the Crimes Act 1914 (Cth) was rejected. The offences charged carried maximum penalties of two years' imprisonment and were properly classified as indictable offences under sections 4G, 4H and 4J of that Act. While such offences may be dealt with summarily with the consent of both prosecutor and defendant, the relevant forum for summary conviction of Commonwealth offences is a "Court of Summary Jurisdiction" as defined in section 26 of the Acts Interpretation Act 1901 (Cth).

That definition encompasses justices of the peace or magistrates sitting to make summary orders or punish offences summarily. As Dunford J observed, in New South Wales this means the Local Court presided over by a magistrate. The Supreme Court in its summary jurisdiction does not fall within that definition. Accordingly, section 13 could not supply the jurisdiction the prosecutors sought to invoke.

Finding no jurisdiction to hear or determine any of the alleged charges, Dunford J concluded it was not appropriate to make any order requiring the proposed defendant's attendance, and dismissed the summons. No order as to costs was made.

Orders Made

  • Summons dismissed.
  • No order as to costs.

Key Takeaways

  • The Supreme Court of New South Wales, sitting in its summary jurisdiction, is limited to offences prescribed under the Supreme Court (Summary Jurisdiction) Act 1967 and the Tenth Schedule to the Crimes Act 1900 (NSW). Commonwealth offences under sections 32, 33 and 34 of the Crimes Act 1914 (Cth) are not included.
  • Section 13 of the Crimes Act 1914 (Cth), which permits any person to institute proceedings for summary conviction of Commonwealth offences, does not extend the classes of courts that may exercise that summary jurisdiction. The forum must be a "Court of Summary Jurisdiction" as defined.
  • Under section 26 of the Acts Interpretation Act 1901 (Cth), a "Court of Summary Jurisdiction" in New South Wales refers to the Local Court presided over by a magistrate, not the Supreme Court in its summary jurisdiction.
  • Confirmed in related proceedings: judges of the Family Court are immune from civil suit for conduct in the exercise of their judicial duties, and the Commonwealth cannot be vicariously liable for such judicial conduct.
  • A private criminal prosecution for Commonwealth indictable offences (even those that may be dealt with summarily) cannot be commenced in the Supreme Court's summary jurisdiction in the absence of specific statutory conferral of that jurisdiction.

Legislation and Cases Referenced

Legislation:
- Supreme Court (Summary Jurisdiction) Act 1967 (NSW), ss 3, 4
- Supreme Court Rules 1970, Pt 75 rr 7 and 9
- Crimes Act 1900 (NSW), s 475A and Tenth Schedule
- Crimes Act 1914 (Cth), ss 4G, 4H, 4J, 13, 32, 33 and 34
- Acts Interpretation Act 1901 (Cth), s 26
- Interpretation Act 1987 (NSW), s 12
- Family Law Act 1975 (Cth)
- Family Law (Child Abduction Convention) Regulation 1986 (Cth)
- Children (Care and Protection) Act 1987 (NSW)
- Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (Cth), No 137

Cases:
- Markisic & anor v Vizza & ors [2002] NSWCCA 53; [2001] NSWSC 1155
- Markisic & anor v The Commonwealth of Australia [2001] NSWSC 533; [2002] NSWSC 698
- Markisic & anor v Nicholson CJ [2001] NSWSC 811