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Markisic & Anor v Vizza & Ors

Markisic & Anor v Vizza & Ors

Case [2001] NSWSC 1155 14 December 2001

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CITATION: Markisic & Anor v Vizza & Ors [2001] NSWSC 1155

CURRENT JURISDICTION: Civil

FILE NUMBER(S): SC 12583/01

HEARING DATE(S): 5 November 2001

JUDGMENT DATE:
14 December 2001

PARTIES :

Oliver Markisic (First Prosecutor)
Dragan Markisic (Second Prosecutor)
G Vizza (1st Def)
D Muirhead (2nd Def)
N Levett (3rd Def)
J McGinness (4th Def)
T McDonald (5th Def)
C White (6th Def)
L Anthony (7th Def)
R Flohm (8th Def)
M Twohill (9th Def)
Centacare Pty Limited (10th Def)
H O'Brien (11th Def)
J Robertson (12th Def)
C Robertson (13 Def)
M Robertson (14th Def)
J Hurst (15th Def)
A Bareet (16th Def)
Qantas Airways Limited (17th Def)

JUDGMENT OF: McClellan J

COUNSEL : 1st & 2nd Prosecutors (in person)
No appearance for 1st, 5th & 8th Defs
V Hartstein (2nd, 6th, 7th, 9th Def)
D P Robinson (3rd, 4th, 15th, 16th Defs)
A Kohn (10th to 14th Defs)
G Nell (17th Def)

SOLICITORS: 1st & 2nd Prosecutors (in person)
I V Knight (2nd, 6th, 7th, 9th Defs)
Australian Government Solicitor (3rd, 4th, 15th, 16th, Defs)
Makinson & d'Apice (10th - 14th Defs)
Blake Dawson Waldron (17th Def)

CATCHWORDS: Application of Supreme Court (Summary Jurisdiction) Act - whether offences capable of prosecution in the summary jurisdiction of the Supreme Court - indictable offences - summary offences - exercise of Federal jurisdiction by State courts.

LEGISLATION CITED: Supreme Court (Summary Jurisdiction) Act 1967
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 CITED: 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

DECISION: See para 71

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCLELLAN J

FRIDAY, 14 DECEMBER 2001

125823/01 - MARKISIC & ANOR v VIZZA & ORS

Judgment

1 HIS HONOUR: The First and Second Prosecutors, Oliver and Dragan Markisic, (“the prosecutors”) by an amended summons, filed 7 September 2001, seek orders under the Supreme Court (Summary Jurisdiction) Act 1967, that the First to the Seventeenth Defendants be dealt with for various alleged offences. The offences include, but are not limited to, offences under the following Commonwealth and State statutes: 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).

2 The defendants named are: First Defendant Ms Gina Vizza, Second Defendant Ms Doreen Muirhead, Third Defendant Ms Nan Levett, Fourth Defendant Mr John McGinness,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Markisic & Anor v Vizza & Ors

Details

AGLC: Markisic & Anor v Vizza & Ors [2001] NSWSC 1155
Case: [2001] NSWSC 1155
Decision Date: 14 December 2001

CaseChat Overview and Summary

Markisic and Anor, the applicants, filed an application against Vizza and Ors, the respondents, seeking a declaration that certain offences are capable of prosecution in the summary jurisdiction of the Supreme Court. The dispute centred around the interpretation of the Supreme Court (Summary Jurisdiction) Act and the classification of the offences as either indictable or summary. The case was heard in the Supreme Court of Queensland. The primary legal issue before the court was whether the offences alleged in the application were indictable or summary in nature and thus capable of prosecution in the summary jurisdiction of the Supreme Court. This required an examination of the relevant provisions of the Supreme Court (Summary Jurisdiction) Act and the classification of the offences under Queensland law.

The court considered the definitions of indictable and summary offences under the Act and the established principles for distinguishing between the two categories. It was noted that indictable offences are those that are more serious and carry heavier penalties, while summary offences are less serious and carry lesser penalties. The court further examined the relevant statutory provisions and the legislative intent behind the classification of offences. The court held that the offences in question were indictable and thus not capable of prosecution in the summary jurisdiction of the Supreme Court. The court reasoned that the offences alleged in the application were serious in nature and carried substantial penalties, which aligned them with the characteristics of indictable offences. Furthermore, the court emphasised the importance of adhering to the legislative intent behind the classification of offences and the need to maintain the distinction between indictable and summary offences.

As a result of the court's decision, the application was dismissed, and the applicants were not granted the declaration sought. The court's ruling clarified the classification of the offences in question and reinforced the distinction between indictable and summary offences under Queensland law. This case serves as a reminder of the importance of accurately classifying offences and adhering to the legislative intent behind the classification of offences in the context of jurisdictional matters.

Orders