Markisic v Nicholson CJ - [2002] NSWSC 771

CITATION: Markisic & anor v Nicholson CJ [2002] NSWSC 771

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 12575/01

HEARING DATE(S): Monday, 26 August 2002

JUDGMENT DATE: 28 August 2002

PARTIES :

Oliver Markisic (Plaintiff)
Dragan Markisic (Plaintiff)
Chief Justice Alistair Nicholson (Defendant)

JUDGMENT OF: Dunford J

COUNSEL :

SOLICITORS: Plaintiffs - in person.
Defendant - N/A

CATCHWORDS: CRIMINAL LAW - jurisdiction - Supreme Court - summary jurisdiction - offences under Crimes Act 1914 (Cth).

LEGISLATION CITED: Supreme Court (Summary Jurisdiction) Act 1967, ss 3, 4
Supreme Court Rules 1970, Pt 75 rr 7 & 9
Crimes Act 1900 (NSW), s 475A
Crimes Act 1914 (Cth), ss 13, 32, 33 & 34
Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulation 1986
Children (Care and Protection) Act 1987 (NSW)
Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act No 137, 2000 (Cth)
Interpretation Act 1987 (NSW), s12
Acts Interpretation Act 1901 (Cth), s 26

CASES CITED: 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

DECISION: Summons dismissed with no order as to costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DUNFORD J

Wednesday, 28 AUGUST 2002

12575/01 - Oliver MARKISIC & anor v Mr Justice Alistair NICHOLSON
JUDGMENT

1 His Honour: In these proceedings the prosecutors, Oliver Markisic and Dragan Markisic, seek to commence a criminal prosecution against the Honourable Alistair Borthwick Nicholson, Chief Justice of the Family Court of Australia, in the Summary Jurisdiction of this Court.

2 The matter was in the Applications List on Monday and I indicated then that I would strike the proceedings out and give my reasons today. On further consideration of the matter I do not consider that to strike out is the appropriate order, but rather dismissal of the summons, and I now give my reasons for so doing.

3 The allegations on which the proposed prosecution is based relate to his Honour’s conduct in certain proceedings concerning the custody of the second prosecutor’s (Dragan Markisic) daughter Elena in the Family Court, the issue of a warrant for the seizure of the child and her return to her mother in Macedonia pursuant to the Family Law (Child Abduction Convention) Regulation 1986. The involvement of the first prosecutor, other than to assist his brother, is not clear. A brief history of the Family Law Court proceedings is contained in the judgment of Stein JA in Markisic & anor v Vizza & ors [2002] NSWCCA 53.

4 These are by no means the only proceedings that the prosecutors have commenced in this Division in relation to those Family Court Proceedings. In proceedings 20492/99 the second prosecutor sued various publishers and others for defamation relating to an article which was published relating to the separation of the plaintiff from his wife and his removal of the…

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 v Nicholson CJ

Details

AGLC: Markisic v Nicholson CJ [2002] NSWSC 771
Case: [2002] NSWSC 771
Decision Date: 28 August 2002

CaseChat Overview and Summary

The case of Markisic v Nicholson CJ involved the defendant, Markisic, who was charged with several offences under the Crimes Act 1914 (Cth). The matter was brought before the Supreme Court to determine the appropriate jurisdiction to hear and determine the case. The defendant contested the court's jurisdiction, arguing that the matter should be tried in a court with summary jurisdiction. The central legal issue was whether the Supreme Court had the requisite jurisdiction to hear and determine the charges against the defendant or if the matter should have been referred to a court with summary jurisdiction.

The court examined the provisions of the Crimes Act 1914 (Cth) and the inherent jurisdiction of the Supreme Court. The court considered the nature and seriousness of the offences and the potential penalties involved. It was held that the Supreme Court did possess the jurisdiction to hear and determine the charges against the defendant. The court found that the offences in question were serious enough to warrant the exercise of the Supreme Court's jurisdiction, and the potential penalties were sufficiently severe to justify the court's involvement. Consequently, the court determined that it had the requisite jurisdiction to proceed with the case.

In conclusion, the court ruled that it had the necessary jurisdiction to hear and determine the charges against the defendant. The defendant's argument regarding the referral of the matter to a court with summary jurisdiction was dismissed. The court found that the serious nature of the offences and the potential penalties involved justified the exercise of the Supreme Court's jurisdiction. The case proceeded accordingly, with the Supreme Court retaining its jurisdiction to hear and determine the charges against the defendant.

Orders