Markisic v Vizza - [2002] NSWCA 243

CITATION: Markisic & Anor v Vizza & Ors [2002] NSWCA 243

FILE NUMBER(S): CA 40305/02

HEARING DATE(S): 22 July 2002

JUDGMENT DATE:
22 July 2002

PARTIES :

Markisic & Anor v Vizza & Ors

JUDGMENT OF: Giles JA

LOWER COURT JURISDICTION : Supreme Court

LOWER COURT
FILE NUMBER(S) : SC 12583/01

LOWER COURT
JUDICIAL OFFICER : McClellan J

COUNSEL: Appellants in person
V Hartstein - 1, 2, 6, 7 & 9 Respondents
D Robinson - 3, 4, 15 & 16 Respondents
A Kohn - 10, 11, 12, 13, 14 Respondents
G Nell - 17 Respondent

SOLICITORS: I V Knight, Crown Solicitor - 1, 2, 6, 7 & 9 Respondents
Australian Government Solicitor - 3, 4, 15 and 16 Respondents
Makinson & d'Apice - 10, 11, 12, 13 & 14 Respondents
Blake Dawson Waldron - 17 Respondent

CATCHWORDS: Review of Registrar's decision - whether Court of Appeal can grant prerogative relief against a judge of the Court - otherwise procedural matters. ND

DECISION: Dismiss the notice of motion. Direct that any application for an extension of time within which to appeal and any application for leave to appeal and an extension of time within which to appeal be brought by filing of the necessary process within 21 days from today's date. Stand the summons over to a date on which those applications are returnable before the Registrar. Direct that the eighth opponent be given notice of these reasons. Reserve costs of the application before me with a view to them being disposed of by the court which ultimately disposes of the summons and any associaetd appellate applications.

CA 40305/02
CL 12583/01

GILES JA
22 July 2002

MARKISIC & ANOR v VIZZA & ORS

Judgment

1 HIS HONOUR: This matter has become procedurally complicated, and I need to explain what I am going to do.

2 The claimants, Mr Oliver Markisic and Mr Dragan Markisic brought proceedings which were heard by McClellan J. I am not aware of the detail of the proceedings, but they have been described as proceedings brought under the Supreme Court (Summary Jurisdiction) Act 1967 and they sought to have the opponents dealt with for offences against the criminal law. McClellan J ordered that the proceedings be either dismissed or struck out, as I understand it on the basis that there was no jurisdiction to deal with them.

3 The claimants appealed to the Court of Criminal Appeal, but the Court of Criminal Appeal held that that course was not open and that it had no jurisdiction on appeal. By that time the claimants were out of time for an appeal to the Court of Appeal, and it seems that they also needed leave to appeal to the Court of Appeal. The claimants did not take the avenue of a civil appeal. They filed a summons in the Court of Appeal, the terms of which were not entirely congruent with the description of an application for prerogative relief but that is the way in which the relief…

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 Vizza

Details

AGLC: Markisic v Vizza [2002] NSWCA 243
Case: [2002] NSWCA 243
Decision Date: 22 July 2002

CaseChat Overview and Summary

The proceeding concerned an application by Markisic seeking to review a decision of the Registrar. The central question before Giles JA in the Court of Appeal was whether the Court of Appeal possessed the power to grant prerogative relief against a judge of that same court, or alternatively, to deal with other procedural matters arising from the case.

The primary legal issue was the jurisdiction of the Court of Appeal to entertain an application for prerogative relief directed at one of its own judges. This involved considering the nature of prerogative relief and the established boundaries of appellate court powers in relation to judicial officers within their own hierarchy.

Giles JA determined that the Court of Appeal did not have the power to grant prerogative relief against one of its own judges. His Honour reasoned that such a power was not conferred by the relevant legislation and would be an inappropriate exercise of the court's appellate functions. Consequently, the notice of motion seeking such relief was dismissed.

The court made specific orders regarding future applications. It directed that any application for an extension of time to appeal, or for leave to appeal and an extension of time, must be filed within 21 days. These applications were to be heard by the Registrar, and the costs of the application before Giles JA were reserved for determination by the court that ultimately heard the substantive summons and any associated appellate applications.

Orders

Orders of the court

Dismiss the notice of motion. Direct that any application for an extension of time within which to appeal and any application for leave to appeal and an extension of time within which to appeal be brought by filing of the necessary process within 21 days from today's date. Stand the summons over to a date on which those applications are returnable before the Registrar. Direct that the eighth opponent be given notice of these reasons. Reserve costs of the application before me with a view to them being disposed of by the court which ultimately disposes of the summons and any associaetd appellate applications.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Markisic & Anor v Vizza & Ors [2002] NSWCA 243
FILE NUMBER(S):	CA 40305/02
HEARING DATE(S):	22 July 2002
JUDGMENT DATE:	22 July 2002
PARTIES :	Markisic & Anor v Vizza & Ors
JUDGMENT OF:	Giles JA

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :	SC 12583/01
LOWER COURT JUDICIAL OFFICER :	McClellan J

COUNSEL:	Appellants in person V Hartstein - 1, 2, 6, 7 & 9 Respondents D Robinson - 3, 4, 15 & 16 Respondents A Kohn - 10, 11, 12, 13, 14 Respondents G Nell - 17 Respondent
SOLICITORS:	I V Knight, Crown Solicitor - 1, 2, 6, 7 & 9 Respondents Australian Government Solicitor - 3, 4, 15 and 16 Respondents Makinson & d'Apice - 10, 11, 12, 13 & 14 Respondents Blake Dawson Waldron - 17 Respondent
CATCHWORDS:	Review of Registrar's decision - whether Court of Appeal can grant prerogative relief against a judge of the Court - otherwise procedural matters. ND
DECISION:	Dismiss the notice of motion. Direct that any application for an extension of time within which to appeal and any application for leave to appeal and an extension of time within which to appeal be brought by filing of the necessary process within 21 days from today's date. Stand the summons over to a date on which those applications are returnable before the Registrar. Direct that the eighth opponent be given notice of these reasons. Reserve costs of the application before me with a view to them being disposed of by the court which ultimately disposes of the summons and any associaetd appellate applications.