Markisic v Vizza & 16 Ors - [2002] NSWCA 384

CITATION: MARKISIC & ANOR v VIZZA & 16 ORS [2002] NSWCA 384

FILE NUMBER(S): CA 40305/2002; 40693/2002; 40694/2002

HEARING DATE(S): Thursday 21 November 2002

JUDGMENT DATE:
21 November 2002

PARTIES :

Oliver MARKISIC & Anor v Gina VIZZA & 16 Ors

JUDGMENT OF: Mason P at 1; Ipp JA at 49; Young CJ in Eq at 50

LOWER COURT JURISDICTION : Supreme Court

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

LOWER COURT
JUDICIAL OFFICER : McClellan J

COUNSEL: Appellants: In Person
Respondents:
V Hartstein - 2, 6, 7, 9
D Robinson - 3, 4, 15, 16
A Kohn (Sol) - 10-14
G Nell - 17

SOLICITORS: Appellants: In Person
Respondents:
I V Knight, Crown Solicitor - 2, 6, 7, 9
Australian Government Solicitor - 3, 4, 15, 16
Makinson & d'Apice - 10 - 14
Black Dawson Waldron - 17

CATCHWORDS: Criminal law - Supreme Court (Summary Jurisdiction) Act 1967 - unavailable for federal offences - available only for finite list of State offences - Judiciary Act 1903 (Cth), s68(2) does not alter situation

DECISION: Formal orders entered on Court records are as follows: CA 40305/02 - Summons dismissed with costs;; CA 40693/02 - Summons (including Motion for extension of time) dismissed with costs; CA 40694/02 - Summons (including Motion for extension of time) dismissed with costs.

CA 40305/2002
CA 40693/2002
CA 40694/2002

MASON P
IPP JA
YOUNG CJ in EQ
Thursday 21 November 2002

Oliver MARKISIC & Anor v Gina VIZZA & 16 Ors

JUDGMENT

1 MASON P: Three sets of proceedings are before this Court. Proceedings No 40305 of 2002 is a summons which seeks declaratory and prerogative relief challenging the decision of McClellan J to which I shall later refer. Proceedings No 40693 of 2002 is a Summons which seeks leave to appeal against that decision and an order for an extension of time within which to file that summons. Proceedings No 60694 of 2002 are a notice of appeal and an accompanying motion seeking an order extending the time for the filing of the notice of appeal.

2 The background to these proceedings is that a child was born in May of 1997 and was brought to Australia in 1998 by the claimant Mr Dragan Markisic. Proceedings were then commenced in the Family Court of Australia by the Department of Community Services at the request of the government of Macedonia under the Hague Convention. There were orders made by the Family Court by way of interim relief and on 17 August 1998 Judicial Registrar Johnston made an order that the child be returned to Macedonia. There was an application for review of those orders which was dismissed by Rowlands J on 9 September 1998 and an appeal to the Full Court of the Family Court of Australia which was dismissed on 29 September 1998. On that day the Full Court of the Family Court issued a…

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 & 16 Ors

Details

AGLC: Markisic v Vizza and 16 Ors [2002] NSWCA 384
Case: [2002] NSWCA 384
Decision Date: 21 November 2002

CaseChat Overview and Summary

The parties in this matter were Markisic and Vizza & 16 Ors. The dispute concerned the availability of the Supreme Court (Summary Jurisdiction) Act 1967 (NSW) for federal offences. The case was heard by Mason P, Ipp JA, and Young CJ in Eq in the Court of Appeal.

The primary legal issue before the court was whether the Supreme Court (Summary Jurisdiction) Act 1967 (NSW) could be applied to federal offences, notwithstanding the provisions of s 68(2) of the Judiciary Act 1903 (Cth). The court was required to determine the scope of the summary jurisdiction of the Supreme Court of New South Wales in relation to federal criminal matters.

The court reasoned that the Supreme Court (Summary Jurisdiction) Act 1967 (NSW) was confined to a finite list of State offences and was not available for federal offences. Section 68(2) of the Judiciary Act 1903 (Cth), which confers federal jurisdiction on State courts, does not operate to extend the summary jurisdiction of the Supreme Court of New South Wales beyond the specific State offences enumerated in its enabling legislation. Therefore, the Act could not be invoked for federal matters.

The summonses and motions for extension of time in each of the appeals were dismissed with costs.

Orders

Orders of the court

Formal orders entered on Court records are as follows: CA 40305/02 - Summons dismissed with costs;; CA 40693/02 - Summons (including Motion for extension of time) dismissed with costs; CA 40694/02 - Summons (including Motion for extension of time) dismissed with costs.

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 & 16 ORS [2002] NSWCA 384
FILE NUMBER(S):	CA 40305/2002; 40693/2002; 40694/2002
HEARING DATE(S):	Thursday 21 November 2002
JUDGMENT DATE:	21 November 2002
PARTIES :	Oliver MARKISIC & Anor v Gina VIZZA & 16 Ors
JUDGMENT OF:	Mason P at 1; Ipp JA at 49; Young CJ in Eq at 50

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

COUNSEL:	Appellants: In Person Respondents: V Hartstein - 2, 6, 7, 9 D Robinson - 3, 4, 15, 16 A Kohn (Sol) - 10-14 G Nell - 17
SOLICITORS:	Appellants: In Person Respondents: I V Knight, Crown Solicitor - 2, 6, 7, 9 Australian Government Solicitor - 3, 4, 15, 16 Makinson & d'Apice - 10 - 14 Black Dawson Waldron - 17
CATCHWORDS:	Criminal law - Supreme Court (Summary Jurisdiction) Act 1967 - unavailable for federal offences - available only for finite list of State offences - Judiciary Act 1903 (Cth), s68(2) does not alter situation
DECISION:	Formal orders entered on Court records are as follows: CA 40305/02 - Summons dismissed with costs;; CA 40693/02 - Summons (including Motion for extension of time) dismissed with costs; CA 40694/02 - Summons (including Motion for extension of time) dismissed with costs.