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Markisic v Vizza

Markisic v Vizza

Case [2002] NSWCCA 53 4 March 2002

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CITATION: Markisic and Anor v Vizza and 16 Ors [2002] NSWCCA 53

FILE NUMBER(S): CCA 60015/02

HEARING DATE(S): 4 March 2002

JUDGMENT DATE:
4 March 2002

PARTIES :

Oliver Markisic (first applicant)
Dragan Markisic (second applicant)
Gina Vizza (1st respondent)
Doreen Muirhead (2nd respondent)
Nan Levett (3rd respondent)
John McGinness (4th respondent)
Tim McDonald (5th respondent)
Charlie White (6th respondent)
Lily Anthony (7th respondent)
Robbie Flohm (8th respondent)
Mark Twohill (9th respondent)
Centacare Pty Ltd (10th respondent)
Helen O'Brien (11th respondent)
Jan Robertson (12th respondent)
Christine Robertson (13th respondent)
Mike Robertson (14th respondent)
Jenny Hurst (15th respondent)
Alison Bareet (16th respondent)
Qantas Airways Limited (17th respondent)

JUDGMENT OF: Stein JA at 1; Dowd J at 37; Barr J at 38

LOWER COURT JURISDICTION: Supreme Court

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

LOWER COURT JUDICIAL
OFFICER : McClellan J

COUNSEL : 1st and 2nd Applicants (in person)
No appearance (1st, 5th, 8th respondents)
V Hartstein (2nd, 6th, 7th, 9th respondents)
D P Robinson (3rd, 4th, 15th, 16th respondents)
A Kohn (10th to 14th respondents)
G Nell & F Rogers (17th respondent)

SOLICITORS: 1st and 2nd applicants (in person)
Australian Government Solicitor (3rd, 4th, 15th, 16th respondents)
I V Knight (2nd, 6th, 7th, 9th respondents)
A Kohn (10th to 14th respondents)
Blake Dawson Waldron (17th respondent)

CATCHWORDS: JURISDICTION - whether offences capable of prosecution in the Summary Jurisdiction of the Supreme Court - indictable offences - abuse of process - Supreme Court Act 1970, s 76 - inherent jurisdiction - whether appeal to Court of Criminal Appeal competent - costs - ND

LEGISLATION CITED: Crimes Act 1914 (Cth)
Criminal Appeal Act 1912 (NSW)
Crimes Act 1900 (NSW)
Children (Care and Protection) Act 1987 (NSW)
Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1996
Hague Convention on the Civil Aspects of International Child Abduction
Supreme Court Act 1970
Supreme Court (Summary Jurisdiction) Act 1967

CASES CITED:
Darcey v Pre-term Foundation Clinic (1983) 2 NSWLR 497
Director General, Department of Community Services v Houdek [1999] NSWSC 1031
Miller v Teale (1954) 92 CLR 406
Pezet v Pezet (1946) 47 SR (NSW) 45; 63 WN (NSW) 238
Proust v Blake (1989) 17 NSWLR 267
R v Barbara (1992) 106 FLR 387

DECISION: Appeal dismissed with costs

60015/02

STEIN JA
DOWD J
BARR J
Monday, 4 March 2002

MARKISIC and Anor v VIZZA and Ors

Judgment

1 STEIN JA: Early in 1998 the second applicant, Dragan Markisic, removed his daughter, Elena born on 3 May 1997 from Macedonia during a visit. He brought the child back to Australia. The child’s mother and former wife of Dragan, Katerina Markisic, obtained custody in Macedonia and applied under the Hague Convention on the Civil Aspects of International Child Abduction (hereafter referred to as the Convention) for the return of the child.

2 Australia and Macedonia are signatories to the Convention which has also been enacted into Australian law under the Family Law Act 1975 and the Family Law (Child Abduction Convention) Regulations 1996. Under 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 Vizza

Details

AGLC: Markisic v Vizza [2002] NSWCCA 53
Case: [2002] NSWCCA 53
Decision Date: 4 March 2002

CaseChat Overview and Summary

The case of Markisic v Vizza involved a dispute between the plaintiff, Markisic, and the defendant, Vizza, concerning the jurisdiction of the Supreme Court to hear certain offences. The matter was brought before the Supreme Court, and the plaintiff sought to challenge the defendant's actions on the basis of abuse of process. The primary issue before the court was whether the offences in question were capable of prosecution in the Summary Jurisdiction of the Supreme Court, and if not, whether the court had the inherent jurisdiction to hear the case.

The court examined the nature of the offences and their classification as indictable offences under the Supreme Court Act 1970, s 76. The court determined that the offences were indeed indictable and therefore not capable of prosecution in the Summary Jurisdiction. However, the court found that it had the inherent jurisdiction to hear the case and address the issue of abuse of process. The court concluded that an appeal to the Court of Criminal Appeal was not competent in this instance, as the matter was within the jurisdiction of the Supreme Court.

The court ordered that the appeal to the Court of Criminal Appeal was not competent and that the plaintiff's application for costs should be dismissed. The court's decision highlighted the importance of understanding the jurisdictional boundaries of the Supreme Court and the inherent jurisdiction available to the court in cases of abuse of process. This case serves as a reminder for legal practitioners to carefully consider the jurisdictional issues when bringing or defending matters in the Supreme Court.

Orders