Oliver Markisic v Attorney General for New South Wales Dragan Markisic v Attorney General for New South Wales
[2011] NSWSC 776
•29 July 2011
Supreme Court
New South Wales
Medium Neutral Citation: Oliver Markisic v Attorney General for New South Wales Dragan Markisic v Attorney General for New South Wales [2011] NSWSC 776 Hearing dates: 15 July 2011 Decision date: 29 July 2011 Before: HOEBEN J Decision: In matter 2010/00309865 brought by Oliver Markisic I dismiss the Summons.
I order Oliver Markisic to pay the costs of the Attorney-General of NSW.
In matter 2010/00309918 brought by Dragan Markisic, I dismiss the Summons.
I order Dragan Markisic to pay the costs of the Attorney-General of NSW.
Catchwords: PRACTICE AND PROCEDURE - applications by Attorney-General for summary dismissal of summonses brought by litigants in person - refusal by Magistrate to sign Court Attendance Notices directed to Supreme Court Judges - nature of function performed by Magistrate - whether statutory right of appeal exists in relation to the exercise of that function by a Magistrate - summonses to be treated as applications for prerogative relief - no basis for exercise of prerogative relief disclosed - summonses dismissed on the basis that they have no prospects of success Legislation Cited: Crimes Act 1914 (C'th)
Crimes (Appeal and Review) Act 2001
Criminal Procedure Act 1986
Defamation Act 1974
Local Court Act 2007
Service and Execution of Process Act 1992
Supreme Court Act 1970Cases Cited: Batistatos v RTA of NSW [2006] HCA 27; (2006) 226 CLR 256
General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129
Kak Loui Chan v Zacharia [1984] HCA 36; (1984) 154 CLR 178
Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531
Maxwell v The Queen (1996) 184 CLR 501
Potier v Magistrate O'Shane and Anor [2008] NSWSC 141
The King v War Pensions Entitlement Appeal Tribunal; Ex parte: Bott (1933) 50 CLR 228 at 242Category: Principal judgment Parties: Oliver Markisic - Plaintiff
Attorney-General in and for the State of New South Wales - Defendant
Dragan Markisic - Plaintiff
Attorney-General in and for the State of New South Wales - DefendantRepresentation: Oliver Markisic - In Person
Dragan Markisic - In Person
Mr B Thomson - Defendant
Oliver Markisic - In Person
Dragan Markisic - In Person
IV Knight, Crown Solicitor - Defendant
File Number(s): 2010/00309865 2010/00309918
Judgment
HIS HONOUR:
Nature of proceedings
Two sets of proceedings have been commenced by Summonses filed 17 September 2010. Proceedings 2010/00309865 were commenced by Oliver Markisic and proceedings 2010/00309918 were commenced by Dragan Markisic. For ease of reference when it is necessary to refer to the plaintiffs individually, I will refer to Oliver Markisic as "OM" and Dragan Markisic as "DM", otherwise I will jointly refer to them as "the plaintiffs". The plaintiffs are self-represented.
The plaintiffs' Summonses seek to challenge the decisions of Magistrate Heilpern of 24 August 2010 in which he declined to sign Court Attendance Notices which each plaintiff sought to have issued.
OM had sought to have signed five Court Attendance Notices against David Davies, a Judge of this Court. The first four Court Attendance Notices alleged charges under s34(1)(b) Crimes Act 1914 (Commonwealth). The fifth Court Attendance Notice alleged a charge under s37(b) Crimes Act 1914 (C'th). In written reasons, Magistrate Heilpern refused to sign any of the Court Attendance Notices, concluding that "The proposed proceedings have no prospects whatsoever of success". These proposed charges related to a judgment given by Davies J in February 2010 in civil proceedings in this Court involving the plaintiffs.
DM had sought to have signed four Court Attendance Notices against Ian Harrison, a Judge of this Court. Each of the four proposed Court Attendance Notices alleged charges under s34(1)(b) Crimes Act 1914 (C'th). In addition, DM sought to have signed one Court Attendance Notice against Carolyn Simpson, a Judge of this Court. This Court Attendance Notice also alleged a charge under s34(1)(b) of the Crimes Act 1914 (C'th). In written reasons Magistrate Heilpern refused to sign any of the Court Attendance Notices concluding that "The proposed proceedings have no prospects whatsoever of success". These proposed charges related to judgments given by Simpson J in 2005 and Harrison J in 2007 in civil proceedings in this Court involving the plaintiffs.
By judgment dated 6 May 2011 Johnson J granted leave to the defendant, the Attorney-General of NSW (the Attorney-General) to appear as an intervenor in each set of proceedings. His Honour also ordered that the plaintiffs each file and serve a Further Amended Summons, which identified the Attorney-General as the sole defendant. In compliance with that direction, the plaintiffs each filed a Further Amended Summons in each proceeding on 10 May 2011.
By Notices of Motion, filed 19 May 2011, the Attorney-General seeks an order that the plaintiffs' Further Amended Summonses filed on 10 May 2011 be dismissed, on the basis that the Further Amended Summonses do not disclose a cause of action and that the claims for relief made in the Further Amended Summonses cannot succeed and are therefore an abuse of process. This judgment relates to those Motions.
Factual background
In the claim by OM, the Deputy Registrar of the Local Court at the Downing Centre refused to sign the Court Attendance Notices submitted by him on 27 April 2010. OM then signed a form headed "Election to Review a Registrar's Refusal to sign a Court Attendance Notice" on 14 May 2010. This application was first mentioned in the Local Court on 28 June 2010 and set down for hearing on 19 July 2010 before his Honour Heilpern LCM.
On 19 July 2010, OM handed up an outline of submissions of 31 pages and submitted that the matter should be allocated a full day for the hearing of oral submissions. Magistrate Heilpern declined to allow that time and ordered that any further submissions were to be forwarded to him by 16 August 2010 with a decision on 24 August 2010. His Honour indicated that if he had any further questions relating to the material forwarded in the written submissions, he would address those on 24 August 2010.
In the claim by DM, the Deputy Registrar of the Local Court refused to sign the Court Attendance Notices on 20 May 2010. DM then signed the form headed "Election to Review a Registrar's Refusal to sign a Court Attendance Notice" on 22 June 2010. This application was first mentioned before Magistrate Heilpern on 26 July 2010. Since this application raised the same legal issues as the application by OM, his Honour determined to deal with both matters.
On that occasion Magistrate Heilpern refused an application by DM that he disqualify himself from hearing the matter and fixed a timetable for written submissions. He ordered that written submissions were to be forwarded to him by 16 August 2010 with a decision on 24 August 2010. He indicated that if he had any further questions in relation to material forwarded in the written submissions, he would address those on 24 August 2010.
On 16 August 2010 DM filed written submissions comprising several hundred pages.
In handing down his judgment in each matter on 24 August 2010, Magistrate Heilpern noted that he had read the written submissions and evidence placed before him; had read, but did not take into account the reasons given by the Deputy Registrar for the refusal to sign the proposed Court Attendance Notices. His Honour specifically noted that he had not given any weight to the bare fact that the proposed defendants were Supreme Court Justices. As well, his Honour stressed that he had treated the applications by OM and DM as quite separate matters.
In each matter his Honour considered the nature of the review which he was to undertake and whether he ought sign the proposed Court Attendance Notices. As already indicated, in each case his Honour declined to sign the Court Attendance Notices.
Consideration
The sections of the Commonwealth Crimes Act 1914 relied upon by OM and DM in their proposed Court Attendance Notices relevantly provided:
"34(1) Any person who:
...
(b) Being a Judge or Magistrate, intentionally and perversely exercises federal jurisdiction in any matter in which he or she has a personal interest;
shall be guilty of an offence.
Penalty: Imprisonment for 2 years."
"37 Any person who:
...
(b) Does an act with the intention of inducing a person called or to be called as a witness in any judicial proceeding to give false testimony, or to withhold true testimony; or
...
shall be guilty of an indictable offence.
Penalty: Imprisonment for 5 years."
Statutory framework in the Local Court
The election forms signed by the plaintiffs referred to a review pursuant to clause 61 of the Local Courts (Criminal and Applications Procedure) Rules 2003. This rule has since been replaced by the Local Court Rules 2009. The two key clauses in those rules are 8.4 and 8.8. They relevantly provide:
"8.4 Grounds of refusal of private prosecution through application notices
(1) A Registrar must not sign a Court Attendance Notice, or an Application Notice, in proceedings commenced by a person other than a police officer or a public officer if of the opinion that the proceedings are frivolous, vexatious, without substance or have no reasonable prospects of success.
8.8 Review of powers exercised by Registrars
If a Registrar of the Court gives a direction, makes an order or does any other thing in committal proceedings, summary proceedings or application proceedings, the Court may, on application by a party to the proceedings:
(a) Review the direction, order or action, and
(b) by order confirm, vary or discharge the order or direction or take such other action as it thinks fit."
The Local Court Rules are, in this respect, identical to the Local Courts (Criminal and Applications Procedure) Rules . The term "summary proceedings" includes proceedings for indictable offences that are being dealt with summarily. Section 49 of the Criminal Procedure Act 1986 provides:
"49 Commencement of private prosecutions
(1) If a person other than a police officer or public officer is authorised under section 14 of this Act or under any other law to commence committal proceedings against a person for an offence, the person may commence the proceedings by issuing a court attendance notice, signed by a registrar, and filing the notice in accordance with this Division.
(2) A registrar must not sign a court attendance notice if:
(a) the registrar is of the opinion that the notice does not disclose grounds for the proceedings, or
(b) the registrar is of the opinion that the notice is not in the form required by or under this Act, or
(c) the registrar is of the opinion that a ground for refusal set out in the rules applies to the notice.
(3) If a registrar refuses to sign a court attendance notice proposed to be issued by any such person, the question of whether the court attendance notice is to be signed and issued is to be determined by a Magistrate on application by the person."
The term "Rules" in s49(2)(c) is defined in s3 of the Criminal Procedure Act to mean rules made for the purposes of a Court to which the relevant provision applies, in this case, the term "Rules" refers back to the Local Court Rules.
Nature of application by plaintiffs
The plaintiffs' summonses purport to be "appeals" from the decision of Magistrate Heilpern to refuse to sign the Court Attendance Notices. They seek orders "that the judgment and order" of Magistrate Heilpern of 24 August 2010 be set aside.
The first point made by the Attorney-General in support of his applications is that to the extent that the plaintiffs' summonses seek to "appeal" from the decision of Magistrate Heilpern, they are misconceived.
The Attorney-General bases that submission upon the following analysis. Because the Registrar refused to sign the Court Attendance Notices there were no proceedings on foot to review. Accordingly rule 8.8 of the Local Court Rules has no application. As was said by Hidden J in Potier v Magistrate O'Shane and Anor [2008] NSWSC 141 (3 March 2008) at [16], [20] - [21]:
" 16 By contrast, the effect of the deputy registrar's decision in the present case is that no proceedings were commenced. The plaintiff's only recourse was an application to a magistrate under s49(3). It is significant that that sub-section commits the determination whether a court attendance notice should be issued to a magistrate, rather than to a Local Court, suggesting that in making such a determination the magistrate is not sitting as a Local Court. This conveys that the function of a magistrate under subs 49(3), like that of a registrar under subs (1) and (2), is an administrative one.
...
20 In my view, the task entrusted to a registrar or a magistrate under s49 of the Criminal Procedure Act should be understood in that way. The rationale for the present legislative provisions governing private prosecutions was examined by Kirby J in Potier v Magistrate Huber [2004] NSWSC 720 at [4]-[8]. By s48 of the Criminal Procedure Act , the fiat of a registrar or magistrate is not required for the commencement of a prosecution by a police officer or public officer, who might be assumed to be doing no more than exercising their function to enforce the law and who could be expected to have the means to satisfy any costs order made against them. However, s49 requires the intervention of a registrar or magistrate in the initiation of private prosecutions because private citizens have a personal interest in the outcome of a prosecution and may not be in a position to assess its appropriateness, the prospect of its success, or the possibility of adverse consequences for them. Hence the discretion conferred on a registrar or magistrate to refuse to issue a court attendance notice.
21 The fact remains, however, that the exercise of that discretion by both the registrar and the magistrate is an administrative function, albeit one to which a judicial mind is to be brought. As I have said, the application before Magistrate O'Shane was treated as a review of the deputy registrar's decision, and it was conducted in open court. In truth, the only jurisdiction available to her Honour was that conferred by s49(3). That did not require a proceeding in court. She could have considered the application in chambers, just as the deputy registrar had."
I respectfully agree with the analysis of Hidden J and Kirby J of s49(3). The decisions of Magistrate Heilpern, which are the subject of the plaintiffs' Further Amended Summonses, were not decisions of the Local Court but decisions of a Magistrate exercising an administrative function. This presents a significant problem for the plaintiffs since there is no express statutory basis for an appeal from such a decision.
Part 5 of the Crimes (Appeal and Review) Act 2001 provides for appeals from the Local Court to the Supreme Court. That Part provides an avenue of appeal to the Supreme Court in respect of any person who has been "convicted or sentenced" (see ss 52 and 53). The term "sentence" is defined in s3 of the Crimes (Appeal and Review) Act 2001. That definition does not include a decision by either a Registrar or Magistrate to refuse to issue a Court Attendance Notice.
The term "convictions" was considered in Maxwell v The Queen (1996) 184 CLR 501 wherein it was held per Dawson and McHugh JJ that "a conviction is the determination of guilt and a determination of guilt must be the act of the court or the arm of the court charged with deciding the guilt of the accused" (pp 508-9). Clearly the determination of a magistrate to refuse to issue a Court Attendance Notice is not of that character.
It follows that the decision of Magistrate Heilpern to refuse to sign the Court Attendance Notices was not a sentence or conviction and therefore there is no avenue of statutory appeal to the Supreme Court pursuant to the Crimes (Appeal and Review) Act 2001. Self evidently the appeal provisions in the Local Court Act 2007 dealing with the court sitting in its General Division in civil disputes can have no application to the facts of this case. Accordingly, the Further Amended Summonses expressed as they are, must fail, as they disclose no cause of action.
The plaintiffs submit that they have a right to appeal from the decision of Magistrate Heilpern, pursuant to Part 50 of the Uniform Civil Procedure Rules 2005 (UCPR ). They submit that because the Attorney-General has not in terms dealt with Pt 50 UCPR, there remains a justiciable issue before the Court and the Attorney-General's motions should be dismissed.
The plaintiffs' reliance Pt 50 UCPR misunderstands the content and effect of that rule. Implicit in Pt 50 is the assumption that a right of appeal exists. Part 50 then sets out rules for how that right to appeal may be exercised. Part 50 does not of itself provide any right of appeal. It follows that to the extent that the plaintiffs seek to assert a statutory right of appeal in respect of Magistrate Heilpern's decision, their claim is misconceived.
This, however, does not end the matter. The Attorney-General, having due regard to the fact that the plaintiffs are self-represented, accepted that s69 of the Supreme Court Act 1970 provides a basis for challenging the decisions of his Honour. The Attorney-General was prepared to deal with the plaintiffs' Further Amended Summonses as if they raised that issue, i.e. that they were summonses seeking prerogative relief in the nature of certiorari or mandamus.
Section 69 of the Supreme Court Act relevantly provides:
"69(1) Where formerly -
(a) The Court had jurisdiction to grant any relief or remedy or do any other thing by way of writ, whether of prohibition, mandamus, certiorari or of any other description;
...
Then, after the commencement of this Act
(c) the Court shall continue to have jurisdiction to grant that relief or remedy or to do that thing;
(3) It is declared that the jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes jurisdiction to quash the ultimate determination of a Court or Tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings."
The criteria for the granting of relief in the nature of mandamus or certiorari have been articulated in a number of cases. The principles applicable to orders in the nature of mandamus were set out in The King v War Pensions Entitlement Appeal Tribunal; Ex parte: Bott (1933) 50 CLR 228 at 242 where the Court (Rich Dixon McTiernan JJ) said:
"... The prosecutor who seeks a writ of mandamus must show that the ostensible determination is not a real performance of the duty imposed by law upon the Tribunal. It may be shown that the members of the Tribunal have not applied them to the question which the law prescribes or that in purporting to decide it they have in truth been actuated by extraneous considerations, or that in some other respect they have so proceeded that the determination is nugatory and void. But the prosecutor who undertakes to establish that the Tribunal has so acted ought not to be permitted under cover of doing so to enter upon an examination of the correctness of the Tribunal's decision, or of the sufficiency of the evidence supporting it, or of the weight of the evidence against it or of the regularity or irregularity of the manner in which the Tribunal has proceeded. The correctness or incorrectness of the conclusion reached by the Tribunal is entirely beside the question whether a writ of mandamus lies."
In relation to an order in the nature of certiorari the most recent statement of principle is in Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531 where the plurality said:
"56 The two principal grounds for grant of relief in the nature of certiorari are usually described as "error of law on the face of the record" and "jurisdictional error". Other grounds, such as fraud, may be left aside from consideration. References to "error of law on the face of the record" and "jurisdictional error" suggest a degree of certainty about what is the relevant "record" and what is meant by "jurisdictional error" that examination of the decided cases reveals to be unwarranted. The decided cases reveal a degree of uncertainty about both what is the "record" on the face of which error must appear, and what is meant by "jurisdictional error". Moreover, allowing the one remedy on two different bases may suggest the existence of some singular unifying principle underpinning both grounds. But no principle can readily be identified that would unify or explain both grounds.
...
66 In Craig v South Australia , this Court recognised the difficulty of distinguishing between jurisdictional and non-jurisdictional errors, but maintained the distinction. As was pointed out in Re Refugee Review Tribunal; Ex parte Aala :
"The difficulty of drawing a bright line between jurisdictional error and error in the exercise of jurisdiction should not be permitted, however, to obscure the difference that is illustrated by considering clear cases of each species of error. There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not."
...
67 The drawing of a distinction between errors within jurisdiction and errors outside jurisdiction was held, in Craig, to require different application as between "on the one hand, the inferior courts which are amenable to certiorari and, on the other, those other tribunals exercising governmental powers which are also amenable to the writ". The Court said that:
"If ... an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.""
As indicated, since his Honour was effectively exercising an administrative function, the above statements of principle represent the appropriate criteria to be applied in determining whether orders in the nature of mandamus or certiorari are available to the plaintiffs. The Attorney-General submits that when the Court has regard to the written reasons for decisions of Magistrate Heilpern, no basis for any form of prerogative relief has been established and the proceedings are doomed to fail.
Application of prerogative relief principles to grounds of appeal raised by OM in respect of Davies J.
OM submits that Magistrate Heilpern erred by not considering properly the element of "personal interest" in relation to the charge under s34(1)(b) of the Crimes Act 1914 (C'th) which he sought to bring against Davies J.
It is apparent that OM's real complaint regarding the judgment of Davies J is that his Honour had made certain evidentiary and procedural determinations in the proceedings which were adverse to OM. OM relied upon these findings as indicia of a "personal interest" of Davies J. OM submitted to Magistrate Heilpern that by making such rulings, Davies J had entered the arena and had displayed his "personal interest".
Magistrate Heilpern referred to relevant authority on the meaning of the term "personal interest". His Honour noted that the term had an accepted legal meaning. On that issue, his Honour referred to Kak Loui Chan v Zacharia [1984] HCA 36; (1984) 154 CLR 178 where the term was described as a conflict of duties where there is the potential for "actual receipt of personal benefit or gain". On the basis of that and other authority, Magistrate Heilpern concluded that adverse evidentiary and other findings by a judge in adversarial proceedings were not evidence of personal interest.
Because there was an absence of any other evidence which could possibly lead to a conclusion that Davies J had any "personal interest" in the findings which he made, Magistrate Heilpern concluded that the matters complained of by OM in the judgment of Davies J could not as a matter of law prove beyond reasonable doubt that Davies J had a "personal interest" in the proceedings. His Honour concluded that the proposed proceedings, pursuant to s34(1)(b) of the Commonwealth Crimes Act had no prospects of success and he refused to sign the Court Attendance Notices for those charges.
I have concluded that OM has failed to demonstrate an error on the face of the record or jurisdictional error in relation to his Honour's consideration of this question and of the relevant authorities. There was no error demonstrated in his Honour's application of legal principle to the material before him. There was nothing on the face of the record to indicate that his Honour failed to take into account a relevant consideration, or took into account an irrelevant consideration. No error was identified in the process followed by Magistrate Heilpern.
It follows that I accept the Attorney-General's submission that OM's challenge to this aspect of the decision of Magistrate Heilpern must fail.
OM further submits that Magistrate Heilpern erred by not properly considering the element of "inducement" in relation to the offence under s37(b) of the Crimes Act 1914 (C'th).
The offence was described in the proposed Court Attendance Notice as follows:
"On 25.2.10 the defendant, being a Judge of the Supreme Court of NSW intentionally and perversely exercised Federal jurisdiction in the matter No 20369/2001 (Oliver Markisic and 1 Other v Commonwealth of Australia) by inducing the plaintiffs as witnesses in the proceeding, to give false testimony, or to withhold true testimony by forcing them in his judgment from 25.2.2010 to give up belief in the facts presented in their Further Amended Statement of Claim ("FFASOC") and to believe in the facts presented in their Further Amended Statement of Claim ("FASOC") and with that belief the plaintiffs to continue to trial with their FASOC to enable the Commonwealth of Australia to come to trial on false facts favourable to the Commonwealth in commission of an offence under s37(b) of the Crimes Act 1914."
The background to that proposed Court Attendance Notice was that Davies J in his judgment of 25 February 2010 had permanently stayed the proceedings with OM and his mother being at liberty to apply to have the stay lifted, if and only if they were prepared to prosecute the case in accordance with the FASOC. This meant that the plaintiffs could not rely on the FFASOC, and were limited to relying upon the claims pleaded in the FASOC. The allegation in the proposed Court Attendance Notice was that the publication of the judgment by Davies J and his requirement that the proceedings be conducted in accordance with the FASOC, as distinct from the FFASOC, were acts that induced or would induce he and his mother to give false testimony or to withhold true testimony.
In his reasons Magistrate Heilpern described that proposition and the basic premise of the allegation, as absurd. His Honour concluded that making an order limiting a party to particular pleadings, rather than permitting an amendment to those pleadings, could not possibly be characterised as an act inducing false testimony. His Honour concluded that the making of such orders by Davies J was an integral part of the functions of a Superior Court and was specifically authorised by the UCPR. His Honour found that just because the judgment might limit the evidence which could be given in proceedings was not the same as inducing a party to give false testimony or to withhold true testimony.
I agree with the Attorney-General that the characterisation of OM's claim as absurd and as having no prospects of success whatsoever was not only open to Magistrate Heilpern but was unarguably correct.
There is nothing on the face of the record which would indicate that his Honour failed to understand the power he was exercising, or failed to properly apply the appropriate legal analysis when exercising that power. The face of the record indicates that his Honour accorded procedural fairness in allowing OM to make lengthy written submissions. His Honour correctly identified the relevant authorities and applied them. It is plain on an analysis of the record that the charges that OM sought to bring in the Local Court were entirely misconceived, wrong in law and without any evidentiary basis. Magistrate Heilpern could not have come to any other decision in relation to the proposed Court Attendance Notices.
Conclusion as to Summons by OM
The Attorney-General's motion seeks an order that OM's Further Amended Summons of 10 May 2011 be dismissed on the basis that it discloses no cause of action and that the claims for relief cannot succeed and are therefore an abuse of process. The Attorney-General relies upon Part 13 rule 4 UCPR. In addition to that power, the Court has as a necessary incident of its jurisdiction the power to control its own proceedings and procedure ( Batistatos v RTA of NSW [2006] HCA 27; (2006) 226 CLR 256). That power can be exercised to dismiss proceedings which are an abuse of process.
The test to be applied in an application for summary dismissal is still that set out in General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129 where Barwick CJ said:
"The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense".
At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance"."
Despite the high standard which has to be achieved before summary disposal can take place, that standard has been achieved in this case. The Summonses brought by OM must be dismissed because they are doomed to fail. They do not disclose a basis for a statutory appeal and to the extent that they constitute an application for prerogative relief, it is clear on the face of the record that no basis for such relief can be established and to allow the proceedings to remain on foot would be futile.
Application of Prerogative Relief Principles to Grounds of Appeal raised by DM in respect of Simpson J and Harrison J
DM submits that Magistrate Heilpern erred by not considering properly the element of "personal interest" in relation to the charge under s34(1)(b) of the Crimes Act 1914 (C'th) which he sought to bring against Simpson J and Harrison J.
The context for that submission was DM's application to institute a private criminal prosecution under that section against Simpson J in relation to her Honour's decision in defamation proceedings brought by him. Magistrate Heilpern refused to sign the Court Attendance Notice directed to Simpson J on the basis that it had no prospects of success.
The further context for that submission was DM's application to institute a private criminal prosecution under that section against Harrison J in relation to his Honour's decision in proceedings where DM was seeking damages and to set aside a decision of another Supreme Court judge. Magistrate Heilpern refused to sign the Court Attendance Notices on the same basis.
In relation to Simpson J, it is clear that DM's real complaint concerning her judgment was that her Honour had referred to evidence and made factual findings with which DM did not agree and continues to dispute. DM relied upon those matters as indicia of a "personal interest" on the part of Simpson J.
In relation to Justice Harrison having a "personal interest", it is clear that DM's real complaint was that Harrison J had made findings adverse to him, including findings as to his mental state. DM also disagreed with his Honour's rulings on evidentiary matters and on an application by DM that his Honour disqualify himself.
In reaching his decision concerning DM's allegation that Simpson J and Harrison J had a "personal interest" in the respective proceedings which they decided, Magistrate Heilpern noted that it was apparent from the proposed Court Attendance Notices and from DM's submissions that he misunderstood the meaning of the term "personal interest" as used in s34(1)(b). Magistrate Heilpern declined to sign the Court Attendance Notices using the same reasoning as he had in relation to the applications by OM (see [34] and [35] hereof).
There was no evidence before Magistrate Heilpern which was capable of establishing "personal interest" on the part of Simpson J or Harrison J in the proceedings involving DM which they heard. Not only was his Honour's finding to that effect open to him, it was the only finding which he could make on the material before him. It follows that DM has failed to demonstrate an error on the face of the record in relation to his Honour's consideration of this question and of the relevant authorities. There was no error demonstrated in his Honour's application of the law to the material before him. There was nothing on the face of the record to indicate that his Honour failed to take into account a relevant consideration or took into account an irrelevant consideration. There was no suggestion that his Honour acted in excess of jurisdiction. No error has been identified in the process followed by his Honour.
It follows that I accept the Attorney-General's submission that DM's challenge to the decision of Magistrate Heilpern on this basis must fail.
DM further submits that Magistrate Heilpern erred by not properly considering the element of "Federal jurisdiction" in relation to the offence under s34(1)(b) of the Crimes Act 1914 (C'th).
Magistrate Heilpern found that because the proceedings before Simpson J were defamation proceedings, and because the proceedings before Harrison J involved a conventional claim for damages, there was no evidentiary basis for the proposition that they were exercising Federal jurisdiction in hearing the matters before them. Magistrate Heilpern noted that proof that they were exercising Federal jurisdiction was an essential ingredient in the offence. Such proof was absent in the material before him.
Magistrate Heilpern found that DM misunderstood the meaning and effect of s75 of the Australian Constitution . Magistrate Heilpern noted that just because defamation proceedings might involve parties from several states, and that there might be some Federal legislation that was relevant and operational, e.g the Service and Execution of Process Act 1992, did not necessarily result in those proceedings involving the exercise of Federal jurisdiction. Magistrate Heilpern noted that such was the case even where the origin of the dispute involved Family Law matters.
In the case of Simpson J, Magistrate Heilpern was undoubtedly correct. At the relevant time the defamation proceedings brought by DM were governed by the Defamation Act 1974, a New South Wales statute. This was not a statute which conferred Federal jurisdiction upon the Supreme Court of New South Wales.
In relation to the proceedings before Harrison J, there was no evidence before Magistrate Heilpern that those proceedings involved Harrison J exercising Federal jurisdiction. On the contrary, the proceedings were firmly grounded in New South Wales. They involved misconceived Notices of Motion, not only seeking damages but seeking to set aside a judgment of another judge of the Supreme Court.
As with the submissions concerning "personal interest", not only was the conclusion arrived at by Magistrate Heilpern on the issue open to him, but it was the only conclusion which he could have arrived at on the material before him.
From the point of view of prerogative relief, there was nothing on the face of the record which would indicate that Magistrate Heilpern failed to understand the power he was exercising, or failed to properly apply the appropriate legal analysis when exercising that power. The face of the record indicates that his Honour accorded procedural fairness in allowing DM to make lengthy written submissions. His Honour correctly identified the relevant authorities and applied them. It is clear from his Honour's reasons that DM was afforded the opportunity to be heard and make written submissions. His Honour correctly identified the nature of the administrative function which he was performing.
It follows that I agree with the Attorney-General that DM's challenge to the decision of Magistrate Heilpern has no prospects of success and must fail. The charges DM sought to bring in the Local Court were entirely misconceived, wrong in law and without an evidentiary basis.
Even applying the high standard required by General Steel Industries , I am satisfied that the Summons brought by DM must be dismissed because it is doomed to fail. It does not disclose a basis for a statutory appeal and to the extent that it constitutes an application for prerogative relief, that application must fail so that to allow the proceedings to remain on foot would be futile.
Conclusion
I have concluded that the Notices of Motion for summary dismissal brought by the Attorney-General must succeed. The orders which I make are as follows:
(1) In matter 2010/00309865 brought by Oliver Markisic I dismiss the Summons and I order Oliver Markisic to pay the costs of the Attorney-General of NSW.
(2) In matter 2010/00309918 brought by Dragan Markisic, I dismiss the Summons and I order Dragan Markisic to pay the costs of the Attorney-General of NSW.
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Decision last updated: 15 August 2011
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