New South Wales Court of Appeal CITATION: MARKISIC (OLIVER) v THE COMMONWEALTH [2006] NSWCA 150 HEARING DATE(S): 23 May 2006 JUDGMENT DATE: 16 June 2006 JUDGMENT OF: Ipp JA at 1; Basten JA at 1 DECISION: (1) Summons dismissed; (2) The claimant to pay the costs of the Commonwealth, to be assessed on a party and party basis CATCHWORDS: CONTEMPT – charge dismissed – right of appeal – Supreme Court Act 1970 (NSW), s101(5) and (6) – motion that certain persons show cause as to why they should not be held in contempt of court struck out –charge of contempt criminal in nature – whether striking out of motion means that the persons were 'found not to have committed contempt' Criminal Appeal Act 1912 (NSW), s5A, 5F LEGISLATION CITED: Family Law (Child Abduction Convention) Regulation 1986 (Cth), reg 2, reg 8, reg 9 Supreme Court Act 1970 (NSW), s101, s101A Harkianakis v Skalkos (1997) 42 NSWLR 22 CASES CITED: R v Cheng (1999) 48 NSWLR 616 Wentworth v Rares & Ors [No. 2] (unrep, Court of Appeal, 13 December 1990) Witham v Holloway (1995) 183 CLR 525 PARTIES: Oliver Markisic - Claimant Commonwealth of Australia - Opponent FILE NUMBER(S): CA 40712/05 COUNSEL: Self Represented - Claimant R. Beech-Jones - Opponent SOLICITORS: Self Represented - Claimant Australian Government Solicitor, Sydney - Opponent LOWER COURT JURISDICTION: Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S): SC 20369/01 LOWER COURT JUDICIAL OFFICER: Hidden J LOWER COURT DATE OF DECISION: 11 August 2005 25 November 2005 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40712/05 SC 20369/01 IPP JA BASTEN JA 16 June 2006 MARKISIC (OLIVER) v THE COMMONWEALTH Judgment 1 THE COURT: On 11 August 2005 Hidden J handed down judgment in the Common Law Division striking out a motion seeking to have certain persons show cause why they should not be held to be in contempt of the Supreme Court, his Honour holding that the charges were "entirely without substance": at [10]. His Honour also dismissed a motion in relation to a notice to produce which related to the contempt proceeding, on the basis that if the contempt proceeding were struck out, no question of notices to produce remained in issue. 2 On 25 November 2005, Hidden J gave a further judgment, declining to reconsider his earlier judgment, ordering Mr Markisic to pay the defendants' costs of the contempt motion on an indemnity basis and restraining Mr Markisic from filing proceedings against the Australian Government Solicitor, the solicitor handling the proceedings or counsel instructed therein, without leave of the Court. 3 In Harkianakis v Skalkos (1997) 42 NSWLR 22 at 69, Powell JA (with whom Mason P and Beazley JA relevantly agreed) indicated that proceedings for contempt, involving persons not party to the substantive proceedings, were not appropriately commenced by way of notice of motion pursuant to Part 55, r 6 of the Supreme Court Rules. Rather, initiating proceedings should be issued. As in Harkianakis, no point was taken in this respect in the current proceedings, the relevant persons sought to be charged having been represented in the Court below. As in Harkianakis, the procedural point is not a basis for dismissing the proceedings, but it requires attention to the nature of the orders sought and the proper parties who, at least for the purposes of costs orders, must be identified. (Since Harkianakis, the Supreme Court Act has been amended so that all proceedings for contempt of the Supreme Court are not assigned to the Court of Appeal as was then the case: that change, however, does not affect the procedural point now sought to be made.) 4 The only opponent named in the summons is the Commonwealth of Australia. Although the proceedings below related to contempt charges, they were brought against three individuals. On the other hand, the Commonwealth was the defendant in the substantive proceedings and filed the motion to strike out the contempt proceedings, which were the subject of the judgment below. Counsel for the Commonwealth filed submissions asserting that he appeared not only for the Commonwealth but also for the three named individuals. Whether it was intended that they become parties to the summons in this Court was unclear. The submissions for the opponent suggested that it was a matter for the claimant to rectify the record, but that leave should not be granted to permit this to happen because the application was doomed to fail. 5 In these circumstances, the appropriate course is, consistently with the approach adopted by the claimant, to consider the substance of the matter on the basis that it involved a challenge to the order made below with respect to the contempt proceedings against the three individuals. 6 For the reasons set out below there is no right to appeal against a finding that a person has not committed a contempt: see Supreme Court Act 1970 (NSW), s 101(6). It follows that no question of leave to appeal arises, because the Court can only grant leave (if necessary) in relation to a matter which can be the subject of an appeal. 7 It is now well-established, and was not disputed in these proceedings, that a charge of contempt by misleading or otherwise misbehaving in the course of proceedings, is essentially criminal in nature: see, eg, Witham v Holloway (1995) 183 CLR 525 at 534. Further, as stated in Wentworth v Rares & Ors [No. 2] (unrep, Court of Appeal, 13 December 1990) in the judgment of the Court constituted by Priestley and Clarke JJA and Hope AJA: "There is no right of appeal against an acquittal of a criminal charge after a hearing on the merits unless specifically clearly given by statute. This is a narrow statement of a proposition that can probably be expressed more broadly, but the narrow statement is sufficient for the present case." 8 Since Wentworth v Rares, the Supreme Court Act has been amended to make provision for appeals in relation to judgments or orders of the Court in a Division in relation to contempt proceedings, in the following terms, in s 101: (5) An appeal lies to the Court of Appeal from any judgment or order of the Court in a Division in any proceedings that relate to contempt (whether civil or criminal) of the Court or of any other court. (6) Subsection (5) does not confer on any person a right to appeal from a judgment or order of the Court in a Division in any proceedings that relate to criminal contempt, being a judgment or order by which the person charged with contempt is found not to have committed contempt. 9 The exception to the right of appeal is consistent with the general principle of the criminal law that a person put in jeopardy once with respect to an offence, and acquitted or discharged, should not again be liable to prosecution for that offence on a further occasion. It is now commonplace to find provisions which will allow a prosecuting authority to challenge a ruling on a question of law which has led to an acquittal, but not so as to overturn the acquittal. That principle is reflected in s 101A of the Supreme Court Act: see also Criminal Appeal Act 1912 (NSW), s 5A(2)(a) and (d). 10 The general right of appeal contained in s 101(1), from any judgment or order of the Court in the Division, must be read, as it states, "subject to this and any other Act". Thus, the generality of that provision must be read subject to the express terms of sub-s (5), so that the latter is now the relevant source of appeal rights with respect to a finding of contempt. The exception in relation to persons found not to have committed contempt, in sub-s (6), which is stated to qualify sub-s (5), should be understood, taken in context, as qualifying the only relevant right of appeal granted in relation to contempt. 11 As this Court noted in Wentworth v Rares, and as has been accepted in subsequent authority, there is a distinction between an order in favour of a defendant on a jurisdictional point and an order following a hearing on the merits: on the other hand, the concept of a hearing on the merits should not be narrowly construed. Thus, in considering the power of a prosecutor to appeal against an interlocutory judgment or order given in criminal proceedings under s 5F(2) of the Criminal Appeal Act, the Court of Criminal Appeal (Spigelman CJ, Dunford and Kirby JJ) held that the right of appeal so given did not extend to a case where a judge had directed an acquittal on the basis that "the evidence given could not establish the essential elements of the offence": R v Cheng (1999) 48 NSWLR 616 at [12]. In that case, the principle was applied in circumstances where the trial judge had excluded the whole of the evidence relied upon by the prosecution. 12 The exclusion contained in s 101(6) of the Supreme Court Act extends to any form of judgment by which a person is found "not to have committed contempt", being terminology which is clearly not dependent upon the precise terms of the order made. It does not require that there be a full hearing on the merits and is satisfied by a finding that there is "no evidence" to support the charge. The statutory formula is satisfied in the present case and there is, therefore, no right of appeal. 13 It is not, in these circumstances, necessary to consider the merit of the application. However, the claimant is entitled to be apprised of the Court's conclusions as to the merits of the argument raised by the claimant. 14 The statement of charge in relation to each proposed defendant concerned a statement made by counsel and authorised by the Australian Government Solicitor and the solicitor acting in that office having carriage of the particular matter, that "the Commonwealth was not a party to the proceedings in the Family Court of Australia, case number SY 6727 of 1998, Director-General of the Department of the Community Services of New South Wales v Dragan Markisic". 15 The proceedings in the Family Court were instituted pursuant to the Family Law (Child Abduction Convention) Regulation 1986 (Cth). Regulation 8 provides that the Attorney-General (Cth) "may appoint a person to be the Central Authority of a State or Territory for the purposes of these regulations". Regulation 9 provides that "a State Central Authority has all the duties, may exercise all the powers, and may perform all the functions of the Commonwealth Central Authority". That is a conferral of power by delegated legislation. 16 The term "Commonwealth Central Authority" is defined to mean the Secretary to the Department: reg 2(1). The Secretary is a Commonwealth officer and could, perhaps, be described as 'the Commonwealth' for some purposes, although the contrary statement would usually be correct and not misleading. However, proceedings brought in the name of the Director-General of a State department are clearly brought by and in the name of the State Central Authority and not by the Commonwealth. A State public servant exercising functions under Commonwealth law is not a Commonwealth officer and could not properly be described as "the Commonwealth". As the name of the proceedings, identified in the statement of charge, indicates, the Family Court proceedings were brought by the State Central Authority. Further, the fact (if it be such) that Commonwealth officers may have supplied information or instructions and even funding, does not make the Commonwealth a "party" to the proceedings. In these circumstances, the statement, which we assume to have been made as alleged, namely that the Commonwealth was not a party to the proceedings in the Family Court, could not possibly have constituted a contempt of court. 17 Having addressed these matters, in greater detail than is set out above, the trial judge concluded at [10]: "The contempt motion is entirely without substance and should be struck out." 18 That was a final finding in relation to the matter raised on the notice of motion and dealt with both factual and legal submissions made to the Court. It is a judgment that the persons charged did not commit contempt of court. Even if an appeal against such a finding were available, and leave were required to bring it, it would have insufficient prospects of success to warrant a grant of leave. 19 The consequential orders made by the trial judge were similar to those made by Grove J in Dragan Markisic v Department of Community Services of NSW, State of New South Wales, Commonwealth of Australia, The Trustees of the Roman Catholic Church for the Archdiocese of Sydney and Qantas Airways Limited and were appropriate, for the reasons given in that case. Leave to appeal with respect to those orders, if available, should be refused. 20 The Commonwealth seeks an order for costs in relation to the summons, in which it was named as the opponent. It is entitled to an order of costs, assessable on the usual basis, and calculated on the assumption that it was the appropriate party. In other words, if there were additional costs arising from the fact that the proposed contemnors were legal practitioners, including senior counsel who was not a Commonwealth officer, any additional costs incurred in purporting to act on their behalf are not recoverable. The Commonwealth did not seek any special order as to costs. Conclusions 21 The following orders are made: (1) Summons dismissed. (2) The claimant to pay the costs of the Commonwealth, to be assessed on a party and party basis. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.