MARKISIC (OLIVER) v THE COMMONWEALTH [2006] NSWCA 150

MARKISIC (OLIVER) v THE COMMONWEALTH [2006] NSWCA 150

The contempt charges were criminal in nature, and Hidden J's order striking out the contempt motion as entirely without substance amounted to a judgment that the persons charged did not commit contempt. Supreme Court Act 1970 (NSW), s 101(6) therefore excluded any right of appeal, so no question of leave to appeal arose and the summons had to be dismissed.

Jurisdiction
Australia
Judgment Date
16 June 2006
Procedural Posture
Contempt; Summons Concerning Right of Appeal / Court of Appeal Summons From Orders of Hidden J in the Supreme Court, Common Law Division
Outcome
Summons dismissed; claimant ordered to pay the Commonwealth's costs on a party and party basis.
Legal Topics
['right of Appeal in Contempt Proceedings' 'criminal Contempt' 'striking Out Contempt Motion' 'costs']
['contempt' 'criminal Procedure' 'appellate Procedure'] ['right of Appeal in Contempt Proceedings' 'criminal Contempt' 'striking Out Contempt Motion' 'costs']

Case Brief

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Procedural Posture

Contempt; Summons Concerning Right of Appeal / Court of Appeal Summons From Orders of Hidden J in the Supreme Court, Common Law Division

Legal Issues

  1. 1 ['Whether the striking out of a motion seeking that persons show cause why they should not be held in contempt was a judgment or order by which the persons charged with contempt were found not to have committed contempt for the purposes of Supreme Court Act 1970 (NSW), s 101(6).' 'Whether there was a right of appeal, or any question of leave to appeal, from the order striking out the contempt motion.' 'Whether the alleged statement that the Commonwealth was not a party to identified Family Court proceedings could constitute contempt of court.']

Ratio Decidendi

The contempt charges were criminal in nature, and Hidden J's order striking out the contempt motion as entirely without substance amounted to a judgment that the persons charged did not commit contempt. Supreme Court Act 1970 (NSW), s 101(6) therefore excluded any right of appeal, so no question of leave to appeal arose and the summons had to be dismissed.

Court Disposition

Summons dismissed; claimant ordered to pay the Commonwealth's costs on a party and party basis.

Orders

  • ['Summons dismissed.' 'The claimant to pay the costs of the Commonwealth, to be assessed on a party and party basis.']