Attorney-General in the State of NSW v Markisic [2011] NSWSC 1304

Attorney-General in the State of NSW v Markisic [2011] NSWSC 1304

Leave to issue subpoenas is refused and a jury trial is denied as applicants did not demonstrate a forensic purpose for subpoenas or a substantial reason to depart from trial by judge. The apprehension of bias alleged would not be remedied by a jury trial, as judges are not compellable witnesses and admissibility of evidence remains ruled by the judge.

Jurisdiction
Australia
Judgment Date
28 October 2011
Procedural Posture
Civil / Motion to Review Decision of Registrar and Ancillary Orders Prior to Substantive Hearing
Outcome
motion dismissed, leave for subpoenas refused, requisition for trial by jury refused, costs reserved
Legal Topics
['judgments and Orders' "review of Registrar's Decision" 'leave to Issue Subpoenas' 'trial by Jury' 'vexatious Proceedings']
['civil Procedure'] ['judgments and Orders' "review of Registrar's Decision" 'leave to Issue Subpoenas' 'trial by Jury' 'vexatious Proceedings']

Case Brief

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Procedural Posture

Civil / Motion to Review Decision of Registrar and Ancillary Orders Prior to Substantive Hearing

Legal Issues

  1. 1 ["Whether the Registrar's decision to adjourn the hearing of a motion should be reviewed" 'Whether leave should be granted to issue subpoenas to 54 persons' 'Whether a requisition for a trial by jury should be granted']

Ratio Decidendi

Leave to issue subpoenas is refused and a jury trial is denied as applicants did not demonstrate a forensic purpose for subpoenas or a substantial reason to depart from trial by judge. The apprehension of bias alleged would not be remedied by a jury trial, as judges are not compellable witnesses and admissibility of evidence remains ruled by the judge.

Court Disposition

motion dismissed, leave for subpoenas refused, requisition for trial by jury refused, costs reserved

Orders

  • ['Motion filed on 20 October 2011 is dismissed' 'Leave to issue subpoenas to attend to 54 persons is refused' 'The requisition for a trial by jury is refused' 'Costs reserved']