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Marium v Darley

Marium v Darley

Case [2025] NSWCA 198 28 August 2025

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Marium v Darley [2025] NSWCA 198
Hearing dates: 25 August 2025
Decision date: 28 August 2025
Before: Leeming JA
Decision:
1. Rename Constable Mark Darley as the first respondent and Magistrate Brian Van Zuylen as the second respondent.
2. Dismiss the notice of motion filed on 19 August 2025.
3. Ms Marium Marium to pay Constable Darley’s costs of the notice of motion.

Catchwords:
PRACTICE — review of Registrar’s decision — appeal dismissed as incompetent, subject to applicant’s entitlement to file summons seeking leave within specified period — whether applicant enjoyed appeal as of right from dismissal of application for judicial review of a refusal to grant a permanent stay of summary criminal proceedings — whether summons seeking leave not filed within specified period, but sent by registered post arriving at court after expiry of period, satisfied order — nature of order made confirmatory of dismissal of appeal

Legislation Cited:
Crimes (Appeal and Review) Act 2001 (NSW) Part 5
Criminal Procedure Act 1986 (NSW) ss 15, 20
Supreme Court Act 1970 (NSW) ss 69, 101
Uniform Civil Procedure Rules 2005 (NSW) rr 4.10, 13.4, 14.28, 50.11, 51.40, 59.3

Cases Cited:
Council of the New South Wales Bar Association v de Robillard [2024] NSWCA 38
Downey v Acting District Court Judge Boulton (No 5) (2010) 78 NSWLR 499; [2010] NSWCA 240
Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77
Marium v Van Zuylen [2024] NSWSC 258
Mohareb v Local Court of NSW [2024] NSWCA 235
Peacock v Knox [2025] NSWCA 160
State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26
Toth v Director of Public Prosecutions (NSW) [2018] NSWCA 253

Category: Procedural rulings
Parties: Applicant: Marium Marium
First Respondent: Constable Mark Darley
Second Respondent: Magistrate Brian Van Zuylen
Representation:
Counsel:
Applicant in person
N Regener (solicitor), (First Respondent)
Solicitors:
Makinson d’Apice (First Respondent)
Crown Solicitor’s Office (Second Respondent, submitting)

File Number(s): 2024/253394
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Common Law

Citation:

[2024] NSWSC 258

Date of Decision:

22 March 2024

Before:

Davies J

File Number(s):

2023/74986

JUDGMENT

LEEMING JA: By notice of motion filed on 19 August 2025, Ms Marium Marium challenges orders made on 14 April and 16 May 2025 by the Registrar of the Court of Appeal, in proceedings purportedly commenced by her by way of appeal from a decision of Davies J, which have the effect of dismissing that appeal. She appeared before me in the Referrals list last Monday, unrepresented, no differently from the position at all times (so far as the materials disclose) since the motor vehicle collision giving rise to this litigation in October 2020. She would be well advised to seek legal advice.
There are two issues which squarely arise on the motion, and various peripheral issues. The essential issues are (a) whether, contrary to the Registrar’s decision, Ms Marium enjoyed an appeal as of…

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 Marium v Darley

Details

AGLC: Marium v Darley [2025] NSWCA 198
Case: [2025] NSWCA 198
Decision Date: 28 August 2025

CaseChat Overview and Summary

In *Marium v Darley*, the applicant, Ms Marium, sought to appeal the dismissal of her application for judicial review of a refusal to grant a permanent stay of summary criminal proceedings. The appeal was dismissed as incompetent, with the applicant being granted an entitlement to file a summons seeking leave within a specified period. The primary issue before the court was whether the applicant had an appeal as of right from the dismissal of her application for judicial review, and if not, whether her subsequent summons seeking leave, which was sent by registered post and arrived at the court after the expiry of the specified period, satisfied the court's order.

The court was required to determine the nature of the order made, specifically whether it was confirmatory of the dismissal of the appeal or whether it granted a further opportunity to seek leave. This involved an interpretation of the court's previous orders and the procedural requirements for filing a summons seeking leave to appeal. The court also considered the effect of the applicant's method of filing the summons, namely by registered post, and whether its arrival after the stipulated deadline constituted compliance with the order.

Leeming JA found that the applicant did not have an appeal as of right. The court's previous order was interpreted as dismissing the appeal and providing a limited window to seek leave to appeal. The court held that the applicant's summons seeking leave was not filed within the specified period, as it arrived at the court after the expiry of that period. The method of sending the summons by registered post did not alter the requirement for it to be filed within the stipulated timeframe. Consequently, the notice of motion filed on 19 August 2025 was dismissed, and Ms Marium was ordered to pay Constable Darley’s costs of that motion.

Orders

Orders of the court

1. Rename Constable Mark Darley as the first respondent and Magistrate Brian Van Zuylen as the second respondent.

2. Dismiss the notice of motion filed on 19 August 2025.

3. Ms Marium Marium to pay Constable Darley’s costs of the notice of motion.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Marium v Darley [2025] NSWCA 198

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 16 of 16 shown

Peacock v Knox
[2025] NSWCA 160 Para 27

…any instances to the contrary and whether she had any authority for her proposition, she was unable to supply any. A recent example is Peacock v Knox [2025] NSWCA 160 where at [201]-[220] this Court upheld a submission by the appellant that the primary judge had failed to determine whether there had been knowledge…
Mohareb v Local Court of New South Wales
[2024] NSWCA 235 Para 48

…agement by Ms Marium with what had been set out clearly in the Second Respondent’s written submissions by reference to Mohareb v Local Court of NSW [2024] NSWCA 235 at [21]-[24] as follows:…
Marium v Van Zuylen
[2024] NSWSC 258 Para 5

…ies J observed that it was highly desirable that the charges be fixed for hearing in the Local Court at the earliest opportunity: Marium v Van Zuylen [2024] NSWSC 258 at [62]. I respectfully agree. The present proceedings are an extreme example of fragmentation of criminal proceedings, which courts should guard aga…
Council of the New South Wales Bar Association v de Robillard
[2024] NSWCA 38 Para 54

…de in Ms Marium’s absence. But those orders were otiose, for the reasons explained in Council of the New South Wales Bar Association v de Robillard [2024] NSWCA 38 at [9]:…
Toth v Director of Public Prosecutions (NSW)
[2018] NSWCA 253 Para 5

…s are an extreme example of fragmentation of criminal proceedings, which courts should guard against. In Toth v Director of Public Prosecutions (NSW) [2018] NSWCA 253 at [35], Macfarlan JA, with whom Sackville AJA agreed, said:…
Chamoun v District Court of New South Wales
[2018] NSWCA 187 Para 73

…minal proceedings” (see also Ghaderi v Director of Public Prosecutions (NSW) at [9]-[10]; Chamoun v District Court of New South Wales [2018] NSWCA 187 at [73]; Liristis v Director of Public Prosecutions at [22]).…
Marroun v State Transit Authority
[2017] NSWCA 273

…monetary value (including appeals involving the liberty of the individual) require leave under s 101(2)(r)”: Marroun v State Transit Authority [2017] NSWCA 273; (2017) 96 NSWLR 295 at [12]; see also McGuirk v University of New South Wales [2009] NSWCA 321; (2009) 75 NSWLR 224 at [89]. Mr Mohareb’s case concerns th…
Lazarus v Independent Commission Against Corruption
[2017] NSWCA 37

…e “reticence” of this Court to use its supervisory jurisdiction “to interfere in criminal proceedings at an interlocutory stage”. Again, in Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37 at [32], Leeming JA accepted the DPP’s submission that “there are ordinarily powerful discretionary factors against entertaining a…
Jenkins v Director of Public Prosecutions
[2013] NSWCA 406 Para 85

…issioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43 at [23]). Likewise, in Jenkins v Director of Public Prosecutions [2013] NSWCA 406 at [85], Gleeson JA referred to the “reticence” of this Court to use its supervisory jurisdiction “to interfere in criminal proceedings at an interlocu…
New South Wales v Kable
[2013] HCA 26 Para 61

…. Even if there were jurisdictional error by the Supreme Court, its decision is not a nullity: State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 at [32]-[41].…
McGuirk v University of New South Wales
[2011] NSWCA 179 Para 89

…oun v State Transit Authority [2017] NSWCA 273; (2017) 96 NSWLR 295 at [12]; see also McGuirk v University of New South Wales [2009] NSWCA 321; (2009) 75 NSWLR 224 at [89]. Mr Mohareb’s case concerns the issuance of subpoenas in the context of a prosecution. It has no readily ascertainable monetary value. Mr Mohareb t…
Downey v Acting District Court Judge Boulton (No 6)
[2010] NSWCA 299

…Medium Neutral Citation: Marium v Darley [2025] NSWCA 198 Hearing dates: 25 August 2025 Decision date: 28 August 2025 Before: Leeming JA Decision: 1. Rename Constable Mark Darley as the first respondent and Magistrate Brian Van Zuylen as the second respondent. 2. Dismiss the notice of motion filed o…
Downey v Acting District Court Judge Boulton (No 5)
[2010] NSWCA 240 Para 31

…Ground 3 contends that there was error in the application by Davies J of Downey v Acting District Court Judge Boulton (No 5) (2010) 78 NSWLR 499; [2010] NSWCA 240. Davies J was dealing with a point made by Ms Marium that because s 20 of the Criminal Procedure Act 1986 (NSW) provided that an indictment may not be am…
McGuirk v University of New South Wales; University of New South Wales v McGuirk
[2009] NSWCA 321

…s 101(2)(r)”: Marroun v State Transit Authority [2017] NSWCA 273; (2017) 96 NSWLR 295 at [12]; see also McGuirk v University of New South Wales [2009] NSWCA 321; (2009) 75 NSWLR 224 at [89]. Mr Mohareb’s case concerns the issuance of subpoenas in the context of a prosecution. It has no readily ascertainable monetar…
Gedeon v Commissioner of the New South Wales Crime Commission
[2008] HCA 43

…inal proceedings, such as would occur if this Court quashed Sweeney DCJ’s decisions ( Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43 at [23]). Likewise, in Jenkins v Director of Public Prosecutions [2013] NSWCA 406 at [85], Gleeson JA referred to the “reticence” of thi…
Johnson v Miller
[1937] HCA 77 Para 16

…In the course of Ms Marium’s submissions in the Local Court, she invoked Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77, relying on propositions contained within it in support of her complaint about the need for further particulars. She is recorded as having submitted:…

Legislation cited in this decision · 7

Uniform Civil Procedure Rules 2005 (NSW)
13.4, 14.28, 4.10, 50.11, 51.40, 59.3, 5... 7 mentions (from Para 14)
Criminal Procedure Act 1986 (NSW)
15, 20 3 mentions (from Para 31)
Supreme Court Act 1970 (NSW)
101, 69 3 mentions (from Para 20)
Corporations Act 2001 (Cth)
1 mention (from Para 55)
Crimes (Appeal and Review) Act 2001 (NSW)
1 mention (from Para 50)
Crimes Act 1900 (ACT)
1 mention
Road Transport Act 2013 (NSW)
1 mention

Medium Neutral Citation:	Marium v Darley [2025] NSWCA 198
Hearing dates:	25 August 2025
Decision date:	28 August 2025
Before:	Leeming JA
Decision:	1. Rename Constable Mark Darley as the first respondent and Magistrate Brian Van Zuylen as the second respondent. 2. Dismiss the notice of motion filed on 19 August 2025. 3. Ms Marium Marium to pay Constable Darley’s costs of the notice of motion.
Catchwords:	PRACTICE — review of Registrar’s decision — appeal dismissed as incompetent, subject to applicant’s entitlement to file summons seeking leave within specified period — whether applicant enjoyed appeal as of right from dismissal of application for judicial review of a refusal to grant a permanent stay of summary criminal proceedings — whether summons seeking leave not filed within specified period, but sent by registered post arriving at court after expiry of period, satisfied order — nature of order made confirmatory of dismissal of appeal
Legislation Cited:	Crimes (Appeal and Review) Act 2001 (NSW) Part 5 Criminal Procedure Act 1986 (NSW) ss 15, 20 Supreme Court Act 1970 (NSW) ss 69, 101 Uniform Civil Procedure Rules 2005 (NSW) rr 4.10, 13.4, 14.28, 50.11, 51.40, 59.3
Cases Cited:	Council of the New South Wales Bar Association v de Robillard [2024] NSWCA 38 Downey v Acting District Court Judge Boulton (No 5) (2010) 78 NSWLR 499; [2010] NSWCA 240 Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77 Marium v Van Zuylen [2024] NSWSC 258 Mohareb v Local Court of NSW [2024] NSWCA 235 Peacock v Knox [2025] NSWCA 160 State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 Toth v Director of Public Prosecutions (NSW) [2018] NSWCA 253
Category:	Procedural rulings
Parties:	Applicant: Marium Marium First Respondent: Constable Mark Darley Second Respondent: Magistrate Brian Van Zuylen
Representation:	Counsel: Applicant in person N Regener (solicitor), (First Respondent) Solicitors: Makinson d’Apice (First Respondent) Crown Solicitor’s Office (Second Respondent, submitting)
File Number(s):	2024/253394
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Common Law Citation: [2024] NSWSC 258 Date of Decision: 22 March 2024 Before: Davies J File Number(s): 2023/74986