Markisic (Oliver) v The Commonwealth

The Supreme Court of New South Wales, Court of Appeal, heard an appeal concerning a motion to strike out a charge of contempt. The parties involved were Oliver Markisic (the claimant) and the Commonwealth. The dispute arose from the striking out of a motion that certain persons show cause why they should not be held in contempt of court.

The central legal issue before the Court of Appeal was whether the striking out of the motion meant that the persons in question were "found not to have committed contempt" for the purposes of s 101(5) and (6) of the *Supreme Court Act 1970* (NSW). This question was critical to determining whether a right of appeal existed against the decision to strike out the motion, given that the charge of contempt was considered criminal in nature.

The Court reasoned that striking out a motion to show cause does not equate to a finding that contempt was not committed. Instead, it signifies that the proceedings for contempt were terminated for reasons other than an acquittal on the merits of the contempt charge. Therefore, the Court concluded that the striking out of the motion did not constitute a finding that the persons had not committed contempt. Consequently, the summons for leave to appeal was dismissed, and the claimant was ordered to pay the costs of the Commonwealth on a party and party basis.