Reported Decision: 69 NSWLR 737
New South Wales
Court of Appeal
CITATION: MARKISIC v COMMONWEALTH OF AUSTRALIA & ANOR [2007] NSWCA 92 HEARING DATE(S): 30 March 2007
JUDGMENT DATE:
23 April 2007JUDGMENT OF: Campbell JA at 1; Handley AJA at 86; Bell J at 87 DECISION: (1) Appeal dismissed. (2) Appellant to pay costs of Respondents. CATCHWORDS: CONTEMPT – civil and criminal contempt – where no appeal from acquittal of charge of criminal contempt – distinction between civil and criminal contempt – whether charge was of civil or criminal contempt – Supreme Court Act 1970, section 101 – Australasian Meat Industry Employees’ Union & Ors v Mudginberri Station Pty Ltd (1986) 161 CLR 98 – Witham v Holloway (1995) 183 CLR 525 - CONTEMPT – subpoena to produce documents – alleged failure to comply with subpoena – elements to be proved to establish a contempt of this type – that alleged contemnor had documents of the type called for by the subpoena – mental element of the contempt – standard of proof requires proof beyond reasonable doubt – Witham v Holloway (1995) 183 CLR 525 - - COURTS AND JUDGES – bias – actual bias – whether trial judge displayed actual bias - - PRECEDENT – proposition of law assumed to be correct but not argued or considered in earlier decision – whether binding LEGISLATION CITED: Courts Legislation Amendment Act 1996
Supreme Court Act 1970
Supreme Court RulesCASES CITED: Archer v Howell (1992) 7 WAR 33
Australasian Meat Industry Employees’ Union & Ors v Mudginberri Station Pty Ltd (1986) 161 CLR 98
Baker v the Queen [1975] AC 774
Bhagat v Global Custodians Ltd [2002] NSWCA 160
In Re Bramblevale Ltd [1970] 1 Ch 128
Fairclough v Manchester Ship Canal Co [1897] WN 7; 41 SJ 225
John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 181 ALR 694
Markisic (Oliver) v The Commonwealth [2006] NSWCA 150
R (Kadhim) v Brent London Borough Council Housing Benefit Review Board [2001] QB 955
Savouts v Minister for Immigration and Multicultural Affairs [2000] FCA 1059
Thorpe v Marr’s Furniture Removals Pty Ltd [2000] QSC 279
Witham v Holloway (1995) 183 CLR 525
Wyszynski v Bill [2005] NSWSC 110
X & Ors v Australian Prudential Regulation Authority & Anor [2007] HCA 4; (2007) 232 ALR 421PARTIES: Oliver Markisic - Appellant
Commonwealth of Australia - First Respondent
Commissioner of the Australian Federal Police - Second RespondentFILE NUMBER(S): CA 40903/05 COUNSEL: Self Represented - Appellant
D P Robinson SC; T Leibman - RespondentsSOLICITORS: Self Represented - Appellant
Australian Government Solicitor - RespondentsLOWER COURT JURISDICTION: Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S): 20369/01 LOWER COURT JUDICIAL OFFICER: Simpson J LOWER COURT DATE OF DECISION: 8 November 2005 LOWER COURT MEDIUM NEUTRAL CITATION: Markisic & Anor v Keelty [2005] NSWSC 1124
40903/05
23 April 2007CAMPBELL JA
HANDLEY AJA
BELL J
OLIVER MARKISIC v COMMONWEALTH OF AUSTRALIA & ANOR
Judgment
1 CAMPBELL JA:
Nature of the…
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Details
- Case
- [2007] NSWCA 92
- Decision Date
CaseChat Overview and Summary
The Supreme Court of New South Wales, Court of Appeal, heard an appeal concerning allegations of contempt. The appellant, Mr. Markisic, had been charged with contempt of court for allegedly failing to comply with a subpoena to produce documents. The primary dispute revolved around whether the alleged failure constituted civil or criminal contempt, and whether the standard of proof required for such an allegation had been met.
The court was required to determine several key legal issues. Firstly, it had to consider the distinction between civil and criminal contempt and classify the nature of the charge brought against the appellant. Secondly, the court needed to ascertain the elements that must be proved to establish a contempt of court arising from the alleged failure to comply with a subpoena for documents. This included determining the mental element required for such a contempt and the applicable standard of proof. Finally, the court was asked to consider whether the trial judge had displayed actual bias.
In its reasoning, the Court of Appeal applied established principles regarding contempt of court, drawing on authorities such as *Australasian Meat Industry Employees' Union & Ors v Mudginberri Station Pty Ltd* and *Witham v Holloway*. The court affirmed that the standard of proof for contempt, particularly where it carries criminal connotations, is beyond reasonable doubt. The court found that the charge, as framed and prosecuted, required proof of elements consistent with criminal contempt, and that the appellant had not discharged the burden of proof in relation to these elements. The court also addressed the allegations of bias, finding no evidence of actual bias on the part of the trial judge.
Consequently, the Court of Appeal dismissed the appeal and ordered that the appellant pay the costs of the respondents.
The court was required to determine several key legal issues. Firstly, it had to consider the distinction between civil and criminal contempt and classify the nature of the charge brought against the appellant. Secondly, the court needed to ascertain the elements that must be proved to establish a contempt of court arising from the alleged failure to comply with a subpoena for documents. This included determining the mental element required for such a contempt and the applicable standard of proof. Finally, the court was asked to consider whether the trial judge had displayed actual bias.
In its reasoning, the Court of Appeal applied established principles regarding contempt of court, drawing on authorities such as *Australasian Meat Industry Employees' Union & Ors v Mudginberri Station Pty Ltd* and *Witham v Holloway*. The court affirmed that the standard of proof for contempt, particularly where it carries criminal connotations, is beyond reasonable doubt. The court found that the charge, as framed and prosecuted, required proof of elements consistent with criminal contempt, and that the appellant had not discharged the burden of proof in relation to these elements. The court also addressed the allegations of bias, finding no evidence of actual bias on the part of the trial judge.
Consequently, the Court of Appeal dismissed the appeal and ordered that the appellant pay the costs of the respondents.
Orders
Orders of the court
(1) Appeal dismissed. (2) Appellant to pay costs of Respondents.
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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