Markisic v Commonwealth

Markisic v Commonwealth was a case heard by the High Court of Australia. The plaintiff, Markisic, sought to serve a subpoena on a federal government department but was refused by the court due to not having legal representation. The central issue was whether a court could grant leave for an unrepresented plaintiff to issue subpoenas. The court examined whether such leave should be granted based on the principles of natural justice and fairness, particularly when the plaintiff is unrepresented.

The court considered the fundamental principle of natural justice which requires that a party to a proceeding should be given a fair opportunity to present their case. The court recognised that the right to be heard is a fundamental principle of procedural fairness. The court held that a plaintiff should not be precluded from serving a subpoena solely due to a lack of representation, provided that the application for leave was made with sufficient particularity and there were no other impediments to the fair conduct of the proceeding.

In its reasoning, the court determined that while the general rule is that subpoenas require leave of the court, in the case of unrepresented plaintiffs, this rule should be applied with flexibility to ensure fairness. The court emphasised that the grant of leave should not be denied on the basis of the plaintiff's lack of representation if the application is properly made and there are no other reasons to deny it. The court found that the refusal to grant leave in this instance was an error of law, as it did not consider the principles of natural justice and fairness.

The High Court ordered that the lower court reconsider the application for leave to issue the subpoena, ensuring that the principles of natural justice and fairness were properly applied. The court did not mandate a specific outcome but directed that the application should be assessed with due regard to the plaintiff's right to a fair hearing.