Markisic v Keelty - [2005] NSWSC 1124

CITATION:
Markisic & Anor v Keelty [2005] NSWSC 1124

HEARING DATE(S): 4 July 2005, 7 July 2005

JUDGMENT DATE :

8 November 2005

JUDGMENT OF:
Simpson J

DECISION:
Notice of motion dismissed; Plaintiff to pay the respondents' costs of the notice of motion.

CATCHWORDS:
contempt - disobedience of court order - subpoena - final hearing of charge - statement of charge - whether deficient - whether necessary to allege deliberate suppression - no allegation of wilfulness - particularisation of alleged contempt - necessary to identify date of alleged contempt - insufficient particularisation - Commissioner's personal knowledge of subpoena - minimum mental element necessary to establish contempt - compliance deficient on at least two occasions - necessary to prove wilfulness in non-compliance - wilful non-compliance not proved - suspicion about degree of commitment to task of compliance insufficient to discharge criminal onus

CASES CITED:
Australasian Meat Industries Employees Union v Mudginberri Station Pty Ltd [1986] 46; 161 CLR 98
Azzopardi v The Queen [2001] HCA 25; 205 CLR 50
Bernard Putnin as Liquidator of MAFF Investments Pty Ltd (in liquidation) v Fuller (1991) 3 WAR 546
Ditfort v Katz [1991] NSWCA, unreported, 8 July 1991
Dyers v The Queen [2002] HCA 45; 210 CLR 285
Hayden v Ditfort (1988) 93 FLR 131
Lane v The Registrar of the Supreme Court of New South Wales (Equity Division) [1981] 35; 148 CLR 245

PARTIES:
Oliver Markisic - 1st Plaintiff
Marika Markisic - 2nd Plaintiff
Mick Keelty - Defendant

FILE NUMBER(S):
SC 20369/01

COUNSEL:
1st Plaintiff in person
David Robinson SC with T Leibman - Defendant

SOLICITORS:

Australian Government Solicitor - Defendant

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DUTY JUDGE LIST

SIMPSON J

Tuesday 8 November 2005

20369/01
Oliver Markisic & Anor v Mick Keelty
JUDGMENT

1 SIMPSON J: Oliver and Marika Markisic are the plaintiffs in proceedings commenced by statement of claim filed in this Court on 9 May 2001. The sole defendant to the proceedings is the Commonwealth of Australia. The statement of claim has been amended on a number of occasions. For present purposes, it is not necessary to explore the nature of the relief there sought. By notice of motion filed in this Court on 14 June 2005 Oliver Markisic seeks an order expressed in the following terms:

“... that Mick Keelty, Commissioner of the Australian Federal Police, to shaw (sic) cause why not be held in contempt of the Supreme Court of New South Wales”.

2 Attached to the notice of motion is a statement of charge, expressed as follows:

“1. Mick Keelty, Commissioner of the Australian Federal Police challenged the authority of the Court and committed contempt of court by not providing all the documents as required under the Subpoena for production of documents issued by the Supreme Court of NSW on 06 April 2004 and addressed to the Commissioner of the Australian Federal Police.”

3 I…

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.

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Details

Case: [2005] NSWSC 1124
Decision Date: 8 November 2005

CaseChat Overview and Summary

The parties involved in this case were Markisic and Keelty. The nature of the dispute was related to a charge of contempt due to disobedience of a court order. The court in which the case was heard was the Supreme Court of Queensland. The legal issues that the court was required to decide were whether the statement of charge was deficient, whether it was necessary to allege deliberate suppression, and whether the degree of commitment to the task of compliance was sufficient to discharge the criminal onus.

The court's reasoning and outcome were based on the analysis of the statement of charge and the sufficiency of particularisation of the alleged contempt. The court held that the statement of charge was deficient as it did not allege the deliberate suppression of the subpoena. Furthermore, the court found that it was necessary to prove wilfulness in non-compliance to establish contempt, and the suspicion about the degree of commitment to the task of compliance was insufficient to discharge the criminal onus. The court concluded that the Commissioner's personal knowledge of the subpoena did not satisfy the minimum mental element necessary to establish contempt.

The final orders of the court were to dismiss the charge against Keelty due to the insufficient particularisation of the alleged contempt. The court held that the charge was not proved as it did not allege the deliberate suppression of the subpoena, and the suspicion about the degree of commitment to the task of compliance was insufficient to discharge the criminal onus. The court emphasised that the particularisation of the alleged contempt was necessary to identify the date of the alleged contempt, and the statement of charge did not provide sufficient information to establish the charge.

Orders