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[2025] NSWCA 198
procedural. Constable Mark Darley was renamed as the first respondent and Magistrate Brian Van Zuylen as the second respondent; the notice of motion was dismissed, with Ms Marium ordered to pay Constable...
Ms Marium’s appeal from the dismissal of her judicial review case required permission because it did not concern a claim or civil right worth at least $100,000. The Registrar gave her until noon on 16 May 2025 to file a summons seeking that permission. She said she posted it the previous day, but the Court received it on 21 May. The Court held that posting was not filing. The 14 April order therefore dismissed the appeal automatically when the deadline passed. The later order merely recorded that result. Leeming JA dismissed the motion challenging those procedural orders and ordered Ms Marium to pay Constable Darley’s costs.
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2,167 words · generated 06/10/2026
Marium v Darley [2025] NSWCA 198 is a procedural ruling by Leeming JA, delivered on 28 August 2025. It concerns whether Ms Marium needed leave to appeal from a Supreme Court decision, whether sending a leave summons by registered post counted as filing it on the day it was posted, and which order had brought her appeal to an end.
10 cited instruments linked from this judgment.
The underlying matter began with a motor vehicle accident on 25 October 2020. Ms Marium was subsequently charged with negligent driving occasioning grievous bodily harm and dangerous driving occasioning grievous bodily harm ([10]). She maintained that she was not guilty ([11]). The Court of Appeal judgment was not a determination of those criminal charges.
On 19 December 2022, the Local Court dismissed Ms Marium’s application for a permanent stay of the prosecution. The Magistrate addressed her complaint that the charges lacked adequate particulars, referring to the charge particulars and prosecution materials including witness statements, hospital records and photographs ([15]–[19]). Ms Marium then brought a summons seeking judicial review under s 69 of the Supreme Court Act 1970 (NSW). Davies J dismissed that summons on 22 March 2024 ([20]–[22]).
Ms Marium filed a notice of appeal on 4 April 2024. The prosecutor later sought dismissal of the appeal as incompetent, contending that leave was required. On 14 April 2025, the Registrar agreed that leave was required and gave Ms Marium until noon on 16 May 2025 to file a summons seeking leave. The order specified that, if she did not comply, the proceedings would be dismissed for want of due despatch ([42]–[45]).
Ms Marium said she posted a leave summons by registered post on 15 May 2025. The Court received it on 21 May. The Registrar’s deadline passed without the Court having received a summons, and the Court sent an order recording dismissal on 16 May ([46]–[47]). Ms Marium’s notice of motion filed on 19 August 2025 challenged the Registrar’s orders. Leeming JA dismissed that motion, renamed the respondents in the proper order, and ordered Ms Marium to pay Constable Darley’s costs ([63]–[66]).
The judgment resolves two essential issues. First, it asks whether the appeal from Davies J’s decision lay as of right. Secondly, it asks whether posting the leave summons before the deadline, despite its later arrival, satisfied the Registrar’s order ([2]).
On the first issue, Leeming JA applied s 101 of the Supreme Court Act. The judgment explains that an appeal from the Supreme Court is subject to the leave requirements in s 101(2). Under s 101(2)(r), leave is required for a final judgment or order unless the appeal involves a matter or claim relating to property or a civil right valued at $100,000 or more ([48]). This case concerned the dismissal of judicial review proceedings and had no such monetary value. The judgment treated Mohareb v Local Court of NSW [2024] NSWCA 235 as squarely applicable: both cases involved a final decision of a single Supreme Court judge and no claim meeting the statutory monetary threshold ([48]–[50]).
Ms Marium argued that s 101 did not apply to decisions made in the exercise of supervisory jurisdiction. Leeming JA rejected that characterisation of the appeal before him. Ms Marium’s notice of appeal sought to appeal Davies J’s dismissal; it did not itself invoke the Supreme Court’s supervisory jurisdiction. The right to appeal was statutory and subject to the statutory leave requirement ([49]).
On the second issue, the Court applied UCPR r 4.10(3), which deems a document filed when it is lodged for filing. Leeming JA rejected the proposed alternative that posting a document to the Court counts as filing it. The summons was received on 21 May, after the noon deadline on 16 May, so it did not comply with the order ([46], [55]). The judgment also notes the practical difficulty of treating a document as filed on an uncertain posting date, particularly for proceedings with time-sensitive deadlines ([55]).
The Court’s reasoning about the two orders is important. The 14 April order set a deadline and stipulated that non-compliance would result in dismissal for want of due despatch. Once the deadline passed without the summons being filed, the appeal was dismissed under that conditional order ([44], [54], [58]). The 16 May order recorded that the deadline had not been met and stated that the proceedings were dismissed. Leeming JA considered that later order otiose and ineffective to create a second dismissal, because the appeal was already dismissed ([56]–[58]). He relied on Council of the New South Wales Bar Association v de Robillard [2024] NSWCA 38 for the treatment of a later order as confirming a dismissal that had already taken effect under an earlier self-executing order ([56]).
The judgment also rejects the claim that the 16 May order was made without notice of a hearing. The operative conditional order had been made at a hearing on 14 April at which Ms Marium appeared. The later order recorded the consequence of non-compliance with that earlier order ([59]).
This judgment does not announce a new statutory appeal threshold. It applies the existing language of s 101(2)(r) of the Supreme Court Act, as explained in Mohareb. The relevant distinction is between a final Supreme Court decision that involves a qualifying monetary or civil-right claim, and a final decision with no such value. In the latter kind of case, the judgment says that leave is required ([48]–[50]).
The decision also applies the existing filing rule in UCPR r 4.10(3). Its practical point is that posting a document is not equivalent to lodging it for filing. For the deadline in this case, the relevant event was receipt and lodging at the Court, not the date Ms Marium said she posted the summons ([46], [55]).
The judgment clarifies how the particular Registrar’s order operated. Its terms made dismissal conditional on a failure to file by a specified time. The appeal ended when that deadline passed without compliance; the subsequent order recorded that result rather than causing it ([44], [47], [57]–[58]). This does not mean that every procedural order operates automatically. The conclusion here depends on the terms of the 14 April order, which expressly provided for dismissal if its filing direction was not met.
The judgment also reiterates the concern about fragmenting criminal proceedings. It refers to authorities warning against interlocutory interventions that break criminal proceedings into separate stages ([5]). That discussion provides context for the Court’s concern about repeated procedural litigation, but it does not decide the criminal charges or determine the merits of the prosecution.
At [3], Leeming JA states: “Proceedings are commenced when an originating process is filed, rather than when a plaintiff posts an originating process to the Court.” In plain English, sending a document through the post does not itself start the court proceeding. The Court’s filing rule governs.
At [50], the judgment says that the dismissal of an application for judicial review of a refusal to grant a permanent stay was not relevantly different, for the leave question, from the final Supreme Court decision considered in Mohareb. In plain English, the kind of proceeding Ms Marium had brought did not take her appeal outside the statutory leave requirement.
At [55], Leeming JA says that UCPR r 4.10(3) deems a document filed when it is lodged for filing. He rejects the claim that the Court had an established practice of treating the posting date as the filing date. The operative date here was not the date written on or attributed to the envelope; it was when the summons was lodged with the Court.
At [57], the judgment explains that after noon on 16 May, the appeal “was dismissed until and unless the order made on 14 April 2025 was set aside or varied.” In plain English, the first order had already ended the appeal when its condition was not met. A later record of that event did not change the source or timing of the dismissal.
At [40], Leeming JA rejects the argument that the Magistrate acted unfairly by addressing Ms Marium’s submissions about inadequate particulars when a separate notice of motion had not been filed. The judgment’s reasoning is that the complaint was advanced as part of the stay application, and the Local Court was required to deal with the substance of that claim. This was part of the Court’s discussion of the background and proposed grounds, rather than the essential basis for resolving the filing deadline issue.
The central procedural reasoning is relevant where a party appeals from a final Supreme Court decision and needs to determine whether s 101(2)(r) requires leave. The particular analysis in this judgment concerns a final dismissal of judicial review proceedings, where the matter did not involve a claim or civil right valued at $100,000 or more ([48]–[50]). Whether a different appeal falls within the statutory exception depends on its own subject matter and value.
The filing reasoning is relevant where a court order sets a filing deadline and a party sends documents by post shortly before that deadline. Under the approach in this judgment, posting alone does not establish compliance: the document must be lodged for filing in accordance with UCPR r 4.10(3) ([46], [55]). The decision does not address every possible method of electronic or physical filing, or circumstances in which another rule or order changes the applicable process.
The self-executing-order reasoning is relevant where an order expressly states that a proceeding will be dismissed if a party does not comply by a specified deadline. The judgment treated the 14 April order in that way because of its stated terms ([44], [57]–[58]). A lawyer considering a different order would need to examine its exact wording and any later order varying or setting it aside.
The judgment also discusses attempts to interrupt a criminal prosecution through repeated interlocutory proceedings. It characterises this case as an extreme example of fragmentation and refers to the courts’ reticence about intervening in criminal proceedings at an interlocutory stage ([5]–[7]). That discussion is contextual. The decision does not determine whether any particular future application to stay or review criminal proceedings should succeed.
The judgment was delivered on 28 August 2025. The materials provided contain no decisions made after that date, so they do not establish how later courts have treated Marium v Darley. No later application, approval, distinction or criticism can be identified from this judgment alone.
The decision does, however, explain its use of earlier authorities. It treats Mohareb v Local Court of NSW as directly applicable to the statutory leave question ([48]–[50]). It applies the reasoning in Council of the New South Wales Bar Association v de Robillard to the distinction between an operative self-executing dismissal and a later order that confirms the dismissal ([56]). It refers to Peacock v Knox to reject the broad proposition that a higher court cannot uphold a decision on a ground not decided below ([27]). It cites Toth v Director of Public Prosecutions (NSW) in discussing fragmentation of criminal proceedings ([5]).
Those references describe the authorities’ treatment within this judgment. They are not evidence of how later courts have treated Marium v Darley itself.
The judgment does not decide the merits of Ms Marium’s proposed appeal against Davies J’s decision. Leeming JA discussed her proposed grounds because they had occupied much of the hearing and might be relevant to a future application, but no application for a further extension of time to seek leave was before him ([4], [62]). His comments that the proposed grounds appeared to lack real prospects were not a determination of such a future application.
Nor does the judgment decide the underlying criminal prosecution. The charges had not been heard, and the Court did not determine guilt, the factual allegations about the accident, or the merits of the prosecution evidence ([10]–[11], [65]). Its observations about the prosecution’s delay concern the procedural history and do not resolve the criminal case.
The judgment records allegations of racial discrimination and addresses why an adverse outcome alone does not establish that a decision was affected by racial discrimination ([28]–[30], [35], [53]). It does not purport to determine every possible allegation concerning the wider history of the prosecution or earlier proceedings. Its conclusion is narrower: Ms Marium had pointed to nothing showing that Davies J’s judgment was affected by racial discrimination ([30]).
Finally, the decision’s filing conclusion turns on the rules and orders before the Court. It establishes that, in this case, posting the summons did not satisfy the Registrar’s filing direction. The judgment does not discuss potential exceptions under other rules, any alternative filing arrangement, or a different order expressly permitting service or filing by post.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
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
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 right, and (b) whether, if it be accepted that Ms Marium posted a summons seeking leave to appeal before a “guillotine order” made by the Registrar expired, the fact that the summons was only received by the Court after the expiry of the time frame meant that there was nonetheless compliance.
These issues are very straightforward. The Registrar was correct to conclude that there was no appeal as of right from proceedings seeking review of the refusal of a permanent stay of a prosecution in the Local Court. Proceedings are commenced when an originating process is filed, rather than when a plaintiff posts an originating process to the Court.
The peripheral issues are whether there was any merit in the application for leave to appeal that Ms Marium seeks to bring against the decision of Davies J. Ms Marium’s oral submissions, which occupied most of the morning, were principally directed to this. She was asked by me at the beginning and the conclusion of her submissions if she wished to address the essential issues, but she said she was unable to do so. In light of the importance she clearly attaches to the submissions advanced orally, and against the possibility that there might in the future be a further application in this Court, I shall address them. For the reasons that follow, they appear to lack any real prospects of success.
Almost five years have passed between now and the motor vehicle accident which led to Ms Marium being charged with serious offences. Last year, Davies 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 against. In Toth v Director of Public Prosecutions (NSW) [2018] NSWCA 253 at [35], Macfarlan JA, with whom Sackville AJA agreed, said:
The High Court has counselled against the fragmentation of criminal 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 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 applications which fragment criminal 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]).
Payne JA wrote to the same effect at [40]. The present example is extreme because this litigation now primarily concerns not Ms Marium’s invocation of supervisory jurisdiction before Davies J to interfere with the Local Court’s decision to refuse a permanent stay almost 18 months ago, but whether or not she required leave and the consequence of her sustained failure to comply with timetabling orders.
Ms Marium’s attention and resources would be much better served by focussing upon the serious offences with which she stands charged.
I was told by Mr Regener, solicitor, who appears for Constable Mark Darley, who is the prosecutor, that trial has been set down on 13 October 2025. Ms Marium in her oral submissions in reply said that the submissions accusing her of delay should be rejected (Tcpt 25 August 2025, 27.23). Against the possibility that I had misheard her (for Ms Marium had sought to appear, and had been granted leave to appear, by AVL link, and then for reasons not known to me the video connection was severed although the audio connection remained very clear), I sought confirmation from her:
HIS HONOUR: Just to be really clear, you say that although it’s almost been five years since the accident, the motor vehicle accident, the delay is wholly attributable to the courts and the prosecutor?
APPLICANT: Yes, your Honour.
1. Road Transport Act 2013, Section 117(1)(b)
Law Part Code 79219
Negligent driving (occasions grievous bodily harm) - first offence between 4:13 pm and 4:15 pm on 25/10/2020 at Rouse Hill.
Did drive a vehicle, to wit, API46E, a Blue Honda Jazz when it was involved in an impact on Windsor Road, Rouse Hill cross of White Hart Drive, Rouse Hill occasioning Grievous Bodily Harm, being a broken collarbone requiring surgery and surgical screws to be inserted, to the victim Lyndal GALBRAITH and at the time of the impact the said Marium MARIUM was driving the vehicle and proceeded through a red traffic signal she was faced by.
2. Crimes Act 1900, Section 52A(3)(c) Law Part Code 164 - T1
Dangerous driving occasioning grievous bodily harm between 4:13 pm and 4:15 pm on 25/10/2020 at Rouse Hill.
Did drive a vehicle, to wit, API46E, a Blue Honda Jazz when it was involved in an impact on Windsor Road, Rouse Hill cross of White Hart Drive, Rouse Hill occasioning Grievous Bodily Harm, being a broken collarbone requiring surgery and surgical screws to be inserted, to the victim Lyndal GALBRAITH and at the time of the impact the said Marium MARIUM was driving the vehicle in a manner dangerous to other persons by proceeding through a red traffic signal she was faced by.
Ms Marium maintains she is not guilty.
The Fact Sheet states that Ms Marium had previously received infringements for disobeying red traffic lights on 10 December 2019, 1 February 2020 and 9 March 2020, and had failed a driving test on 11 September 2020 but was issued with an unrestricted driver licence on 21 September 2020 (some four weeks before the accident).
A great deal of importance was given by Ms Marium to a notice of motion complaining about inadequate particulars dated 27 October 2021. The body of that notice is reproduced in an email on p 53 of Exhibit A. Apparently, the motion sought “particulars of the negligence of driving between 4:13pm and 4:15pm on 25 October 2020” and “particulars of injury which is a really serious one”, as well as an order that the charge be dismissed and a declaration that Constable Darley “has acted unlawfully and knowingly exercise public power beyond his jurisdiction” [sic]. Ms Marium maintained that her notice of motion had never been filed, and the Magistrate had been wrong when dismissing her application for a permanent stay, to deal with its subject matter.
On 19 December 2022, the matter came before the Local Court of Blacktown constituted by Magistrate Van Zuylen, who was named as the first respondent to this appeal and who has filed a submitting appearance. The Magistrate should have been named as the second respondent to the proceedings, a point previously noted by Davies J: see Uniform Civil Procedure Rules 2005 (NSW), r 59.3(4). The orders I make will attend to this.
The transcript of that hearing is in evidence. After reference had been made to the 27 October 2021 motion, which had not been filed (apparently the Registrar of the Local Court had refused that to occur) the Magistrate is recorded as asking the following:
HIS HONOUR: Okay, so what the Court is dealing with today is your stay application. Is that right?
ACCUSED: Yes, your Honour.
HIS HONOUR: Are you ready for that to proceed now?
ACCUSED: Yes, your Honour.
HIS HONOUR: Alright, well I’m going to hear the stay application. Are you ready to present it?
ACCUSED: Yes, your Honour.
There are no particulars for negligence. There are no particulars for grievous bodily harm. There are no particulars for the manner of driving and there are no particulars of multiple fractions sustained by the victim.
She submitted that, in accordance with Dixon J’s reasons, the accused was entitled to be apprised with not only the legal nature of the offence with which he is charged, but also the particular act, matter or thing alleged as the foundation of the charge (Transcript 19 December 2022, p 13). She also submitted that despite over 500 days since the process had started “no leave was ever sought to amend the indictment”.
The Magistrate delivered an ex tempore decision. It dealt with considerably more issues than have been raised before me. It included the earlier history of the litigation, a series of delays by Ms Marium, her success in earlier proceedings in the Supreme Court concerning the rejection of her notice of motion for filing, and a complaint that the prosecution had “one agenda”, which was “to present a white person as a victim by partial and biased investigation”, with “a weak, helpless, overseas student is being targeted because it is easy to do so”. The Magistrate noted her submission that “the particulars are vague and insufficient” and her reliance on Johnson v Miller, and addressed this as follows:
In the Court’s view without in any way making any comment whatsoever on the guilt or innocence of Ms Marium, the Court is persuaded that there have been very extensive particulars as to the alleged offence. Negligent driving and dangerous driving, there are different elements to an allegation of negligent driving and dangerous driving. The two charges attach to an incident alleged of going through a red light, colliding with an alleged victim, and causing her alleged grievous bodily harm. That is set out. The particulars are set out. The eyewitness statement has been provided to the defendant. The alleged victim has provided a statement. There are hospital records. There are photographs. In the Court’s view, there has not been insufficient details provided as to what the alleged offence is.
The orders sought in the summons were these:
1. Pursuant to section 69 Michael Tidball be ordered to provided (sic) with full transcript of the proceedings below.
2. Pursuant to section 69 Michael Tidball be ordered to provide written reason for removing submissions of prosecutor from the transcript of the court below.
3. Pursuant to section 69(3) of the Supreme Court Act 1970 set aside order for dismissal of application of permanent stay.
4. Proceedings below 2021/00101123 be permanently stayed.
5. Declaration that offence “Dangerous Driving Occasioning Grievous Bodily Harm” is back up offence. (Prosecutor informed the court on 19 Dec 2022 that this offence is back up offence)
6. Interim Stay in the proceeding below in the matter 2021/00101123 pending resolution of the matter.
7. Leave for extension of time to file white folder in accordance with 51.45 UCPR.
The grounds of appeal were these:
Ground 1: Denied Equality in front of Law.
Ground 2: A failure to consider factors required by legislation to be considered.
Ground 3: Failure to conduct an open and public enquiry, in which procedural fairness (or natural justice) was observed.
Ground 4: Inadequate Reasons - Jurisdictional Error
Ground 5: First Defendant considered irrelevant material and ignored relevant material.
Ground 6: Wrong legal test applied by first defendant based on wrong facts and wrong law.
Ground 7: Impermissible delegation of the decision to someone other than the person chosen by Parliament.
Ground 8: Findings made without evidence in relation to originating process and pre-trial issues.
The summons described the Details of Decision in this way:
1. The decision maker was Magistrate B Van Zuylen and decision is to dismiss permanent stay application and other decisions in the course of hearing.
2. Michael Tidball through his office Reporting Services Branch removed material submissions by Police Prosecutor from the transcript in the matter dated 19 Dec 2022.
3. Mark Darley decision to prosecute on amended indictments without the leave of the court or consent of applicant.
4. Mark Darley decision to prosecute the matter with inadequate particulars.
Constable Darley filed a motion seeking that the claim be dismissed pursuant to UCPR rr 13.4 or 14.28.
For reasons that are not entirely clear, the matter was not heard until 14 March 2024. Davies J reserved and produced reasons of 63 paragraphs dismissing the summons on 22 March 2024.
Parts of the submissions before Davies J concerned the replacement of the original Court Attendance Notice by one containing two charges (at [24]-[45]), and the amendment of the alleged inadequacy of particulars (which his Honour addressed at [46]-[59]). It will be convenient to address those paragraphs when dealing with Ms Marium’s submissions.
Ms Marium then filed a notice of appeal on 4 April 2024. The notice of appeal identifies seven grounds.
The first is “[e]xceeding the jurisdiction granted under the writ of certiorari”. That is an unpromising start, because Davies J dismissed her summons seeking judicial review. The second ground elaborates the first, stating that the Supreme Court recognised that the Local Court failed to address the legal argument made by the accused. These grounds appear to be based on a portion of his Honour’s reasons at [37], where his Honour referred to an argument about amendment to the Court’s notices which the Magistrate had not addressed; probably because, as Davies J put it, the Magistrate, unlike Ms Marium, was familiar with criminal practice. Ms Marium pointed to what his Honour said at [37]:
The Magistrate did not deal with the plaintiff’s argument, probably for the reasons I have given. However, nothing flows from that, because the plaintiff’s argument is misconceived. No leave was necessary.
When the Local Court in exercising original jurisdiction fails to deal with the properly based legal argument, that is a jurisdictional error. It cannot be cured by the Supreme Court later supplying its own reasons. Your Honour, it is like asking a higher court to correct that my argument was never heard or decided and being told, “Never mind, the lower court would have decided against you anyway”. That is not supervisory jurisdiction, that is speculation. The right is to have the argument heard and determined, not guessing after the fact.
When I observed that that was not so, and there were many 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 and approval of the will, but dismissed the appeal on the basis of a notice of contention that the testator should be found to have known and approved of it. Indeed, the fact that rr 50.11 and 51.40 of the UCPR permit and require the filing of a notice of contention when a decision at first instance “should be affirmed on grounds other than those relied on by the court below” is antithetical to Ms Marium’s submission.
Ground 2 goes further and asserts that what occurred was “racially discriminatory”. The ground asks, rhetorically:
Is this the new standard for our judicial process, where a party’s argument is only entertained if it is deemed legally valid, or is this a criterion applied selectively against those who are not white such as me?
Systematic covert institutional racial discrimination. If this pervasive denial of due process does not constitute racism, then what does?
Likewise, in her affidavits and, albeit to a lesser extent in her oral submissions, Ms Marium complained that she was a victim of sustained and systemic racial discrimination. As was observed when she sought to read that evidence, neither the fact that she makes those allegations, nor her belief that that is the case, suffices to establish as much. It is important that accusations such as those made by Ms Marium are considered neutrally but objectively; otherwise legitimate complaints of racial discrimination may become trivialised. Aside from the fact that Ms Marium has been unsuccessful in her goals of seeking a permanent stay of the prosecution against her, there is nothing to which she pointed to suggest that any aspect of Davies J’s judgment was affected by racial discrimination. The fact of the matter is that at least one litigant in most contested litigation will lose. An adverse outcome is not sufficient to establish that the result is affected by racial discrimination, as opposed to the ordinary impartial application of law.
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 amended after it is presented without leave of the Court or the consent of the accused, Constable Darley was confined to the original Court Attendance Notice which only charged her with a single offence. Davies J noted Ms Marium’s point that s 15 defined “indictment” to include a Court Attendance Notice. However, he also noted that Court Attendance Notices are not “presented” which made the application of s 20 to them problematic. That was the context in which Davies J said at [35]:
In Downey v Acting District Court Judge Boulton (No 5) (2010) 78 NSWLR 499; [2010] NSWCA 240, Basten JA (Allsop P and Macfarlan JA agreeing) said at [40]:
Not all provisions in Ch 2, Pt 2 of the Criminal Procedure Act are equally apt to apply both to summary proceedings and to indictments presented before juries.
His Honour did not identify which provisions he had in mind, but ss 17, 18 and 20 are likely to have been the provisions to which his Honour was referring.
As a matter of general criminal practice, a CAN may be “amended” or replaced at any time before a trial by the issue of a new CAN without any leave being needed. Section 20 does not provide otherwise, nor does it prevent that occurring. As I have noted earlier, nothing in Chapters 3 and 4 dealing with CANs provides otherwise nor prevents that occurring.
I see no error in the conclusion by Davies J that the Court Attendance Notices issued to Ms Marium could be amended in the way sought in this case. Ms Marium did not seek to make out a case to the contrary. However, Ms Marium also complained that Davies J had not cited the full paragraph [40] from Downey, and concluded “this selective citation further bolsters the claim of discrimination, as there appears to be no other rationale for Justice Davies’ omission of the latter part of the paragraph, which clearly favours the appellant’s arguments”.
The balance of that paragraph in Downey, which Davies J did not reproduce, is as follows:
Nevertheless, s 21, permitting amendment in a case where an indictment is “defective but, having regard to the merits of the case, can be amended without injustice” is applicable to a court attendance notice: s 21(1). The Court is empowered when permitting an amendment, to make such other order as it thinks necessary to meet the circumstances of the case, including an adjournment to allow a defendant to prepare a defence to the new element: s 21(3).
That portion of the paragraph was not relevant to Ms Marium’s argument based on s 20. Further, it is if anything contrary to her submission, because (as Davies J implied) the amendment which occurred in the present case was to add a related charge arising out of the same conduct. The proposition that Davies J omitted sentences of a paragraph in Downey because of racial discrimination is unfounded. This is another example of Ms Marium’s tendency to make claims of racial discrimination without foundation.
Ground 4 simply asks “is Court attendance not[ice] a true indictment?” This picks up references to a “true indictment” by Davies J, language deployed because of the broad and artificial definition in s 15 of the Criminal Procedure Act. That definition means that sometimes it is necessary to be clear when a document such as the Court Attendance Notice which is the originating process for a summary prosecution is taken to be an “indictment”. But the ground does not give rise to any error.
Ground 5 complains about Davies J’s conclusion that there was adequate particularisation, and Ground 6 maintains that the 28 October 2021 notice of motion was not put on a schedule for hearing nor was it heard, suggesting that Constable Darley misled the Court through omission.
Plainly enough, the substance of Ms Marium’s complaint about particulars was advanced by her and determined by the Magistrate. I understood her, when this was raised in oral argument, to maintain that what should have occurred is that the Magistrate heard submissions that the particulars were inadequate, but declined to rule on them because despite her reliance upon this submission, that notice of motion was not formally before his Honour. As Ms Marium put it:
[T]he root complaint is one of jurisdictional error. Magistrate Van Zuylen proceeded to hear and determine the matter while the notice of motion remained pending and unhear. The circumstances goes beyond a procedural irregularity and amounts to a denial of hearing in validating the proceedings. With respect, his Honour treated jurisdictional error as though it were only a superficial one. Something that could be patched and forgotten.
APPLICANT: He dealt with the point without being listed in front of him, and that is procedural fairness, your Honour. Procedural unfairness, I would say.
HIS HONOUR: Just to be clear, then, what you say the magistrate should have done is to have noted that you made submissions saying the proceedings should be stayed, and one reason for the stay was that you hadn’t been given proper particulars. The magistrate should have said, “I’m not going to deal with that aspect of her argument, because she hasn’t filed a notice of motion, so I'm just going to put that out of consideration”. Because the magistrate actually addressed the submissions that you made, he did something that was procedurally unfair. That seems to be the point you’re making.
APPLICANT: Yes, your Honour.
The reason that Ms Marium’s motion has come before me after many procedural hearings in the Court of Appeal is that Ms Marium contended that she enjoyed an appeal as of right from the final determination of her summons by Davies J.
The essential procedural chronology in this Court is as follows.
On 13 November 2024, Constable Darley filed a notice of motion seeking the notice of appeal be dismissed on the basis that it was incompetent. Timetabling orders were made by Griffiths AJA on 25 November 2024, with a view that the matter would be heard on 16 December 2024.
On Ms Marium’s application, that hearing was vacated and the motion was listed for hearing on 3 February 2025.
On 31 January 2025, again on Ms Marium’s application, that hearing was vacated, based on a medical certificate provided by her, and the motion was listed on 10 February 2025.
On 7 February 2025, that hearing was once again vacated following the provision of a medical certificate by Ms Marium, and the motion was listed on 10 March 2025.
On 10 March 2025, the Registrar directed Ms Marium to file submissions in response to the motion of 13 November 2024 by 11 April 2025, and directed that the proceedings would be dismissed for want of despatch if that direction were not complied with. On that occasion, the motion was fixed to hearing on 14 April 2025.
The Registrar heard the motion on 14 April 2025. It will be noted that more than a year elapsed between the filing of the notice of appeal and the hearing of the motion that it should be dismissed as incompetent.
Most of the hearing on 14 April 2025 was occupied by Ms Marium, who appeared by AVL Link. The Registrar dealt with the matter immediately as follows:
REGISTRAR: All right. Having heard from both of you I am prepared to make orders now. I agree with the respondent’s view that Davies J’s decision to dismiss the summons was a final determination of the Supreme Court proceedings, which was a matter not involving a monetary claim. Accordingly, section 101(2)(r) is applicable and the appellant requires leave to appeal. I do not agree with the respondent’s view that the appellant also seeks to appeal Davies J’s decision that she is to pay the second defendant’s costs, and I am quoting para 11 of your submissions, Mr Deards. Accordingly, section 101(2)(c) is applicable and the appellant requires leave to appeal this order.
Section 101(2)(c) is not a basis for incompetency as costs are not the only decision sought to be appealed. I also note that the appellant has been made aware on numerous occasions, including by the previous registrars, that leave is required. However, I also do not want to place the parties in a position where I dismiss the notice of appeal today and the appellant then files a fresh summons. I will make the following orders:
1. Directs the appellant to file a summons seeking leave to appeal by 12 o’clock midday on 16 May 2025;
2. Directs that, should o 1 above not be complied with by 12 o’clock midday on 16 May 2025, pursuant to UCPR r 12.7, the proceedings will be dismissed for want of due despatch with costs;
3. List the matter for further directions on 19 May 2025; and
4. Registry to provide a copy of these orders to the parties.
It seems likely that some of the language used by the Registrar, when dealing with what appear to have been submissions based about a challenge to costs, has been garbled. However, it is clear that the Registrar concluded that there was no appeal as of right, because the appeal from the dismissal of judicial review proceedings of the Local Court’s refusal to order a permanent stay did not involve a matter at issue or involve any claim, demand or question concerning any property or civil right amounting to or of the value of at least $100,000, such that s 101(2)(r) of the Supreme Court Act 1970 (NSW) applied.
Notwithstanding the orders made in open court on 14 April 2025, Ms Marium did not file a summons seeking leave to appeal by noon on 16 May 2025. Instead, a summons seeking leave to appeal dated 15 May 2025 was sent by registered post and was received by the Court on 21 May 2025. Ms Marium gave evidence that she posted it by registered post on the date handwritten on her summons, namely, 15 May 2025. There is no documentary evidence of that (such as a receipt from when the envelope was lodged). She asserts that there is a “established court filing practice” that the date of posting is deemed the date of filing. She therefore concludes that because the documents were posted on 15 May 2025 that the deadline of 16 May 2025 was complied with.
In the early afternoon of 16 May 2025, when (it was common ground) that Court had received no summons seeking leave to appeal, the orders made by the Registrar on 14 April 2025 came into effect. Lest there be any doubt about it, orders dismissing the appeal made on that day sent by email to Ms Marium, in the following form:
The Court in Chambers:
1. NOTES the Orders made 14 April 2025.
2. NOTES the Appellant has failed to file a Summons Seeking Leave to Appeal by 12:00 midday on 16 May 2025.
3. DISMISSES the proceedings for want of due despatch pursuant to UCPR r 12.7, with costs.
4. VACATES Directions and the Motion on 19 May 2025.
5. DIRECTS the Registry to notify the parties of these Orders.
21 The applicant had submitted in writing that he did not need leave to appeal but he did not press that submission orally. For the avoidance of doubt it is best to address the point. Section 101(1) of the Supreme Court Act 1970 (NSW) provides for appeals to this Court from the Supreme Court. That right to appeal is subject to obtaining leave to appeal in the categories of cases set out in s 101(2). It relevantly provides:
(2) An appeal shall not lie to the Court of Appeal, except by leave of the Court of Appeal, from— …
(e) an interlocutory judgment or order in proceedings in the Court, …
(h) an order of the Court in a Division on an appeal under Part 5 of the Crimes (Appeal and Review) Act 2001, …
(r) a final judgment or order in proceedings of the Court, other than an appeal—
(i) that involves a matter at issue amounting to or of the value of $100,000 or more, or
(ii) that involves (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more.
22 Button J’s decision determined an application to appeal under Pt 5 of the CAR Act. To that extent leave to appeal is required pursuant to s 101(2)(h).
23 The second respondent argued that leave to appeal was also required because the decision was interlocutory (falling with s 101(2)(e)), involving as it did whether or not subpoenas should issue. That is incorrect. The decisions of the registrar and the magistrate were interlocutory. The application to the Supreme Court from that decision involved a new proceeding, being an appeal under the CAR Act and an application for judicial review. The decision of Button J was a final determination of that proceeding.
24 For that reason s 101(2)(r) applied. As this Court has said, “[g]enerally, all cases not having a readily ascertainable 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 the issuance of subpoenas in the context of a prosecution. It has no readily ascertainable monetary value. Mr Mohareb therefore does require leave to appeal in relation to all issues raised in the appeal.
Ms Marium submitted that s 101 did not apply to orders made in the exercise of the Court’s supervisory jurisdiction. She pointed to a statement in Hansard in 1970 that “Section 69 ensures unfettered supervision of lower courts, unlike civil appeals”. But this is not to the point. Ms Marium was not by her notice of appeal seeking to invoke the supervisory jurisdiction. She was seeking to appeal from the dismissal of her summons by Davies J. That right of appeal is a creature of statute, and is subject to the need to obtain leave when s 101(2) of the Supreme Court Act so provides.
Mohareb is squarely on point. The dismissal of an application for a permanent stay from which an application for review under s 69 of the Supreme Court Act is dismissed is not relevantly different from dismissal of an appeal under Part 5 of the Crimes (Appeal and Review) Act 2001 (NSW) of the refusal to grant leave to issue subpoenas. Both are final decisions of the Supreme Court constituted by a single judge, and neither involves amount in issue exceeding $100,000. Consequently, the right of appeal conferred by s 101 of the Supreme Court Act is qualified and it is necessary to be granted leave. It follows that the Registrar’s decision was right.
I should make two further observations. First, Ms Marium repeatedly alleged that the Registrar merely “parroted” Constable Darley’s submissions. That language is inappropriate, and it does not assist her argument. It is also not true, because the Registrar in fact rejected one aspect of his submissions, based on the requirement to seek leave in s 101(2)(c). As noted above, although the transcript appears somewhat garbled, there is no reason to doubt that the Registrar said, with respect correctly, that “Section 101(2)(c) is not a basis for incompetency as costs are not the only decision sought to be appealed”.
Secondly, Ms Marium sought to maintain that she did not require leave and to distinguish Mohareb because:
the Applicant’s case has been plagued by procedural obstructions, including the failure to list or hear the Applicant’s 28 October 2021 Notice of Motion despite repeated attempts. Further the Second Respondent’s representative has perpetuated falsehoods, obstructing justice and denying the Applicant a fair opportunity to present arguments. These obstructions, compounded by the Registrar’s 14 April 2025 decision, justify relief under s 69 to address Local Court errors, necessitating reinstatement of the proceedings.
The Registrar then made a discretionary decision granting Ms Marium an additional period, until 16 May, in order to file a summons seeking leave to appeal. That was by way of a further accommodation to her; in light of the extended history of non-compliance by her, it is to be regarded as one that was generous. Ms Marium did not comply with it.
Ms Marium is wrong to contend that proceedings are commenced when they are (claimed to be) sent by post to the Court. Ms Marium’s submission is contrary to UCPR, r 4.10(3), which deems a document to be filed when it is lodged for filing. I am conscious that Ms Marium is unrepresented, but there is nothing technical about this. If Ms Marium’s submission were correct, there would be no certainty as to when proceedings, including notoriously time-sensitive proceedings such as those seeking to set aside lapsing notices of caveats or statutory demands under the Corporations Act 2001 (Cth), commenced.
True it is that the orders made on 16 May 2025 were made 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]:
[T]he record of proceeding on JusticeLink indicates that, on 6 February 2024, an order was entered in the appeal proceeding in the following terms “In accordance with Order 2 made on 29 January 2024, the proceeding is dismissed”. The hearing date for the appeal was vacated and the file in relation to the appeal proceeding was closed. Strictly speaking, the order made on 6 February 2024 should best be regarded as confirming the dismissal of the appeal proceedings on 29 January 2024, since the operation of the self-executing order was that the appeal was automatically dismissed as of that date when no submissions had been filed by the respondent by 5.01pm on 5 February 2024. This matter is only relevant to the time within which an application may be brought reviewing the order dismissing the appeal.
No order was necessary, nor was order 3 purporting to dismiss the appeal appropriate. After midday on 16 May 2025, the appeal was dismissed until and unless the order made on 14 April 2025 was set aside or varied. There was no longer a proceeding on foot in this Court in which the orders could be made. It is of course desirable that there be no uncertainty on the part of the parties, or third parties, as to whether proceedings remain on foot in this Court, and hence the sense in making orders noting that certain events have or have not occurred. But the Registrar’s order purporting to dismiss the proceedings for want of due despatch on 16 May 2025, and ordering costs, were ineffective, because they merely replicated orders to identical effect which had already been made, in a proceeding which had already been dismissed.
It is the orders made in Ms Marium’s presence on 14 April 2025 which have the effect of dismissing her appeal. Another way of putting this is that the orders made on 14 April 2025 dismissed her appeal, unless Ms Marium satisfied the condition in those orders. It is known that Ms Marium did not satisfy the condition. Therefore only if Ms Marium could set aside the orders made on 14 April 2025 could her appeal not be dismissed.
Ms Marium’s notice of motion complains that the 16 May 2025 dismissal was “made without notice of hearing, denied the applicant procedural fairness”. This is simply not true. The orders were made after a hearing in Court before the Registrar. The orders were in the nature of an indulgence to a litigant who had maintained, wrongly, she was entitled to an appeal as of right. There was nothing procedurally unfair about the course that was adopted.
Ms Marium now complains that the effect of the order was that when she chose to send documents by post to the Court on the (according to her) day before the midday expiry date, and they were not received until the following week, the effect is that her proceeding stood dismissed. But that does not render any aspect of the orders unjust. It was Ms Marium’s choice to attempt to commence proceedings by post, rather than supplying documents to the Registry, and it was Ms Marium’s choice to delay doing so until (on her account) the day before the expiry of the orders.
Ms Marium made extensive submissions asserting what was said to be jurisdictional error on part of both the Local Court and Davies J. For the reasons summarised above, I do not accept those submissions. Moreover, and more importantly, as pointed out during the hearing, I did not understand how those submissions are relevant to the issues presented by Ms Marium’s notice of motions. Those submissions extended to the proposition that the decisions were nullities. 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].
For those reasons, the notice of motion filed on 19 August 2025 must be dismissed.
Constable Darley sought an order that the summons be dismissed with costs. There is no doubt that Constable Darley has incurred costs in responding to the notice of motion, which Ms Marium relied upon more than 600 pages of materials (Exhibits B and C). (To be clear about this, although when the tender was pressed, I said that I doubted the relevance of any of it, and invited Ms Marium to take me to any particular page which was not in Exhibit A (which comprise the core documents, helpfully assembled by Ms Marium), at no stage was I taken to any such document.)
The proceedings in this Court are civil in nature, although they are ultimately driven by prosecution of serious charges which have not yet been heard. I see no reason for costs not to follow the event, in accordance with the usual rule in r 42.1.
The Court’s orders are:
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.
**********
Marium
Darley [2025] NSWCA 198
(2010) 78 NSWLR 499
(1937) 59 CLR 467
(2013) 252 CLR 118
(2008) 236 CLR 120
(2017) 94 NSWLR 36
(2017) 96 NSWLR 295
(2009) 75 NSWLR 224
Constable Mark Darley was renamed as the first respondent and Magistrate Brian Van Zuylen as the second respondent; the notice of motion was dismissed, with Ms Marium ordered to pay Constable Darley’s costs of the motion.
No application was made before me for a further extension of time to seek leave to appeal from Davies J’s decision to dismiss Ms Marium’s summons seeking judicial review. That may be why there was no explanation for the delay between that decision in April 2025 and the present, which is material, given the imminence of the hearing in the Local Court. If and when an application for an extension of time is made, it is usually necessary to have regard to the strength of the leave application that is sought to be advanced. In light of the grounds of appeal which have hitherto been flagged, and the written and oral submissions which have already been advanced by Ms Marium, it is difficult to see how there could be any real prospects of such an application succeeding.