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[2026] NSWCA 75
respondent. Extension of time refused; the applicant was ordered to pay the first respondent’s costs and the Attorney General’s costs of the amended notice of motion.
The Court refused to extend the time for Ms Marium to seek review of an earlier decision. The earlier decision had upheld a Registrar's order requiring her to file a summons for leave to appeal by a specified deadline, failing which her proceedings would be dismissed. The summons arrived after that deadline. The Court said the order took effect automatically when the deadline was missed, and found no demonstrated error in the primary judge's refusal to vary it. Ms Marium was ordered to pay costs. This is a summary of the judgment, not a determination of any other proceeding or claim.
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2,435 words · generated 08/10/2026
This judgment concerns the management and review of appellate proceedings, not the merits of the criminal charges that had been laid against Ms Marium. The Court of Appeal did not decide whether she was guilty of any driving offence. It considered whether to extend time for a late application seeking review of orders made by Leeming JA, and whether the underlying challenge disclosed a basis for disturbing those orders.
7 cited instruments linked from this judgment.
The background began with an alleged collision at an intersection in Rouse Hill on 25 October 2020. It was alleged that Ms Marium drove through a red light and collided with another vehicle, injuring its driver [1]. Court Attendance Notices later charged negligent driving occasioning bodily harm and dangerous driving occasioning grievous bodily harm [2]. The Local Court hearing was delayed for about five years amid applications in the Local Court, Supreme Court and Court of Appeal. It commenced on 9 March 2026 and was part-heard, with further dates listed for September 2026 [3].
The present application followed several earlier proceedings. Ms Marium had challenged the Local Court magistrate's refusal to stay the criminal proceeding as an abuse of process. Davies J dismissed her judicial review summons on 22 March 2024. Ms Marium then filed a notice of appeal. A Registrar concluded that leave to appeal was required and, on 14 April 2025, directed her to file a summons for leave to appeal by midday on 16 May 2025. The order stated that if she did not comply, the proceedings would be dismissed for want of due despatch [17].
Ms Marium said she posted a summons for leave to appeal before the deadline, but the Court did not receive it by the required time. It received the summons on 21 May 2025 [18], [21]. The proceedings were treated as dismissed under the guillotine order. Leeming JA later dismissed Ms Marium's application to set aside the Registrar's orders [19]-[21].
Ms Marium filed the motion considered in this judgment on 7 February 2026, seeking to discharge Leeming JA's orders and requesting an extension of time. She relied on ill-health and financial circumstances, including difficulty paying the filing fee [22]. The motion was outside the 14-day period specified by UCPR r 51.58(1) [9]-[10]. The amended motion added the Attorney General as a respondent [23]. The Court refused the extension and ordered Ms Marium to pay the first respondent's and the Attorney General's costs [32].
The Court approached the application in two connected stages. First, it had to decide whether to extend time. Second, because the motion sought review of a Judge of Appeal's orders, the Court considered whether the underlying challenge could show an error warranting intervention.
Adamson JA stated that an application under s 46(4) of the Supreme Court Act 1970 (NSW) to discharge orders made by a Judge of Appeal is not an appeal [8]. The applicant had to meet a “heavy onus” by showing that the primary judge erred in principle or that the decision was plainly wrong [8]. That threshold framed the Court's examination of the claim that Leeming JA should have varied or discharged the Registrar's orders.
The first substantive question was whether leave to appeal had been required from Davies J's decision. Adamson JA adopted the primary judge's reasons for concluding that it had [25]. The earlier decision treated the proceedings as not having a readily ascertainable monetary value of at least $100,000, as required for an appeal as of right under s 101(2)(r) of the Supreme Court Act [20]. The present judgment does not independently set out a separate detailed analysis of that statutory question. It records that the primary judge's conclusion was accepted [20], [25].
The second question concerned the legal effect of the Registrar's deadline. Adamson JA explained that the order made on 14 April 2025 was effective if its condition was not met, even though its dismissal consequence only took effect on 16 May 2025 [26]. The order for dismissal was therefore “made” on 14 April but “took effect” when the deadline passed without filing [26]. The Court found no error in the primary judge's description of the later order of 16 May as “otiose”, because the proceedings had already been dismissed by operation of the earlier order [21], [26].
The Court also addressed the difference between posting and filing. As recounted in the reasons, the primary judge held that a document is deemed filed when lodged for filing under UCPR r 4.10, and that sending it by post does not itself amount to filing on the posting date [21]. The present Court noted that the summons had not been received by the deadline and concluded that the guillotine order had not been complied with [21], [26].
Adamson JA accepted that a court can vary a guillotine order, including after it has taken effect. But the existence of that power did not establish that it should be exercised here [27]. The judgment described guillotine orders as “an important tool of case management” which “ought generally mean what they say” [27]. The Court considered that the history of non-compliance and continuing delay in this case included features corresponding to the circumstances discussed in Lenijamar Pty Ltd v AGC (Advances) Limited [27]-[28]. It concluded that protecting Ms Marium from the consequences of the missed deadline by varying the order would not be in the interests of justice and would be “positively inimical to the administration of justice” [28].
Finally, the Court connected the merits of the underlying challenge to the extension application. It refused an extension because it considered the substantive application lacked merit [29]. The stated grounds for the extension, ill-health and financial circumstances, were recorded, but the Court's express conclusion was that the lack of merit warranted refusal [22], [29].
This judgment did not purport to create a new general test for extensions of time or a new statutory rule governing appeals. It applied the framework in the Supreme Court Act and the UCPR to the specific procedural history before it.
The judgment's account of the review threshold was that an application under s 46(4) is not an appeal and requires the applicant to show an error of principle or that the primary judge's decision was plainly wrong [8]. It cited Rinehart v Welker for that proposition [8]. The decision therefore reinforces the distinction between an appeal and the particular review mechanism invoked here.
On guillotine orders, the judgment states that the order can take effect automatically upon failure to meet its specified condition [26]. It also confirms that a court may have power to vary such an order after it has taken effect, while emphasising the case-management function of the order and the need for it generally to be applied as written [27]. These propositions explain the outcome in this matter. The judgment does not say that every guillotine order must invariably be enforced regardless of circumstances. Its language is qualified: such orders ought “generally” mean what they say, and the Court says the relevant history and circumstances supported the result here [27]-[28].
The discussion of Lenijamar provides contextual guidance rather than an exhaustive list of cases where a guillotine order is justified. Adamson JA reproduced the observation that it is undesirable to make an exhaustive statement because the circumstances in which the power may be used cannot all be foreseen [27]. The passage identifies two “obvious candidates”: a history showing inability or unwillingness to cooperate, and continuing non-compliance causing delay, expense or prejudice [27]. The Court found features of both in Ms Marium's procedural history [28].
The judgment also applies the filing rules as described in the earlier decision: a document sent by post is not filed on the date it is posted, and lodgment requires receipt and acceptance by the Court [21]. The present Court's focus was on the fact that the summons was not received by the deadline [21]. It did not decide a broader dispute about electronic filing or other modes of lodgment.
The available judgment text contains no account of later appellate treatment of this decision. It therefore supports no conclusion about how subsequent courts have applied, followed, distinguished or questioned it.
At [8], Adamson JA states that an applicant seeking to discharge a Judge of Appeal's orders must show “the primary judge erred in principle or that his Honour’s decision was plainly wrong.” In plain English, the Court was not reconsidering the earlier decision as if hearing an ordinary appeal from the beginning. The applicant had to identify a serious legal or decisional problem of the kind specified.
At [21], the judgment recounts the primary judge's conclusion that a document is deemed filed when lodged, and is not lodged before it is received and accepted by the Court. In practical terms, posting the summons before the deadline did not establish that it had been filed by the deadline. The decisive fact recorded by the Court was that the registry did not receive it in time.
At [26], Adamson JA explains that the order was made on 14 April but took effect on 16 May, once the condition had not been met. This distinguishes the date when the Registrar made the order from the date when its consequence occurred. It also explains why the later dismissal order could be described as “otiose”: on the Court's analysis, the proceedings had already been dismissed automatically.
At [27], the judgment says guillotine orders are an important case-management tool and “ought generally mean what they say.” In plain English, a party subject to a clear deadline and stated consequence can expect the consequence to operate if the deadline is missed. The word “generally” matters. The same paragraph recognises a power to vary the order, and [28] assesses whether variation was appropriate in the circumstances.
The quoted passage from Lenijamar at [27] cautions against trying to list every situation in which a guillotine order is appropriate. It identifies recurring examples involving persistent non-compliance, inability or unwillingness to cooperate, delay, expense or prejudice. Adamson JA then found that the present case had features of both identified situations [28].
At [29], the Court gives its direct reason for refusing more time: “The lack of merit of Ms Marium’s substantive application” meant an extension should not be granted. This makes clear that the extension request was not decided solely by reference to the personal circumstances put forward. The Court's stated conclusion depended on its view of the underlying challenge.
The reasoning is most directly relevant to a procedural situation with these features: a Registrar has made a clear order requiring a specified filing by a specified deadline; the order expressly provides that proceedings will be dismissed if the deadline is missed; the document is not received by the Court by the deadline; and the applicant later seeks to undo the resulting dismissal [17]-[18], [21], [26].
It is also relevant where a party seeks review of a Judge of Appeal's orders under s 46(4), rather than pursuing an appeal. The judgment says the applicant must show an error of principle or that the decision was plainly wrong [8]. The distinction matters because it defines the task the reviewing court undertakes.
The case may also be relevant to an application to extend time where the underlying application is said to lack merit. The Court expressly linked that assessment to its refusal of an extension under UCPR r 51.58(1) [29]. The judgment does not set out a comprehensive test for all extension applications, so its conclusion should be read in the procedural context and on the reasons it actually gives.
The decision should not be read as saying that every missed deadline invariably ends proceedings without possible relief. Adamson JA expressly recognised a power to vary a guillotine order, even after it has taken effect [27]. The decision instead shows that the existence of that power does not require variation, particularly where the court considers that the procedural history and the interests of justice favour enforcement [27]-[28].
The provided judgment contains no material about later courts' treatment of Marium v Darley [2026] NSWCA 75. It is therefore not possible, on this source alone, to say whether later courts have followed, applied, distinguished or questioned its reasoning.
The judgment itself identifies earlier authority. It cites Rinehart v Welker for the heavy onus in an application to discharge a Judge of Appeal's orders [8]. It discusses and applies the reasoning in Lenijamar about circumstances that may make summary dismissal under a guillotine mechanism appropriate [27]-[28]. It also refers to Mohareb v Local Court of New South Wales in the context of the leave-to-appeal question [20].
The judgment refers to Marium v Darley [2025] NSWCA 198 as the primary judge's decision under review [4], [19]-[21]. It also recounts the procedural background of Marium v Registrar Local Court Blacktown and Marium v Van Zuylen [13], [15]. Those references do not provide evidence of later treatment of the 2026 decision.
The judgment's analysis is limited to the questions before it and the procedural record described. It does not provide an exhaustive test for when a guillotine order should be made or varied. Indeed, the passage from Lenijamar reproduced at [27] cautions against an exhaustive statement of circumstances.
The reasons do not explain in detail how the asserted ill-health affected Ms Marium's ability to meet the deadline, or how her financial circumstances affected the filing of the later motion. They record those grounds and then state that the substantive application lacked merit, which was the reason time was not extended [22], [29]. The judgment therefore does not establish how similar evidence would be assessed in another matter.
Nor does the judgment independently analyse every aspect of the statutory leave-to-appeal question. It adopts the primary judge's reasons that leave was required and records the monetary-value reasoning underpinning that conclusion [20], [25]. A reader seeking the full analysis would need the cited primary judgment, which is not reproduced in full here.
The decision also does not address the merits of the charges against Ms Marium, determine whether the alleged accident occurred as charged, or resolve the criminal proceeding. It notes that the Local Court hearing had begun and was part-heard [3], but the present appeal concerned the timing and effect of procedural orders.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have it checked by a qualified Australian lawyer.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Marium v Darley [2026] NSWCA 75
Hearing dates: 28 April 2026
Decision date: 30 April 2026
Before: Adamson JA at [1]
Ball JA at [33]
Free JA at [34]
Decision: (1) Refuse to extend time for the filing of the applicant’s notice of motion filed on 7 February 2026.
(2) Order the applicant to pay the first respondent’s costs.
(3) Order the applicant to pay the costs of the Attorney General of New South Wales, the third respondent to the applicant’s amended notice of motion filed on 18 February 2026.
Catchwords: PRACTICE — application for extension of time for filing of application for review of the orders of a Judge of Appeal — where Judge of Appeal dismissed the applicant’s challenge to dismissal of proceedings as a consequence of guillotine order made by Registrar that if a summons for leave to appeal was not filed by a particular date the proceedings would be dismissed — no error of principle demonstrated — circumstances in which guillotine order will be an appropriate tool of case management — extension of time refused
Legislation Cited: Crimes Act 1900 (NSW), s 52A
Road Transport Act 2013 (NSW), s 117
Supreme Court Act 1970 (NSW), ss 19, 43, 46, 46A, 69, 101
Uniform Civil Procedure Rules 2005 (NSW), rr 4.10, 12.7, 13.4, 14.28, 51.2, 51.4, 51.58, 51.59
Cases Cited: Lenijamar Pty Ltd v AGC (Advances) Limited (1990) 27 FCR 388; [1990] FCA 745
Marium v Darley [2025] NSWCA 198
Marium v Registrar Local Court Blacktown [2022] NSWSC 1401
Marium v Van Zuylen [2024] NSWSC 258
Mohareb v Local Court of New South Wales [2024] NSWCA 235
Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403
Category: Principal judgment
Parties: Marium Marium (Applicant)
Constable Mark Darley (First Respondent)
Magistrate Brian van Zuylen (Second Respondent)
Attorney General of New South Wales (Third Respondent)
Representation: Counsel:
Self-represented (Applicant)
N Regener (solicitor) (First Respondent)
Submitting Appearance (Second Respondent)
Z Bush (Third Respondent)
Solicitors:
Makinson d’Apice Lawyers (First Respondent)
Crown Solicitor’s Office (NSW) (Second Respondent)
Crown Solicitor’s Office (NSW) (Third Respondent)
File Number(s): 2024/253394
ADAMSON JA: On 25 October 2020 the vehicle in which the applicant, Marium Marium, was driving was involved in a collision at an intersection in Rouse Hill. It was alleged that her vehicle had gone through a red light and collided with another vehicle, injuring its driver.
As a consequence, Ms Marium was served with a Court Attendance Notice (CAN), issued on 12 April 2021 to appear at the Local Court at Blacktown to answer a charge of negligent driving occasioning grievous bodily harm laid by Constable Darley, the first respondent. A subsequent CAN charged two sequences: negligent driving occasioning bodily harm contrary to s 117(1)(b) of the Road Transport Act 2013 (NSW); and dangerous driving occasioning grievous bodily harm contrary to s 52A(3)(c) of the Crimes Act 1900 (NSW). The first sequence was a back-up charge to the second sequence, the second sequence being the more serious offence.
The hearing of the Local Court proceedings against Ms Marium has been delayed for about five years because of the applications she has brought in the Local Court and proceedings which she has commenced in the Supreme Court and this Court which are summarised below. The hearing of the criminal proceedings in the Local Court ultimately commenced on 9 March 2026. The matter has been stood over part-heard to 7, 14 and 21 September 2026.
The present application is Ms Marium’s application for review of the order made by Leeming JA (the primary judge) on 28 August 2025 (Marium v Darley [2025] NSWCA 198) dismissing her challenge to orders made by the Registrar of the Court of Appeal which had the effect of dismissing her appeal from the decision of Davies J in the Common Law Division of the Supreme Court. Relevantly, Davies J dismissed Ms Marium’s challenge to orders made by Magistrate van Zuylen (the magistrate), the second respondent, in the Local Court dismissing her application to have the CANs dismissed as an abuse of process.
The second respondent has filed a submitting appearance. Ms Marium has also joined the Attorney General for New South Wales (the Attorney General) as the third respondent to her application in this Court. The Attorney General alleges that he was improperly joined.
The background to Ms Marium’s application for review to this Court is relevant to understand the context in which the Registrar’s and the primary judge’s orders were made. However, this background, though relevant, does not enlarge what was before the primary judge, which was limited to a challenge to the Registrar’s order made on 14 April 2025 and, to the extent relevant, the order made on 16 May 2025. As a single judge, the primary judge had no power to grant leave to appeal (which requires at least two Judges of Appeal) or allow the appeal (which requires at least three Judges of Appeal): ss 43, 46 and 46A of the Supreme Court Act 1970 (NSW).
By summons filed on 29 October 2021 in the Supreme Court, Ms Marium sought orders against the Registrar of the Local Court regarding a motion for particulars of the original CAN which had been rejected for filing. The Attorney General sought leave to intervene in those proceedings to ensure that the Court had a contradictor, since the only named respondent was the Registrar of the Local Court. This proceeding came before Harrison J on 17 October 2022. His Honour concluded that the motion had been wrongly rejected but made no orders because additional particulars had been provided in the subsequent CANs that had been served on Ms Marium: Marium v Registrar Local Court Blacktown [2022] NSWSC 1401. These proceedings were dismissed with no order as to costs by Harrison J on 5 July 2023 on the application of the Attorney General. There was no appeal from this decision.
By summons filed on 7 March 2023 in this Court, Ms Marium sought judicial review pursuant to s 69 of the Supreme Court Act of the magistrate’s dismissal of her application for a stay of the proceedings in the Local Court. The proceedings were transferred to the Common Law Division of the Supreme Court. On 16 June 2023, Constable Darley sought to have Ms Marium’s proceedings dismissed pursuant to UCPR, r 13.4 or, in the alternative, an order that the summons be struck out pursuant to UCPR, r 14.28.
On 14 March 2024, Davies J heard Ms Marium’s summons and Constable Darley’s notice of motion. On 22 March 2024, his Honour dismissed the summons and the notice of motion: Marium v Van Zuylen [2024] NSWSC 258. His Honour found that:
it was not an abuse of process for Constable Darley to serve several CANs: J[45];
the particulars of the charges were not inadequate since the time and location of the collision was provided and the conduct and its consequences had been sufficiently particularised in that it was alleged that, between 4.13pm and 4.15pm, Ms Marium had driven through a red light and collided with another vehicle, injuring the clavicle of the driver: J[48]-[59].
On 4 April 2024, Ms Marium filed a notice of appeal against these orders. On 13 November 2024, Constable Darley filed a notice of motion seeking that the proceedings be dismissed as incompetent on the basis that leave to appeal was required and had not been sought. There were several adjournments of this motion (which are detailed in the chronology in the annexure to these reasons), which was ultimately listed for hearing before the Registrar on 14 April 2025.
On 14 April 2025, after hearing from the parties, the Registrar gave the following reasons for the orders which he made:
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) [of the Supreme Court Act] is applicable and the [applicant] requires leave to appeal. I do not agree with the respondent’s view that the [applicant] 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 [applicant] 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 [applicant] 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 [applicant] then files a fresh summons. I will make the following orders:
1 Directs the [applicant] to file a summons seeking leave to appeal by 12 o’clock midday on 16 May 2025;
2 Directs that, should o[rder] 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.
Ms Marium failed to file a summons seeking leave to appeal by midday on 16 May 2025. Instead, Ms Marium said that she posted a summons seeking leave to appeal to the Court before 16 May 2025 which did not arrive until after 16 May 2025. On 16 May 2025, the Registrar noted that Ms Marium had failed to comply with the orders made on 14 April 2025 and dismissed the proceedings for want of due despatch pursuant to UCPR, r 12.7, with costs.
On 19 August 2025, Ms Marium filed a notice of motion seeking to have the orders made by the Registrar on 14 April 2025 and 16 May 2025 set aside. This motion was heard by the primary judge on 25 August 2025 and determined on 28 August 2025: Marium v Darley [2025] NSWCA 198. His Honour made the following orders:
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.
The primary judge found that Ms Marium required leave to appeal from the orders of Davies J pursuant to s 101(2)(r) of the Supreme Court Act on the basis that the appeal from the dismissal of judicial review proceedings invoking the Court’s jurisdiction under s 69 of the Supreme Court Act to challenge 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 within the meaning of s 101(2)(r) of the Supreme Court Act: Mohareb v Local Court of N**ew South Wales [2024] NSWCA 235 at [21]-[24]. As Ms Marium’s proceedings in the Supreme Court did not have a “readily ascertainable monetary value” they could not be shown to have a value of at least $100,000: J[48]-[50].
The primary judge held that sending a document by post to the Court does not have the effect that the document is filed on the day it is sent: J[55]. A document is deemed to have been filed when it is lodged for filing (UCPR, r 4.10(3)) and it may be lodged by sending it by post: UCPR, r 4.10(1). It is not lodged before it is received and accepted by the Court. It was not in issue that the summons for leave to appeal was not received by the Court by 16 May 2025. Accordingly, the Registrar’s guillotine order was not complied with. This had the consequence that the proceedings were automatically dismissed, as the primary judge found: J[56]. The primary judge found that the orders made on 16 May 2025 were “otiose” as the proceedings had already been dismissed by Ms Marium’s failure to file a summons for leave to appeal by midday on 16 May 2025: J[56]. His Honour was not persuaded to vary or discharge the Registrar’s orders.
By notice of motion filed on 7 February 2026 Ms Marium sought to have orders (2) and (3) made by the primary judge discharged. She also sought an extension of time for the filing of her application on the basis of ill-health and impecuniosity.
An amended notice of motion was filed on 18 February 2026. The only amendment was to add the Attorney General as the third respondent. It is this motion which is to be determined by this Court. The Attorney General has filed submissions in support of an application for an order pursuant to UCPR, r 51.4(3) that he be removed from the amended notice of motion as there is no proper basis for joinder.
Ms Marium has made several submissions which are not germane to the present application and therefore need not be addressed. In particular, her principal complaint appears to be that a proposed motion for particulars in the Local Court raised by her has never been dealt with. That motion, which was never formally filed, is irrelevant to the current application and became otiose as a result of the hearing before Davies J and the conclusions his Honour reached on the adequacy with which the offences with which Ms Marium has been charged were particularised. Ms Marium has failed to establish any error of principle in the primary judge’s refusal to vary or discharge the Registrar’s orders.
For the reasons given by the primary judge, Ms Marium required leave to appeal from the orders made by Davies J.
The effect of a guillotine order such as the one made by the Registrar on 14 April 2025 was, if the condition that a summons for leave to appeal be filed by midday on 16 May 2025 was not met, effective without further order. Thus, the order for dismissal which was made on 14 April 2025 although it only took effect on 16 May 2025. No error, whether of principle or otherwise, has been demonstrated in the primary judge’s description of the orders of 16 May 2025 as “otiose”.
While a court has power to vary a guillotine order, including after it has taken effect, I am not persuaded that there was any error, much less an error of principle, in the primary judge’s decision not to vary the Registrar’s order in the present case. Guillotine orders are an important tool of case management. They ought generally mean what they say. In Lenijamar Pty Ltd v AGC (Advances) Limited (1990) 27 FCR 388 at 396; [1990] FCA 745, Wilcox and Gummow JJ said of a provision which permits guillotine orders:
As it is impossible to foresee all of the circumstances under which the rule might be sought to be used, it is undesirable to make any exhaustive statement of the circumstances under which the power granted by the rule will appropriately be exercised. We will not attempt to do so. But two situations are obvious candidates for the exercise of the power: cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period and cases - whatever the applicant's state of mind or resources - in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent. Although the history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations. Even though the most recent non-compliance may be minor, the cumulative effect of an applicant's defaults may be such as to satisfy the Judge that the applicant is either subjectively unwilling to co-operate or, for some reason, is unable to do so. Such a conclusion would not readily be reached; but, where it was, fairness to the respondent would normally require the summary dismissal of the proceeding.
There are features in the present case of both situations which are described by their Honours as “obvious candidates” for summary dismissal on the basis of a guillotine order. A variation of the order to protect Ms Marium from the consequences of her default would not be in the interests of justice. Indeed any such variation would, in my view, be positively inimical to the administration of justice.
Ms Marium seeks an extension of time in which to file the present application on the basis of her ill-health and financial circumstances which she alleged made it difficult for her to pay the filing fee. The lack of merit of Ms Marium’s substantive application is such that an extension of time under UCPR, r 51.58(1) ought not be granted.
As is evident from the chronology annexed to these reasons, Ms Marium’s joinder of the Attorney General to her notice of motion before this Court appears to hark back to the first Supreme Court proceedings in which she challenged the refusal by the Registrar of the Local Court to list a notice of motion which she had filed in that Court. The Attorney General sought leave to intervene to act as a contradictor in those proceedings. Those proceedings were ultimately dismissed on 5 July 2023. There was no appeal from that dismissal.
The Attorney General is not a proper party to the notice of motion and ought not to have been joined. However, as the Attorney General has appeared and made submissions, it is not appropriate that he be removed as a party to the notice of motion. He is entitled to his costs of the notice of motion.
For the reasons given above, I propose the following orders:
Refuse to extend time for the filing of the applicant’s notice of motion filed on 7 February 2026.
Order the applicant to pay the first respondent’s costs.
Order the applicant to pay the costs of the Attorney General of New South Wales, the third respondent to the applicant’s amended notice of motion filed on 18 February 2026.
BALL JA: I agree with Adamson JA.
FREE JA: I agree with Adamson JA.
**********
Chronology prepared by the Attorney General of New South Wales
| Date | Event | Reference | | 25 October 2020 | Date of alleged motor vehicle accident involving Ms Marium in Rouse Hill, New South Wales. | Marium v Darley [2025] NSWCA 198 at [10] | | Around 12 April 2021 | Court Attendance Notice issued to Ms Marium containing one charge relating to the alleged motor vehicle accident on 25 October 2020, namely, negligent driving occasioning grievous bodily harm contrary to s 117(1)(b) of the Road Transport Act 2013 (NSW). | Second Affidavit of Marium Marium affirmed 9 January 2026, Ex MM-3, pp 1-7 Marium v Darley [2025] NSWCA 198 at [10] | | 27 or 28 October 2021 | Ms Marium attempted to file a notice of motion in the criminal proceeding in the Blacktown Local Court (case number 2021/101123) seeking the following orders: 1. “Plaintiff provides particulars of the negligence of driving between 4.13pm and 4.15pm on 25 October 2020”. 2. “Plaintiff provides particulars of injury which is a really serious one”. 3. “Charge under Crimes Act 1900, s 52A(3)(c) be dismissed with costs (pursuant to the Criminal Procedure Act 1986, s 179)”. 4. “The declaration that Con Mark Darley acted unlawfully and knowingly exercise public power beyond his jurisdiction”. | First Affidavit of Marium Marium affirmed 9 January 2026, [4], Ex MM-1 | | 28 October 2021 | The Registrar of the Blacktown Local Court rejected Ms Marium’s notice of motion for filing on the basis it was “a civil procedure” while Ms Marium’s “matter at this stage is a criminal matter”. | First Affidavit of Marium Marium affirmed 9 January 2026, [6], Ex MM-2 | | 29 October 2021 | Two Court Attendance Notices issued to Ms Marium concerning the alleged motor vehicle accident on 25 October 2020: • The first contained a charge for dangerous driving occasioning grievous bodily harm contrary to s 52A(3)(c) of the Crimes Act 1900 (NSW) • The second combined the two offences charged into one Court Attendance Notice. | Second Affidavit of Marium Marium affirmed 9 January 2026, Ex MM-3: • First Court Attendance Notice: pp 15-21 Second Court Attendance Notice: pp 8-14 Marium v Van Zuylen [2024] NSWSC 258 at [14] | | 29 October 2021 | Ms Marium filed a summons in the Supreme Court (case number 2021/00307235) seeking the following orders against the Registrar of the Blacktown Local Court (amongst others): 1. Registrar to reconsider the decision of refusal to list the notice of motion lodged on 28 October 2021 in accordance with the law. 2. Registrar to reconsider the decision of refusal to provide notice of orders of the hearing dated 13 September 2021 in accordance with the law. 3. Remit the matter to the Registrar. | First Affidavit of Marium Marium affirmed 9 January 2026, [7] [2022] NSWSC 1401 at [1] | | 24 November 2021 | Ms Marium filed a notice of motion in case number 2021/00101123 in the Blacktown Local Court, which sought the following orders: 1. Pursuant to s 179 of the the offence of dangerous driving occasioning grievous bodily harm is statute-barred and dismissed. 2. A declaration that the creation date of the 2nd Court Attendance notice is false and misleading. 3. A declaration that Jessica Turner omission to correct the date of creation is dishonest. 4. Staying the proceedings pending resolution of summons in Supreme Court. | [2024] NSWSC 258 at [7] | | Around late 2021/early 2022 | Court Attendance Notice issued to Ms Marium containing the same two charges concerning the alleged motor vehicle accident on 25 October 2020, but adding further information in the section headed “Details of Offences”. | Second Affidavit of Marium Marium affirmed 9 January 2026, Ex MM-3, pp 22-28 [2024] NSWSC 258 at [15] | | 3 March 2022 | of New South Wales filed a notice of motion in case number 2021/00307235 in the Supreme Court, seeking leave to intervene in the proceeding. | [2022] NSWSC 528 at [5] | | Some time prior to 29 April 2022 | Court Attendance Notice issued to Ms Marium containing the same two charges concerning the alleged motor vehicle accident on 25 October 2020, but again adding further information in the section headed “Details of Offences”. | Second Affidavit of Marium Marium affirmed 9 January 2026, Ex MM-3, pp 29-35 [2024] NSWSC 258 at [16] [2025] NSWCA 198 at [10] | | 3 May 2022 | Justice Walton granted leave for the Attorney General to intervene in case number 2021/00307235 in the Supreme Court. | [2022] NSWSC 528 Fourth Affidavit of Marium Marium affirmed 9 January 2026 at [13] | | 13 October 2022 | Hearing before Harrison J (as his Honour then was) in case number 2021/00307235. | Transcript of hearing: First Affidavit of Marium Marium affirmed 9 January 2026, Ex MM-3 | | 17 October 2022 | Justice Harrison delivered judgment in case number 2021/00307235. His Honour held that the Registrar erred in refusing to receive the notice of motion. His Honour nonetheless made no orders for two reasons: 1. He considered the orders sought by Ms Marium were of little utility or may in fact put her in a worse position: [30]. 2. He considered it may be necessary to revisit Ms Marium’s claim for relief depending on the outcome of the criminal proceeding, such that he did not want to finally dispose of the present proceeding until the outcome of the criminal proceeding was known: [31]. | [2022] NSWSC 1401 | | 19 December 2022 | Magistrate Van Zuylen dismissed Ms Marium’s application for a stay of case number 2021/101123. | Transcript of hearing: Second Affidavit of Marium Marium affirmed 9 January 2026, Ex MM-1, MM-2 [2024] NSWSC 258 at [2] [2025] NSWCA 198 at [14]-[19] | | 7 March 2023 | Ms Marium filed a summons in the Supreme Court seeking prerogative relief under s 69 of the (NSW) in respect of Magistrate Van Zuylen’s dismissal of her application for a stay of the criminal proceeding in the Blacktown Local Couer (case number 2023/74986). | [2024] NSWSC 258 at [3]-[4] [2025] NSWCA 198 at [20] | | 5 July 2023 | Justice Harrison dismissed case number 2021/00307235 on the application of the Attorney General. | Transcript of hearing: First Affidavit of Marium Marium affirmed 9 January 2026, Ex MM-6 Transcript of reasons: First Affidavit of Marium Marium affirmed 9 January 2026, Ex MM-5 | | 22 March 2024 | Justice Davies dismissed Ms Marium’s summons in case number 2023/74986. His Honour considered there was no basis for a permanent stay of the proceeding because: 1. there was no abuse of process constituted by the service of five successive Court Attendance Notices: [45]; and 2. the Magistrate did not err in determining that adequate particulars had been provided: [59]. | [2024] NSWSC 258 | | 4 April 2024 | Ms Marium filed a notice of appeal seeking review of Justice Davies’s decision in [2024] NSWSC 258 (case number 2024/00253394). | Notice of Appeal filed 4 April 2024 | | 13 November 2024 | Constable Darley filed a notice of motion seeking the notice of appeal be dismissed on the basis it was incompetent. | [2025] NSWCA 198 at [42(1)] | | 16 December 2024 | Initial listing for hearing of notice of motion, which was vacated on Ms Marium’s application. | [2025] NSWCA 198 at [42(1)-(2)] | | 3 February 2025 | Second listing for hearing of notice of motion, which was vacated on Ms Marium’s application. | [2025] NSWCA 198 at [42(3)] | | 10 February 2025 | Third listing for hearing of notice of motion, which was vacated on Ms Marium’s application. | [2025] NSWCA 198 at [42(4)] | | 14 April 2025 | The Registrar of the Court of Appeal heard the motion of 13 November 2024 and held that Ms Marium required leave to appeal Davies J’s decision pursuant to s 101(2)(r) of the (NSW). The Registrar relevantly ordered: 1. Directs the appellant to file a summons seeking leave to appeal by 12pm on 16 May 2025. 2. Directs that, should order 1 above not be complied with by 12pm on 16 May 2025, pursuant to UCPR r 12.7, the proceeding will be dismissed for want of due despatch with costs. 3. List the matter for further directions on 19 May 2025. | [2025] NSWCA 198 at [43]-[44] | | 15 May 2025 | Date of summons seeking leave to appeal, which Ms Marium gave evidence she sent to the Court by registered post on the same day. | [2025] NSWCA 198 at [46] | | 16 May 2025 | The Registrar of the Court of Appeal ordered that case number 2024/00253394 be dismissed for want of due despatch pursuant to UCPR r 12.7 and order 2 of the orders made on 14 April 2025, which orders were sent to Ms Marium by email. | Notice of Appeal filed 4 April 2024, fourth prayer for relief [2025] NSWCA 198 at [1], [46]-[47] | | 21 May 2025 | The Court received Ms Marium’s summons seeking leave to appeal dated 15 May 2025 | [2025] NSWCA 198 at [46] | | 19 August 2025 | Ms Marium filed a notice of motion in the Court of Appeal seeking review of the Registrar’s decision of 14 April 2025 and orders of 16 May 2025 (case number 2024/00253394). | Notice of Motion filed 19 August 2025 | | 28 August 2025 | Justice Leeming dismissed Ms Marium’s notice of motion of 19 August 2025, finding: 1. The Registrar was correct to conclude there was no appeal as of right from Davies J’s decision of 22 March 2024: [50]. 2. The dismissal of the proceeding of 16 May 2025, which was done pursuant to the Registrar’s orders of 14 April 2025, was not procedurally unfair: [58]-[60]. | [2025] NSWCA 198 | | 7 February 2026 | Ms Marium filed a notice of motion and four supporting affidavits in the Court of Appeal seeking the following substantive orders in case number 2024/00253394: 1. Pursuant to UCPR r 51.58, “discharge the decision of Leeming J Dated 28 Aug 2025” 2. Notice of Appeal field 4 April 2024 be re-listed for further directions and case management 3. Extension of Time | Notice of Motion filed 7 February 2026 | | 18 February 2026 | Ms Marium filed an amended notice of motion in the Court of Appeal containing the same proposed orders, but naming the Attorney General as a respondent. | Notice of Motion filed 18 February 2026 | | 9 March 2026 | First hearing day in case number 2021/101123 in Blacktown Local Court. The hearing | Affidavit of Ashleigh Claire Estelle Swain Lister affirmed 1 April 2026 at [9], Ex AL-1, Tab 4 |
Marium
Darley
[1990] FCA 745
(1990) 27 FCR 388
(2011) 93 NSWLR 311
Extension of time refused; the applicant was ordered to pay the first respondent’s costs and the Attorney General’s costs of the amended notice of motion.
As the primary judge observed (J[2]), his decision to dismiss the application for review turned on the answer to two questions:
whether Ms Marium was entitled to appeal as of right, or whether she required leave to appeal; and
whether the guillotine order made by the Registrar on 14 April 2025 was effective to dismiss the proceedings.
In making the orders presently sought to be challenged, the primary judge was exercising the Court’s powers under Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.59 to review a decision of the Registrar. In her motion filed on 7 February 2026, Ms Marium has invoked this Court’s power under s 46(4) of the Supreme Court Act to discharge orders made by a Judge of Appeal. Such an application for review is not an appeal, since it is not described as such: s 19(2)(b) of the Supreme Court Act and UCPR, r 51.2 (which expressly excludes such an application from the definition of “appeal”). In order to succeed on such an application, Ms Marium must discharge the heavy onus of showing that the primary judge erred in principle or that his Honour’s decision was plainly wrong: Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [48] (Bathurst CJ and McColl JA).
An application for review of an order of a Judge of Appeal must be made by notice of motion filed within 14 days after the date on which the order is made or within such further extended time as the Court may fix: UCPR, r 51.58(1). An application for an extension of time must be included in the notice of motion and the application must be accompanied by written submissions not exceeding five pages: UCPR, r 51.58(2)-(4).
The present application for review was filed outside the 14 days specified in UCPR r 51.58(1). Consequently, the issues before this Court are whether an extension of time should be granted and, if so, whether the primary judge made an error of principle or was plainly wrong in answering the two questions he identified in the way that he did.
The respondents to Ms Marium’s application rely on a comprehensive review of the history of the proceedings, in this Court, the Supreme Court and the Local Court, which has been included in a chronology (to which no party has taken issue) which is annexed to these reasons. The relevance of this material is that it supports the appropriateness of the Registrar deciding to make a guillotine order on 14 April 2025 and the primary judge’s refusal to vary or discharge that order to protect Ms Marium from the consequences of her failure to file a summons for leave to appeal within the time stipulated in the guillotine order for her to do so. It is not necessary to recount this chronology in full in these reasons. However, a summary is helpful.