Marium v Darley

1. [1]

   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.

2. [2]

   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.

3. [3]

   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.

4. [4]

   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.

5. [5]

   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.

6. [6]

   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).

7. [7]

   As the primary judge observed (J[2]), his decision to dismiss the application for review turned on the answer to two questions:

   1. (1)

      whether Ms Marium was entitled to appeal as of right, or whether she required leave to appeal; and

   2. (2)

      whether the guillotine order made by the Registrar on 14 April 2025 was effective to dismiss the proceedings.

8. [8]

   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).

9. [9]

   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).

10. [10]

    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.

11. [11]

    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.

12. [12]

    On 19 December 2022 Ms Marium sought, in the Local Court, a stay of the Local Court proceedings, alleging that they were an abuse of process. She alleged that insufficient particulars had been provided and that the filing of the CAN manifested inherent racism. The magistrate dismissed her application. His Honour found that the charges had been sufficiently particularised in that it had been alleged that Ms Marium had driven through a red light and collided with the alleged victim, causing her to sustain grievous, or in the alternative, actual, bodily harm, constituted by an injury to the driver’s clavicle.

13. [13]

    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.

14. [14]

    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.

15. [15]

    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:

    1. (1)

       it was not an abuse of process for Constable Darley to serve several CANs: J[45];

    2. (2)

       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].

16. [16]

    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.

17. [17]

    On 14 April 2025, after hearing from the parties, the Registrar gave the following reasons for the orders which he made:

18. [18]

    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.

19. [19]

    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:

20. [20]

    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 New 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].

21. [21]

    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.

22. [22]

    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.

23. [23]

    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.

Consideration

1. [24]

   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.

2. [25]

   For the reasons given by the primary judge, Ms Marium required leave to appeal from the orders made by Davies J.

3. [26]

   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”.

4. [27]

   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:

5. [28]

   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.

6. [29]

   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.

7. [30]

   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.

8. [31]

   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.

Proposed orders

1. [32]

   For the reasons given above, I propose the following orders:

   1. (1)

      Refuse to extend time for the filing of the applicant’s notice of motion filed on 7 February 2026.

   2. (2)

      Order the applicant to pay the first respondent’s costs.

   3. (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.

2. [33]

   BALL JA: I agree with Adamson JA.

3. [34]

   FREE JA: I agree with Adamson JA.