Solicitors:
Crown Solicitor's Office (Plaintiff)
In person (Defendant)
File Number(s): 2019/183521
[2]
(Revised from transcript)
This is the hearing of a notice of motion filed by the defendant, Marion Louise Collier, on 8 September 2021. The motion seeks various orders including the striking out of the plaintiff's summons.
The plaintiff's summons was filed on 13 June 2019. It seeks an order or orders against Mrs Collier pursuant s 8(7) of the Vexatious Proceedings Act 2008 (the "Act") in such terms as the Court considers appropriate.
Although at the end of her oral submissions Mrs Collier expressed some concern about how recently she received the Court book for this motion, and noted that she objected to some statements in footnotes on the front page of the index, which she apprehended may have been adverse to her credibility, it was clear that Mrs Collier was familiar with the material that was sought to be relied upon the by the State. Nothing in this judgment reflects any findings about her credibility or the merits of the substantive proceedings.
The substantive proceedings are listed for hearing in April 2022. Final orders to have the proceedings ready at that time have not yet been made. However, I anticipate that those orders will include a requirement that the plaintiff, the Attorney-General for New South Wales, file detailed submissions setting out the basis upon which he seeks orders under the Act.
Attorney General for New South Wales v Collier [2021] NSWSC 1483 | Case summary | Zoe
Paragraphs 1 and 2 of Mrs Collier's notice of motion seek orders striking out of the Attorney-General's summons. They contend in terms to the effect that it should be stuck out because it was served on the defendant without a supporting affidavit or an explanation of what she was answering, "therefore constituting a fishing expedition". Thus, so it was said, an abuse of the process of this Court.
At the time the summons was filed, there was filed in the Court an affidavit of Kyle Hudson, a solicitor employed within the Crown Solicitors Office. Mr Hudson's affidavit identifies various judicial decisions involving Mrs Collier that he had obtained from various sources, including judgments of this Court, judgments of the Supreme Court of Queensland as well as of the Federal Courts. His affidavit indicates that the judgments were set out in an exhibit to the affidavits. It is not entirely clear, but it appears to be that there was some dispute about when the affidavit and exhibit were served on Mrs Collier. As I understand it, she has at least by this time received that material.
The essence of the complaint identified by Mrs Collier appears to be that the affidavit does not identify what the plaintiff's case is and, in particular, does not identify the parts of the various decisions relied on but simply annexes them. There is no requirement that the affidavit do so and, indeed, if it attempted to do so those parts would be objectionable.
The role of the affidavit is not to argue the Attorney-General's case. It is simply to identify the evidence relied on. Self-evidently, when the Attorney-General moves the court for orders under the Act part of the evidence that will be relied on will be the entirety of various decisions involving the putative defendant. The affidavit does no more and no less than serve that function.
In a general sense, it should be obvious from the summons that the Attorney‑General's overall contention is that Mrs Collier has vexatiously and without proper cause pursued proceedings in various courts. The precise details of that contention can be expected to be outlined in the submissions that will no doubt be filed on behalf of the plaintiff.
Various other contentions were made about the affidavits including a suggestion that Mr Hudson no longer works at the Crown Solicitor's Office. That is irrelevant.
There is no basis for the orders sought in paragraphs 1 and 2 of the summons and those orders will not be made.
Paragraph 3 of the notice of motion seeks an order that the Court prevent any further participation in the proceedings by a Registrar of the Court by reason of her "both judicial and perceived bias". In support of that order the Court was taken to transcripts of directions hearing conducted by the Registrar. As best as I can ascertain two principal contentions emerged. The first was that the Registrar was committed to the maintenance of the hearing date of April 2022. Secondly, it was contended that the Registrar was preventing matters being referred to the duty judge at the request of Mrs Collier, although at times it is said that the Registrar took that course at the behest of the Attorney‑General.
I have read the transcript of the directions hearings relied on. It is the role of the Registrar to filter requests to refer matters to the duty judge. That is one of her very important functions. Simply because a party wants to refer a matter to the Duty Judge is not of itself a reason for that to occur. Further, given the constraints on the Court, it is an entirely justified for the Registrar to at least start on the working assumption that hearing dates should be adhered to. Otherwise, from my reading of the transcripts, it appears that the Registrar has conducted those directions hearings with efficiency and courtesy. Nothing that was raised comes even close to raising a proper case for apprehended bias in the sense discussed in Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63. Order 3 will not be made.
The bulk of order 4 seeks an expedited hearing of this notice of motion. Given that it has been heard, that has been superseded. One part of order 4 also seeks leave to file and serve a cross-claim or cross-summons seeking to invoke this Court's jurisdiction under s 69 of the Supreme Court Act 1970. This seems to be related to proposed order 6 which seeks two injunctions against "Revenue New South Wales" to stay the enforcement of what appears to be two traffic or speeding fines that date from 2018 and 2019. This Court will not grant leave to a party in a case like this to serve a cross-claim or cross-summons unless the form of the cross-claim or cross-summons is prepared first. Moreover, the issue of speeding fines and any attempt to restrain their enforcement appears to have nothing to do with the principal relief sought by the Attorney‑General in these proceedings. It would not ordinarily be a matter that would ever be heard together with them at the same time. Otherwise, I note that there are established court mechanisms via the Local Court and potentially on appeal to the District Court to challenge traffic fines. Orders 4 and 6 will not be made.
Order 5 is an order seeking permission for Mrs Collier to appear by video link. As events transpired she was able to communicate with the court by phone.
Order 7 of the notice of motion seeks an order striking out affidavits filed with the summons that I referred to earlier. Generally, the Court does not strike out affidavits, although in some cases where vexatious and scandalous material is set out in an affidavit it can be removed from a court file. I have already described the contents of the affidavit. There is no basis for order 7.
Order 8 purports to seek an order restraining a particular solicitor within the Crown Solicitor's Office from engaging in "bullying and harassing behaviour".
Mrs Collier's written submissions identify that alleged behaviour as being exemplified by various emails that have been sent to her. One of those emails states:
"Dear Mrs Collier
Please find attached correspondence of today's date as well as the materials referred to therein. I note that these materials are also being sent to you by courier along with the exhibits to the affidavit.
Kind regards (named solicitor)".
The other identified emails set out in the submissions appear to be in a similar tone.
Those emails do not constitute, in anyone's language, abusive or bullying type behaviour. Further, although it is quite understandable that Mrs Collier resents being made the defendant to these proceedings, the fact is that they exist and that serious relief is being sought against her by the Attorney-General. It is the responsibility of the plaintiff's solicitor to serve Mrs Collier with material that is relied on and to communicate with her about the conduct of the matter.
Proposed order 10 of the notice of motion seeks to challenge various orders that were made in proceedings 2014/00094670 of an interlocutory kind. The short answer to that claim for relief is that those proceedings were dismissed and the subject of numerous unsuccessful appeals long ago. No basis been shown to reopen those orders.
Order 11 appears to seek relief in relation to the filing fees that were imposed in relation to this notice of motion. If they are an attempt to seek judicial review then that is not properly done in these proceedings. Otherwise, that order and proposed order 9 seek orders against the plaintiff for the costs of the motion. It follows that there is no basis for so ordering.
Accordingly, the orders I make are as follows:
(1) The notice of motion filed by the defendant on 8 September 2021, be dismissed.
(2) Any further notice of motion that might be filed by the defendant for the summary dismissal of the proceedings is to be listed at the same time as the hearing of the substantive proceedings.
(3) The plaintiff's costs of the notice of motion be the plaintiff's costs in the cause.
[3]
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Decision last updated: 19 November 2021