Attorney General for the State of New South Wales v Collier

Supreme Court of NSW|2019-12-19|Before: Ierace J

Solicitors: Crown Solicitor's Office (NSW) (Plaintiff) File Number(s): 2019/183521

Judgment

HIS HONOUR: By notice of motion filed on 22 October 2019, the plaintiff, the Attorney General for the State of New South Wales, seeks access to certain court files in relation to nine identified proceedings brought in this Court, pursuant to r 33.13 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). A second order sought by the plaintiff, that the Return of Subpoena List on 24 October 2019 be vacated, is unnecessary to consider, since the hearing of this matter post-dated that event. The plaintiff also seeks an order that the defendant, Marion Collier, pay the costs of the motion. There are five other respondents to the motion, none of whom participated in the proceedings.

The relevant law

Rule 33.13 of the UCPR provides: "33.13 Documents and things in the custody of a court (1) A party who seeks production of a document or thing in the custody of the court or of another court may inform the registrar in writing accordingly, identifying the document or thing. (2) If the document or thing is in the custody of the court, the registrar must produce the document or thing - (a) in court or to any person authorised to take evidence in the proceeding, as required by the party, or (b) as the court directs. (3) If the document or thing is in the custody of another court, the registrar must, unless the court has otherwise ordered - (a) request the other court to send the document or thing to the registrar, and (b) after receiving it, produce the document or thing - (i) in court or to any person authorised to take evidence in the proceeding as required by the party, or (ii) as the court directs."
Rule 33.13 of the UCPR is under Pt 33, which is titled "Subpoenas", but provides an alternative process by which to access certain documents, which involves application to the Court.
The Vexatious Proceedings Act 2008 (NSW) ("the Act"), being the act underpinning the relief sought in the summons by the plaintiff, is also relevant. The relevant sections of the Act are as follows: "4 Meaning of 'proceedings' In this Act, proceedings includes: … (d) any interlocutory proceedings or applications, or procedural applications, taken in connection with or incidental to civil proceedings, criminal proceedings or proceedings before a tribunal … … 6 Meaning of 'vexatious proceedings' In this Act, vexatious proceedings includes: (a) proceedings that are an abuse of the process of a court or tribunal, and (b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and (c) proceedings instituted or pursued without reasonable ground, and (d) proceedings that are conducted to achieve a wrongful purpose, or in a way that harasses, or causes unreasonable annoyance, delay or detriment, regardless of the subjective intention or motive of the person who instituted the proceedings. … 8 Making of vexatious proceedings order (1) When orders may be made An authorised court may make an order under this section (a vexatious proceedings order) in relation to a person if the court is satisfied that: (a) the person has frequently instituted or conducted vexatious proceedings in Australia, or (b) the person, acting in concert with a person who is subject to a vexatious proceedings order or who is referred to in paragraph (a), has instituted or conducted vexatious proceedings in Australia …"

The plaintiff's written submissions

The plaintiff pressed its request in relation to the nine files that had been located by the Registry. It acknowledged that the final judgments in each of the nine cases were publicly available, but that there may be publicly unavailable material in the case files that is relevant to the issue of whether proceedings are vexatious, as defined in s 6(1) of the Act, and s 8(1), as to when an order may be made: "It is not uncommon that judgments in respect of interlocutory applications are not published. Any such judgments will plainly be relevant both to the issue of whether Mrs Collier has 'frequently instituted or conducted vexatious proceedings', and to the issue of discretion. Nor do the Attorney's representatives have access to any documentation filed by Mrs Collier in her proceedings such as the particular originating process, any written submissions or any affidavit evidence. Such material may well indicate that proceedings were being conducted in a vexatious manner, even though that may not be apparent from a published judgment. Equally, there may be material in the court files which provides an explanation or justification for proceedings which otherwise may appear from a published judgment to be vexatious."
The plaintiff advanced three reasons for seeking access to the files. The first is that, if the Court's discretion to grant orders pursuant to r 33.13 was to be exercised by references to standards which govern applications to set aside subpoenas or notices to produce, which it did not concede is the appropriate standard, the plaintiff's application would satisfy them. There is a legitimate forensic purpose to the applications and it is "on the cards" that the documents are sufficiently likely to be relevant to the relief sought, since the documents are necessary to ascertain whether the defendant "frequently instituted or conducted vexatious proceedings", pursuant to s 8(1) of the Act; it was submitted that the quality of the vexatiousness and nature of the proceeding itself would form part of the determination of that question, citing Potier v Attorney General in and for the State of New South Wales (2015) 89 NSWLR 284; [2015] NSWCA 129, at [116]. Accordingly, the plaintiff therefore would need to access judgments and documentation not publicly available in order to properly inform the application for a vexatious proceedings order.
The second reason is that, according to the plaintiff, the standard for determining the application is not in fact the standards governing subpoenas and notices to produce, but is rather a less-stringent standard due to "the importance of public access to certain information on court files, particularly material which has been deployed in open court". The plaintiff relied on the principles expounded in the Court's Practice Note SC Gen 2, Australian Securities & Investments Commission v Rich (2001) 51 NSWLR 643; [2001] NSWSC 496 at [18]-[23], and the Court Information Act 2010 (NSW), the latter having received royal assent but as yet has not come into operation. These sources are intended to be "aid[s] to construction".
The third reason is that the application is made in the context of a vexatious proceedings order, and the purpose of such an order is: "… to shield other litigants from harassment and to protect the Court itself from the expense, burden and inconvenience of baseless and repetitious suits: Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 at [56]."
In support of this submission, the plaintiff also cited Fagan J in Kostov v State of New South Wales [2018] NSWSC 1794 at [50]-[51], in which his Honour relevantly said: "The Attorney has the statutory power to apply for vexatious proceedings orders and he would only be in a position to do so if he should have access to decisions of the Court in proceedings in which the person under consideration has been a party. … Granting access for the Attorney General to review the judgments to inform a decision about bringing an application under the Vexatious Proceedings Act is a matter integral to the administration of justice and to the Court's control over the use of its processes."

The defendant's written submissions

The defendant filed an affidavit on 25 November 2020 which is in the nature of written submissions, rather than evidence. The essence of her affidavit, insofar as it is relevant at all to the plaintiff's first prayer, is as follows: 1. The defendant objects to the production of the court files. 2. The plaintiff has failed to issue subpoenas. Its dependence on r 33.13 of the UCPR is a "fishing expedition". 3. The plaintiff has not obtained Mr Collier's permission for the production of the documents. The defendant relies on Mr Collier's affidavit, sworn on 7 November 2019. 4. The proceedings are frivolous and vexatious and are in breach of r 13.4 of the UCPR.
Irrelevant aspects of the affidavit included submissions that the plaintiff should be declared a vexatious litigant and that the proceedings should be dismissed pursuant to r 12.11 of the UCPR, because the New South Wales Premier, various ministers of her government and an Assistant Commissioner of the New South Wales Police Force have committed the tort of misfeasance.

The hearing of the notice of motion

The defendant was granted leave to appear at the hearing of the notice of motion by telephone, in view of public transport difficulties from her place of residence in the state's central west region to Sydney.
At the outset of the hearing, counsel for the plaintiff sought to read the two affidavits of Ms Nguyen. The defendant objected to their tender, claiming that they were "falsely sworn". In her first affidavit, Ms Nguyen had stated: "On 30 September 2019, by post, I served Mr Robert Collier with a copy of the 23 August application at his address on the electoral roll."
The defendant submitted that Mr Collier had moved from the address to which the letter of 30 September 2019 was sent on and had notified the Federal Electoral Commission. She referred to an annexure to Mr Collier's affidavit sworn on 7 November 2019, which was a copy of a letter from the AEC addressed to Mr Collier, noting he had "enrolled" at that address on 18 September 2019. In her second affidavit, Ms Nguyen stated that the "check my enrolment" page on the Australian Electoral Commission website used by the plaintiff indicated Mr Collier's street name, but not the street number. An affidavit of the defendant had been located, stating that Mr Collier resided with the defendant and that the defendant's address was the one to which the original letter had been sent. The affidavits were read.
When asked what material, if any, she wished to tender, rather than responding to that request, the defendant noted that Mr Collier was identified on the notice of motion as a respondent and submitted that he had not been advised when to be at court. His name appears on the cover sheet of the notice of motion, under the heading "Person affected by orders sought". The entries under that heading are, firstly, the defendant who was identified as such, followed by the following who are each described as "Respondent": Mr Collier; the Chief Executive Officer and Director-General of the Department of Child Safety; Damien Carter; the State of New South Wales; and the Country Women's Association of New South Wales.
The defendant submitted that Mr Collier had not been advised "when to be at Court" and therefore "the plaintiff has been sneaky and sly and refused to abide by the correct procedure". She declined to indicate what material she wished to tender until that issue was addressed, and then made a submission that I should recuse myself, on two bases, being a demonstration of bias by me in relation to the exchanges that had just occurred in court, and an alleged unreasonable delay in me granting leave for the defendant to appear by telephone. I responded as follows: "Ms Collier, in relation to your application that I should recuse myself, I respond by noting the following. That the effect of the first basis, that is, that I have expressed a view, would seem to enliven the proposition that a judicial officer when presiding should not be biased or a reasonable observer of the conduct of the proceedings could not form the view that the judicial officer is biased. As I understand it, you rely upon what I have said to you in the last half hour since this matter commenced to formulate the submission that I have demonstrated actual bias. I have regard to what I have said to you, and I cannot find a sufficient evidentiary basis or any evidentiary basis at all for that submission. What I have done is require you to focus on the questions I have asked you, and I have responded to the propositions and questions that you have put to me. It is not only appropriate but important that a judicial officer exercises control over the proceedings that occur before him or her, and to the extent that I have interrupted you and found against your various submissions, that has been - they have been decisions taken by me which I regard as appropriate in terms of my control of the proceedings. Now, in relation to the second basis I say this. That I received a request from you that you be present today by telephone rather than in person. There was no basis or appropriate basis advanced as to why that should be. Accordingly, I declined that request by email, which was forwarded to you. You then responded with an email that advanced an explanation as to why you wanted to be present by telephone. There were a number of reasons, most of which I have found to be inappropriate. There was one, however, that I thought was appropriate. You explain[ed] that you couldn't drive here and that you couldn't be driven by Mr Collier because of health issues. I understand you live at Wellington and that public transport from Wellington would involve something like a five and a half hour train trip. Because of that consideration and only that consideration I decided to accede to your request to be present by telephone. I fail to see how that could possibly be a basis for me to recuse myself."
I then invited the defendant again to seek to tender any material on which she relied. She responded that she sought to tender in court a document titled a "Cross-claim" and "Cross-summons", based on the Court's "inherent jurisdiction". To facilitate her application, the plaintiff handed up a copy that Ms Nguyen had received by email from the plaintiff. The defendant explained that she had posted it to the Court and had been advised that the prothonotary had determined that it would be returned to her. I advised the defendant that the appropriate course was for her to file the document in the normal way with the registry, who would set a timetable. The defendant then referred to a notice of motion that she had filed on 19 June 2019, together with a supporting affidavit of the same date. She said that those proceedings had been referred to me as the Duty Judge on the day of hearing of this notice of motion. She then stated: "Now, the reason I'm asking the Court to accept all the affidavits, being the June and the various November ones and the cross-claim, is the fact that it's quite obvious that the Court in itself is assisting the Attorney General, and I will say this point quite clearly because I have the evidence to back it up, and the fact that a Registrar of the time and a Crown Solicitor and her barrister and you Ms Court Officers who would've had all been involved, have perverted the course of justice and caused corruption on 29 April and 13 May '14. And the finding made on 13 May '14 by then Registrar or Deputy Registrar Chris Bradford as to my character, when he made no attempt to ring my number, made no attempt to ring the number he claimed he rang, because to be quite honest, and I know this sound frivolous, but the gentleman who was supposedly rung was in Dubbo and he actually made the statement where a transcript was taken by Mr Collier, and I was with him, in December that year -"
At that point, I interrupted the defendant and asked her if she sought to have read her affidavit and that of Mr Collier, both sworn on 7 November 2020. She replied in the affirmative, and they were read. I drew to her attention that in her affidavit, she referred to a notice of motion. She stated that she had forwarded a notice of motion with her affidavit to the Registry on the same date, and on 8 November she was advised that it had not arrived. She then sent the "Cross-claim" to the Registry and was advised that she needed to pay the filing fee, but in any event, it "wasn't a necessary step in the proceeding", by which I assume she meant that she was advised that it was not relevant to that matter as a cross-claim or cross-summons. I indicated that I was minded to disallow her application to file the cross-claim and cross-summons and offered to allow her a few minutes if she wished to make further submissions on that issue. She indicated that she would need 20 minutes, which I indicated I would not allow. Ms Collier then said, "I will lodge an appeal to the Registrar of the Court of Appeal" and terminated the call. I asked the court officer to attempt to call the defendant to offer her an opportunity to continue with the proceeding, but it went to a recorded message. I stated for the record: "I note the time is now quarter past 11. The hearing so far has taken approximately one hour and 15 minutes. We have not progressed beyond working out what documents are to be admitted into the proceedings … [A]n attempt has been made to reconnect to the telephone number provided by Miss Collier. That resulted in a male voice in the form of a recorded message saying 'No one is home to take your call'. I'll proceed without Miss Collier."
I then heard from counsel for the plaintiff who, in fairness to the defendant, tendered a further affidavit by the defendant that was sworn on 22 November 2019. However, in my opinion, other than a passing reference to the plaintiff's "application" being "not a legitimate application", which possibly refers to the vexatious proceedings summons or notice of motion, the contents of that affidavit were not relevant, but rather, appeared to canvass past and other grievances with individuals that included the plaintiff, a named solicitor and a barrister who have acted for the plaintiff in other proceedings, named court officers and a named police officer.

Consideration

As has been observed, r 33.13 of the UCPR says nothing about the basis upon which the court will allow the party who seeks production of the document or thing to have access to it, and leaves open the question of when the Court should give access to that document or thing to the party who has caused it to be produced under the rule: UTSG Pty Ltd v Gwynvill Properties Pty Ltd [2017] NSWSC 558 per Robb J at [37]-[38]. Practice Note SC Gen 2 prescribes procedures for the provision of access to court files, and provides at cl 7 that leave may be granted to non-parties to have access to: "… pleadings and judgments in proceedings that have been concluded, except in so far as an order has been made that they or portions of them be kept confidential …"
In my view, the plaintiff has established, prima facie, a reasonable basis for access to be provided to it of the sought court files. Reference was made during the hearing to an affidavit that had been filed by Mr Hudson on 13 June 2019 in support of the summons, which is the originating process in these vexatious proceedings. Mr Hudson had identified 42 judgments in which the defendant was either the plaintiff or a co-plaintiff. I note that 20 of those judgments have been handed down between 2014 and 2019.
In relation to the second of the defendant's submissions that I have summarised at [19] above, I am satisfied that it is appropriate for the plaintiff to have access to the files of the nominated cases in order to ascertain if there are documents, filings and/or interlocutory judgments that cast light on whether those proceedings come within the definition of "vexatious proceedings" as defined at s 6 of the Act. That definition involves consideration of a plaintiff's intention behind the institution of proceedings and includes interlocutory proceedings or applications and procedural applications that are taken in conjunction with, or are incidental to, civil proceedings. An examination of the file is an obvious means for such material to be located and examined.
In relation to the defendant's third submission, Mr Collier's "permission" is not required for the Court to make the orders sought. Rather, his concerns are matters to be considered. In her oral submissions, the defendant submitted that Mr Collier had not been informed of the hearing date. Since the defendant and Mr Collier cohabit and the defendant attended the hearing, one might reasonably assume that if Mr Collier wished to be present, he was aware of the date.
I note the content of Ms Nguyen's second affidavit to the effect that she gave notice to Mr Collier of the notice of motion. The letter was attached to her affidavit and bore the address which Mr Collier provided in his affidavit as his current address, and had attached to it the notice of motion filed on 22 October 2019. In any event, in his affidavit, Mr Collier stated his objection to the orders sought by the plaintiff: "I object to the production of any documents, of which I have been a party to, or was the carer for my 2 grandsons at the time, of which I was receiving payment from Centrelink for being such carer of both children, these being proceedings in the State of Queensland, as well as those N. S. W. proceedings through our 1974-'99 marriage."
I understood Mr Collier to be referring to the case file for Collier & Anor v Chief Executive Officer and Director-General of the Department of Child Safety Queensland & Anor [2009] NSWSC 229. Mr Collier's affidavit was read at the hearing and thus his concerns are considered.
In response to Mr Collier's objection, the plaintiff submitted: "Mr Collier does not explain why he has any reason to believe that the court file would contain any documents disclosing those payments … Nor does Mr Collier state why he would suffer any relevant prejudice by the Attorney having access to court files which contain documents disclosing that Mr Collier received a carer's payment from Centrelink more than 20 years ago."
In oral submissions, counsel for the plaintiff conceded it was probable that the absence of access to that file would not impede the application, but: "… the prospect of documents disclosing Mr Collier's Centrelink payments that were more than 20 years before the proceedings in question I think is unlikely to be in the Court file either."
I am inclined to permit the plaintiff to have access to the Court file, other than to any affidavit by, or correspondence from, Mr Collier.
In relation to the defendant's fourth submission, she has failed to tender or refer to any evidence that would warrant consideration of such a submission, and I reject it.
As to the question of costs, ordinarily, costs follow the event and, in this case, the defendant has not advanced any ground of substance in opposition to the production of the court files. The obvious counter-argument is that the defendant is a self-represented pensioner who claims she cannot afford filing fees to mount her cross-summons and cross-claim, and therefore she is presumed to be in a vulnerable financial position. If I was to take into account the voluminous litigation that the defendant has initiated over the years, I might conclude that, as a seasoned litigant, she is well-aware of the consequences of mounting a defence without substance, but that may border on pre-judging the issue of whether she is a vexatious litigant. I will decline to make an order as to costs.

Orders

I make the following orders: 1. The plaintiff is granted leave to access the following court files: 1. Collier v State of New South Wales (NSW Supreme Court case no. 2014/290461); 2. Collier v Cook (NSW Supreme Court case no. 2012/88605); 3. Collier v NSW Police Service (NSW Supreme Court case no. 2012/201151); 4. Collier v Lancer (NSW Supreme Court case no. 2012/27475); 5. Collier v Country Women's Association of New South Wales (NSW Supreme Court case no. 2017/72463); 6. Collier v Country Women's Association of New South Wales (NSW Supreme Court case no. 2016/122571); 7. Collier v Country Women's Association of New South Wales (NSW Supreme Court case no. 2016/297965); and 8. Collier v Country Women's Association of New South Wales (NSW Supreme Court case no. 2017/360202). 1. The plaintiff is granted leave to access the court file of Collier v Chief Executive Officer and Director-General of the Department of Child Safety Queensland (NSW Supreme Court case no. 1580/09), except for any affidavits or transcript of evidence of Mr Robert John Collier or communications from him. 2. No order as to costs.

Amendments 09 November 2020 - Typographical error corrected at [31] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 November 2020

At a glance

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Judgment (10 paragraphs)

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Legislation Cited (3)

Cases Cited (8)

Cited By (3)