Attorney General for the State of New South Wales v Collier

The plaintiff's position

1. The plaintiff says that this matter has been set down for hearing for some considerable period and has been the subject of extensive case management. The defendant was ordered to serve any evidence on which she relied by 14 October 2021. There were then further extensions to 17 December 2021 and 23 March 2022.
2. The plaintiff had then sought to serve a subpoena to obtain the documents relating to the NRMA and Sengos files on or about 23 March 2022. The plaintiff submits that it is apparent that the defendant has not complied with any orders in respect of service of evidence, and that she only sought to obtain evidence that she might be seeking to rely on 23 March 2022.

Consideration

1. The defendant does not identify how the particular evidence that she says she has been unable to obtain from the Court registry, being documents relating to proceedings she pursued against the NRMA and Mr Sengos back in the 1990s, may be of any particular significance in this case.
2. Indeed, Mr Birch indicated that the plaintiff was not submitting that those proceedings were in some way originally pursued without any cause. The defendant has not identified any other evidence that she says should and would be available to her if the hearing is vacated. Nor has she provided any explanation as to why she did not obtain or serve any evidence on which she seeks to rely upon in 2021 or even up to 22 March 2022.
3. Other than making allegations of the most serious kind against the solicitor, the barrister and the Court registry without foundation, the defendant has not identified any other evidence on which she might wish to obtain and would seek to rely and has not provided any explanation for her failure to serve any evidence on which she might rely.
4. Having regard to the extensive material annexed to the affidavits of the solicitor for the plaintiff, I am unable to anticipate or understand what further evidence might be relevant in these proceedings.
5. In the circumstances, the defendant's application for vacation of this hearing date is rejected.
6. During the course of delivering this judgment, the defendant interrupted saying that she would be appealing my decision. I indicated I would be continuing with my judgment. She terminated her link, although initially only terminating in such a way that she could not be seen (she turned the video off but not the sound). When I commented that I knew she could still hear me, she terminated the sound. I then ceased delivering this judgment and asked both my Associate and the solicitor for the plaintiff to email her asking her to reconnect. I then asked for a further email to be sent indicating that if she did not reconnect, I would continue to deliver judgment in her absence.
7. She responded saying that "His Honour did not listen to one word that was said and I do not appreciate being accused of lying when I do not." It is a matter for the defendant what she believes but I will be continuing with this judgment.
8. By way of the plaintiff's motion filed on 22 February 2022, the plaintiff seeks leave to rely on a further affidavit of Tom Alexander Allchurch filed 18 February 2022. The defendant opposes the plaintiff being able to rely on that affidavit, for the same reasons as she relied on in support of her own motion.
9. The plaintiff seeks leave to rely on the further affidavit of Mr Allchurch because the affidavit was served out of time, that is, not in accordance with the Court's orders as to the service of the defendant's evidence.
10. In his further affidavit, Mr Allchurch refers to further proceedings which either his inquiries or those made by a solicitor employed by the Crown Solicitor's Office have located, and also refers to the further proceedings being pursued in this Court, including the motion determined by Beech-Jones CJ at CL on 17 November 2021, and the additional judgments referred to in the affidavit.
11. Obviously, these are additional proceedings of which the defendant would be well aware because they are proceedings pursued by her. I can think of no prejudice to the defendant in the plaintiff being able to rely on Mr Allchurch's affidavit, which, in effect, merely annexes these further proceedings (being pursued by the plaintiff).
12. I thus grant leave to the plaintiff to rely on the further affidavit of Mr Tom Alexander Allchurch dated 18 February 2022.
13. At the conclusion of this ex tempore judgment, my Associate received another email from the defendant to the effect that she was on the phone to the detectives and would be lodging an appeal in respect of this allegedly pre-determined decision.
14. The plaintiff remains in Court ready to proceed. I take the defendant's deliberate termination of her AVL to be akin to walking out of Court during the course of a hearing. That is her choice. If the defendant does not wish to participate in these proceedings again, that is her decision.
15. As the matter was listed for hearing today, the hearing will be continuing.

Endnote

1. Attorney-General for NSW v Collier [2021] NSWSC 1483 at [4].

Amendments 19 April 2022 - Typo identified in first sentence of paragraph [8]: "able" corrected to "unable". 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: 19 April 2022