Collier v Attorney General

Court of Appeal (NSW)|2023-05-18|Before: Ward P, Kirk JA, Cavanagh J

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant has an extensive litigious history dating back to the 1990s, having instigated at least some 52 proceedings. The respondent, the Attorney General of New South Wales, sought and obtained a vexatious proceedings order against the applicant in the Supreme Court under s 8(7) of the Vexatious Proceedings Act 2008 (NSW) (the Act). The order was that the applicant be prohibited from instituting proceedings in New South Wales without leave of the Supreme Court. The applicant was self-represented and appeared via AVL in both the proceedings below and on appeal. In the course of the hearing the primary judge delivered an ex tempore judgment dismissing an application for an adjournment by the applicant and allowing the respondent to rely on an updating affidavit containing materials relating to further proceedings that the applicant had been a party to in the past. The applicant interrupted the primary judge as he was delivering the ex tempore judgment and then terminated her AVL link, declining to participate in the hearing thereafter. The applicant sought leave to appeal both the interlocutory orders and the final order. The Court (per Kirk JA, Ward P and Griffiths AJA agreeing) granted leave to appeal but dismissed the appeal, and held as follows: As regards the interlocutory orders

Judgment

WARD P: I agree with Kirk JA.
KIRK JA: The applicant, Mrs Marion Collier, has an extensive litigious history dating back to the 1990s. The respondent, the Attorney General of New South Wales, sought and obtained a vexatious proceedings order against the applicant in the Supreme Court under s 8(7) of the Vexatious Proceedings Act 2008 (NSW) (the Act): Attorney General for the State of New South Wales v Collier (No 2) [2022] NSWSC 903 (FJ). The order was in the following terms: "Mrs Marion Louise Collier be prohibited from instituting proceedings in New South Wales, without leave of this Court".
In the course of the hearing below the primary judge, Cavanagh J, delivered an interlocutory judgment dismissing an application for an adjournment by Mrs Collier and allowing the respondent to rely on an updating affidavit: Attorney General for the State of New South Wales v Collier (No 1) [2022] NSWSC 457 (IJ).
In this Court Mrs Collier seeks to challenge both the interlocutory orders and the final order made by the primary judge. Her draft notice of appeal states simply "Appeal - All Grounds", without identifying any particular grounds for the challenge to either decision. Although not clear, some bases for the attack on the two decisions can be discerned from Mrs Collier's written and oral submissions.
The application to this Court to challenge the vexatious proceeding order is not itself restricted by the Act, but leave to appeal is nevertheless required under s 101 of the Supreme Court Act 1970 (NSW): see Potier v Attorney General in and for the State of New South Wales (2015) 89 NSWLR 284; [2015] NSWCA 129 at [47]-[49]; Batterham v Nauer [2020] NSWCA 204 at [8].
No error is made out in either decision of the primary judge. Whilst leave to appeal should be granted, the appeal should be dismissed with costs. In what follows I will first note certain aspects of Mrs Collier's application to this Court, then address the applicant's challenge to the interlocutory orders, before considering her challenge to the vexatious proceedings order.

Proceedings in this Court

The respondent originally raised the question of whether Mrs Collier required an extension of time. As explained below, the primary judge delivered the interlocutory judgment ex tempore on 5 April 2022, on the first morning of the hearing below. A revised written judgment was provided to the parties subsequently. His Honour's substantive judgment on the respondent's application was delivered on 6 July 2022.
Mrs Collier filed a notice of intention to appeal on 27 April 2022, which would have extended her time to seek leave to appeal the interlocutory judgment until 5 July 2022. However, she did not file her summons seeking leave to appeal from that decision until 3 August 2022, leading to the respondent's suggestion that she needed an extension of time. When her application for leave to appeal was filed it did not refer in terms to the final judgment of the primary judge. However, on 12 September 2022 the Registrar of this Court granted leave to Mrs Collier to refer also to his Honour's final judgment of 6 July 2022. The respondent accepted that the effect of the amendment was that the application for leave to appeal related to both judgments.
When so understood, the application made on 3 August 2022 was filed within 28 days of the final judgment. The respondent did not argue that the applicant needed separate applications addressing the interlocutory and final judgments, nor that it was not open to Mrs Collier to challenge the interlocutory ruling as part of challenging the final orders. In these circumstances an extension of time is not required by Mrs Collier.
At a directions hearing on 12 September 2022 the Registrar listed the application for leave to appeal for a concurrent hearing on 8 February 2023. That hearing date was later postponed to 19 April 2023. A week before that date Mrs Collier foreshadowed an application for a further adjournment of the hearing for various medical reasons, which the respondent opposed. The application was heard by the Court as currently constituted on 19 April 2023, and the adjournment was granted. The concurrent hearing took place on 18 May 2023 without any further application for adjournment being made. Mrs Collier was permitted to appear by AVL.
In this Court, as in the Court below, Mrs Collier represented herself.
Mrs Collier filed and served a written summary of argument dated 3 August 2022. The respondent filed and served a response dated 30 August 2022. Mrs Collier then filed and served an "additional summary of argument" dated 12 January 2023. The respondent provided a response dated 6 March 2023. Mrs Collier then provided a reply to that response, which was filed on 30 March 2023. At the hearing on 18 May 2023 both Mrs Collier and counsel for the respondent made oral submissions. All of these submissions have been taken into account. Mrs Collier's submissions did little to identify any errors in the two judgments of the primary judge.

The hearing below and the challenge to the interlocutory orders

The proceeding below was listed for hearing on 5 April 2022. Mrs Collier was granted leave to appear via AVL from Tamworth.
On 31 March 2022 Mrs Collier filed a motion seeking to adjourn the hearing until after July 2022. Her motion also sought a "stay of execution of 2 State Revenue Fine Enforcement Notices", which had nothing to do with the proceedings.
The respondent had filed a motion on 22 February 2022 seeking to rely upon a further affidavit of Mr Tom Allchurch, a solicitor at the Crown Solicitor's Office acting for the respondent, which had been filed on 18 February 2022. The affidavit provided further details of various of the proceedings said by the respondent to be vexatious. The affidavit had been provided after the time allowed in previous directions for the respondent to provide evidence. The motion was opposed by the applicant.
The two motions were heard together at the commencement of the hearing on 5 April 2022. The primary judge then delivered an ex tempore judgment dismissing the applicant's motion and granting leave to the respondent to rely on Mr Allchurch's affidavit.
The judgment records Mrs Collier interrupting the delivery of the judgment, as follows: [19] In the circumstances, the defendant's application for vacation of this hearing date is rejected. [20] 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. [21] 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. [27] 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. [28] 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. [29] As the matter was listed for hearing today, the hearing will be continuing.
After his Honour had finished delivering his reasons for judgment he took a short adjournment, and had both his associate and the respondent's solicitor email Mrs Collier to inform her that the proceedings would recommence at 11:40am. Shortly after the hearing resumed, with no appearance by Mrs Collier, his Honour noted that at 11:46am his associate had received an email which said as follows (as his Honour subsequently recorded at FJ [34]): Dear Your Honour, I do not appreciate being deliberately lied about in the manner in which you have and I am not going to put up with deliberate lies further. I have reported such to Police, as I do not know about you, but I for one, do not appreciate everything and anything to do with me, being passed around like lollies at a store. It is quite obvious, you were put up for a purpose and the judgement you gave proved it, you are the most ACTUALLY BIAS person I have ever had the misfortunate to come across, you crossed the line and should excuse yourself, either that your [sic: or] you misheard me and have therefore misquoted me. There would not be a fair and just hearing, as you as a Judge is [sic: are] supposed to do, we will have to leave it up to the Court of Appeal, to hear the transcript tape (without it being made correct). Regards Marion Collier
The oral submissions of the respondent on the substantive proceeding were then heard in the absence of Mrs Collier. At the conclusion of the respondent's oral submissions the primary judge adjourned the hearing until the next day at 11am on 6 April 2022. This was done to provide the applicant a further opportunity to make oral submissions. Mrs Collier was informed by email of this arrangement. She did not make an appearance the next day (see FJ [35]-[36]).
Although it is difficult to ascertain what errors the applicant alleges were made by the primary judge in his interlocutory rulings, in her submissions she raises the following points, which I will address below in turn: 1. an allegation that the primary judge was biased (the point is made without particular reference to the interlocutory judgment, but it is appropriate to address it first); 2. an argument that the adjournment should have been granted because two court files she had sought were missing, where she alleged that representatives of the respondent were involved in the disappearance of these files; 3. the primary judge had made an "inaccurate and false" record of one of Mrs Collier's reason for seeking an adjournment; 4. although not raised, it is appropriate to address the primary judge's decision to grant leave for the respondent to rely on Mr Allchurch's affidavit.

Bias

Mrs Collier claims that the primary judge "crossed the line and should have recused himself from hearing the case before him as he was clearly biased against [her]". The submission appears to assert that the primary judge manifested actual bias, consistently with the allegation of such included in her email sent during the morning of the hearing (quoted above at [18]). An allegation of actual bias involves suggesting that the judge in fact did not bring an impartial and open mind to bear on the issues in dispute. The test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]. I will assume that both types of bias were raised by Mrs Collier.
Mrs Collier did not articulate how the primary judge manifested bias. Her complaint may be derived from the decision of the primary judge to continue with the hearing in the applicant's absence after she terminated her AVL link. Yet his Honour went out of his way to seek to enable Mrs Collier to continue to participate in the proceedings by affording her an opportunity to reconnect to the AVL link and, upon her refusal to reconnect, providing an additional opportunity for her to make oral submissions on the vexatious proceedings order by adjourning the proceedings to the next day.
Mrs Collier submitted that the primary judge had manifested "absolute abuse" towards her. Having reviewed the transcript of the hearing, it is apparent that the primary judge was courteous at all times.
Mrs Collier said that his Honour made "a deliberate and intentional false claim" in the interlocutory judgment, namely that one of the reasons she had sought the adjournment was to seek legal advice. This point is addressed below; as shown there, Mrs Collier's claim is incorrect. Mrs Collier also submitted that the primary judge "illegally heard a knowingly corrupt hearing". There is no basis to the suggestion.
Nothing in his Honour's conduct of the case provides any possible foundation for an allegation of apprehended bias, let alone actual bias.

Missing files

The applicant sought an adjournment of the hearing below primarily on the basis that she was unable to obtain documentation from the Supreme Court Registry relating to separate appeal proceedings that she pursued in the 1990s against NRMA Insurance and Mr Paul Sengos. These were two of the proceedings involving Mrs Collier identified by the respondent in the hearing below, albeit that the respondent did not suggest that the former was vexatious.
Mrs Collier seemed to claim that there is a conspiracy among public officials - the police, court staff and legal representatives of the Attorney General - to victimise her in retaliation for her making complaints in events involving the applicant that unfolded in the 1980s and 1990s. She said "I've been a victim of, you know, bullying because I dared to take on the establishment back in 89". This claim related to something that had occurred with some dogs in the town of Young. Mrs Collier also indicated she had made allegations in the 1980s that a solicitor had sexually assaulted her. She claimed that a senior police officer who was a friend of the solicitor victimised her. She said she had reported this fact to the Independent Commission Against Corruption, which led to the police officer's demotion. Ever since then, she claimed, she has been "harassed, bullied and intimidated" by police. Mrs Collier suggested that the vexatious litigant proceedings had been instituted to "ensure that the corrupt treatment of the public … is not seen to have occurred". She appeared to suggest that the Attorney General had instituted the proceedings to silence her, and his representatives had destroyed court files in relation to the NRMA and Sengos matters in order fraudulently to obtain such orders.
Mrs Collier alleged that legal representatives of the respondent had engaged in "illegal removal" of the material from two court files relating to the two proceedings. She submitted that the adjournment sought below should have been granted so that the fact that the files were missing could be reported to police, "or to give the Court [time] … to find ALL of the missing files".
Legal representatives of the respondent had applied for access to certain court files for the purposes of seeking the vexatious proceedings order. The application was granted by Ierace J: Attorney General for the State of New South Wales v Collier [2020] NSWSC 1572. The court files which Ierace J granted leave for the respondents to access did not extend to the Sengos or NRMA matters, as is revealed by the orders made by his Honour.
It was in fact Mrs Collier who sought access to the court files for the two matters in question, and there is no evidence that the legal representatives ever obtained any such access. What seems to have occurred was as follows: 1. On 22 March 2022 Mrs Collier made a request to Ms Naomi Ubrihien, the Supreme Court's "Manager Client Services", to locate certain court files. She seems to have done so without copying in the respondent's legal representatives who, on the evidence before this Court, had no knowledge of this request. Ms Ubrihien replied that day saying that two files were located (file numbers 1993/35157 and 1994/43762), and that a form needed to be completed and a fee paid. 2. On 31 March 2022 the applicant was provided a scanned copy of the Court's file for a matter brought by her against Mr Sengos (file number 2767/93). Although not clear, it seems, based on the orders entered on JusticeLink, that this was not the appeal proceedings involving Mr Sengos. 3. On 1 April 2022 Ms Ubrihien emailed Mrs Collier indicating that four court files had been located, and her application for access had been listed before a Registrar for orders pursuant to UCPR r 33.13. That rule allows the Court to make orders to produce a document or thing in the custody of the Court at the request of a party. The files that were located included the NRMA matter (40136/95). Later that day a scanned copy of the file in that matter was emailed to Mrs Collier. However, the applicant was informed by Ms Ubrihien that the Registry was having difficulty locating the files in two matters, including the Sengos matter about which she currently complains (file no 40418/93), along with a proceeding involving the DPP (file no 40084/94). 4. On 4 April 2022 Mrs Collier sent an email to Mr Allchurch, among others, alleging that the respondent's legal representatives had "gone out of your way to ensure that the correct files were unable to be found". 5. At 5:33pm on that day an email was sent to Mrs Collier by Ms Erika Stockdale, the "Business Support Coordinator" of the Supreme Court, writing to provide "an update on the results of extensive searches undertaken to locate two files sent to off-site storage some years ago", being the two appeal matters identified as being difficult to locate in the email sent on 1 April 2022. Plainly aware of the fact that the hearing before the primary judge was due to commence the next day, Ms Stockdale said: Our entire records management team have unsuccessfully been searching for the above appeal files for the last week, including up until 5pm today. While staff have located and recalled the off-site storage boxes that once held these two appeal files, we can only assume that at some point since their conclusion, the files have been recalled from off-site storage and placed in another location without accurate records being kept of the movement. … We will continue to search for the missing appeal files tomorrow and I will update you with the result of these final searches by 4pm tomorrow. 1. The next day, 5 April 2022 at 5:15pm (being after the primary judge had refused the adjournment application made that morning), Ms Stockdale sent a further email notifying Mrs Collier that the Court staff had continued their search for the two files without success, and had now "exhausted all avenues of logical inquiry". She said that "I have to conclude that the files are missing after being sent to our off-site storage location without accurately recording the storage box codes assigned to the files". This error meant that the only way to try to locate the files was to conduct an audit of all appeal files sent to off-site storage which would take many months due to the volume of records requiring individual review.
Mrs Collier's complaint about not having access to the appeal files relating to the identified NRMA and Sengos matters must be understood in the following context. As regards the NRMA matter, it seems that she did in fact have access to that file, having been sent a scanned copy of the file on 1 April 2022 by the Court Registry. In any event, the respondent did not submit below that the NRMA appeal was pursued without cause, which was unsurprising given that the appeal was brought by NRMA, not Mrs Collier, albeit that it seems Mrs Collier did file a motion seeking that certain orders made by the Court be set aside (noted FJ [67]). The primary judge confirmed at FJ [69] that the NRMA proceedings were not vexatious.
As regards the Sengos appeal proceedings, the primary judge did find that the application for a stay in the Court of Appeal and the appeal itself were vexatious as they were pursued without reasonable grounds and conducted in a way causing annoyance, detriment and delay (FJ [63]). His Honour also found that a summons for contempt issued by Mrs Collier was vexatious (FJ [64]). These findings were based on the relevant judgments of this Court. The Sengos appeal proceedings was just one of many that his Honour found to be vexatious.
His Honour's judgment whether to grant an adjournment or not was a discretionary one: Civil Procedure Act 2005 (NSW) (CPA), s 66(1). Being a discretionary decision, on appeal Mrs Collier must point to some error of the kind set out in House v The King (1936) 55 CLR 499 at 505, [1936] HCA 40. The discretion had to be exercised having regard to the overriding purpose of the CPA, namely to facilitate the just, quick and cheap resolution of the real issues in the proceedings (s 56), as well as having regard to the importance of elimination of delay (pursuant to s 59 of the CPA).
Amongst other things, his Honour needed to weigh up the prejudice potentially suffered by Mrs Collier in not granting an adjournment with the imperatives against doing so. His Honour said that Mrs Collier did not "identify how the particular evidence that she says she has been unable to obtain from the Court registry … may be of any particular significance in this case" (IJ [15] - nor, incidentally, has she done so on appeal). He said that Mrs Collier had not "identified any other evidence that she says should and would be available to her if the hearing is vacated", nor had 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 (IJ [16]). He noted the submissions of the respondent that "this matter has been set down for hearing for some considerable period and has been the subject of extensive case management", yet Mrs Collier had only started making efforts to locate the court files on or about 23 March 2022 (IJ [13]-[14]). His Honour said that Mrs Collier had "not provided any explanation for her failure to serve any evidence on which she might rely" (IJ [17]).
None of this reasoning has been undermined. Neither in relation to the significance of the two missing court files, nor more generally with respect to the interlocutory decision, has Mrs Collier pointed to any error by his Honour, let alone error of the necessary House v The King kind. Nor is any such error otherwise apparent.
As for the serious allegations of misconduct levelled by Mrs Collier against the legal representatives of the respondent, there is not a shred of evidence to support them. There is no evidence they ever had access to the court files in question, let alone that they did anything untoward with the files' contents. Ms Stockdale's surmise that the court files in question - from nearly 30 years before - had been misplaced is eminently plausible.

The "inaccurate and false" reason for seeking an adjournment

Mrs Collier submitted that the interlocutory judgment was "most definitely inaccurate and false". In particular, she pointed to the primary judge's alleged falsehood at IJ [9] recording that Mrs Collier said she wanted to "seek legal advice as to how she should conduct the case" as a reason for adjournment. In her submissions to this Court she said that "[t]he Applicant, despite a deliberate and intentional false claim by the Trial Judge did not ask for time to seek legal advice" (emphasis in original).
The submission is contrary to the evidence. The transcript records that Mrs Collier said to his Honour that "[b]asically, the reason I put my notice of motion up is because I'm seeking legal advice on what I should do". The primary judge did not err in the manner alleged.

The respondent's motion seeking leave to rely on Mr Allchurch's affidavit

The respondent's motion sought leave to rely on Mr Allchurch's affidavit, which was filed out of time. The affidavit attached exhibits containing materials relating to further proceedings that Mrs Collier had been a party to in the past, which had been located after further inquiries made by the Crown Solicitor's Office. The primary judge permitted the respondent to rely on the affidavit, stating at IJ [25] that it did not cause any prejudice to Mrs Collier: 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).
On appeal, Mrs Collier did not point to any prejudice and none is apparent. The primary judge did not err in granting leave to the respondents to rely on the affidavit.

Vexatious proceedings orders

Before addressing the issues seemingly raised by Mrs Collier with respect to the vexatious proceedings order made by the primary judge, it is appropriate to set out the relevant statutory provisions and provide an overview of his Honour's reasons.

The legislation

Vexatious proceedings are defined in an inclusive manner in s 6 of the Act: 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.
The term "proceedings" is defined in encompassing terms in s 4, and includes any interlocutory proceedings or applications. It is thus possible that a number of "proceedings" may arise within the context of one case. As is made clear by s 8(2) of the Act, quoted below, the term extends to proceedings instituted or conducted in any Australian court or tribunal, including those occurring prior to commencement of the Act.
The power to make a vexatious proceedings order is discretionary, the power being granted by a combination of ss 8(1), (7) and (8): 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. (2) For the purposes of subsection (1), an authorised court may have regard to: (a) proceedings instituted or conducted in any Australian court or tribunal (including proceedings instituted or conducted before the commencement of this section), and (b) orders made by any Australian court or tribunal (including orders made before the commencement of this section), and (c) evidence of the decision, or a finding of fact, of any Australian court or tribunal hearing such proceedings or making such orders, even if that evidence would otherwise not be admissible by virtue of section 91 of the Evidence Act 1995. … (7) Orders that may be made by Supreme Court The Supreme Court may make any one or more of the following vexatious proceedings orders in relation to a person: (a) an order staying all or part of any proceedings in New South Wales already instituted by the person, (b) an order prohibiting the person from instituting proceedings in New South Wales, (c) any other order that the Court considers appropriate in relation to the person. (8) Orders that may be made by Land and Environment Court The Land and Environment Court may make any one or more of the following vexatious proceedings orders in relation to a person: (a) an order staying all or part of any proceedings in the Court already instituted by the person, (b) an order prohibiting the person from instituting proceedings in the Court, (c) any other order that the Court considers appropriate in relation to proceedings by the person in the Court.

The primary judge's reasons

As the primary judge noted (at FJ [12]), drawing upon Zepinic v Chateau Constructions (Aust) Limited [2018] NSWCA 317 at [13]-[15], the following steps are involved in considering whether to make a vexatious proceedings order: 1. identify the "proceedings" the subject of the application which are said to be vexatious; 2. determine which, if any, of those proceedings is vexatious within the meaning of s 6 of the Act; 3. determine (relevantly) whether the person has "frequently" instituted or conducted vexatious proceedings in Australia within the meaning of s 8(1) of the Act; 4. determine the manner in which the discretion granted by s 8 is to be exercised (if at all).

Identification of proceedings

The respondent presented to the primary judge, and this Court, a long table with 52 entries relating to proceedings instituted by the applicant since 1993. The respondent submitted below that most, but not all, of the proceedings were vexatious under s 6 of the Act. The table usefully identified the basis on which each proceeding was said to be vexatious by reference to the paragraphs in s 6 of the Act.

Whether proceedings were "vexatious"

The primary judge considered most but not all of the proceedings identified by the respondent. His Honour grouped them as part of the same matter where it involved the same defendant/s or respondent/s, encompassing the first instance proceeding, interlocutory proceedings and any appellate proceedings, including leave applications. His findings, in summary, were as follows: 1. The primary judge considered seven proceedings initiated by Mrs Collier in 1993 to 1994 arising from a dispute with Mr Sengos, a mortgagee of property at Camden owned by Mrs Collier and her husband. Mr Sengos had sought to obtain possession of the property. The primary judge found that an application for a stay in the Court of Appeal, the appeal itself, and a charge of contempt made by Mrs Collier against three people, were vexatious: at FJ [63]-[64]. 2. In 1993 to 1997 there was litigation against NRMA arising from an insurance claim for the house in Camden that was severely damaged by fire. The primary judge found that the proceedings involved in this matter were not vexatious: at FJ [69]. 3. In 1994 there were proceedings against the Director of Public Prosecution (DPP) connected to criminal charges brought against Mrs Collier arising from an altercation between Mrs Collier and her then solicitor. These proceedings were not alleged to be vexatious, and the primary judge found that they were not: at FJ [70]-[73]. 4. In 2010 to 2012 there were various proceeding arising out of convictions for traffic offences, to which Mrs Collier had pleaded guilty in the Local Court through a solicitor, but where she later denied her plea. The primary judge found that three of the proceedings were vexatious: at FJ [86]. 5. In 2014 and 2015 there were nine proceedings against the State of New South Wales involving allegations against State police officers, DPP officers, court officials, a magistrate, the Department of Health and various members of Parliament. The allegations covered a period from 1986 to 2014. The primary judge found that all of the proceedings were vexatious: at FJ [102]. 6. In the period 2005 to 2014 Mrs Collier brought numerous proceedings in Queensland against the State of Queensland arising from two persons who were placed under the care of the Department of Family Services in that State in 2003. The applicant made very serious allegations against police officers, child safety officers and members of Parliament. A judge of the Queensland Supreme Court described her pleading in a case in that court as vexatious. The primary judge found that most of the proceedings were vexatious: at FJ [107] and [117]-[118]. 7. In 2016 to 2018 Mrs Collier instituted 10 proceedings in the Supreme Court and Court of Appeal arising out of alleged defamation of the applicant by the Country Women's Association of New South Wales. The primary judge found that all but one of the proceedings arising from this matter were vexatious: at FJ [151]. 8. In 2016 to 2019 there was a number of proceedings in the Federal Court and the Federal Circuit Court arising out of the applicant's dissatisfaction with telecommunication services provided by Telstra. The primary judge found that all but one of the proceedings arising from this matter were vexatious: FJ [169]-[170].
Thus the primary judge determined that a great many proceedings initiated by the applicant, in six of the eight matters, were vexatious. The vexatious proceedings ranged over a period from 1993 to 2019. His Honour summarised the ways in which Mrs Collier's litigious conduct was vexatious as follows: [181] Mrs Collier has filed an originating process on a number of occasions without any proper grounds for doing so. [182] She then has a habit of responding to decisions, orders or statements that she does not like by: (1) Appealing against even case management orders that do not suit her; (2) Lodging stay applications and appeals generally that have no reasonable prospects of success; (3) Duplicating proceedings such as commencing proceedings in the Equity Division rather than the Common Law Division to circumvent orders which might have been made; (4) Declining to comply with even basic requirements for properly identifying the case which she seeks to pursue and pursuing proceedings without any reasonable grounds for doing so; (5) Deliberately disrupting proceedings by interrupting with baseless allegations and complaints about the judicial officer and assertions of error; (6) Accusing judicial officers of actual or apprehended bias; (7) Making offensive and scandalous comments about registrars and judges and other persons without any basis for doing so; and (8) Making allegations against opposing legal representatives as to misconduct and indeed perjury without foundation.
In submissions to this Court the respondent identified particular findings of his Honour which supported each of these summary conclusions.

Whether vexatious proceeding commenced "frequently"

The primary judge referred to authority of this Court and the Supreme Court that whether or not vexatious proceeding are characterised as having been commenced "frequently" is not to be assessed merely by arithmetic calculation (at FJ [19]-[21]). His Honour determined that Mrs Collier had frequently conducted vexatious proceedings having regard to his review of the various proceedings, saying: [177] … Mrs Collier has instituted and conducted a large number of proceedings which I consider to be vexatious within the meaning of the Act. Indeed, she has instituted and conducted proceedings which would fall within the meaning of vexatious since 1994. [178] I am satisfied that she has frequently instituted and conducted vexatious proceedings in Australia.

Exercise of discretion

His Honour correctly noted, by reference to ss 8(1) and (7) of the Act, that he had a discretion both as to whether to make a vexatious proceedings order and as to the terms of any such order (FJ [22] and [179]). He concluded that it was appropriate to make the order sought by the respondent, saying that he was "not satisfied that Mrs Collier will adopt any different approach to the conduct of any litigation she may wish to pursue in the future" (at FJ [185]). In the exercise of his discretion he took into account the manner in which Mrs Collier had conducted herself in the very case before him (at FJ [183]-[184]).

Issues on appeal

The bases for Mrs Collier's challenge to the primary judge's vexatious proceedings order were not clear, but appeared to be as follows: 1. it was necessary to point to some subjective intention to be vexatious; 2. the order would constitute an impermissible curtailment of her right to litigate; 3. the limitation period for commencing these proceedings had expired; 4. his Honour erred in some of his findings, including that she had been rude or disrespectful in the conduct of proceedings; 5. the discretion to make the order was exercised unreasonably.
The discretionary exercise of power under s 8 of the Act is reviewable where House v The King error is established: Potier at [127]. Counsel for the respondent conceded that the applicant needed to establish a House v The King error only for the final discretionary step as to what (if any) order should be made, whilst the first three steps are an assessment or characterisation of matters of fact which do not require such an error to be established for this Court to review.

Suggestion of a need for subjective intention

Mrs Collier said in her oral submissions that "you are only vexatious if you go out with the intention of causing trouble". She also said, in relation to some litigation, that "to me, yes there was a reasonable ground". It was not clear how these submissions were linked to any particular part of his Honour's judgment. In any event, insofar as these submissions were intended to suggest that proceedings can only be vexatious if intended to be so in one of the ways identified in s 6 of the Act, that suggestion is mistaken.
There is much overlap between the four categories identified in the definition of "vexatious proceedings" in s 6 of the Act, which categories are themselves not exhaustive. That said, self-evidently, there are differences between the categories.
Whether or not proceedings are an abuse of the process of a court or tribunal, as referred to in s 6(a), is a matter of legal characterisation which does not depend upon the person in question intending them to be abusive, although whether or not a proceeding is abusive may depend upon the purpose for which it is brought: see eg Victoria International Container Terminal Limited v Lunt (2021) 271 CLR 132; [2021] HCA 11 at [14], [18]-[23].
Whether or not proceedings are instituted or pursued without reasonable ground, as referred to in s 6(c), is an objective test: Viavattene v Attorney General (NSW) [2015] NSWCA 44 at [22]; Attorney General v Tareq Altaranesi [2013] NSWSC 63 at [19].
As for s 6(d), a question had arisen as to whether or not it did require a subjective intention to achieve one of the ends identified in the paragraph (of achieving a wrongful purpose etc): see eg Viavattene at [17]-[22] per Basten JA, cf at [4] per Beazley P. That question was resolved in favour of the objective view when the following words were added to the provision by the Parliament in 2018: "regardless of the subjective intention or motive of the person who instituted the proceeding".
It is not necessary to consider s 6(b). It suffices to say that it is wrong to suggest that proceedings cannot be characterised as vexatious under s 6 unless the person in question intended them to cause trouble, vexation or the like.

Right to litigate

The applicant submitted that she had a "right to litigate" and that the primary judge's orders "will forever cause serious curtailment of her ability to bring legal proceedings in the future. This would amount to a gross interference by the Court in the administration of justice and a denial of natural justice".
Being able to access courts to assert legal rights and claim legal remedies is a fundamental legal liberty: note eg Williams v Spautz (1992) 174 CLR 509 at 519; [1992] HCA 34. In Potier Leeming JA described it as an "important civil right" (at [48]), and Basten JA spoke of "the important principle of open access to justice" (at [17]). That legal liberty is capable of regulation and restriction, and it is clear that the Act is directed to doing so. A vexatious proceeding order which prohibits the person from instituting proceedings in New South Wales does not necessarily preclude the person from litigating altogether in the State. It imposes a preliminary requirement that leave to litigate be obtained from an appropriate authorised court: ss 13-16. The purpose of exercising the statutory power is not punitive. Rather it 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].
That the Act authorises restriction of the legal liberty does not mean the significance of the liberty is irrelevant. As has been said by this Court, "an order restricting a person's access to the courts is a very serious matter and thus an order under the VP Act is not to be made lightly": Teoh at [56]. And, as Basten JA said in Potier, in formulating orders under the Act a court "should limit such access [to justice] by an individual to no greater extent than is proportionate to the needs of the particular case".
Mrs Collier's complaint that the order restricted her right to litigate involved a correct observation as to the effect of the order made. It did not constitute an argument as to why the order should not have been made. There is nothing in the primary judge's decision to suggest that his Honour did not fully appreciate the significance of the order he made, and the need for such a restrictive order to be justified.

Limitation period arguments

The applicant argued that the vexatious proceedings were statute-barred, being a claim founded in tort to which s 14 of the Limitation Act 1969 (NSW) applied and/or a proceeding for the enforcement of a judgment subject to s 17 of that Act.
Section 14(1) of the Limitation Act relevantly states: An action on any of the following causes of action is not maintainable if brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims - … (b) a cause of action founded on tort, including a cause of action for damages for breach of statutory duty …
Mrs Collier seemed to argue that the proceedings are a cause of action founded on tort because at least some of the proceedings which were found to be vexatious involved tort claims made by her. An application for orders under s 8 of the Act is not a cause of action founded on tort. It is not a claim for damages to remedy some past wrong. The Act establishes a distinct statutory regime providing for the making of orders which are protective of the administration of justice. An order made under the section is directed to the future, albeit in light of past proceedings. The nature of any particular cause of action asserted in those past proceedings does not lend its character to the nature of proceedings brought under the Act for the purposes of the Limitation Act.
Section 17 of the Limitation Act relevantly states: (1) An action on a cause of action on a judgment is not maintainable if brought after the expiration of a limitation period of twelve years running from the date on which the judgment first becomes enforceable by the plaintiff or by a person through whom the plaintiff claims. (2) A judgment of a court of a place outside New South Wales becomes enforceable for the purposes of this section on the date on which the judgment becomes enforceable in the place where the judgment is given.
Mrs Collier's argument was that the respondent's reliance on judgments in previous proceedings constituted the enforcement of a judgment to which s 17 applies.
This case involves no attempt by the respondent to enforce any judgment given in any past proceedings. For most if not all of the proceedings considered no question of enforcement would arise any longer. That point is particularly clear for past orders made dismissing various of Mrs Collier's applications or claims. Making a vexatious proceeding order under the Act creates a new order with significance under the statutory regime. The fact that the making of that order is informed by the fact of previous judgments does not mean that those judgments are being enforced.

Claimed errors in findings of the primary judge

In her written submissions Mrs Collier made submissions about various proceedings discussed by the primary judge. She sought to reagitate an allegation about the honesty of Mr Sengos; she suggested that the primary judge had misunderstood a Federal Court Rule in connection with the Telstra litigation; she made some allegations about the proceedings in Queensland. As the respondent submitted, none of these complaints casts any doubt upon the conclusions reached by the primary judge.
Mrs Collier submitted that "[t]he only argument actually against the Applicant, is that she has been rude to the Court, there has never been any such action". She said in oral submissions that "I'm still trying to find out on what occasion I'm supposed to have been disrespectful for this order to have been made".
The complaint is without foundation. It is not correct that rudeness was the only basis for the order: see the summary at FJ [181]-[182], as quoted above at [48]. As for rudeness itself, the primary judge concluded that Mrs Collier's proceedings against the Country Women's Association - other than the originating process - were vexatious, including because she had "[c]onducted hearings and dealt with court staff in a rude, disrespectful and scandalous way, continuing to make allegations of judicial misconduct and misconduct on the part of the opposing legal representatives without any basis" (at FJ [154]). As it happens, his Honour also said that the applicant conducted the proceedings below "in a rude and offensive manner" (at FJ [174]). Conducting proceedings in such a manner can fall within the definition of vexatious proceedings under s 6(d) of the Act, namely that the applicant has conducted proceedings "in a way that harasses, or causes unreasonable annoyance, delay or detriment": see eg Attorney General of NSW v Wilson [2010] NSWSC 1008 at [144]-[145].

Exercise of discretion under ss 8(1) and (7)

The closest Mrs Collier came to articulating House v The King error as regards the discretionary decision of the primary judge to make a vexatious proceedings order in the terms sought by the respondent was to suggest that the decision was unreasonable. The submission was not developed and is unpersuasive.
Mrs Collier's submissions to this Court only confirmed the reasonableness of making a vexatious proceedings order. As discussed above, she made accusations of bias and abuse against the primary judge, and of illegality and impropriety against the legal representatives of the respondent, which had no foundation whatsoever.
Mrs Collier described her litigious claims in this way: "not being what one would call a 'Wall Flower', thus regularly puts her head above the trenches and tries to right wrongs when caused to her". Her zeal to right perceived wrongs illustrates a lack of insight into her own actions in repetitively litigating matters where there is no reasonable ground for doing so. So, too, did her submission that "I just want to lead a normal life. These people are going out of their way to try and disadvantage me to an nth degree".
Her suggestion - just addressed - that her alleged rudeness was the "only argument actually against the Applicant" illustrates her failure to grapple with the careful analysis undertaken by the primary judge, and her ongoing failure to understand the unacceptable character of the way in which she has conducted litigation to date. Mrs Collier submitted that "the only Court official that has abided by the law, has been Registrar J McLeod at Young Local Court". That claim, too, manifests a substantial lack of insight, along with a lack of respect for judicial and court officers and the justice system generally.
There are two aspects of the order made which, despite not being the subject of specific submissions, did raise a possible concern.
First, the order made by his Honour was expressed as follows: "Mrs Marion Louise Collier be prohibited from instituting proceedings in New South Wales, without leave of this Court". The respondent had suggested that form of order. In general, in my view, it is unnecessary and undesirable that the operation of the order be made to depend upon leave being granted by the Supreme Court.
Section 13(1) of the Act provides that if an authorised court makes a vexatious proceedings order prohibiting a person from instituting proceedings then the person may not institute proceedings of the kind to which the order relates without the leave of an "appropriate authorised court" under s 16. Section 14(2) provides that the person in question may apply to an "appropriate authorised court" for leave to institute proceedings that the order would otherwise prohibit the person from instituting. Section 16 addresses aspects of how such applications are to be dealt with. Section 12(1) provides: For the purposes of this Part, an appropriate authorised court in relation to the granting of leave to institute proceedings prohibited by a vexatious proceedings order is: (a) the authorised court that made the vexatious proceedings order, and (b) in the case of a vexatious proceedings order made by the Supreme Court that operates to prohibit proceedings being instituted in the Land and Environment Court - the Land and Environment Court, and (c) in the case of a vexatious proceedings order made by the Supreme Court that operates to prohibit proceedings being instituted in the Industrial Relations Commission - the Supreme Court.
Under the statutory scheme, thus, if an order prohibiting the institution of relevant proceedings is made by the Supreme Court, and the person in question wishes to institute proceedings subject to the order in the Land and Environment Court, then they may apply to that Court or the Supreme Court for leave. The order sought and made in this case would require Mrs Collier to apply only to the Supreme Court. Whilst there is nothing to suggest that Mrs Collier wishes to litigate in the Land and Environment Court, the possibility cannot be excluded altogether. If she does, then it is likely to be that court which is best placed to consider whether, in light of the issues raised, it is appropriate that she be permitted to institute proceedings in that court.
The order could simply have been expressed in the form that Mrs Collier "be prohibited from instituting proceedings in New South Wales". The Act then provided the mechanism for dealing with any subsequent applications for leave to proceed. However, I do not consider that this aspect of the order is unreasonable, or otherwise flawed, in a House v The King sense.
Secondly, in Potier, Basten JA said that "it would usually be appropriate to limit such an order temporally" (at [18]). Justice Leeming agreed with this aspect of his Honour's judgment, and Meagher JA agreed with Leeming JA (at [138] and [1] respectively). Here, as the respondent noted in submissions put to the primary judge, Mrs Collier has litigated vexatiously across various courts and tribunals over a period in excess of 25 years. Given the particular facts of this case, I am not persuaded that his Honour erred in not imposing a time limit on the order.
That conclusion does not mean that it will generally be appropriate to make orders under the Act which do not have some time limit. As Basten JA noted in Potier at [18], the imposition of constraints under the Act can be extended towards the end of a given period: see ss 9 and 10. That power is given to the court that made the vexatious proceedings order. If this Court modifies an order made by a court below, that modified order is taken to be an order of the court below which remains capable of later variation by that court pursuant to the Act.

Orders

Taking account of the arguments raised and all the circumstances, including the significant adverse effect of the vexatious proceedings order on the applicant, it is appropriate that leave to appeal be granted. No relevant error having been identified in either decision of the primary judge, the appeal should be dismissed.
The primary judge, in his discretion, did not order costs against Mrs Collier in the proceedings below. The Attorney did seek his costs in the appeal. In this Court costs should follow the event. As the respondent put it, Mrs Collier "is a seasoned litigant and must be taken to be well aware of the consequences of bringing an application for leave to appeal without substance".
The orders of this Court should be as follows: 1. Grant leave to appeal. 2. The applicant is to file a notice of appeal, in the form of her draft notice of appeal contained within the white folder, within 14 days. 3. Appeal dismissed with costs.
GRIFFITHS AJA: I agree with Kirk JA.

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: 16 November 2023

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (24 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (19)

Cited By (4)