Collier v Attorney General for New South Wales

Proposed ground (3) - actual bias

1. If a claim of actual bias were made good, it might be necessary for the application for access to be undertaken afresh. There was, however, no material which provided any basis for the claim of actual bias. After the proceedings had been continuing for "approximately one hour and 15 minutes", as noted by the judge, the telephone by which Mrs Collier appeared was disconnected. [2] The judge explained, both in the transcript, and in his judgment, that attempts had been made to reconnect. The attempts provided only a recorded message saying, "No one is home to take your call". [3]
2. There is no doubt that the disconnection was the act of Mrs Collier: in her affidavit sworn on 17 November 2020, she explained (at par 9) that the judge "spent his entire time, trying to engage the deponent in an argument, which got to the stage, as she had to hang up on him, it was absolute abuse of a female by a judiciary officer".
3. It is clear from the transcript that the primary judge attempted on a number of occasions, prior to the termination of the call, to focus Mrs Collier's attention on the issues to be addressed. It is also clear that Mrs Collier continually interrupted the judge and spoke over him, which led to warnings that he would "mute" the call unless she desisted. That did not eventuate.
4. The course of the proceedings was summarised by the judge in his written reasons. The summary reflected the content of the transcript. There is no challenge to any aspect of that account. Far from demonstrating actual bias, the record demonstrates a degree of restraint and courtesy not reciprocated by Mrs Collier. There being no material before this Court providing any arguable basis for the assertion of actual bias, that ground provides no basis upon which leave could be granted.

Proposed ground (2) - breach of statute

1. Ground (2) referred to a "breach of Statute" by lawyers for the Attorney. It is not entirely clear what was meant by that ground. The summary of argument prepared by Mrs Collier stated that "the original registrar in these proceedings had removed an exhibit which was vital to these proceedings, such being contrary to The Crimes Act NSW 1900, The Supreme Court Act (1970), The UCPR (2005)." [4] This appears to have been a reference to something which happened at a hearing before Registrar Bradford. [5]
2. In her affidavit of 17 November 2020 Mrs Collier asserted, without apparent justification, that a solicitor in the Crown Solicitor's Office had served "a fictitious and knowingly falsely sworn affidavit." The affidavit identified entirely reasonable steps taken to identify the current address of Mr Collier. No element of fiction or knowing falsity was identified; nor was the solicitor sought to be cross-examined by Mrs Collier at the hearing before the primary judge. Unsubstantiated allegations of perjury are scandalous, should not be made and must be rejected.
3. Although not within the apparent scope of the proposed grounds of appeal, there were suggestions before the primary judge and in the materials before this Court that Mrs Collier's former husband, Mr Collier, was not served with the documents relating to the application for access to the files, which included at least one file in which he was concerned. The primary judge noted that allegation, together with the fact that Mr Collier was aware of the proceeding and, it should be inferred, because he shared a house with Mrs Collier, was aware of the date of the hearing. In any event, Mr Collier had filed an affidavit which was read by Mrs Collier at the hearing. The judge said that his concerns had been taken into account. Indeed, the qualification on the grant of access related specifically to material in the files provided by him. Mr Collier was not a party to the application for leave to appeal, although it emerged that he was present with Mrs Collier throughout the (remote) hearing. There was no arguable error on the part of the primary judge in the manner in which he dealt with Mr Collier's objection.

Proposed ground (1)

1. The first ground (concerning weight to be given to "material facts") contained no issue of substance, let alone an allegation of any identifiable error on the part of the primary judge. It forms no basis upon which leave could be granted.

Proposed ground (5)

1. The fifth ground referred to delay in giving judgment. In oral submissions, Mrs Collier argued that she had made inquiries as to when judgment would be delivered from January 2020, which were either not responded to or produced no result. A letter from the solicitor for the Attorney to the Chief Judge at Common Law saw the delivery of judgment within a month. There was no evidence as to the form or content of communications with the primary judge's chambers, but Mrs Collier perceived differential treatment. However, it was neither suggested nor apparent that the time taken caused any error in the orders made, nor prejudice to Mrs Collier. It would have been desirable, as it always is, for the judgment to have been delivered sooner, but due allowance must be made for the competing judicial priorities of a judge at first instance, in this case including the conduct of serious criminal trials. This ground provides no basis for a challenge to the judgment of the primary judge.

(a) no legitimate forensic purpose

1. Underlying Mrs Collier's opposition to the application for access to the documents in question was, in substance, the contention that the request for access to them had no legitimate forensic purpose. Although no proposed ground of appeal explicitly impugned his Honour's rejection of that contention, such a complaint was at least implicit in some of Mrs Collier's submissions. However, it is without substance. Assuming, without deciding, that considerations analogous to those which pertain to subpoenas for production are applicable to a request under r 33.13 for production of court records, [6] the files relating to each of the proceedings referred to in the affidavit supporting the application for a vexatious proceedings order had apparent relevance to that application. Although the judgments exhibited to the affidavit are, by way of exception to s 91 of the Evidence Act 1995 (NSW), admissible, [7] the pleadings and evidence on which they were founded would plainly be the best evidence of whether or not any proceeding in question was an abuse of process, was instituted to harass or annoy, or for any other wrongful purpose, or was instituted or pursued without reasonable ground or conducted to achieve a wrongful purpose. [8] In other words, there was clearly, in the context of the application for a vexatious proceedings order, a legitimate forensic purpose for requesting their production and seeking access to them. There is no question of a 'fishing expedition' where the proceedings in question have been identified, and the judgments in them exhibited to the supporting affidavit.

(b) ex parte hearing

1. Before the primary judge Mrs Collier was granted leave to appear by telephone, which she did. She agrees that she terminated the call and thus her participation in the hearing. Such an action is equivalent to walking out of court, or not returning after an adjournment. Sometimes such conduct is explained by, for example, a medical emergency. However, a party, including an unrepresented party, cannot terminate proceedings by simply failing to attend without excuse or justification. If an excuse or justification is proffered promptly, it may on occasion result in a hearing being reopened or resumed. However, a party who acts in this way without justification cannot complain of procedural unfairness if the judge decides that the hearing should proceed in his or her absence. Were it otherwise, the court process could be manipulated at the whim of a disaffected party, with consequential prejudice to other parties in the proceedings and, consequentially, those involved in other proceedings.
2. Although Mrs Collier appeared to be suggesting that there was error on the part of the primary judge in proceeding once she had terminated the telephone call, that was not so. The judge immediately took steps to seek to re-establish contact, no doubt to ensure that the disconnection was not accidental or the result of a technical fault. Concededly, in this case, it was deliberate on the part of Mrs Collier. In the circumstances, and having sought to re-establish contact, there was no unfairness or other form of error involved in the judge proceeding with the hearing.

(c) refusal of fee waiver

1. Litigants are generally required to pay fees to engage court procedures. There is provision for the waiver of fees where the relevant court officer is satisfied that conditions, including impecuniosity, justify that course. It appears (from her statements) that Mrs Collier has had the benefit of fee waivers on a number of prior occasions. In relation to the present proceedings, she appears to have sought, and been refused, a waiver of fees required for the filing of a cross-claim. She argued before the primary judge, and on the leave application in this Court, that the court had power to review or override a decision not to waive fees. Whether or not that is so, the issue does not arise for the purpose of determining the present application for leave to appeal from the order of the judge allowing access to the produced files.
2. The reason why the issue does not arise turns on the reason for the proposed fee waiver. The waiver was sought to allow Mrs Collier to file a cross-claim in response to the Attorney's summons seeking a vexatious proceedings order. The cross-claim was not filed, but Mrs Collier sought leave to file it in the course of the hearing before the primary judge. The judge did not permit that course because he was not satisfied that it was relevant to the Attorney's notice of motion for access, which was the only motion listed before him. The judge stated: [9] "As I have already observed, the cross-claim has not been filed. The course that I have in mind is that I will reject your application to file the cross-claim in Court. I have already admitted into evidence the two affidavits that I earlier referred to and if you want to file a cross-claim that's a matter for you, and if and when you do that … those proceedings will come to fruition eventually in a separate hearing in the Court. In the meantime, I'll proceed on the basis [of] the documents that have been filed in the registry and which I have admitted into these proceedings."
3. At one point in the hearing, Mrs Collier seemed to assume that the judge had in fact dismissed her notice of motion and rejected the cross-claim. It is clear, however, that he did neither of those things. The notice of motion was not before him and the cross-claim, whilst not filed in court, was a matter which he apprehended could be pursued in an orderly fashion in the future.

(d) notice of motion and cross-claim

1. By a notice of motion dated 30 November 2020 filed in this Court, Mrs Collier sought a stay of the orders made by the primary judge and a stay of other proceedings relating to outstanding fines, apparently for a road traffic matter. The issue relating to the stay of the primary judge's orders was resolved by the Attorney undertaking not to obtain access to the documents until this application was resolved. With respect to the proposed stay of other proceedings, the Court noted, and Mrs Collier agreed, [10] that that was not a matter which could be addressed in this Court. Although it was said in the course of the present hearing that the availability of such an order remained outstanding, that was not the case. Mrs Collier's notice of motion was not disposed of finally whilst the undertakings remained in place, but it should now be dismissed.
2. The cross-claim included a proposed order (2) seeking to strike out or dismiss the Attorney's summons in the present matter as frivolous and vexatious. Such an order could have been sought by way of a notice of motion in those proceedings. A cross-claim was neither necessary nor appropriate to raise that issue.
3. It may be doubted whether other orders of the kind sought in the cross-claim were appropriate, or in any way relevant to, the disposition of the present proceedings. However, the document not having been filed, it is not a matter requiring consideration at this stage. Suffice it to say that no error is apparent in the refusal of the primary judge to allow the document to be filed in court.

(e) information regarding children

1. Although Mr Collier's affidavit, relied on by the primary judge, raised no specific issue with respect to material identifying or otherwise relating to the two young children for whom it appears he was a full-time carer, Mrs Collier submitted that orders should be made preventing access to, or publication of, any material which related to the children.
2. In the absence of any evidence as to what documents did relate to the children, it is not possible to formulate an order in appropriate terms. If such material is identified, it is unlikely that it would be deployed in court in the current proceedings. However, if such material was adduced in evidence, it would be open to either party to seek an order under the Court Suppression and Non-publication Orders Act 2010 (NSW), preventing its publication. That would be the appropriate course to take in relation to such material. It is not appropriate to deal with in the abstract before the material has been identified.
3. Mrs Collier suggested that such a course would be inadequate because persons within the Crown Solicitor's Office might well obtain access to the material to copy or otherwise deal with it for the purpose of the proceedings. That, of course, would have been true with respect to the handling of such material in the course of the underlying proceedings, and indeed in every proceeding involving children in the courts of this State and across the country. Such material is dealt with on a daily basis in professional practice. There is no sufficient risk of inappropriate disclosure warranting the making of an order in abstract terms before the nature and sensitivity of the material has been identified.

Conclusion

1. A proposed appeal from a matter of practice and procedure requires, for the grant of leave, demonstration of a clear error of principle on the part of the primary judge giving rise to prejudice to the applicant which cannot, in practical terms, be corrected in the course of further interlocutory processes. The present application does not reach that standard: indeed, it fails to identify any arguable ground of appeal.
2. The application for leave to appeal must be dismissed. It follows that the undertakings given by the parties on 10 December 2020 are now discharged, the leave application having been determined. The applicant's notice of motion dated 30 November 2020 seeking a stay must also be dismissed. Mrs Collier must pay the Attorney's costs of the proceedings in this Court.
3. The Court makes the following orders: 1. Dismiss Mrs Collier's notice of motion dated 30 November 2020. 2. Dismiss the application for leave to appeal. 3. Order that Mrs Collier pay the Attorney's costs of the proceedings in this Court.

Endnotes

1. Attorney General for the State of New South Wales v Collier [2020] NSWSC 1572 ("Judgment").
2. The transcript covered some 42 pages, numbered from 53 to 94: the termination occurred at p 90.
3. Judgment, [27].
4. Applicant's amended summary of argument, 21 January 2021, par 10.
5. Ibid, par 20.
6. The assumption may not be justified: there are significant differences, not least that court records are not documents in the custody of an individual (or corporation), to which access is regularly granted, including for example to the media, without any question of forensic purpose.
7. Vexatious Proceedings Act, s 8(2)(c).
8. Cf Vexatious Proceedings Act, s 6.
9. Tcpt, 19/12/2019, p 89(46).
10. CA Tcpt, 10/12/2020, p 7(20). 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: 23 February 2021