Collier v Attorney General for New South Wales

Collier v Attorney General for New South Wales - [2021] NSWCA 16 - NSWCA 2021 case summary — Zoe

Judgment

THE COURT: On 13 June 2019 the Attorney General commenced proceedings against Marion Louise Collier under the Vexatious Proceedings Act 2008 (NSW). The application for a vexatious proceedings order was supported by an affidavit by a solicitor in the Crown Solicitor's Office exhibiting a folder of some 42 judgments in proceedings apparently commenced by Mrs Collier. The details supplied indicated that some 12 decisions emanated from the New South Wales Supreme Court and Court of Appeal. Neither the summons nor the affidavit in support identified the specific ground or grounds upon which the vexatious proceedings order was sought.
In August 2019, the Crown Solicitor applied to the registrar to produce the Supreme Court files for some 10 proceedings. Production to the Court was sought pursuant to r 33.13 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), which provides as follows: 33.13 Documents and things in the custody of a court (cf SCR Part 37, rule 13) (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.
It appears from the terms of subr (2) that the rule applies where a "document or thing" in the custody of the court is required for the purposes of proceedings in a court. There is a form entitled "Application to the Registrar to request the production of a file, document or thing from a Court or Tribunal (under UCPR r 33.13)". The title to the form is unfortunate: it is presumably intended to provide a form of writing for a party who seeks production from the registrar. The registrar is obliged to comply, subject, no doubt, to payment of the appropriate fee, with the request. The form itself appears to be appropriate where the document is held by another court or tribunal. The files sought in the present matter were all files held by the Supreme Court.
Further, the form seeks details of the notice given to parties in the proceedings "in the other Court or Tribunal" and requires the applicant to give an undertaking that a copy of the application "will be served on all other active parties in the Supreme Court proceedings" and on "the parties in the proceedings in the other Court or Tribunal". It also requires an undertaking that all such parties will be notified when orders for access are made. It is not clear whether there is any legal basis for such requirements. Rule 33.13 does not provide for access to the files; nor does it provide for a request to be made for access. There would appear to be no basis for the Registrar to refuse to produce to the court the documents sought by a party if such information and undertakings were not provided. In any event, an application form was completed in respect of each file sought by the Attorney.
In accordance with r 33.13(2) the files were produced. On 22 October 2019 the Attorney filed a notice of motion in the current matter under the Vexatious Proceedings Act seeking access to files held by the Supreme Court in relation to nine proceedings brought in this Court.
The application for access was heard by Ierace J in the Common Law Division on 19 December 2019. Mrs Collier objected to access. Her husband, Robert John Collier, who had been a party to at least one of the proceedings, objected (by affidavit dated 7 November 2019) to the Attorney having access to the files involving him.
No objection was made based on any form of privilege. Although Mrs Collier described the exercise as a "fishing expedition" there is no doubt that the files relating to the proceedings specified by the Attorney in his application for a vexatious proceedings order had apparent relevance to that application. The grant of access might have been seen as a formality. Unconditional access was granted with respect to eight matters; conditional access was granted with respect to one matter which appears to have been the only matter involving Mr Collier, access being refused with respect to "any affidavits or transcripts of evidence of Mr Robert John Collier or communications from him." The orders were made on 9 November 2020. [1]
The summons seeking leave to appeal was filed on 25 November 2020. A draft notice of appeal contained the following five grounds: "(1) His Honour did not give sufficient weight to all the material facts before him; (2) His Honour ignored the breach of Statute by the respondent and/or their legal advisor and did not address such; (3) His Honour showed actual bias of the defendant/applicant throughout the hearing, of what was a notice of motion by the plaintiff/respondent; (4) His Honour, whilst in possession of all the necessary facts, chose to prevent the defendant/applicant from being permitted to litigate a false claim against them; (5) His Honour, with no reason given, chose to ignore giving his reserve judgment for a period of almost eleven (11) months, then only when the defendant/applicant attempted to address a cross-claim, cross-summons."

[5]

Proposed ground (2) - breach of statute

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]
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.
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.

[10]

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.
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."
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.

At a glance

Court

Decision date

Before

Source

Judgment (14 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (1)

Cited By (5)