[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.]
[2]
Judgment
LEEMING JA: Shortly after hearing oral submissions from her, I advised that I would not accede to an application made by Ms Marion Louise Collier that I recuse myself from participating in the hearing of her application for leave to appeal from interlocutory orders made in the Common Law Division late last year. In order to save time and to deal with the substance of the application for leave, I indicated my preference to give reasons at a later time, if that were convenient to her, and Ms Collier agreed to that course. These are my reasons.
Ms Collier's application for leave was listed to be heard on the morning of 15 March 2022. On the afternoon of 14 March 2022, my Associate advised Ms Collier and counsel appearing for the respondent that the application would be conducted by audio-visual link, and provided details of that link. That led to an email from Ms Collier at 3.57pm, in the following terms:
"Dear Your Honour Leeming JA,
Following the appearance by myself before you Your Honour, on Monday the 8t h. December 2014, I made a formal complaint, to the then President of the Court of Appeal, Supreme Court of New South Wales, the Honourable Allsop P. This was following the manner in which Your Honour had treated myself, given that a Subpoena was required on Telstra Australia for the telephone number contacted on the 13th. May 2014, to show, that at no time was 02 6845xxxx, as claimed in transcript, which forms part of Exhibit 1 or A of the Applicant`s documents, provided to this Court, on Monday the 21st. February 2022.
I apologise for the lateness of this application, but it was not known by myself, until arriving back home from attending both a GP and Chemist, that it was in fact you, Your Honour who was to hear this matter tomorrow, which will given your behaviour towards myself in 2014, that such will end up eventually being brought to the attention of the High Court of Australia.
I apologise for not being sure of the Exhibit number, but was unable to find, rang the Registry, to be told by Anthony to e-mail and when I rang the Registrar, it rang out." [sic, save that the last 4 digits of the telephone number have been obscured].
My Associate responded to the parties in these terms at 4.50pm:
"Dear Ms Collier,
I refer to your email of 3.57pm this afternoon and advise as follows.
Justice Leeming was unaware prior to your email that any complaint had been made following the hearing on 8 December 2014. He notes that the President of the Court of Appeal at the time was Beazley P and that Allsop P had ceased to be President prior to the appointment of Justice Leeming to the Court of Appeal. If a complaint was as you say made to Allsop P, that may be about some other piece of litigation. If a complaint was made concerning the hearing on 8 December 2014, Justice Leeming does not know what the complaint was and how it was resolved. That is not a basis for Justice Leeming to recuse himself.
Justice Leeming made a decision on 8 December 2014 adverse to you: Collier v State of New South Wales [2014] NSWCA 442. He made a subsequent decision later that year dealing with the remainder of your motion: Collier v State of New South Wales (No 2) [2014] NSWCA 461. Both decisions are available on CaseLaw. So far as he is aware, he has not been involved in any litigation involving you in the last seven years. The fact that those decisions were adverse to you is not a basis for Justice Leeming to recuse himself.
If there is any further matter on which you wish to rely, you are invited to send it by email, copied to the respondent, in advance of the hearing tomorrow."
At 5.01pm, Ms Collier responded:
"Dear Miss Dawson,
On checking today with the Court of Appeal Registrar, as to exactly who was President at the time of 2014, I believed it was Allsop and not Beasley P, so my complaint was made.
It is most definitely inappropriate for your Honour to hear this matter, as well His Honour is aware."
At 11.01pm that evening, Ms Collier supplied a further email:
"Dear Justice Leeming,
It has come to my attention Your Honour, that you are under the assumption, that any complaint made by myself, relates to a judgement/s given.
In actual fact, it relates to Your Honour's unprofessional treatment of a party before you and what you wanted me to do, which was most unlawful and as you well knew, would not achieve anything."
At the commencement of the hearing, I advised of the sequence of emails, and that I was not sure that any complaint would have concerned me, Justice Allsop having ceased to be President of the Court of Appeal in March 2013, almost two years prior to the hearing in December 2014, and that if there was a complaint, I did not know what it was or how it was resolved.
Ms Collier said that she had been wrong to refer (twice) to a complaint to Justice Allsop, and that instead it had been made to Justice Beazley. She said that her complaint was that it had been inappropriate for me to suggest that, rather than issuing a subpoena, she should "just go and ring Telstra and ask them to give you the information". I said that after learning of her email, I had read the transcript of 8 December 2014, and that I had said no such thing. Ms Collier said that she did not have the transcript.
I said that I had refused her application to issue a subpoena to the police, for reasons given on that day, on the basis that subpoenas were unusual in the Court of Appeal, which ordinarily heard and determined appeals on the basis of the material tendered at trial. Ms Collier had been seeking leave to issue a subpoena with a view to tendering documents produced in support of her pending appeal against the summary dismissal of a statement of claim. The reasons I gave on 8 December 2014 that day included the following at [5]-[6]:
"Mrs Collier, who appeared for herself, candidly acknowledged that the main order that she sought today was that in paragraph 3, directed to a subpoena on Telstra Australia Corporation. It is unusual in this Court for subpoenas to issue in any matter. The principal reason for that is that this is a Court of Appeal. A subpoena issuing in this Court necessarily calls for production of documents which were not before the primary judge. It is possible, through an application for fresh evidence, for such a subpoena to issue and for documents to be properly tendered in an appeal in this Court. However this is not a case where an application for leave to appeal is brought from a trial. The question before Campbell J on 1 October 2014 was whether the pleading in its amended form should go to trial or be struck out. That is a question capable of answer by reference to the pleading, and the pleading alone. One of Mrs Collier's complaints this afternoon was that the State's motion was unaccompanied by an affidavit in support. That rather illustrates the nature of the application that was heard and determined by the primary judge. It is not an application that stands or falls by reference to evidence; it is an application that stands or falls by reference to whether ultimately the pleading is bad in law.
Another way of putting the point is this: it is to my mind impossible to conceive of a circumstance where any documents produced by Telstra in answer to a subpoena which is directed to producing records of telephone calls made between Mrs Collier's home number and the Court on various occasions: 29 April, 13 May, 13 August, 17 November and 24 November 2014 (which are all, or mostly all, directions hearings before Registrars in the Common Law Division or, in the case of the latter two, the Registrar of the Court of Appeal) could have any bearing whatsoever on whether the pleading should go to trial or be bad in law. In those circumstances the subpoena lacks any legitimate forensic purpose and there is no utility in making the order sought by Mrs Collier."
Ms Collier did not otherwise elaborate submissions as to the nature of her complaint in 2014, or the basis on which I should recuse myself.
It may be doubted whether a complaint was in fact made concerning the hearing on 8 December 2014. If Ms Collier is correct that she is remembering a complaint made to Justice Allsop, then it is likely that her complaint related either to earlier proceedings in this Court before my appointment in 2013 and before the hearing in 2014, or alternatively to later proceedings in the Federal Court. I note that there were proceedings brought by her against Telstra which record that on 23 and 24 November 2016 Ms Collier made complaints to the associate to the Chief Justice concerning the conduct of a judge of the Federal Court: Collier v Telstra Corporation Ltd [2018] FCA 1569 at [11] and [13] (this is one of the decisions relied on by the Attorney in support of his summons).
Alternatively, if a complaint was made to Justice Beazley (who was indeed the President of the Court of Appeal at the relevant time more than seven years ago), its nature is unknown. Ms Collier had an opportunity, in answer to my Associate's request by email, and my own inquiry in Court, to adduce evidence of the complaint and how it was resolved.
Ms Collier's recollection of what occurred on 8 December 2014 is faulty. That is not said in any way which is critical of her. Aside from the transcript, I have no independent recollection of the hearing.
The question is whether a fair minded observer might reasonably apprehend that, seven years later, I might not bring an impartial mind to the determination of whether to grant or refuse leave to appeal from an interlocutory decision dismissing Ms Collier's application for summary dismissal of the Attorney's summons seeking her to be declared a vexatious litigant. I concluded that nothing that Ms Collier had said or written would lead to that question being answered affirmatively, even if a complaint had been made about something that occurred on that day. Accordingly, I refused to accede to her application.
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Decision last updated: 15 March 2022