Collier v Attorney General for New South Wales

[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.]

Judgment

THE COURT: By summons filed on 14 December 2021, the applicant, Mrs Collier, sought leave to appeal from orders made in the Common Law Division (Beech-Jones CJ at CL) on 17 November 2021 dismissing a notice of motion filed by Mrs Collier on 8 September 2021 (Attorney General for New South Wales v Collier [2021] NSWSC 1483).
At the conclusion of the hearing of Mrs Collier's application for leave to appeal on 15 March 2022 we made the following orders: 1. Dismiss summons for leave to appeal filed 14 December 2021 with costs. 2. Note that the Attorney General for NSW consents to Mrs Collier being permitted to file and serve, in addition to her submissions in response to the Attorney General's summons, any evidence on which she seeks to rely on or before 23 March 2022. 3. The Court reserves its reasons for those orders.
These are our reasons.
Mrs Collier's notice of motion of 8 September 2021 sought a variety of relief including orders striking out a summons filed by the Attorney General for New South Wales on 13 June 2019 that seeks orders against Mrs Collier pursuant to s 8(7) of the Vexatious Proceedings Act 2008 (NSW) "in such terms as the Court considers appropriate". The summons is listed for hearing on 5 April 2022. The application to strike out the summons was treated by the primary judge as an application for summary dismissal. The notice of motion filed by Mrs Collier identified the grounds upon which most of the orders sought were claimed.
In relation to the claim to strike out the Attorney General's summons, the grounds stated were that the summons had been filed without a supporting affidavit or explanation of what she was required to answer and therefore constituted a fishing expedition and an abuse of process. Mrs Collier relied upon Uniform Civil Procedure Rules rr 12.11(1) and 13.4. The notice of motion also sought an order to prevent further participation in the proceedings by a Registrar owing to asserted, actual or apprehended bias (or all three), an injunction against Revenue New South Wales to stay the enforcement of fines until the finalisation of the proceedings, an order "striking out" an affidavit of a Mr Kyle Hudson dated and filed on 13 June 2019 in support of the summons, an order to restrain the solicitor in the Crown Solicitor's Office having the conduct of the matter for the Attorney from engaging in what was alleged to be bullying and harassing behaviour towards Mrs Collier and an application to set aside an order made on 14 May 2014 by a Registrar in other proceedings.
In his affidavit of 13 June 2019 Mr Hudson exhibited numerous judgments delivered in proceedings to which Mrs Collier was a party, together with certain correspondence.
The transcript of the hearing before the primary judge records that his Honour heard from Mrs Collier at some length in a hearing conducted by audiovisual link. Both parties had supplied written submissions in advance of the hearing. After hearing oral submissions from Mrs Collier, and without calling on counsel for the Attorney General, the primary judge delivered ex tempore reasons dismissing her notice of motion. His Honour directed that any further notice of motion seeking summary dismissal be listed at the same time as the hearing.
The proposed grounds of appeal, if leave were given, were as follows: "1. The Trial Judge is in error of Law, in that the Respondent has not complied with; the UCPR 55.10, by not filing an appropriate Affidavit with the Summons. 2. The Trial Judge, in error of Law, in that the Respondent themselves, by the filing of 2019/183521, are doing just as they claim the Applicant has don The Trial Judge, although supplied with the appropriate material, he in error of Law, in ignored such, in so doing he has abused; the Separation of Powers and do as the Attorney would supposedly want. 3. The Trial Judge, in error of Law, in that he has ignored the abuse of Statute and Court Orders, by the Respondent's, in their efforts to influence the trial judge;"
The grounds are difficult to follow. UCPR r 55.10 is inapplicable. It applies to proceedings by a trustee for payment of money into court. It is clear from Mrs Collier's submissions that her claim is not that the summons filed on 13 June 2019 was unaccompanied by an affidavit. Rather, her claim is that Mr Hudson's affidavit of 13 June 2019 does not explain on what basis the Attorney contends that it should be concluded from the judgments exhibited to the affidavit that Mrs Collier has frequently instituted or conducted vexatious proceedings in Australia (Vexatious Proceedings Act, s 8(1)(a)). The proposed grounds of appeal appear to suggest that the primary judge was motivated to act in accordance with the wishes of the Attorney General, an allegation of actual or, possibly, apprehended bias. Ground 3 is obscure and was not clarified in the course of Mrs Collier's written or oral submissions.
The substantial issue as clarified in Mrs Collier's written submissions dated 7 March 2022 and her oral submissions is that the affidavit of Mr Hudson that accompanied the summons, and it can be added, additional affidavits filed and served by the Attorney that exhibit additional judgments in proceedings to which the Attorney says Mrs Collier was a party, do not explain how the Attorney will seek to rely on the judgments in seeking an order under the Vexatious Proceedings Act.
The primary judge dealt with that issue as follows: "[7] The essence of the complaint identified by Mrs Collier appears to be that the affidavit does not identify what the plaintiff's case is and, in particular, does not identify the parts of the various decisions relied on but simply annexes them. There is no requirement that the affidavit do so and, indeed, if it attempted to do so those parts would be objectionable. [8] The role of the affidavit is not to argue the Attorney-General's case. It is simply to identify the evidence relied on. Self-evidently, when the Attorney-General moves the court for orders under the Act part of the evidence that will be relied on will be the entirety of various decisions involving the putative defendant. The affidavit does no more and no less than serve that function. [9] In a general sense, it should be obvious from the summons that the Attorney-General's overall contention is that Mrs Collier has vexatiously and without proper cause pursued proceedings in various courts. The precise details of that contention can be expected to be outlined in the submissions that will no doubt be filed on behalf of the plaintiff."
The application for a vexatious proceeding order under the Vexatious Proceedings Act was required to be brought by summons, not by statement of claim (UCPR r 6.4(1)(h)). Except in the case of a summons for judicial review, a summons is not required and is not expected to state the grounds on which the relief claimed in the summons is sought.
Mrs Collier does not suggest that at any time she sought an order that the matter proceed on pleadings. The primary judge correctly observed (at [7]) that there is no requirement that the affidavit that accompanied the summons identify the parts of the decisions relied upon or articulate why the Attorney contends that the judgments exhibited to Mr Hudson's affidavit show that Mrs Collier has frequently instituted or conducted vexatious proceedings.
Nonetheless it might be expected, as part of case management, that before Mrs Collier was required to serve her evidence in opposition to the relief sought by the Attorney, the Attorney would identify the parts of the judgments he relied on.
The primary judge said it was evident that the Attorney would rely on the entirety of the judgments. In a sense that is no doubt true, but it is the precise details of the Attorney's contention arising from those judgments that Mrs Collier would be expected to address in her evidence. In the absence of such particulars, Mrs Collier would not know what parts of the judgment she needed to address in her evidence.
Orders have been made for the filing and service of Mrs Collier's evidence prior to the filing and service of submissions. At the time of the primary judge's orders of 17 November 2021, no order had been made for the service of the Attorney's submissions, but Mrs Collier was required to serve her evidence by 17 December 2021. On 3 February 2022 the Registrar ordered the Attorney General to file and serve written submissions by 18 February 2022. Mrs Collier was required to file and serve her written submissions by 18 March 2022. This Court was informed that that time had been extended to 23 March 2022.
On 18 February 2022 the Attorney General filed detailed written submissions. They appear to contain the precise details of the matters on which the Attorney will rely.
At the hearing of the summons for leave to appeal, counsel for the Attorney General stated that the Attorney would have no objection to Mrs Collier filing and serving any evidence on which she would rely by 23 March 2022, being the date by which her submissions in opposition to the Attorney's claim are due to be filed and served.
So far as ground 1 and the first part of ground 2 of the proposed notice of appeal are concerned, it is sufficient to say that no arguable error by the primary judge was shown.
The second part of proposed appeal ground 2 asserts actual or apprehended bias on the part of the primary judge by acting in accordance with the wishes of the Attorney. Nothing advanced by Mrs Collier in her written or oral submissions suggests any basis for that contention.
Mrs Collier also appeared to advance a claim of bias or apprehended bias by prejudgment on the basis that the primary judge did not call on counsel for the Attorney. In her written submissions she relied upon Antoun v The Queen [2006] HCA 2; (2006) 80 ALJR 497, and submitted that, as in that case, the primary judge had "crossed the line".
This submission was misconceived. In Antoun v The Queen counsel for the accused had foreshadowed making a no case to answer submission. The judge advised counsel that any such submission would fail without having heard the submission. Antoun v The Queen provides no support for Mrs Collier's submission. The primary judge was entitled to form a preliminary view about the strength of the parties' cases from the written material supplied before the hearing. Mrs Collier provided oral submissions. The fact that the primary judge was able to deal with those submissions without calling on the Attorney did not deny Mrs Collier procedural fairness. Nor might it have suggested to any reasonable bystander that his Honour might not have brought an impartial mind to Mrs Collier's notice of motion. Mrs Collier's contrary contention is not reasonably arguable.
The other grounds of Mrs Collier's application covered a wide range of topics. The remaining two substantive grounds raised in her notice of motion were that an order should be made restraining a Registrar from dealing with any further applications and that an order should be made restraining the solicitor with the Crown Solicitor's Office who has current conduct of the proceedings from engaging in bullying, harassing or intimidatory conduct. Nothing in what Mrs Collier has advanced in relation to these matters, either in writing or orally, suggests that either complaint has any substance.
The substantive decision of the primary judge was to decline summarily to dismiss the Attorney General's summons seeking orders under the Vexatious Proceedings Act. Nothing advanced by Mrs Collier raises any doubt that that was the correct decision. There is no point of principle or public importance. The only issue that raised a concern for us was whether there could be a procedurally fair hearing of the Attorney General's summons where Mrs Collier had been required to file and serve her evidence before she had particulars, by way of the Attorney's submissions, as to the basis upon which he claimed that the various judgments exhibited to Mr Hudson's affidavit and later affidavits of a solicitor from the Crown Solicitor's Office, would be relied upon as showing that an order under the Vexatious Proceedings Act should be made. The Attorney has accepted that any such evidence on which Mrs Collier would seek to rely can be filed and served up to the time for the filing and service of her submissions in response to those of the Attorney.
Mrs Collier's notice of motion before the primary judge did not raise those concerns. In any event, they have been addressed in the manner indicated above.
It is for these reasons that we made the orders referred to at para [2] above.

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