Collier v Lancer

Court of Appeal (NSW)|2013-06-12|Before: Beazley P, Ward JA, Leeming JA, Allsop P, Adams J

Judgment 1THE COURT: The applicant, Mrs Collier, has, by notice of motion filed on 21 March 2013, brought an application to review the decision of Allsop P (as his Honour then was) of 6 February 2013. That notice of motion will be referred to as the notice of motion for review. The notice of motion for review seeks an order setting aside orders made by his Honour on that date. His Honour's orders were made in respect of a notice of motion filed by the applicant on 29 January 2013. 2The notice of motion for review is brought pursuant to the Supreme Court Act 1970, s 46(4), by which this Court may vary or discharge an order made by a Judge of Appeal. Under the Uniform Civil Procedure Rules 2005 (UCPR), r 51.58, any such application must be made within 14 days after the making of the relevant order or within such extended time as is fixed by this Court. 3As Mrs Collier's notice of motion for review was not filed until 21 March 2013, an extension of time for this application is required. The delay was not lengthy and was explained by Mrs Collier in her oral submissions. An extension of time should be granted. 4The application for review was listed before three judges of this court in accordance with the Supreme Court Act, s 43 and s 46(4).

Brief background 5The background to the application before Allsop P in February this year may be briefly stated. 6On 29 November 2012, Adams J made orders in respect of a summons filed by the applicant on 27 June 2012 in the Common Law Division of the Supreme Court seeking relief both under the Crimes (Appeal and Review Act) 2001 and prerogative relief pursuant to the Supreme Court Act, s 69. That relief was sought in respect of orders made by Stevenson LCM in the Local Court on 26 March 2012. On that occasion, Stevenson LCM had revoked orders for the entry by Mrs Collier into two good behaviour bonds in respect of convictions for certain traffic offences and imposed fines instead. 7It is appropriate to note at this point that one of the reasons why Mrs Collier had not entered into the bonds that Stevenson LCM had originally imposed was because they contained conditions relating to alcohol and drugs counselling that had not been ordered by her Honour. 8Adams J quashed the orders made by Stevenson LCM on 26 March 2012 but otherwise summarily dismissed Mrs Collier's application for other relief, as his Honour considered there was no basis for the relief sought. 9Mrs Collier has filed a summons for leave to appeal from his Honour's decision. Mrs Collier also filed an application for interlocutory relief. As a matter of jurisdiction, that relief needed to relate to the summons for leave to appeal. 10In the notice of motion filed 29 January 2013, Mrs Collier sought the following relief: "1 An Order of this Honourable Court, that this Motion be heard expeditiously. 2 An ex-parte interim injunction be granted to the Appellant against the 2nd and 3rd Respondents, until Crown Law can be served and attend the further hearing of this Motion. 3 An Order of the Court dispensing with the Rules of Service of this Motion. 4 An Order of the Court that the First Respondent's name be changed to from Constable Kate Lancer to read Commissioner of Police New South Wales. 5 The fee for this Notice of Motion be costs/disbursements in the proceedings and/or 6 The Applicant's Costs and/or Disbursements be paid by all three Respondents; 7 An Order of the Court allowing the Appellant for Superintendent Zenio Fesczuck of N.S.W. Police Service to give oral evidence at the hearing of this Motion. 8 An Order of the Court for the issuing of a Subpoena on Superintendent Zenio Fesczuk of N.S.W. Police Service. 9 An Order of the Court under the 'Slip Rule' that Order numbered 2 of Adams J of the Common Law Division of this Honourable Court on 29th November 2012 be changed to read 26th March 2012 in lieu of 26th March 2011. 10 An Order of the Court prohibiting the Third Respondent from any further participation in any Court that the Appellant is a party, other than the proceedings presently before the NSW Supreme Court, Court of Appeal. 11 An Order of the Court that directs the Second Respondent to produce all paperwork held by Wellington Local Court relating to an alleged Application for an Apprehended Violence Order of 24th January 2013, by the Appellant against an officer of NSW Police Service at the hearing of this Motion. 12 Any other Order this Court deems fit" 11Allsop P, in his judgment of 6 February 2013, noted that only certain of the relief sought in that motion was actively pressed when the matter came before him, namely the orders sought in paras (2), (4), (6), (7), (8), (10) and (11) of the notice of motion. His Honour dismissed the notice of motion, save in respect of the order sought in para (9). Further reference is made to that order below. 12The notice of motion for review is Mrs Collier's application for review of that decision.

Orders of Allsop P 13Allsop P made three orders on 6 February 2013. One order was made in the course of the hearing of the appeal. Two orders were made at the conclusion of the hearing and were recorded in his Honour's formal judgment. It is necessary to distinguish between the orders for reasons that are explained below. 14The order made in the course of the hearing was as follows: "It will be noted on the file that there's an oversight in order two made by Justice Adams on 29 November 2012 and it will be noted and to the extent necessary I make an order that the date in order two be 26 March 2012, not 26 March 2011." 15The orders made as part of his Honour's formal judgment were as follows: "1. Notice of motion filed 29 January 2013 dismissed with costs. 2. Expedite the hearing of the application for leave to appeal to a date in March to be arranged in consultation with the Registrar. On that date, if there be any application to review the Court's decision, that application for review may be listed with the application for leave to appeal."

The application for review 16Mrs Collier's notice of motion for review seeks to set aside orders (2)-(12) made by his Honour. However, it is clear that the intent of the orders sought relates to the dismissal of the various orders that she had sought in her notice of motion filed on 29 January 2013. The Court will deal with the application for review on that basis. 17In Mrs Collier's supporting affidavit sworn 21 March 2013, she made three complaints in relation to the disposition of her notice of motion filed 29 January 2012. These complaints were both amplified and expanded in her oral submissions to the Court so as to extend to all the orders that had been rejected by Allsop P. The affidavit also annexed further material that Mrs Collier asked the Court to take into account on her application for review of Allsop P's decision.

Applicable principles 18Before dealing with the applicant's submissions it is convenient first to refer to the principles that apply in the determination of an application for review of a decision of a single judge of appeal. 19An application for review pursuant to the Supreme Court Act, s 46(4) is not an appeal (s 19(2) of the Act and UCPR, r 51.2 and r 51.58). An applicant for review must show is that there has been an error of principle in the exercise of the power or that the decision was plainly wrong (Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136; Patrick v Howorth [2002] NSWCA 285). It is noted in Ritchie's Uniform Civil Procedure NSW that this construction of the power derives either from the legislative context of that statutory provision (citing Wentworth v Wentworth (1994) 35 NSWLR 726) or from the proposition that an application to discharge or vary is essentially a matter of practice and procedure. 20In Rinehart v Welker [2011] NSWCA 403, this Court noted, at [48], the heavy burden that a person seeking a s 46(4) review has to discharge in order to have a Judge of Appeal's order set aside (referring there also to Kiri Te Kanawa v Leading Edge Events Australia Pty Ltd [2007] NSWCA 274 at [14] and Lo v Iverarch [2009] NSWCA 92 at [29]).

Mrs Collier's challenges to Allsop P's dismissal of orders in the notice of motion filed on 29 January 2013

Order for expedition of the hearing of the application for leave to appeal and for costs 21Order (1) of the notice of motion sought an order that the motion be heard expeditiously. In para (2) of her affidavit dated 21 March 2013, Mrs Collier asserted that it was inappropriate and unjust that his Honour ordered an expedited hearing and costs to the respondents "simply because the Respondents [are] all part of the State Government [and] are represented by the Crown Solicitor". 22The notice of motion was filed on 29 January 2013. Allsop P dealt with the motion and gave an ex tempore judgment on 6 February 2013. The notice of motion was both heard and determined expeditiously. As the Court understands Mrs Collier's oral submission, she did not press any further complaint in relation to the question of expedition of the notice of motion. 23Allsop P also ordered that the hearing of Mrs Collier's application for leave to appeal from the decision of Adams J be expedited (see [13] of his Honour's reasons). The summons for leave to appeal was initially set down for hearing on 28 March 2013. Mrs Collier expressed her concern at not being able to be ready in the time between his Honour's order and the date that the matter was set down, being a period of seven weeks. 24The order for expedition of the summons for leave to appeal was an appropriate order to make as a matter of case management of proceedings in this Court. A period of seven weeks between an order setting down for hearing a summons for leave to appeal and the date of the hearing of the summons is not an unusually short period of time for a summons for leave to appeal to be set down for hearing. No error of principle has been shown in the exercise of his Honour's discretion in that regard. 25The Court was unable to proceed with the hearing of the summons for leave to appeal on the allocated hearing date of 28 March 2013. The matter was subsequently set down for hearing on 12 June 2013, which was a date that suited both Mrs Collier and the first respondent. As the Court understands it, Mrs Collier does not raise any continuing complaint in relation to that aspect of his Honour's orders.

Challenge to costs order 26In order (6), Mrs Collier sought that her costs and disbursements of the notice of motion be paid by all three respondents. Allsop P ordered that Mrs Collier pay the costs of the notice of motion. Mrs Collier submitted that his Honour erred in the making of the costs order against her. 27The Civil Procedure Act 2005, s 98(1)(a) and (b) provides: "98 Courts powers as to costs (1) Subject to rules of court and to this or any other Act: (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid ..." 28The UCPR, r 42.2 provides: "42.2 General rule as to assessment of costs Unless the court orders otherwise or these rules otherwise provide, costs payable to a person under an order of the court or these rules are to be assessed on the ordinary basis." 29Save for one matter, Mrs Collier was completely unsuccessful on her notice of motion. The one matter in respect of which Allsop P made an order in accordance with Mrs Collier's notice of motion was an order made under the slip rule, as sought in order (9) of the notice of motion, to amend the date in order (2) made by Adams J from 26 March 2011 to 26 March 2012. 30It should be noted that a clerical mistake or slip in an order may be corrected by the trial judge and is often rectified by an order in chambers on the 'slip' being notified to the trial judge. In this case, there is no indication that Adams J was requested to amend the clerical mistake in the order. This Court, of course, has power to make the necessary order. 31It is also relevant to note that Mrs Collier's application under the slip rule for the amendment of the date in order (2), made by Adams J, was consented to by the respondents as soon as it was brought to their attention in the notice of motion. It was not a matter in contest before Allsop P. 32As the Act and the UCPR make apparent, an order for costs is in the discretion of the Court. Mrs Collier was unsuccessful on her notice of motion in respect of each of the contested orders that she sought. An order that she thereby pay the costs of the notice of motion was therefore a likely outcome. No error of principle has been shown in the exercise of that discretion in this case.

Further issue concerning the slip rule application 33Notwithstanding that Allsop P made an order for the amendment of the date in order (2) made by Adams J, that order was not entered. That was an oversight of the Court associate or tipstaff assisting his Honour on that day. The Court made orders at the conclusion of the hearing on 12 June 2013 to rectify that oversight. As Allsop P is no longer a judge of the Court it was thought appropriate to direct the Registrar to attend to that matter.

Refusal to make orders sought in paras (10) and (11) 34The relief sought in para (10) of the notice of motion was for an order prohibiting Stevenson LCM from any further participation in any Court proceedings in which Mrs Collier was a party other than the appeal proceedings currently in this Court. 35The basis on which Mrs Collier sought order (10) in her notice of motion appears to have been an allegation of apprehended bias on the part of Stevenson LCM. Allsop P, at [10] of his Honour's reasons, indicated that this was not the proper way to deal with an application for apprehended bias. As his Honour observed, such an application should be made to the judicial officer in question and that should it be refused, a party could appeal from such refusal. Accordingly, his Honour was not prepared to issue an order for prohibition on a motion of the kind before him. 36His Honour's statements as to the proper approach to challenge bias in a judicial officer were correct. No error has been shown in the refusal of his Honour to make the order for prohibition that was sought. 37Mrs Collier in her affidavit on the notice of motion for review further submitted that the relief she sought in order (10) should have been upheld: "... as the paperwork His Honour accepted from Crown Solicitor representing does not exist, the Applicant obtained" and that "Paperwork [was] clearly unethical and illegal on the behalf of the Second and Third Respondents and the effort they will go to deny the Applicant a fair and just hearing within this State" 38It seems that the "paperwork" to which Mrs Collier was referring is the paperwork the subject of order (11) and which Mrs Collier contends shows incompetence and prejudice on the part of Stevenson LCM. 39The relief sought in order (11) of the notice of motion was for a direction that Stevenson LCM produce, at the hearing of the motion, all paperwork held by Wellington Local Court relating to an application by Mrs Collier on 24 January 2013 for an Apprehended Violence Order against an officer of the New South Wales Police Service. 40Mrs Collier complains that the respondents are all represented by the Crown Solicitor and that it had been stated in Court that there was no paperwork from the Wellington Local Court of 29 January 2013. Mrs Collier asserts that paperwork has now been obtained that shows that: "... there was an in chambers hearing on 29 January 2013, of which the paperwork clearly shows the incompetence and prejudice of the Third Defendant to these proceedings." 41Copies of the record of court proceedings on that date formed the annexure to Mrs Collier's affidavit of 21 March 2013. 42These records revealed that Mrs Collier filed an application for an apprehended violence order against a police officer in January 2013. It appears that this application came before a registrar of the Court who referred it to the Magistrate. Stevenson LCM was the sitting Magistrate at that court. Her Honour made orders refusing the application for an Apprehended Violence order against the police officer in accordance with the Registrar's recommendation. 43The reason Mrs Collier sought this material emerges from the transcript of the hearing before Allsop P on 6 February 2013. Asked by his Honour why the file was relevant, Mrs Collier said: "Because it goes to the fact that the magistrate has acted outside her boundaries from day 1 and in fact at no time have charges ever been read to me in Court. Have I ever pleaded guilty in Court. And the only plea was a coerced plea by the Magistrate wrongfully telling the Legal Aid solicitor in Court that there was a letter accepting a guilty plea from the Downing Centre of 23 July which does not exist. ... And basically I never made an application to Local Court but they're claiming there were proceedings. I'm asking for whatever paperwork they had to be brought before this Court to show that the Magistrate is going out of her way for whatever reason - and I can't even remember running into her in a shopping centre so you know she can't blame me for that - but for whatever reason this magistrate has got a complete dislike against me. And it started from day 1 before I even got there. And it's relevant to the proceedings in that it shows nowhere through the proceedings has the right procedure been followed. ... And the police - it's come into effect too in the fact that it shows the police involvement in that area in that they haven't been you know just running according to rules and regulations." 44Allsop P was of the view that this material could bear no relationship to an application for leave to appeal from the decision of Adams J, since it could have no relevance to whether or not Adams J erred in the making of his orders in November last year. There was no error in his Honour's assessment of the relevance of this material. It was not relevant to the orders made by Adams J. To the extent that Mrs Collier contended that this was further evidence that Stevenson LCM had a complete dislike of the appellant and continued not to follow correct procedures, it was also irrelevant to the summons for leave to appeal and to the orders that could be made on the notice of motion filed on 29 January 2013. 45To the extent Mrs Collier seeks to rely on evidence of this kind to demonstrate bias on the part of Stevenson LCM, then, as Allsop P observed, any such application for bias should be made to the judicial officer concerned in the proceedings in which it is contended were or were being affected by bias. If the judicial officer refuses to recuse himself or herself, the person seeking the recusal is entitled to pursue such appellate or other rights as are available.

Change in the name of the first respondent 46In her oral submissions to this Court, Mrs Collier further complained that as a result of the name of the first respondent being changed from the New South Wales Police Service to Constable Kate Lancer, she has been further intimidated and harassed. 47Criminal proceedings for summary offences are commenced by a Court Attendance Notice: see the Criminal Procedure Act 1986, s 172. Section 3 of that Act defines "prosecutor" as: "... the Director of Public Prosecutions or other person who institutes or is responsible for the conduct of a prosecution and includes (where the subject-matter or context allows or requires) an Australian legal practitioner representing the prosecutor." 48The Court was informed that Constable Lancer was the officer prosecuting the matter involving Mrs Collier in the District Court. It is apparent that she is a correctly named respondent. There was no error in Constable Lancer being substituted as the respondent 49No error of principle has been shown in the refusal to make order (11).

Orders 7 and 8: orders for the attendance of Superintendent Zenio Fesczuck of the New South Wales Police Service to give oral evidence at the hearing of this motion 50Allsop P considered that no proper basis had been identified for the issuing of a subpoena and the requirement for Superintendent Fesczuck to be in attendance at the hearing of the motion before him or at the application for leave to appeal. 51His Honour noted that Mrs Collier had made reference to page 11 of her affidavit sworn 26 January 2013 in which reference was made to a telephone conversation that she had with the Superintendent on 24 January 2013. Mrs Collier deposed that the Superintendent said that he could give evidence that "he thought the appointment [with Assistant Commissioner McKechnie] was to still go ahead". 52This seems to relate to an appointment that Mrs Collier had sought to arrange with the Assistant Commissioner in order to complain about the conduct of police officers. 53Allsop P was not persuaded that this had any real bearing on the outcome of either the motion before his Honour or the application for leave to appeal. His Honour was correct. The notice of motion filed on 29 January 2013 was filed in support of the summons for leave to appeal. The proceedings in this Court are not part of a general inquiry into the conduct of members of the police force in respect of whom Mrs Collier has expressed concern as to the manner in which they have dealt with her and her matters.

Conclusion 54No error of principle has been identified in the determination by his Honour of those matters pressed on the notice of motion filed 29 January 2103, nor has there been any miscarriage of his Honour's discretion. 55Order that the time for filing the notice of motion for review of the decision of Allsop P be extended to 21 March 2013. The application for review of his Honour's decision is dismissed with costs.

Amendments 24 June 2013 - Order amended pursuant to UCPR, r 36.17 Amended paragraphs: Coversheet, para [55] 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: 24 June 2013

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