Collier v Lancer

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

Judgment 1THE COURT: This is an application by Mrs Collier for leave to appeal from a decision by Adams J in the Common Law Division, summarily dismissing proceedings brought by Mrs Collier seeking a variety of relief relating broadly to matters following on from Mrs Collier's conviction and sentencing in 2010 in the Local Court for a number of traffic offences on 30 June 2009. 2In her Amended Summons filed on 2 November 2012, that was dismissed by Adams J, Mrs Collier identified her application as an appeal from the whole of the decision of Stevenson LCM on 26 March 2012 and sought a variety of relief including certiorari and prohibition. On 26 March 2012, Stevenson LCM (the third respondent to the present proceedings), following the conclusion of various appellate proceedings that had been brought by Mrs Collier in relation to her original conviction and sentence, revoked an earlier order for the entry by Mrs Collier into good behaviour bonds, and imposed fines on Mrs Collier by way of sentence in lieu of the bonds. Mrs Collier was not present in Court on 12 March 2012. The orders made by the Magistrate were pursuant to s 196 of the Criminal Procedure Act 1986 (NSW). 3In the proceedings commenced in the Common Law Division following the March 2012 orders, Mrs Collier sought relief under s 53 of the Crimes (Appeal and Review) Act 2001 (NSW), prerogative relief under s 69 of the Supreme Court Act 1970 (NSW), and orders in relation to alleged contempt of the Local Court. She also sought an "Order of the Court for Costs and Compensation to be paid to [her] by the State of New South Wales in the amount of two million five hundred thousand dollars ($2.5M)". 4The summary dismissal of Mrs Collier's Amended Summons was made pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), his Honour finding that no proper basis for the relief claimed was disclosed on the material before him and that Mrs Collier's application was "doomed to fail". Mrs Collier seeks leave to appeal from the whole of his Honour's decision (although she does not cavil with the quashing of the orders made on 26 March 2012 revoking the order for bonds and imposing fines on her). 5The first respondent is the police officer who was the informant in respect of the charges on which Mrs Collier was convicted. (In these reasons, reference is made throughout to the informant as Constable Lancer as she is so named in the Court documents. However, it appears that the correct spelling of her surname is Lanser. Nothing turns on this.) Mrs Collier disputes that Constable Lancer is the correct party to be joined to the proceedings and maintains that the incorrect joinder of Constable Lancer as the first respondent has resulted in the wrongful treatment, harassment and intimidation of Mrs Collier by members of the police force. 6The second and third respondents (being the Local Court and Stevenson LCM) have each filed submitting appearances.

Applicable principles 7While there are no exhaustive or rigid rules of practice or criteria governing the grant of leave to appeal (Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170), leave should be granted only where there are substantial reasons to allow an appellate review (Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564), such as where there is an error of principle which, if uncorrected, will result in substantial injustice (Minogue v Williams (2000) 60 ALD 366; BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 756; Niemann v Electronic Industries Ltd [1978] VR 431; Darrell Lea (Vic) Pty Ltd v Union Assurance Society of Australia Ltd [1969] VR 401). 8Where there is no question of principle (and particularly where there is only a small amount in dispute), leave to appeal will usually be refused (Jaycar Pty Ltd v Lombardo [2011] NSWCA 284; Zelden Sewell Henamast Pty Ltd [2011] NSWCA 56; Dunn v Ross Lamb Motors [1978] 1 NSWLR 26). As Bathurst CJ said in The Age Company Ltd v Liu [2013] NSWCA 26 (at [13]), with the agreement of Beazley and Mc Coll JJA, "Generally speaking, it is only appropriate to grant leave in matters that involve issues of principle, questions of public importance or in circumstances where it is reasonably clear that an injustice has occurred by reason of error in the judgment, going beyond what is merely arguable". 9As to the power summarily to dispose of a proceeding, it is recognised that this should be exercised with the utmost caution and only in very clear cases (Dey v Victorian Railways Commissioner (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; Brimson v Rocla Concrete Pipes Limited [1982] 2 NSWLR 937 at 942; Webster v Lampard (1993) 170 CLR 598 at 602-3). There is a high burden on a party seeking summary dismissal (Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118). 10In General Steel, Barwick CJ, in considering the circumstances in which a party ought be denied access to a final hearing on the claims made in the proceedings, noted the various descriptions given in the authorities of the test to be applied in identifying whether there is a real cause of action (or, as applied to the present case, whether there is a real defence to the claim): ... The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense". 11The General Steel test was endorsed and applied by this Court in Shaw v State of New South Wales [2012] NSWCA 102 at [32], where Barrett JA (with whom Beazley, McColl, Macfarlan JJA and McClellan CJ at CL agreed) stated: The question is...whether the claims in question are so obviously untenable or groundless that there is "a high degree of certainty" that they will fail if allowed to go to trial; and whether this is one of the "clearest of cases" in which the court may accordingly intervene to prevent the claims being litigated.

Background 12The background to Mrs Collier's present application is not uncomplicated, as reflected by the fact that the hearing of her leave application occupied considerably more Court time than ordinarily allowed on an application such as this. 13On 30 June 2009, Mrs Collier was charged by Court Attendance Notices with six traffic offences alleged to have occurred on that day. The alleged offences related to driving an unregistered and uninsured motor vehicle when unlicensed ("never licensed person drive vehicle on road"). There were three charges in relation to each of two separate incidents occurring within a short space of time on the one day (30 June 2009). 14It does not appear to be disputed that Mrs Collier was stopped by police officers when driving in Paddington on 30 June 2009. Court Attendance Notices were issued on charges relating to the fact that the vehicle was unregistered and uninsured and that Mrs Collier was not licensed. After that incident, Mrs Collier is alleged to have again driven the vehicle. The second set of Court Attendance Notices related to that incident. 15In the course of oral submissions on the present application, Mrs Collier variously said that she was not anywhere near the vehicle when the police officers came back and found that the car had been moved; that it was necessary as a matter of public safety that the vehicle be moved out of the way of oncoming traffic; and that, if she were to be charged for moving the vehicle out of the way, then so should Constable Lancer have been charged as the latter had then moved the vehicle to an unauthorised spot (a no standing zone). The police allegations as to what had happened, as recorded in a July 2011 Court of Appeal judgment, include that the police observed Mrs Collier driving the same vehicle after the first incident; arrested her and took her to Surry Hills police station where the Court Attendance Notices were cancelled and she was charged with the six offences at the police station. Mrs Collier's oral submissions confirm at least some of this, in that she says she was thrown in a police van and that she was then required to sign documents after her spectacles had been removed from her. 16On 7 April 2010, Mrs Collier was convicted and sentenced in relation to all six traffic offences. Before then, however, there had been a number of mentions of the proceedings starting in the Local Court from the first court attendance date, which was on 22 July 2009. Mrs Collier had been represented by legal practitioners on at least some of the occasions when the matter was before the Local Court. She was represented by a Legal Aid solicitor on 7 April 2010 and was at the Court on that day. 17The conviction was recorded on 7 April 2010 on the acceptance of a guilty plea made on Mrs Collier's behalf. Since then, Mrs Collier has strenuously denied that any such plea was made or intended to be made by her. The complaints Mrs Collier makes in relation to that issue will be referred to in more detail shortly. 18Mrs Collier was disqualified from driving for three years and was required by the magistrate (Stevenson LCM) to enter into two good behaviour bonds under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Mrs Collier ultimately refused to do so, on the basis that the bonds as prepared by the Registry staff included conditions in relation to drug and alcohol counselling. 19Mrs Collier unsuccessfully challenged those convictions, and the sentences imposed on her, on the basis that she had not entered pleas of guilty, and/or had not intended to enter pleas of guilty, on 7 April 2010. She did so by way of an appeal to the District Court pursuant to the provisions of Part 3 Division 1 of the Crimes (Appeal and Review) Act 2001. 20Section 11(1) of that Act provides for an appeal as of right against conviction or sentence or both, in the circumstances set out therein. Relevantly, sub-section 11(1) does not apply in respect of a conviction if the person was convicted in the person's absence or following the person's plea of guilty. In those circumstances, leave of the District Court is required for such an appeal pursuant to s 12(1) of the Act. 21On 23 June 2010, Walmsley SC DCJ dismissed Mrs Collier's application for leave to appeal from her conviction. His Honour found that Mrs Collier had intended to plead guilty and declined leave to withdraw the guilty pleas. 22Mrs Collier then unsuccessfully brought proceedings in this Court seeking an order in the nature of certiorari to quash the decision of Walmsley SC DCJ and seeking consequential relief. Those proceedings were dismissed with costs on 25 July 2011 (Collier v Director of Public Prosecutions (NSW) [2011] NSWCA 202). Hodgson JA, with whom Campbell JA and Latham J agreed, found that Walmsley SC DCJ did not err in law in determining that Mrs Collier had (through the solicitor then appearing for her) pleaded guilty and that no error of law had been shown in the refusal by Walmsley SC DCJ of leave to withdraw the guilty plea ([60]-[61]). Hodgson JA further found that Mrs Collier's complaints about procedural fairness had "no substance whatsoever" ([62]). 23Mrs Collier then unsuccessfully sought special leave to appeal to the High Court against the Court of Appeal's decision. That application was dismissed on 26 October 2011 on the basis that the papers filed by Mrs Collier did not reveal any arguable question of law or other error which would justify a grant of special leave to appeal (Collier v Director of Public Prosecutions [2011] HCASL 177). 24In the course of their Honours' reasons refusing the grant of special leave, Heydon and Bell JJ said (at [2]), in a passage on which Mrs Collier places weight on the present application: If the solicitor had acted contrary to his instructions, or had misunderstood them, that would not affect the validity of the plea, but would only at best support an application to withdraw it. 25Their Honours went on (at [3]), having noted that Hodgson JA had held there was no error of law in the refusal by Walmsley SC DCJ of leave to withdraw the guilty plea because it was open to him to find that the transcripts were accurate and to find that Mrs Collier's conduct demonstrated an intention to plead guilty, to say: It was also open to him not to be satisfied that there would be any miscarriage of justice if the pleas were not withdrawn, since the accused's statements as to the merits suggested no viable defence. 26On 24 November 2011, the matter came back before Stevenson LCM, on which occasion Sergeant Donaghy appeared for the informant. The Registrar of the Local Court at Mudgee gave evidence as to attempts to serve Mrs Collier with notification that she was to attend in order to enter the good behaviour bonds. Stevenson LCM referred to s 97 of the Crimes (Sentencing Procedure) Act and reconfirmed the conviction (in the absence of Mrs Collier), directing that a warrant issue for Mrs Collier's arrest. 27The proceedings were then re-listed before Stevenson LCM in the Local Court at Bathurst on 26 March 2012. Before the matter came back before Stevenson LCM, Mrs Collier commenced proceedings in the Common Law Division on 1 March 2012 seeking orders in the nature of certiorari, prohibition and mandamus in respect of the Local Court proceedings. 28Mrs Collier also filed a Notice of Motion on 1 March 2012 seeking, inter alia, a stay of proceedings on the conviction and sentence given on 7 April 2010. That interlocutory application came before Davies J in the Common Law Division on 16 March 2012. His Honour dismissed that application. 29In Davies J's reasons, his Honour noted that the first defendant then named in those proceedings was the Director of Public Prosecutions and that Mrs Collier had accepted that he should not be a defendant. The proceedings were discontinued by consent against the DPP. Davies J also noted on that occasion that the Summons should have named the Local Court and the police informant as defendants and that Mr Thomson (from the Crown Solicitor's Office), who was appearing as amicus curiae, had said that if those defendants had been joined then a submitting appearance would have been filed on behalf of the Local Court and either the Crown Solicitor or the solicitor for the police would have been the contradictor. 30On 20 March 2012, Mrs Collier filed a Notice of Motion in this Court seeking leave to appeal from the decision of Davies J. On 22 March 2012, Campbell JA dismissed that application (Collier v Cook & Ors [2012] NSWCA 50). 31On 26 March 2012, when the matter came back before Stevenson LCM, there was no attendance by or on behalf of Mrs Collier. Stevenson LCM revoked the order in relation to the two good behaviour bonds and, in lieu thereof, imposed fines on Mrs Collier. 32The transcript of proceedings on 26 March 2012 records the Magistrate as imposing $200 "in each case". On the present application, Mrs Collier indicated that she disputed the amount of the fines that had been imposed; in particular, whether there had been a fine of $200 plus court costs for each of the two separate incidents or a fine of $200 plus court costs for each of the six separate offences of which she had been convicted. Mrs Collier also referred to documents in which it appears that she had signed an application to pay the fines in instalments (at a time when she understood the total fines to amount to around $476). There is no suggestion that Mrs Collier had paid any amount in relation to the fines (the orders for which have since been quashed). 33It also appears from the transcript that Mrs Collier had lodged with the Court on 26 March 2012 an annulment application under s 4 of the Crimes (Appeal and Review) Act 2001 for the annulment of her conviction and sentence. That application was dismissed by Stevenson LCM who referred to Mrs Collier as "so litigious" and expressed a request that "people in a higher jurisdiction look at Mrs Collier as a vexatious litigant". 34It appears that the Summons filed on 1 March 2012 was discontinued (presumably as a result of the discontinuance of the proceedings against the DPP) and a further Summons was then filed on 27 June 2012 by Mrs Collier seeking various orders concerning the decision of Stevenson LCM on 26 March 2012. It was that summons (as amended on 2 November 2012) that came before Adams J on 29 November 2012. 35Before Adams J for hearing on 29 November 2012 were a number of interlocutory applications brought in the proceedings. There was the first respondent's Notice of Motion dated 24 August 2012 for summary dismissal of the proceedings; there was an application by Mrs Collier by Notice of Motion dated 25 October 2012 for the first respondent's Notice of Motion to be dismissed as an abuse of process or vexatious of for want of prosecution, and for other orders in relation to alleged non-compliance with Notices to Produce that had been issued by Mrs Collier; and there was an application dated 26 October 2012 by the first respondent (then named as the NSW Police Service) to be substituted by Constable Lancer (the original police officer informant) and for Mrs Collier's Notices to Produce to be set aside of for compliance with them to be dispensed with. 36Orders in relation to the timetabling of those applications had been made by Registrar Bradford on 20 September 2012 (WB399) and Senior Deputy Registrar Kenna on 1 November 2012 (WB341). 37On 29 November 2012, Adams J heard, and granted, the first respondent's application for summary dismissal of the proceedings. In the course of that decision, however, his Honour quashed the order sentencing Mrs Collier on the basis that the bonds that were prepared for Mrs Collier to sign were not in accordance with the magistrate's order, since they contained a condition that Mrs Collier undergo drug and alcohol counselling. His Honour held that, as there were no bonds available for Mrs Collier to sign that were in accordance with the order, there was no basis for revoking the bonds and sentencing her. 38There was an obvious typographical error in the orders made by his Honour, in that the date of the Magistrate's sentencing order (that was being quashed) was noted as "26 March 2011" not "26 March 2012". (This is a matter of which Mrs Collier made complaint in February 2013, when the matter came before Allsop P, and again on 12 June 2013 on the hearing of her application for review of his Honour's judgment. It has now been resolved and the order made by Adams J has been amended under the slip rule in accordance with the order made by Allsop P on 6 February 2013, as directed by Beazley P on 12 June 2013.) 39On 29 January 2013, Mrs Collier commenced the proceedings now before this Court, filing her Summons seeking leave to appeal from Adams J's decision. 40On the same day, Mrs Collier filed a Notice of Motion seeking, first, expedition of the hearing of that motion and then a variety of relief (set out in orders [2]-[12] of the Notice of Motion), including orders for the issue of a subpoena on a particular police officer (Superintendent Fesczuck) and for oral evidence to be given by that police officer at the hearing of the motion, and an order for the production of paperwork in relation to "an alleged Application for an Apprehended Violence Order of 24th January 2013, by the Appellant against an officer of NSW Police Service". An injunction was also sought to prohibit Stevenson LCM from any further participation in any court proceedings in which Mrs Collier is a party other than the present appeal proceedings. 41That Notice of Motion came before Allsop P, as his Honour then was, for hearing on 6 February 2013. His Honour dismissed the Notice of Motion. His Honour's decision has been the subject of an application for review by Mrs Collier, that application being heard immediately prior to the hearing of the present leave application. Judgment on that application was reserved, and delivered prior to judgment on this application.

Summary of Mrs Collier's position 42Before turning to the judgment in respect of which leave is now sought to appeal, it is helpful to summarise what is understood to be Mrs Collier's position. This is because there are a number of matters raised in the draft appeal grounds and in Mrs Collier's submissions that relate to events not already referred to in these reasons. It is not suggested that this is an exhaustive recitation of Mrs Collier's complaints. 43Mrs Collier clearly believes (rightly or wrongly) that she has been wrongly treated by one or more members of the police force and that she has been wrongly dealt with by one or more judicial officers. 44Mrs Collier maintains that she has never been formally charged with the offences of which she was convicted; was never arrested; that she signed documents that were put before her at the police station when her spectacles had been removed; that the charges have never been read to her in open court; that she has never pleaded guilty to those charges; that the Legal Aid solicitor who appeared for her on 7 April 2010 was not instructed to plead guilty (and, in any event, did so only on one charge and not all six) and that he did so having been "enticed" to do so by incorrect information by the Magistrate (to the effect that a guilty plea had already been entered); that the bonds were never properly explained to her and included inappropriate conditions; that she was never notified of the 25 July 2011 Court of Appeal judgment being handed down; that from 25 July 2011 until now there has been further intimidatory action by the respondents against her (including an email from Senior Registrar Harris and attempts to "extort" money out of her); that the (in her submission, wrong) naming of Constable Lancer as first respondent has led to her (Mrs Collier) being harassed and intimidated by the police; that she has been harassed and intimidated by another named police officer as an attempt to 'get back at' her after the outcome of proceedings brought back in 1994; that the Magistrate has been prejudiced against her from the outset; that she was assaulted by a security officer when the matter was in the Court in September 2012; that this Court has acted under the dictation of the police in this matter due to corruption; and that attempts have been made to prevent her from being heard. 45Mrs Collier also complains of criminal defamation by reason of a criminal history record having been put before the Court relating to a matter on which a no bill was entered in 1994 (a matter in respect of which Mrs Collier sought, in reply submissions, to tender fresh evidence and which is considered later in these reasons). 46Mrs Collier has also complained of harassment relating to an allegation that she had left a threatening voicemail message for a Registrar of the Family Court in Brisbane in March 2009. 47Mrs Collier maintains that she has never been heard on the matters the subject of the present appeal and that she has been denied natural justice and procedural fairness (a claim dismissed by this Court on a previous hearing). She considers that the matter should be remitted for a hearing on the merits of the original charges. In the course of her reply submissions, however, Mrs Collier also said that she agreed to one charge of three offences. 48Mrs Collier has sought a pardon from the Governor but says that she has been told she must first exhaust all avenues of appeal before that application will be considered.

Judgment the subject of the application for leave to appeal 49The Amended Summons that was before Adams J on 29 November 2012 (WB334) named the Commissioner of Police as the first defendant (the original summons having instead named the NSW Police Service). In it, Mrs Collier sought the following orders: 1. An Order of the Court seeking an extension of time to file this Summons 2. An Order for leave to appeal from the whole of the decisions below [identified on the Amended Summons as the decision of Magistrate Stevenson on 26 March 2012]. 3. An Order that the Appeal be allowed. 4. The Applicant be permitted to file an Amended Summons Seeking Leave to Appeal (Part 50), the First Defendant name change from NSW Police Service to read: Commissioner of NSW Police. That this service be dispensed with. and 5. An Order directing that the Annulment Application be heard by a Magistrate other than Magistrate J.C.R. Stevenson and in the Downing Centre Local Court; and/or 6. An Order by Writ of Certiorari from this Court setting aside the Conviction and Sentence of the Magistrate (Third Defendant) at the Local Court Mudgee on 7th April 2010 in proceedings 2009/261892; and 7. An Order by Writ of Certiorari from this Court setting aside the Conviction and Sentence of the Magistrate (Third Defendant) at the Local Court Bathurst on 26th March 2012 in proceedings 2009/261892; and 8. An Order by Writ of Prohibition that Magistrate Stephens [sic] be removed from any further lower Court proceedings associated with the incidents of 30th June 2009 and 26th March 2012; and 9. An Order of this Honourable Court to refer Magistrate J.C.R. Stevenson, Sergeant Brett Donaghy of NSW Police Prosecutions and Registrar Mark Nicholls Local Court of NSW (Bathurst), to the appropriate authorities for Criminal charges to be filed against them; and 10. An Order that this Honourable Court bring before it Magistrate J.C.R. Stevenson, Sergeant Brett Donaghy of NSW Police Prosecutions and Registrar Mark Nicholls Local Court of NSW (Bathurst), for their actions of "Contempt of Court", of the Local Court of NSW; and 11. An Order of the Court for Costs and Compensation be paid to the Plaintiff by the State of New South Wales, in the amount of two million five hundred thousand dollars ($2.5M) 50His Honour dealt first with the relief sought in relation to the orders made by the Magistrate on 26 March 2012. His Honour considered that the order revoking the bonds and sentencing Mrs Collier to pay fines in lieu thereof should be quashed. His Honour noted that this meant that bonds needed to be prepared which accorded with the original order of the magistrate on 7 April 2010 and that Mrs Collier should be notified of the bonds and given reasonable time to enter into them. His Honour noted also that, as no conviction was entered on that date, prerogative relief in relation to any asserted conviction (see [7]) was plainly inappropriate. 51As to the relief sought by Mrs Collier in relation to the convictions and sentence on 7 April 2010 (in [6]), the primary judge noted that these had already been considered and decisively dealt with by this Court. 52As to the relief sought in [8] of the Amended Summons, his Honour considered that there was no basis to make any such order. His Honour noted that whether or not Stevenson LCM should deal with any further matter that might arise (if, for example, Mrs Collier were to decline to enter into a bond in accordance with the magistrate's original order) was a matter that could be determined by administrative arrangements within the Local Court. 53As to the relief sought in [9] and [10], his Honour reviewed the submissions by Mrs Collier and considered that there was no basis upon which any such order could or should be made. 54Finally, his Honour considered that there was no possible basis in any of the material provided by Mrs Collier that could justify an order in the amount claimed in [11] of the Amended Summons "even if, which is not the case, damages can be obtained in proceedings of this kind" and was of the view that costs should follow the event on the dismissal of the summons.

Extension of time for filing of Summons Seeking Leave to Appeal 55As a preliminary matter, it should be noted that the Summons seeking leave to appeal from the decision of Adams J on 29 November 2012 was not filed within the 28 day period specified under Rule 51.10 of the Uniform Civil Procedure Rules. It appears that no Notice of Intention to Appeal appears to have been filed within that period either (as required by Rule 51.8), although such a Notice was prepared and signed by Mrs Collier on 18 December 2012 (and emailed by her on or about that date to the Registry). 56As the 28 day time period within which either a Summons seeking Leave to Appeal or a Notice of Intention to Appeal should have been filed expired on 27 December 2012, an extension of time to 29 January 2013 is therefore necessary for Mrs Collier to proceed with the present application. 57Mrs Collier explained the circumstances in which the Notice of Intention to Appeal had not been formally filed within the requisite time period. She said that she had fallen and injured herself. She tendered, on the hearing of the present application, a medical certificate apparently obtained on the date of the hearing attesting to her injury and expressing the opinion that she was not in a position to file court documents in December as a result of that injury and her medical history. She also referred to certain communications from the Registry as to her application for fee waiver and seems not to have understood that the document had not been formally filed in the meantime. 58The first respondent objects to the extension of time for the filing of the Summons. Ms Baker, appearing for the first respondent, acknowledged that in the ordinary course it would be appropriate for such an extension to be granted, having regard to the explanation proffered by Mrs Collier, but submitted that in the present case this was not appropriate. It was submitted that there is no substance to the appeal and that Mrs Collier is attempting to re-litigate the issue as to whether leave should be granted to withdraw the guilty plea - a matter which has been heard and dealt with already and in respect of which special leave to appeal to the High Court was refused. 59It was submitted that, Mrs Collier having chosen to appeal from her conviction and sentence by way of appeal in the District Court, it is not now open to her to seek to revisit the same issues either on an application brought under s 53 of the Crimes (Appeal and Review) Act 2001 for leave to appeal the conviction or sentence or on an application for prerogative relief of the kind now sought to be brought in the Amended Summons. 60Given that the basis for objection to the grant of any such extension requires consideration of the merits of the appeal that Mrs Collier seeks leave to bring, the question of an extension of time will be addressed after considering the grounds of appeal.

Appeal Grounds 61The draft Notice of Appeal filed by Mrs Collier on 29 January 2013 identifies the basis on which the appeal is sought to be brought in the same terms as that set out in the Amended Summons that was dismissed by Adams J. 62In the draft Notice of Appeal, Mrs Collier lists 16 appeal grounds (which are then repeated, though with different numbering, as the first set of orders sought on the appeal), those being: 1. No guilty plea ever given or contained in the "Complete" Local Court File; 2. The origin of the action commenced 23rd April 2009 therefore Kate Lancer is no primary officer of the First Respondent 3. His Honour on 29th November heard the Orders of Registrar C. Bradford 20th September and not those of Senior Registrar Kenna of 1st November 2012; 4. Supreme Court of NSW does have the power to hear Contempt of Court proceedings against individuals including Magistrates that go outside their Jurisdiction; 5. The Crown Solicitor (Mr Bret Thompson) did falsely claim not to be representing any party when a Notice of Appearance in these proceedings was filed 20th July 2012; 6. No proceedings of 26th March 2011 involved the Appellant; 7. The Magistrate on 24th November 2011, acted against the Act by reconfirming the convictions in the absence of the Appellant (defendant); 8. The First Respondent committed Criminal Defamation against the Appellant, with the incorrect Criminal Record not traffic record on 7th April 2010 and 17th January 2012; 9. The Appellant was never formally arrested on 30th June 2009; 10. Only one (1) ever Bond documentation was marked with a cross; 11. Third Defendant despite confirming her intention 24 November 2011 states 26 March 2012 that she never [intended] on appellant entering into Counselling/Rehabilitation; 12. The First Respondent moved the Appellant's car and therefore is guilty of an offence; 12.[sic] The Magistrate (Second Respondent) on 17th February 2012 went against the Act in her refusal to hear the proceedings rather she sent them to the Third Respondent; 13. This Honourable Court has never heard an Appeal by the Appellant in these proceedings DPP/Barrister misled the Full Court in a Prerogative Writ application; 14. The Appellant was forced to sign without spectacles 30th June 2009, documentation confirms spectacles returned after the signing of documentation; 15. First and Third Defendant intentionally "Perverted the Cause of Justice against the Appellant 63In the second set of orders sought in the draft Notice of Appeal, Mrs Collier seeks, among others, an order directing the first respondent to amend the NSW Police "COPS" entry for 23 April 2009 (to show the "true not (guilty nature) of the Appellant"; that the name of the first respondent be changed to read Commissioner of Police NSW; an order directing the first respondent to amend the NSW Police criminal record of the appellant; and an order directing one or all of the respondents to instruct the Transport Roads and Maritime Services NSW to reinstate Mrs Collier's driver licence to the position it was at 29 June 2009. 64Having regard to the applicable principles on an application for leave to appeal, the question is whether any of the matters now sought to be raised by Mrs Collier gives rise to an issue of principle that warrants appellate review. 1. No guilty plea ever given or contained in the "Complete" Local Court File 65This ground appears to be an attempt by Mrs Collier to re-agitate the issues on which she sought to appeal from her initial conviction on 7 April 2010 of the traffic offences based on the acceptance by the Magistrate of a guilty plea proffered by the Legal Aid solicitor, Mr Madden. 66In her affidavit sworn 25 January 2013, Mrs Collier maintains that the complete local Court file: ...does not contain in it either an e-mail sent by either the Applicant or Mr. Collier to the Downing Centre Local Court or a letter from that Court of confirmation of a "Guilty plea" as criminally maintained in transcript by the Magistrate on 7th April 2010 to a Legal Aid Solicitor who she met in chambers privately before the Court appearance. 67Reference to the email was contained in the reasons of Hodgson JA in the Court of Appeal decision of 25 July 2011 where its contents are re-produced ([8]). A copy of an email (containing that content and appearing to emanate from Mrs Collier's email address) is at WB257. At [21] and [22] of his Honour's reasons, Hodgson JA also noted evidence that had been given by Mr and Mrs Collier when the matter was before Walmsley SC DCJ as to the provenance of the email. In circumstances where Walmsley SC DCJ had accepted the evidence of Mr Collier that the email was sent by him and not on Mrs Collier's instructions, Hodgson JA noted that the sending by Mr Collier of the email could not have amounted to a plea of guilty by Mrs Collier. 68Mrs Collier apparently relies on the lack of such an email on the "complete" Local Court file as proof that Stevenson LCM "deliberately lied on the Bench when she said there was a letter from the Downing Centre of 22 July 2009 confirming the acceptance of a guilty plea" (see Mrs Collier's email of 25 January 2013 at WB53/4). 69The transcript of 7 April 2010 appears from WB280-283. 70Some things should be noted from that transcript. First, Mr Madden informed the Magistrate that he was instructed to enter a plea of guilty before any reference was made by the prosecutor to the possibility that a guilty plea had been entered "quite a few mentions ago". Second, Mr Madden stated his instructions to enter a plea of guilty, noting that Mrs Collier "is before you in court ... she is coming forward now". Third, her Honour did not refer to an email, but to something of 22 July "sent up from the Downing Centre". Much focus seems to have been placed by Mrs Collier on the whereabouts of a "letter" confirming the guilty plea. However, that does not appear to be what was said at the time. 71Insofar as there was reference to the 22 July (and a reference by the prosecutor to 6 August 2009), the Crown Solicitor's Office (by letter dated 25 October 2012) in response to a Notice to Produce referred to notations on a bench sheet in the Local Court file (WB256). As to the email in question, Mr Collier admitted before Walmsley SC DCJ sending the email in question but said it was not on instructions from Mrs Collier and his Honour accepted that. 72The relevance of the absence on the Local Court file of the email to the correctness of the dismissal by Adams J of Mrs Collier's proceedings is not apparent. 73Mrs Collier's challenge to her initial conviction in relation to the six traffic offences was dismissed by Walmsley SC DCJ (who refused leave to withdraw the guilty pleas); a challenge to that decision was dismissed by the Court of Appeal; and special leave to appeal was refused by the High Court. It is not now open to Mrs Collier to challenge the correctness of her initial conviction based on that guilty plea. Adams J did not err in finding that there was no basis for the relief sought in that regard in the proceedings before his Honour. 2. The origin of the action commenced 23rd April 2009 therefore Kate Lancer is no primary officer of the First Respondent 74It appears that this is a reference to the Family Court incident. However, the incidents that gave rise to the charges in question were the traffic offences that occurred on 30 June 2009. 75Mrs Collier had commenced proceedings naming the NSW Police Service as the first defendant. The Crown Solicitor's Office advised Mrs Collier by email on 16 October 2012 (WB249) that it considered the appropriate active defendant to the proceedings to be the informant police officer in the Local Court proceedings and noted that the NSW Police Force was strictly not a legal person liable to sue or be sued. (Mrs Collier now does not challenge that last proposition but maintains that the name of the first respondent should have been changed to the Commissioner of Police New South Wales.) 76On the hearing of the summary dismissal application, Adams J ordered that the informant police officer be substituted for the then named defendant (the NSW Police Service). It is submitted by Mrs Collier that the reason for the application by the Crown Solicitor's Office for that name change "is very obvious", having regard to a communication from the Crown Solicitor's Office on 24 January 2013. The communication to which Mrs Collier is referring appears to be that appearing at WB57 in which the Assistant Crown Solicitor advised that the Crown Solicitor did not presently act for certain police officers which Mrs Collier had accused of intimidation and harassment (none of whom included Constable Lancer). It is difficult to see how the fact that the Crown Solicitor did not act for other unnamed parties relates in any way to the question as to who is the proper named respondent. 77Mrs Collier in her submissions has asserted that the wrong naming of Constable Lancer has resulted in the way in which she was treated by Constable Lancer and then by Stevenson LCM when presiding in the matter involving Mrs Collier in the Local Court. It is not clear what is the treatment by Constable Lancer to which Mrs Collier there refers. As to the manner in which Stevenson LCM conducted the proceedings before her, no link has been shown between that and the naming of the informant as party to the proceedings. 78Furthermore, the naming of Constable Lancer as a party (this being something to which Davies J had drawn attention when the matter was before him on 16 March 2012) only occurred following the order made by Adams J on 29 November 2012. The conduct of the proceedings by Stevenson LCM occurred before that time (as did the conduct of which Mrs Collier complains in relation to the police treatment of the Brisbane Family Court incident in 2009). 79It is thus difficult to see the relevance, to the correctness or otherwise of the decision by Adams J summarily to dismiss Mrs Collier's claim, of the substitution (whether for the police service as a whole, which was the then named party, or, as Mrs Collier had apparently sought, for the Commissioner of Police) of the name of the police officer who was the informant in relation to the initial charges. 3. His Honour on 29th November heard the Orders of Registrar C. Bradford 20th September and not those of Senior Registrar Kenna of 1st November 2012 80This ground of appeal appears to relate to the complaint by Mrs Collier that Adams J did not deal with her Notice of Motion when the matter was before him on 29 November 2012 (or perhaps did not deal with the Amended Notice of Motion filed pursuant to the orders made by Senior Deputy Registrar Kenna on 1 November 2012). 81At [11] of his Honour's reasons, he stated that it was not necessary to deal with the notice of motion which concerned "procedural questions such as compliance with notices to produce". Even if it be the case that his Honour did not then have before him the Amended Notice of Motion, the substantive difference between it (WB261) and the earlier Notice of Motion (WB160) was as to the addition of the further two grounds by which Mrs Collier sought to have the first respondent's 24 August Notice of Motion dismissed (namely, that it was vexatious or an abuse of process). 82In light of the conclusion his Honour came to on the first respondent's summary dismissal motion, it is apparent that Mrs Collier's motion for that to be dismissed as vexatious or an abuse of process could not have succeeded. Nor was it then necessary for his Honour to deal with the issues raised as to compliance with the Notices to Produce which were otiose once the proceedings were summarily dismissed. 83This ground of appeal does not give rise to any issue as to the correctness of the decision summarily to dismiss Mrs Collier's claim. 4. Supreme Court of NSW does have the power to hear Contempt of Court proceedings against individuals including Magistrates that go outside their jurisdiction 84Adams J considered that there was no basis on the material before him for the making of an order for each of the magistrate, Sergeant Donaghy and Registrar Nicholls to be brought before the Supreme Court to answer a contempt charge. There is nothing to suggest that his Honour was incorrect in forming the opinion that there was no basis for this claim. The power of the Supreme Court to entertain contempt proceedings is not relevant. His Honour's conclusion was that there was nothing in the material put forward by Mrs Collier that would warrant the exercise of such jurisdiction. No error of principle has been shown in that conclusion. 5. The Crown Solicitor (Mr Bret Thompson) did falsely claim not to be representing any party when a Notice of Appearance in these proceedings was filed 20th July 2012 85This ground appears to relate to a complaint that when Mrs Collier's application came before Davies J on 16 March 2012, Mr Thomson of the Crown Solicitor's Office offered to assist the Court as amicus curiae. At that stage, the 20 July 2012 Notice of Appearance to which this ground refers had obviously not yet been filed. Moreover, at that stage the proceedings had named the Director of Public Prosecutions as the defendant (not the Court below and not the informants), as the discussion in Davies J's reasons makes clear. It is difficult to see the relevance of this to any challenge in respect of the correctness of Adams J's summary dismissal of the proceedings. 6. No proceedings of 26th March 2011 involved the Appellant 86This ground appears to relate to the typographical error in the orders made by Adams J as to the date of the Magistrate's orders which were to be quashed. It is not disputed that there was such an error. Nor is it disputed that there should be a correction under the slip rule of that error. Allsop P made such an order when the matter was before his Honour on 6 February 2013 (although it appears that this was not formally entered in the registry on that occasion). That has now been corrected. The fact that there was a typographical error of this kind in the orders made on 29 November 2012 does not demonstrate any error in the summary dismissal of Mrs Collier's proceedings. 7. The Magistrate on 24th November 2011, acted against the Act by reconfirming the convictions in the absence of the Appellant (defendant) 87In her submissions, Mrs Collier contends that, on 24 November 2011, Stevenson LCM convened "what could only be described as well rehearsed and completely illegal court". Complaint is made that Sergeant Donaghy, the police prosecutor, "did not utter a word"; that Stevenson LCM "did not ask questions but made statements telling witness what to say"; and that the magistrate breached the Crimes (Sentencing Procedure) Act 1999 (ss 25(1)(e) and 35(1)(b)) on that date and again on 26 March 2012 (by reconfirming the convictions) in the absence of Mrs Collier. 88It appears that this ground relates to the summary dismissal by Adams J of Mrs Collier's application for an order that the Magistrate be referred to the appropriate authorities for criminal charges to be laid. His Honour did not err in forming the view that there was no basis for such an order to be made. The fact that the Magistrate may have erred in the conduct of proceedings (assuming for present purposes that there was an error in the reconfirmation of the conviction in Mrs Collier's absence) does not establish a basis for an allegation that criminal charges should be laid. 8. The First respondent committed Criminal Defamation against the Appellant, with the incorrect Criminal Record not traffic record on 7th April 2010 and 17th January 2012 89In the Summons that was before Adams J, Mrs Collier sought an order that each of the Magistrate, Sergeant Donaghy and Registrar Nicholls be referred to the appropriate authorities for criminal charges to be laid. Adams J found that there was no basis (on his review of Mrs Collier's submissions) for making this order. There is nothing to demonstrate that his Honour was in error in reaching that conclusion. 9. The Appellant was never formally arrested on 30th June 2009 90The relevance of this assertion to the correctness of his Honour's decision is not apparent. 10. Only one (1) ever Bond documentation was marked with a cross 91The relevance of this assertion to the correctness of his Honour's decision is not apparent. 11. Third Defendant despite confirming her intention 24 November 2011 states 26 March 2012 that she never [intended] on appellant entering into Counselling/Rehabilitation 92The relevance of this assertion to the correctness of his Honour's decision is not apparent. His Honour in fact quashed the orders made on 26 March 2012 by reference to the transcript that recorded the Magistrate's statement indicating that it was not her intention, at the time the good behaviour bond requirement was imposed, for there to be such a condition. 12. The First Respondent moved the Appellant's car and therefore is guilty of an offence 93The relevance of this assertion to the correctness of his Honour's decision is not apparent. 12.[sic]The Magistrate (Second Respondent) on 17th February 2012 went against the Act in her refusal to hear the proceedings rather she sent them to the Third Respondent 94The relevance of this assertion to the correctness of his Honour's decision is not apparent. 13. This Honourable Court has never heard an Appeal by the Appellant in these proceedings DPP/Barrister misled the Full Court in a Prerogative Writ application 95In her submissions, Mrs Collier states that she was "only guilty of what was a ticket be it 3 ticket or infringement notices" and that the convictions were "wrongly claimed to be unable to be heard" by Adams J since they had already been heard before the Court of Appeal "on 7th July 2011". Mrs Collier further states that "In actual fact proceedings which were before the Court of Appeal was a Prerogative Relief Application which was fruitless by all concerned since the production of the 2 transcripts of the Third Defendant's statements in the absence of the Appellant". 96Mrs Collier's complaint, as the Court understands it, is that no appeal under s 53 of the Crimes (Appeal and Review) Act has ever been heard (since what was heard by this Court in 2011 was an application for prerogative relief to quash the decision of Walmsley SC DCJ refusing leave to appeal from the conviction and refusing leave to withdraw the guilty plea). 97Nevertheless, it is abundantly clear that the issue as to whether leave should have been granted for the withdrawal of the guilty plea has been decisively determined. That issue is the foundation of the current application for leave to appeal from, or prerogative relief in respect to, the conviction and sentence on 7 April 2010 and from the decision on 26 March 2012. It is not open to Mrs Collier to re-litigate that issue. 98As to the complaint that the proceedings that were before Adams J were determined without a hearing on the merits, that is the inevitable consequence of an order for summary dismissal. His Honour was conscious that such a decision should not lightly be made. His Honour applied a very high test in this regard (namely, whether the claim was doomed to failure) before dismissing the proceedings. No error of principle or miscarriage in the exercise of his discretion summarily to dismiss the proceedings has been shown such as to warrant appellate intervention. 14. The Appellant was forced to sign without spectacles 30th June 2009, documentation confirms spectacles returned after the signing of documentation 99The relevance of this assertion to the correctness of his Honour's decision is not apparent. 15. First and Third Defendant intentionally "Perverted the Cause of Justice against the Appellant 100A series of complaints has been made by Mrs Collier as to the conduct of various police officers and of Stevenson LCM. Insofar as this ground relates to the conclusion by his Honour that there was no basis for the making of an order that the said respondents be referred to the authorities for appropriate criminal charges to be laid, no error has been shown in his Honour's conclusion in this regard.

Specific Orders Sought 101Apart from orders in the terms set out above, in her draft Notice of Appeal, Mrs Collier sets out further specific orders sought in this Court, namely that the appeal be allowed (order 1); an order that the first respondent amend the NSW Police Record "COPs" entry for 23 April 2009 to show the "true not (guilty nature)" of Mrs Collier and that her NSW Police Criminal Record be amended (orders 2 and 4); an order that the first named respondent be changed to read Commissioner of Police NSW (order 3); an order directing one or all of the Respondents to instruct Transport Roads and Maritime Services NSW to reinstate Mrs Collier's driver's licence (order 5); and costs. 102As the matter was listed for hearing only of the application for leave to appeal, no basis for the making of the orders sought if leave were to be allowed arises. It is simply noted that the orders sought in relation to Mrs Collier's police record appear to relate to the Brisbane Family Court incident, which is not a matter arising out of Adams J's decision or the matter before him.

Application to admit fresh evidence 103As adverted to earlier, in the course of reply submissions on the present application, Mrs Collier sought to tender transcript from a Court of Appeal file in proceedings 40084/94, being transcript of an attendance by Ms Collier before Sheller JA in proceedings commenced by her against the Director of Public Prosecutions and the District Court. Mr Kavanagh, from the Office of the DPP, appeared for the DPP. 104As the Court understands it, Mrs Collier maintains that this material is relevant because it relates to earlier proceedings the outcome of which caused professional embarrassment to a particular police officer and led to his friend saying that was going to "get back at her" (i.e., as to the allegations of wrongful treatment by Inspector Nash). Ms Baker objected to the tender of the transcript. 105Given the time at which this application was made (after 5pm on the hearing of the leave application and in the course of reply submissions), the Court reserved its decision on the application to admit this evidence. 106Ms Collier urged the Court to read the transcript of 8 June 1994 (the subject of the tender) and stated that it had taken a year to obtain the file. The transcript has been reviewed. It appears to relate to an objection by Mrs Collier as to non-compliance by the DPP with a subpoena to produce a letter that Mrs Collier says was relevant to a charge against her that had been the subject of a no-bill application by the DPP. The letter sought to be produced was identified as being from a solicitor to the Deputy DPP requesting that assault proceedings in which the solicitor was the alleged victim should be no-billed. A letter was produced but a claim for privilege was foreshadowed and an objection to inspection by Mrs Collier on the ground of relevance was also raised. Mrs Collier unsuccessfully objected to the dispute on this issue being stood over for later argument. 107It is difficult to see how this can be of any relevance to the correctness of the decision by Adams J summarily to dismiss the proceedings. The application to tender the transcript of 8 June 1994 is therefore rejected.

Conclusion 108The issues sought to be raised by way of appellate review of his Honour's decision do not involve any substantial issue of principle. Nor do the matters raised in submissions and in the course of argument raise a sufficient basis for concluding that an appellate review in the present case would be likely to lead to a different conclusion being reached on a rehearing of the matter. There has not been shown to have been any error of law or miscarriage of his Honour's discretion in summarily dismissing the proceedings. 109Insofar as any appeal from the Local Court on a question of fact or a mixed question of fact or law from conviction or sentence requires leave under s 53, a powerful factor against the grant of leave would be the fact that the issues sought to be raised by Mrs Collier in relation to the guilty plea have already been litigated. Any application for prerogative relief in relation to the 7 April 2010 conviction and sentence or the later decision of 26 March 2012 would suffer from the same difficulty. Insofar as Mrs Collier is seeking to have the matter remitted for a hearing of the original charges, it is relevant to note (as the High Court did on the special leave application) that there have been statements made by Mrs Collier herself that point to the difficulty of her establishing a viable defence on the merits. 110In those circumstances, the grant of an extension of time to file the Summons is futile. Nevertheless, as the matter has been argued and there was an explanation provided for the delay, leave will be granted to extend the time for the filing of the summons for leave. The summons for leave to appeal will be dismissed with costs. The orders of the Court will be:

Grant leave to extend the time for filing of the applicant's Summons Seeking Leave to Appeal to 29 January 2013.
Dismiss applicant's Summons Seeking Leave to Appeal with costs.

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: 21 June 2013

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