BACKGROUND
4 This application for leave has its origin in a dispute between Mrs Collier and Telstra over a domestic telecommunications service. Mrs Collier originally applied for relief to this Court (FCA) (the substantive proceedings) by way of an originating application dated 4 October 2016 together with a supporting affidavit sworn by Mrs Collier on the same date. Against Telstra, Mrs Collier sought exemplary damages to be paid to her under Sch 2 of the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law), relying on "section 213(a)(i), (ii), (v) and (vi) and a pecuniary penalty be paid to the Commonwealth relying on Part 5-2, sections (1)(a)(i) & (ii). Also refer to sections 156(a); 159(2)(a) & (b); Section 168(1)(a) & (b)(i)". Against the TIO, Mrs Collier sought a declaration that the TIO's decision in relation to a complaint which she made in relation to the telecommunications service was null and void.
5 In her affidavit supporting the originating application in the substantive proceedings Mrs Collier claimed that Telstra breached ss 18(1), 20(1), 21(1)(a), 22(1)(a)-(f), (i)(i), (j)(i)-(iv) and (k)(i), 24(1)(a)-(d), 26(2)(a) and (b), 27(1) and (2)(a)-(f), 29(1)(i), 34, 36(1) and (2), 37(2)(a) and 151(1)(b) and (d)(i) of the Australian Consumer Law and that the TIO had "done nothing to rectify or bring to account" Telstra. Exemplary damages were claimed for harassment, coercion, bullying, misleading and misrepresenting, causing financial hardship, stress and strain aggravating an existing illness and causing Mrs Collier further illness.
6 Against Ms Collier's wishes, Flick J made orders on 16 November 2016 transferring the substantive proceedings to the FCC. The notice of filing of the originating application in the FCC shows the document as being lodged on 16 November 2016 and filed on 18 November 2016. Over the days following the orders transferring proceedings to the FCC being made, Mrs Collier communicated with the Sydney Registry of the FCA, including Registrar Segal, concerning an appeal against Flick J's decision.
7 Much of the following material is derived from MFI-1 referred to in the primary judge's reasons and from affidavits sworn by Mrs Collier on 29 March 2017 and 15 September 2017. Please note that a number of Mrs Collier's communications reproduced below contain serious and immoderate allegations, including that there was deliberate misleading of the Court and lying, harassment of her and other alleged misconduct by parties and their representatives, members of the Registry of the FCC and FCA and the primary judge. In my view, based on the materials referred to in "Background" below, Mrs Collier is not as careful as she should be in making such statements and overstates positions or decisions with which she does not agree and her characterisations should not be accepted. However, I consider it necessary to include some of this material as context having regard to the allegation of "Actual and Judicial Bias" made in the application in a case and the grounds of the application for leave to appeal and draft notice of appeal.
8 It is useful to know that the original return date allocated by the FCC for the substantive proceedings was 30 January 2017. Mrs Collier was advised of the listing by an email sent from the NSW District Registry at 4.48 pm on 22 November 2016. On the morning of 23 November 2016; Mrs Collier corresponded with Registrar Segal concerning the appropriateness of that date. By email sent at 10.44 am, Registrar Segal told Mrs Collier that the return date is fixed by the Judge of the FCC without knowledge of the appeal and said that if she sought an adjournment on medical grounds, that she should raise it on 30 January 2017 as "Judges don't deal with such applications by letter or email". That advice proved to be incorrect.
9 Soon after 11 am on 23 November 2016, Mrs Collier sent two emails to the primary judge's associate advising that she had lodged an appeal against Flick J's decision to transfer the proceedings to the FCC and complaining that the first return date had been set contrary to two medical certificates, the first dated 18 November 2016 (which had been sent to the FCA's Registry on 18 November 2016) and another dated 22 November 2016. The certificate dated 22 November 2016 stated the medication Mrs Collier was taking for a sinus condition. Relevantly, the certificate dated 18 November 2016 stated:
In light of her unstable medical conditions, in my opinion Mrs Collier is unfit to deal with Court proceedings until February 2017, by which time her neck pain and knee pain should have improved or have been operated on.
I note that in the grounds of the application for leave and draft notice of appeal and in some of her later correspondence, Mrs Collier appears to have interpreted "until February 2017" as meaning "until 14th February 2017". In my view that interpretation is not correct.
10 While there is some basis for Mrs Collier being upset that it was suggested that she should appear on 30 January 2017 to deal with the issue of the medical certificate, she took it into her own hands to draw the medical certificate to the primary judge's attention on 23 November 2016. The primary judge responded promptly. At 12.30 pm on 23 November 2016, the primary judge's associate forwarded a copy of Mrs Collier's email to the respondents and Mrs Collier. In that email, the associate indicated that the return date of 30 January 2017 had been set without reference to the primary judge and that his Honour had considered the certificate and was minded to set 17 February 2017 at 9.30 am as the date for the first directions hearing.
At 12.46 pm, Mrs Collier responded, advising of the times at which the appeal and medical certificate had been filed and saying that 17 February 2017 was "inconvenient for the Applicant. as a prior arrangement is made for that date" (as written). On any view, this was an inadequate explanation for why Mrs Collier would not be able to attend the first directions hearing on the assigned date.
11 At 1.30 pm on 23 November 2016, Registrar Segal advised Mrs Collier by email that it had been pointed out to him that an appeal does not lie from a decision to remit a proceeding to the FCC by reason of s 32AB of the Federal Court of Australia Act 1976 (Cth). Registrar Segal enquired whether Mrs Collier wished to file her appeal and if so, it would be referred to the Duty Registrar to determine whether it should be accepted for filing. Emails sent by Mrs Collier to Registrar Segal (at 1.56 pm) and the associate to the Chief Justice of the FCA (at 6.11 pm) complained about this issue, the conduct of Registrar Segal and staff in the FCA Registry and the primary judge's associate's conduct in forwarding correspondence to the respondents. The emails to Registrar Segal and the associate to the Chief Justice were copied to the primary judge's associate but not the respondents.
12 At 7.58 am on 24 November 2016, the primary judge's associate sent an email to Mrs Collier (copied to the respondents) attaching her email to the Chief Justice and advising that the primary judge had directed that emails received from her which did not, on their face, indicate that they have been copied to the respondents would be put in a folder and would not be brought to the primary judge's attention.
13 At 9.01 am on 24 November 2016, Mrs Collier again sent an email to the associates of the Chief Justice and primary judge, copied to Registrar Segal but not the other parties. Among other things, Mrs Collier complained that the primary judge had (according to an email sent the day before) ignored the medical certificate and the fact that the appeal had been lodged against Flick J's decision and stating (as written):
… given the approach taken by His Honour, he should remove himself from any further action in these proceedings, for deliberately and intentionally going against the Medical Certificate and causing the trouble, that the e-mail from His Associate has caused to my health.
I have taken the liberty, of reprinting the e-mail of Registrar Segal of yesterday [concerning the allocation of the first return date as being 30 January 2017], which like His Honour [the primary judge], has deliberately ignored the deliberate and intentional abuse of the Court and its rules and then expected everyone to simply go along with it. The below email, creates a further question, of why would a Federal Circuit Judge being hearing an Appeal from a Federal Court Judge?
Also, given, that Registrar Segal, was in possession of the Medical Certificate from the 18th. November 2016, why would he expect me to disregard and ignore my Doctor's opinion and advice and not only attend the Court on the 30th. January 2017, but also engage in the preparation and constructing of court material?
If the email is believed of Registrar Segal, then the Federal Court Judge who fixed the date, is as negligent as was [a named judge] on the 10th. November 1988, when he ignored the actions of my medical file. The Judge who set the date of the 30th. January 2017, deliberately ignored the Medical Certificate. The email sent to Registrar Segal, clearly in the first paragraph, states that paperwork is being filed in the court, not to mention a letter also sent, which no doubt no one has seen, which is attached without the signature, is no doubt someone in the Registry has disposed of it, when it should be placed on the file, after being given to [Registrar] Segal.
Please do not harass and intimidate me in this meaner any further Associate to [the primary judge].
The tone of this communication is inappropriately uncivil. It ignores the fact that the primary judge acted on the medical certificate Mrs Collier provided within an hour and a half of it being sent and therefore there was no basis for a claim of perceived bias. Some of the claims made in relation to the conduct of registry staff are scurrilous assertions made without evident basis. The claim that the communications with Mrs Collier were harassing and intimidating plainly cannot be made out. This is the first of many occasions on which Mrs Collier did not comply with the primary judge's direction.
14 At 9.43 am on 24 November 2016, the primary judge's associate advised the parties that the "first directions date" had been fixed at 17 February 2017.
15 At 9.57 am, Mrs Collier sent an email to the associates to the Chief Justice and the primary judge (but not the other parties) stating:
I am unavailable on the 17th February 2016, as well His Honour was notified yesterday and ignored entirely. This is Perceived Judicial Bias on his behalf.
16 At 11.15 am on 24 November 2016, the "Deputy Associate" to the primary judge sent an email to the parties, again noting that Mrs Collier had been corresponding with chambers without copying in the other parties. The email noted that the matter had been transferred to the FCC and that Mrs Collier, as the moving party, had "an obligation to co-operate in seeking that the proceeding be dealt with quickly and efficiently and to appear in the Court (either by yourself or a lawyer) at the time that it is set down for either directions or a hearing". It noted that the date of 17 February 2017 had been selected to accommodate her because the medical certificate indicated that she would be unfit to deal with the proceedings until February 2017. It went on to say:
In response, other than merely asserting that this date is inconvenient for you because of "a prior arrangement" (as stated in your email yesterday sent at 12.46 pm) you have given no good reason why the first directions hearing should not take place on that date.
If you wish to apply for an adjournment of the scheduled hearing of 17 February 2017, you are at liberty to do so but you will need to establish to the satisfaction of the Court that there is a good and sufficient reason for an adjournment.
In the meantime pending any such successful adjournment application the first directions hearing of 17 February 2017 will stand.
In my view, this was an entirely appropriate response.
17 At 11.52 am on 24 November 2016, Mrs Collier responded to the primary judge's associate and the Chief Justice's associate, but not the respondents. She queried why she should be expected to act in disregard of her medical certificate and again prosecuted her right to appeal Flick J's decision. Excerpts from the email relevantly include (as written):
Since the Registry did the wrong thing, it is not my responsibility to include the other parties in the communications, as neither party, should by rights be privy to the Appeal, which I attempted to file, but was rejected by Deputy Registrar Choo, on the prior written notice to myself, by Registrar Segal.
…
I should not have to tell you, but if you must know, I am in the Supreme Court of NSW, where I was defamed and have taken it to court. The date was set prior the 16th November 2016. I do not appreciate being called a liar by either His Honour or the Associate as is meant in the remarks:
"In response, other than merely asserting that this date is inconvenient for you because of a "prior arrangement" (as stated in your email yesterday sent at 12.46 pm) you have given no good reason why the first directions hearing should not take place on that date."
…
His Honour, was advised yesterday, that I already have a prior commitment on the 17th. February 2017, am I expected, simply because either His Honour, yourself and/or the Registry at Sydney breach your own Act, Rules and a Medical Certificate, to disregard everyone and everything else, simply to accommodate?
I will not be applying for an adjournment of the deliberate breach by His Honour of the Court, which he has done, which further convinces me, of his perceived and judicial bias towards me. Why doesn't he abide by the Rules of the Court and simply find out who made the mistake and arrange the change?
Please do not deliberately continue to harass me in this manner.
As Mrs Collier did not comply with the primary judge's direction that all of her communications be copied to the respondents, she had no reasonable expectation that it would be drawn to the primary judge's attention. Nor was it reasonable for Mrs Collier to infer from the deputy associate's email of 11.15 am that the primary judge was calling Mrs Collier a liar - her explanation for why she would not be able to attend court on 17 February 2017 was simply inadequate. For reasons given below, Mrs Collier's contention that the primary judge was "acting in breach of the medical certificate" by communicating with her about the first return date should not be accepted.
18 At 12.12 pm on 24 November 2016, the deputy associate to the primary judge sent an email to the parties attaching Mrs Collier's email sent at 11.52 am, saying "Here below is another email from Mrs Collier which was not sent to you. The hearing date of 17 February 2017 is maintained."
19 At 12.37 pm on 24 November 2016, Mrs Collier sent an email to the primary judge's associate, but not the respondents, saying (as written):
Do you want the application for him to remove him as Judicial Bias towards me, because this is what it is? Stop this continual harassment of me.
20 At 11.14 am on 1 December 2016, a member of the NSW District Registry forwarded to the primary judge's associate an email sent to her by the "Senior Coordinator/Harassment Contact Officer" of the NSW District Registry as follows:
As discussed, has there been a change to the directions hearing on 30 January 2017?
Mrs Collier called this morning and seems to believe that the date was changed to 17 February 2017.
Please note: she said that she has a Supreme Court date on 17 February 2017 and cannot make the FCC court date on the same day.
However, the date of 30 January 2017 is still on Casetrack.
The associate was asked to confirm so that the parties might be informed.
21 At 12.03 pm on 1 December 2016, the primary judge's associate sent an email to the parties as follows (as written):
Ms Collier has again been in contact with the Federal Circuit Court Registry with respect to her case in the New South Wales Court of Appeal at 10:15am on 17 February 2017 and which is estimated to have a hearing time of one hour.
In these circumstances is prepared to accommodate Ms Collier by listing this matter at 2.00pm on 17 February 2017 for directions, or alternatively in his 9:30am directions list on Friday 24 February 2017.
I await your respective responses.
I take from this that when Mrs Collier's reason for being unavailable on 17 February 2017 was brought to the primary judge's attention, his Honour responded by accepting that explanation and changing the first return date. Had Mrs Collier corresponded with chambers in accordance with the primary judge's direction and provided this explanation when she advised of her unavailability, it is likely that this outcome would have been achieved more quickly.
22 At 11.52 am on 2 December 2016, the primary judge's associate sent an email to the parties, advising Mrs Collier that the other parties were agreeable to either 17 or 24 February 2017 and asking her to advise which of the two she wished to have set down for the first directions.
23 At 9.59 am on 12 December 2016, the primary judge's associate sent an email to the parties, advising that Mrs Collier had not responded to the email sent at 11.52 am on 2 December 2016 and stating that:
The purpose of this email is to advise that the first directions hearing will be listed in his Honour's directions list on Friday 24 February 2017, commencing at 9:30am.
24 At 10.12 am on 12 December 2016, Mrs Collier wrote to the primary judge's associate without copying in the other parties as follows:
I do not appreciate the harassment I have endured by you, if you wish to have me appear on the 24th., the only way I can do it at that time, is by telephone.
I do not accept Mrs Collier's characterisation of the communications she had received from the primary judge's associate. Again, Mrs Collier gave no explanation for why she should appear by telephone rather than in person.
25 At 10.29 am on 12 December 2016, the primary judge's associate wrote to the parties, attaching Mrs Collier's email sent at 10.12 am, noting that it had not been copied to the other parties, and saying:
His Honour expects the corporate Respondents to appear by their respective lawyers, and Ms Collier to appear in her own person or by a lawyer. His Honour will not permit Ms Collier to appear by telephone on this first directions hearing.
26 At 10.55 am on 12 December 2016, Mrs Collier responded by an email sent only to the primary judge's associate saying:
I do not know Ms Collier, my name is Mrs. or Marion. I will not be in attendance on February the 24th at 9.30AM, as I have to leave home before 3.00AM.
I am however very fed up with the way you have deliberately and with intent, gone against a Medical Certificate, by the continual harassment and bullying that the Federal Circuit Court and [the primary judge] have treated me.
27 At 11.16 am on 12 December 2016, the primary judge's associate sent an email addressed to Mrs Collier and copied to the other parties as follows:
I am sending a copy of your email of today at 10.55 am to the other parties.
I further note your stated intention not to appear on 24 February 2017 in His Honour's directions list but his Honour wishes you to be made aware that in the event of your non-appearance it is possible that the other parties will ask for dismissal of the proceedings based on Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), which concerns the dismissal of a proceeding in the absence of an applicant at a hearing, including a Court Return Date.
In the absence of an explanation from Mrs Collier about why she wished to attend the first directions hearing by telephone, this was an appropriate response. The matter was to appear in a directions list which might be expected to be busy, given the workload of the FCC. Further, there was every reason to believe that Mrs Collier would attend in person. It is significantly harder to ensure that a person without legal education or representation understands and participates adequately in proceedings when they are not in the same room as the judge and the representatives of the other parties. The nature of the communications from Mrs Collier may lead to a concern that that would be an issue in the efficient conduct of the proceedings.
28 At 5.33 pm on 17 December 2016, Mrs Collier responded to the primary judge's associate, and the Deputy Principal Registrar of the FCC explaining that she lives 354 kms from Sydney, a round-trip which is over 700 kms, and stating that it is "not unreasonable to ask, if I can appear by telephone on the 24th. February 2017. A date, which I was not given a proper chance to reply". Mrs Collier went on to say (as written):
I underwent a repair for a Cartage on the 29th. November 2016, not going back to the Specialist until last Wednesday the 14th., so could not spend much time, if any at the computer. I note, no person contacted me by telephone, given that you were aware, that I had undergone such an operation.
Similarly, the Solicitor in charge of the 1st Respondent/ Telstra's case is based in Melbourne and will not as usual be in attendance. As has been the case at both appearances in the FCA, her replacement cannot make any decisions and has to check with Miss Massage (Solicitor). If that is O.K., I cannot see, how it will disadvantage anyone.
If it becomes absolutely necessary, then why can I not appear by link at Dubbo, which is only 50 kilometers from Wellington and has a link. After all, I am in receipt of a pension and am being put at great expense by actions, that have not been my doing.
I trust you will actually reply to this and look forward to such. As I note from the below e-mail, His Honour was not asked, or it would not have been written in the context it was, just as I was informed, that the matter was on, on the 30th. January 2017, against a Medical Certificate, which when I supplied it, one of you, or someone else in the Chambers, replied, that the 30th. was unsuitable for His Honour, so obviously, he did not pick that date either.
I note that there is nothing in evidence which would indicate that either the FCC or the respondents had been put on notice that Mrs Collier was undergoing an operation on 29 November 2016. The medical certificate envisaged that an operation may turn out to be necessary, but there was no indication as to the date on which any operation might occur.
29 At 11.57 am on 19 December 2016, the primary judge's associate wrote to the parties advising that he had made arrangements for Mrs Collier to appear by video link at the Dubbo registry of the FCC at 10 am on 24 February 2017. Mrs Collier responded at 12.14 pm saying:
To whom it concerns,
Thankyou for your assistance, I am only sorry, that it has taken this time to be achieved. I maybe filing a further Affidavit, which will be done at the Registry on the 17th. February 2017.
Merry Christmas and Happy New Year.
30 At 11.33 am on 21 December 2016, Mrs Collier sent an email to Deputy Principal Registrar of the FCC, Registrar Byrne in which she complained about billing which she had received from Telstra, referring to an email as a "criminal action", and going on to say (as written):
By the way, I did not appreciate, neither did by GP, the fact of the insertion, that I am lieing and am a criminal, otherwise why would I have to be seen on the 24th. February 2017, so have to go to Dubbo to appear on Video link?
I would not send this to you, if I was able to speak to the Registry, but I get nothing but abuse from the switch, for daring to ring.
Registrar Byrne responded by at 2.09 pm, saying that "As an officer of the Court, I am unable to provide a party in proceedings with legal advice." That response was appropriate and the inferences Mrs Collier drew from the Dubbo video link being made available to Mrs Collier are not ones which might reasonably be drawn from that circumstance.
31 At 10.02 am on 28 December 2016, Mr Berg (the solicitor acting for the TIO) sent an email to Mrs Collier in which he said that he understood from previous email communications that she had lodged an appeal in relation to the order made by Flick J but that he had not received any documents from her in relation to it. He went on to say "Given my client is an interested party in the appeal, I would appreciate being provided with the documents as soon as possible". At 11.45 am, Mrs Collier replied to Mr Berg by email copied to Registrar Byrne and Ms Massage (an in-house lawyer at Telstra) saying "I have not, what are you talking about?????". At 11.58 am, Mr Berg responded to Mrs Collier by email copied to Ms Massage that he was referring to her email sent at 12.45 pm on 23 November 2016 (see [10] above).
32 At 10.31 am on 28 December 2016, Mr Berg sent an email to Mrs Collier by which he first introduced a solicitor working with him (Mr O'Donovan) who had been copied in on the email. The email stated the TIO's position that the determination by the TIO on 15 September 2016 was not binding on Mrs Collier and that a declaration to the effect that the TIO's determination is null and void is of no effect in that circumstance. Mr Berg invited Ms Collier to explain why a declaration of that type is needed and to amend her claim or discontinue proceedings. He advised that if Ms Collier did not attend to those matters by (say) 27 January 2017, he would seek instructions to strike out her claim.
33 At 11.59 am on 28 December 2016 Mrs Collier sent an email to Mr Berg, copied to Registrar Byrne, Ms Massage and the primary judge's associate. In it, Mrs Collier berated Mr Berg for his failure to introduce Mr O'Donovan earlier (when he had been copied in on earlier emails), for the "non service of the Change of Solicitor, which he did not think I was worthy of receiving", and for contacting her, a self-represented litigant, while a medical certificate is extant and during the holiday period when there were at least eight weeks to go before 24 February 2017. She suggested that he "act with some decorum and wait and see what occurs". Mrs Collier then made a scurrilous suggestion concerning his involvement in (unidentified) correspondence which Mrs Collier had received from Ms Massage of Telstra.
34 At 12.23 pm on 28 December 2016, Mr Berg responded to Mrs Collier by email sent only to her as follows:
The attached medical certificate refers to your knee pain and your neck pain. If these ailments prevent you from discussing, whether by telephone or email, aspects of your case, then I will inform my client. The medical certificate may support your requests to not have to travel to Sydney for any court appearances however I did not take it to mean you could not respond to emails about aspects of your case.
As to the length of time between now and the listing of the matter before his Honour [the primary judge], I am certain his Honour will not be impressed if the parties do not take some action towards progression of the matter between now and then. Kindly address the matters referred to in my below email as they go to the substantive issues in your claim.
I deny any harassment or intimidation in my email - it simply asks a legitimate question with respect to your claim against my client.
Finally, your absurd and offensive suggestion of my potential involvement in what you have referred to as criminal activity ought be withdrawn forthwith by way of communication to all parties who were included in your email.
Mr Berg's communications with Mrs Collier on 28 December 2016 are, on any rational basis, unexceptionable.
35 On 2 February 2017, the TIO filed an application in a case seeking dismissal of the substantive proceedings as they related to the TIO as an abuse of process or that the claim for declaratory relief against it be struck out. On that day, the primary judge's associate wrote to the parties advising that a clerk from DLA Piper had been seeking to file the application and that the primary judge had advised Registry that it could be filed. The TIO's application in a case was given a return date of 24 February 2017 (the date set down for a directions hearing in the substantive proceedings), but on the basis that it would be returnable only for mention and/or directions. At 3.43 pm, Mrs Collier sent an email to the primary judge's associate only, stating:
I received a number of emails on the 28th. December 2016, which were totally incorrect and given, that I was informed by the Registry, that I could not file anything for the first date, I find it funny, that you are bending over backwards for DLA Piper.
The claim that anyone was "bending over backwards" for DLA Piper has no foundation in these materials.
36 At 3.59 pm on 2 February 2017, Mr Berg sent an email to Mrs Collier serving on her a response to her substantive proceeding filed on behalf of the TIO, a copy of the TIO's application in a case and an affidavit sworn by Mr Berg, noting that by the application in a case, the TIO sought to have Mrs Collier's claim against it dismissed or paragraph 4 of the claim struck out with costs and noting that it was listed for mention on 24 February 2017. Mr Berg enquired as to a convenient address for him to send hard copies of the documents and authorities on which the TIO relied. Mr Berg noted that it was likely that at the directions hearing the primary judge would want to institute a timetable geared towards determining the application and inviting Mrs Collier to give thought to the timetable and email a proposal to him before 24 February 2017.
37 At 6.44 pm on 2 February 2017, Mrs Collier sent an email to the primary judge's associate and Registrar Byrne (but not the other parties), attaching a copy of Mr Berg's email sent at 3.59 pm. She attached a copy of the medical certificate sent to Registrar Segal on 18 November 2016 and said:
I note, that the Medical Certificate, which Your Honour's Deputy & Associate abused in early December 2016, was abused yet again, not only by them, but also, by Your Honour and the Solicitor for the 2nd. Respondent, it expires on the 14th. February 2017, which is 10 days prior to the appearance before Your Honour.
As noted above, there is nothing in the medical certificate dated 18 November 2017 which suggests that it "expires" on 14 February 2017. In any event, Mr Berg's stated interpretation of the medical certificate was open such that communications about the time at which the first directions hearing might occur or in relation to procedural steps from the primary judge's associate and the parties did not "breach" that certificate. If Mrs Collier thought that it did, then it was open to her to have her doctor clarify the position in writing at any time from 23 November 2016.
38 Mrs Collier's email then goes on to note that she had contacted the Sydney and Melbourne Registries and went on to say:
As a result of the material and actions of today , given, that I was also harassed and intimidated by Mr. James Berg on the 28th. December 2016, with his superiors claiming my Medical Certificate only allows for my leg and I can still do e-mail/court work from the computer, I will be speaking with my GP, with the view of the abuse of the Medical Certificate, by both the Federal Circuit Court of Australia and DLA Piper and whether there is any need to extend such Medical Certificate.
I will also point out, should Mr. Berg insist on relying on such material, I will pursue having him charged with knowingly swearing a false Affidavit, as it is. As well as making an Application, to have His Honour removed for Judicial Perceived Bias , as the filing and serving of such documents on myself amounts to by him. He could have advised the Registry, of the existence of the Medical Certificate and which would occur if it was served, just as he could have prevented his employee from sending such.
Mrs Collier's attempts to communicate with registries other than that in which her matter was proceeding was inappropriate and is a sign of a querulous litigant. TIO, as a respondent, was entitled to seek to have Mrs Collier's proceedings struck out. On any rational basis, the primary judge cannot have demonstrated actual or perceived bias by not preventing such an application being filed and served.
39 At 3.46 pm on 3 February 2017, the primary judge's associate wrote to Mr Berg, copied to the other parties, requesting a hard copy of the affidavit filed by Mr Berg as it comprised 92 pages. At 3.52 pm, Mrs Collier wrote to the primary judge's associate and Mr Wjieyewardene of Telstra in the following terms:
I have not seen the document yet, but given, that you say it is 92 pages, with a Medical Certificate still in effect until the 14th. February 2017, with you or the Deputy Associate enabling Mr. Berg to be made aware of another proceeding in the New South Wales Supreme Court on the 17th., which commenced before yours, or the FCA.
Also given, I spoke with Mr Wijeyewardene, who usually represents the First Respondent this morning, who knows nothing of the existence of this, as Jacqui Massage is away until the 14th.
It is a bit much and prejudicial towards me, to expect to have this addressed adequately.
40 On 22 February 2017 at 5.56 pm, Mr O'Donovan sent to Mrs Collier and Ms Massage an email which relevantly said:
Please see attached Short Minutes of Order we have drafted in preparation for the directions hearing this Friday, 24 February 2017 at 9:30am.
Could you please review the document and indicate whether you agree with the orders we have proposed being made.
We look forward to hearing from you.
At 9.08 am on 23 February 2017, Mrs Collier advised the primary judge's associate by email, which was not copied to anyone else, that "this document … does not comply with the rules of court and I am not bothering to acknowledge such , I also note that James Berg had it sent from someone else". This was an unnecessary response from Mrs Collier and it was provided ex parte contrary to the primary judge's direction.
41 On 24 February 2017, the primary judge ordered Mrs Collier and Telstra to attend a conciliation conference with a Registrar of the FCC at the Sydney Registry on 21 March 2017 (order 1) and set the matter down for further directions on 3 April 2017 (order 2). The orders were made with Mrs Collier's consent. The orders contained the following notation:
Order 1 is not to be taken as precluding the Second Respondent from participating in the conciliation if so minded.
42 At 1:43 pm on 24 February 2017, the primary judge's associate sent an email to Registrars Wall and Morgan, copied to all parties, noting that the parties had agreed to mediate on 21 March 2017 and that it was Mrs Collier's request (without demur from the other parties) that it be scheduled to take place in the afternoon.
43 On 27 February 2017, Mrs Collier wrote to the primary judge's associate, copied to the other parties and Registrars Segal, Wall and Morgan advising that:
I have changed my medical appointment from the 17th. March 2017, until the 21st. March 2017 at 11.00AM. The Doctor finishes on Tuesday at 12.00Noon and so I will only be able to attend the court after 1.00PM.
As a result, mediation was listed for 1:30 pm on 21 March 2017.
44 On 14 March 2017 at 3 pm, Mr O'Donovan sent Mrs Collier and Ms Massage the TIO's mediation summary, said to be pursuant to correspondence on 28 February 2017 from Mr Young (who I take to be a member of the NSW District Registry). At 3.40 pm, Mrs Collier sent an email (to which Mr O'Donovan's email was attached) to Registrar Morgan (who was to conduct the conciliation) and the primary judge's associate but not the other parties, as follows (as written, emphasis in original):
As to this document received, I wish to advise, that the Mediation is cancelled.
My reason for this, is that I do not find 3.01PM, when the registry closes at 4.00PM, is an appropriate time to notify people, which really has not been done, that the 2nd Respondent is going to attend next week.
I have not been afforded the opportunity to address the 2nd Respondent's argument.
The only time the 2nd Respondent was ever represented by anyone, other than James Berg, was a Barrister, who for memory, stated from the Bar Table: "The 2nd Respondent will not be attending Mediation, if that changes, we will notify the other sides in sufficient time."
When I contacted Mr. O'Donovan, on the advice of Registrar Mathieson this afternoon, he was very blaze saying: "We have notified you by sending the document."
Further to that note, that is the 1st. Respondent, had my telephone and internet disconnected and Miss Massage had to have it turned back on, after informing Registrar Mathieson.
The Court is obviously taking sides, if it simply was to allow this last-minute filing of paperwork, that cannot be addressed, when it shows, that the Barrister deliberately and intentionally misled the court.
I will be making application, to have the matter transferred back to the Federal Court of Australia, as obviously the Federal Circuit Court is incapable of handling it.
I also was abused this morning by [name redacted], on behalf of you Registrar, because she claimed that both Registrar Mathieson and Byrne had complained and you said it was inappropriate, my contacting them.
I trust, that I can still appear by Video link on 3rd. April 2017 at Dubbo.
The transcript of the proceeding on 24 February 2017 was marked by the primary judge as MFI-4. This is not a fair reflection of those proceedings or the conduct of the barrister representing the TIO. Counsel for the TIO advised the Court that he did not have instructions as to whether the TIO would attend the mediation and the option for the TIO to attend was left open. This is evident from the content of the orders made by the primary judge which specifically contemplate that, although the TIO was not directed to attend the mediation, it was permitted to do so. The issue of whether the filing of a position paper (apparently within the time allowed) could be addressed adequately was dealt with the Registrar Morgan (see below). The conclusion that the Court was "obviously taking sides" was not open.
45 At 4.05 pm on 14 March 2017, Registrar Morgan sent an email to Mrs Collier, copied to Ms Massage and Mr O'Donovan, advising that, until further order of the Court had been made to cancel it, the mediation would proceed at 1:30 pm on 21 March 2017 and that failure to attend may jeopardise Mrs Collier's court proceedings. The Registrar noted that any issues Mrs Collier wished to raise in relation to the respondents' documents or the manner in which they were provided to the Court could be raised at the mediation and any further documents Mrs Collier wished to provide could be sent to him before the commencement of the mediation.
46 At 4.49 pm on 14 March 2017, Mrs Collier responded to Registrar Morgan by email copied to the primary judge's associate and Ms Massage of Telstra and Mr O'Donovan stating, among other things, that she and her husband now had to go to Sydney twice as she had problems with a knee (that had been operated on in November) and saying (as written, emphasis in original):
I will not be attending, seeing that it is obvious that the 2nd Respondent is telling the Court what to do. Maybe I should have had a Barrister at the court on the 24th. and it would be me getting away with everything. After all, if was fine for that Barrister, to lie to the Court, which is exactly what he did, by not allowing the ample notice of his or his Solicitors attendance at the Mediation.
Had I known that the 2nd Respondent was attending Mediation, I would have refused it at the 24th. February Court appearance. If this matter has to go to the High Court of Australia, so be it.
I do not find that sending paperwork at 3.01PM when the registry closes at 4.00PM. on that day, seeing that [a named employee in the Registry] sent a letter stating that each party had to supply by today. I have not addressed the TIO, as they did not have the curtisey to state that they would be at the Mediation.
Similarly, you have not bothered to address this, which was forwarded to you. It is not good enough, to say: "any issues you wish to raise in relation to the Respondents' documents or the manner in which they were provided to the Court can be dealt with at the mediation." That is not sufficient, as you fully have no intentions of addressing this, just as [the primary judge] would not allow anything to be addressed to him on the 24th., simply hurrying everyone and saying he was too busy to discuss anything.
I hope you enjoy yourselves on Tuesday, as I will not be in attendance.
47 At 4.53 pm on 14 March 2017, Registrar Morgan replied by email sent to Mrs Collier, the respondents and the primary judge's associate reiterating that the mediation would proceed at 1.30 pm on 21 March 2017.
48 Shortly after, at 5.07 pm on 14 March 2017, Mrs Collier sent an email to the primary judge's associate only advising that she would not be attending mediation "next week" because the Registrar "has allowed the 2nd Respondent leaniancy that is not afforded to myself, given the letter sent by [Mr Young] of your Court on the 28th.February 2017" in stating that on that basis, she wished to appear by video link, as she is applying to have the matter transferred back to the FCA "where it actually belongs".
49 At 7.25 am on 15 March 2017, Mrs Collier sent an email addressed to Deputy Principal Registrar Mathieson, Registrar Morgan and the primary judge's associate. The email complained about the content of the TIO's position paper, including as to its length (said to be 180+ pages) because she had advised the Court on 8 November 2016 that, having only a domestic computer, she needed prior advice of anything over 20 pages. Mrs Collier again asserted that the medical certificate dated 18 November 2016 had been ignored by the primary judge and his associate and that her privacy had been breached by the associate in writing to other parties. Mrs Collier complained:
about discontinuities in her internet service;
that Registrars Byrne and Mathieson had complained about Mrs Collier's inappropriate contact with them;
about the change of the TIO's solicitor prior to the first court appearance in the FCA on 8 November 2016 without notice to Mrs Collier and the need for Flick J to direct the TIO to supply notice to her in respect of which she said "[the primary judge] was not interested when this was brought to his attention on 24 February 2017";
about aspects of (what I take to be) material in the position papers prepared by Telstra and Telstra's conduct in 2016;
about what she said was the refusal by Registrar Morgan to "show equal standing to all parties", the basis of her refusal to attend the mediation.
Mrs Collier said that, if she was required to attend the mediation, she asked to do so by telephone or video link from Dubbo. She asked to be told what would now be occurring.
50 At 8.40 am on 15 March 2017, the primary judge's associate sent an email to the parties as follows:
There has been a stream of correspondence over the last day. The only part of that correspondence which I have drawn to his Honour's attention and requested him to read is the email from Mrs Collier of 14 March 2017 sent at 5.07 pm and advising that she is not now going to mediate.
In these circumstances his Honour has directed that the proceeding be listed before him this Friday in the 9.30am list.
All parties are expected to appear.
I advised Mrs Collier that it is unlikely that the Court can arrange for her to appear by videoconference from Dubbo. I will let all parties know by 11am if it is possible. Mrs Collier may wish to make her own enquiries in this regard.
So it is preferable that Mrs Collier appear in Court on Friday morning in person. Alternatively if she gives a telephone number where she can be contacted, I will nominate a definite time on Friday morning so that it can take place by telephone.
51 At 8.55 am on 15 March 2017, Mrs Collier sent an email to the primary judge's associate (not copied to the other parties) as follows:
This morning at 7.25AM, I sent an e-mail, which the Deputy Associate refused to address. I do suggest, that His Honour be shown the true e-mails communication, particularly the last e-mail sent.
I hope you enjoy Friday morning, as I am out all day, away from Wellington, attending medical appointments, so am unavailable or in transit.
This is not a complaint that it was open to Mrs Collier to make as she had failed to comply with the primary judge's direction to copy her correspondence with chambers to the respondents and she had been told of the consequences. Mrs Collier also did not advise where she would be or whether there was urgency attached to her "medical appointments".
52 At 8.58 am on 15 March 2017, the primary judge's associate sent an email to the parties advising that he had been able to arrange a videoconference to take place from Dubbo at 9.30 am on Friday, 17 March 2017, so that Mrs Collier had the option of giving the Court a telephone number at which she may be reached or attending at the Dubbo courthouse. Mrs Collier was asked to confirm, as soon as possible, which option she preferred.
53 At 9.04 am on 15 March 2017, the primary judge's associate sent an email to Mr Berg and Ms Massage which he copied to Mrs Collier. The associate forwarded a copy of Mrs Collier's email sent at 8.55 am that morning and advised that:
Notwithstanding the content of that email the directions hearing in this matter will be called first in his Honour's list at 9.30 am on Friday 17 March.
Further, Dubbo Courthouse will maintain its capacity to conduct a videoconference with Court 8.2 here at Sydney at 9.30 am in the event that Mrs Collier does decide to avail herself of this option.
54 At 9.11 am on 15 March 2017, Mrs Collier sent an email to the primary judge's associate (without copying it to the other parties) saying:
Dear [primary judge]
I sent an e-mail this morning at 7.25AM, the Deputy Associate has REFUSED to show it to you, rather has sent me the below e-mail [timed at 8.58] twice this morning.
I will not be at Dubbo on Friday and not available by telephone, as I am travelling to medical appointments, the 1st at 10.30AM and therefore, will be in transit.
Had your Deputy Associate decided to show you the last e-mail, I think it explains quite a lot and gives alternatives that are most suitable and should have been suggested by Registrar Morgan yesterday.
For reasons previously given, Mrs Collier is not entitled to complain that her emails were not shown to the primary judge.
55 At 4.08 pm on 15 March 2017, Mr O'Donovan sent an email to the primary judge's associate, copied to Ms Massage and Mrs Collier, attaching proposed short minutes of order in relation to the TIO's application in the case which it proposed should be made on Friday, 17 March 2017. The email indicates that a draft of the orders had previously been circulated to the other parties.
56 At 5.21 pm on 15 March 2017, the primary judge's deputy associate sent an email to Mrs Collier, Ms Massage and Mr Berg as follows:
His Honour has considered the draft Short Minutes of Order proffered by the Second Respondent and is minded in a preliminary way to make the Orders sought therein, apart from the suggested hearing date which is not available.
So the purpose of this email is to ascertain if all parties consent to the making of the Orders and if that consent is forthcoming his Honour will make them in Chambers without the necessity for any appearance by any party on Friday.
In that event his Honour will give the parties a small number of available hearing dates for the Application in a Case, again by email.
57 In response to that email, at 5.50 pm on 15 March 2017, Mrs Collier sent an email to the primary judge's associate (without copying the other parties) as follows:
No I do not agree.
I do not know, what you are talking about as to Short Minutes and the e-mail you sent, does not have any short minutes attached.
Talk about one sided.
58 At 7.28 am on 16 March 2017, Mrs Collier sent an email to Registrar Morgan and the primary judge's associate (but not the other parties) as follows (as written):
Please find attached, what I intend on filing in the Court ; ---
1. An Application, to have His Honour removed from the proceedings for Perceived Judicial Bias and other action against the 2nd Respondent and their Solicitor , Mr.James Berg and Barrister.
2. An Application for Exemption fees.
I am finishing off the Affidavit, which is still to be witnessed , only found out about His Honour's total Perceived Bias towards me, at 5.21PM last night.
I have applied for e-filing, but have just noticed, that can day 1 full business day to come through.
This matter, will by the looks of it end up in the High Court of Australia, I have approached the Principal Registry for information on the Court's actions.
I trust, that you will assist me Registrar Morgan, as it is obvious, His Honour has ensured, that the Registry-the Receptionist will not speak to me, is abusive and says:
"Management have instructed, we are not to talk to you, put you through to anyone or give any names out." The High Court is going to love getting this in writing.
On the basis of above, I do emphasise, that it would be most non-beneficial, to put this matter on tomorrow. I still do not know, but can only assume, as [a named Registrar] can attest to the 2nd Respondent having full knowledge of when costs start to mount up. His Honour would also have been, had he allowed me to speak on the 24th., without continually cutting me off and claiming he was busy and had a full Court room , which he did not.
I trust I will hear from you, as His Honour only picks what he replies to, see the 8.41AM email from his Deputy Associate on 15th. March 2017.
If you require a Doctor's Certificate on Friday , it cannot be dropped at the Sydney Registry, before 11.00AM.
The assertion that the primary judge "only picks what he replies to" is plainly wrong. The nature of the matters to which the primary judge responded to reflects the application of the direction that he gave on 24 November 2016 (see [12] above) and reiterated on a number of occasions. The transcript of 24 February 2017 indicates that the primary judge conducted the directions hearing on the basis that submissions relating to the merits of the substantive application would not be addressed. Given the nature of the first return date, that was appropriate. The discussion primarily went to whether the parties wished to mediate and the date on which it might occur given the limited availability of registrars. The primary judge indicated that he did not wish to hear from Mrs Collier concerning whether the matter of mediation was discussed before Flick J, and in that sense, did not want to go into the past.
59 At 9.03 am on 16 March 2017, the primary judge's associate sent to Mrs Collier, Mr Berg, Ms Massage and Mr O'Donovan the following email:
There have been a number of emails from Mrs Collier late yesterday afternoon and this morning. She has also been talking or seeking to talk to the Registrar of the Court, Ms Adele Byrne on the telephone.
The purpose of this email is to note what is really obvious anyway, namely that any issues that any party wishes to ventilate can be ventilated tomorrow morning at 9.30am before his Honour.
I further advise that his Honour has directed that all correspondence which any party wishes me to draw to his Honour's attention is to be sent to NSWListings@fedcourt.gov.au (marked to be brought to my attention) and not to these Chambers. Correspondence which does not come in compliance with this order via NSWListings@fedcout.gov.au will not be read or responded to.
60 At 10.51 am on 16 March 2016, the deputy associate to the primary judge sent an email to the Client Service Officer at the Dubbo registry in response to an email which she had provided advising that Mrs Collier had contacted her, seeking to file documents in that Registry. The Client Service Officer said that when Mrs Collier had been told that she could not assist her because the documents were not related to a family law matter, Mrs Collier had demanded to speak to the Registrar and wanted a contact number in Parramatta. The deputy associate advised the Client Service Officer that the only involvement of the Dubbo Registry of the Family Law Courts in the matter was to make available video conference facilities at 9.30 am on 17 March 2017, indicating that the facility should be maintained even though it was unlikely that Mrs Collier would avail herself of it. The deputy associate also advised that it was unnecessary for the Client Service Officer to speak with Mrs Collier or to comply with any of her requests/demands having regard to the Dubbo Registry's limited involvement. The associate to the primary judge forwarded a copy of that email to Mrs Collier, Mr Berg and Ms Massage at 11.01 am on 16 March 2017 saying:
The below email correspondence from and to the Dubbo Registry is self-explanatory.
Mrs Collier is to desist from making any further approaches to the Dubbo Registry.
The Dubbo Registry is the Registry for the Federal Family Law Courts. It has no involvement with the civil proceedings brought by Mrs Collier in this Court and its involvement with Mrs Collier's civil proceeding is only and solely to provide a videoconference facility at 9.30am tomorrow.
61 At 11.10 am on 16 March 2017, Mrs Collier sent an email to the primary judge's associate, Registrar Morgan and the Client Service Officer in the Dubbo Registry saying (as written):
I will not be in Dubbo at any time on 17t h. March 2017, as you were advised yesterday, or at least Giovanni was and it has been totally ignored .
I have advised Registrar Adele Byrne's chambers of your abuse of the Dubbo Registry in this manner.
Thankyou, for again breaching my privacy with the other parties.
I apologise [name of Client Service Officer] for the manner in which Dubbo has been abused in this manner , by the Associate to [the primary judge].
62 The directions hearing proceeded at 9.30 am on 17 March 2017 in Mrs Collier's absence. The primary judge made timetabling orders in relation to the TIO's application in a case and for the preparation of Mrs Collier's substantive application for hearing. Notably in relation to the substantive proceedings, order 6 provided:
Mrs Collier is to prepare a document briefly setting out the basis on which the relief set out in the Originating Application dated 4 October 2016 is sought by 31 March 2017.
63 As noted above, at 10.14 am on 17 March 2017, Mrs Collier filed the application in a case in the FCC's Sydney Registry, notwithstanding the advice in her email sent at 7.28 am on the previous day that a medical certificate could not be dropped at the Sydney registry before 11 am on 17 March 2017 (see [58] above).
64 At 11:53 am on 17 March 2017, the primary judge's associate sent an email to Mrs Collier, Ms Massage and Mr Berg, confirming that the directions hearing had proceeded at 9.30 am following attempts made to contact Mrs Collier at the Dubbo Registry and on the telephone number as it appears in her Genuine Steps Statement. The email then set out the timetabling orders that had been made. The email noted that debate ensued concerning the mediation which had been set down for 21 March 2017 at 1:30 pm and states that the primary judge indicated to counsel for Telstra and Mr Berg that it appeared that Mrs Collier was refusing to attend the mediation in person but might well be prepared to attend by telephone or video link. After taking instructions, counsel for Telstra and Mr Berg indicated that their respective clients were not prepared to engage in a mediation on that basis. The email advised that the primary judge would, after considering his schedule, appoint a time for the hearing of the pending application in a case by the TIO and the final hearing of the substantive proceedings.
65 At 12.36 pm on 17 March 2017 a Senior Coordinator in the NSW District Registry sent an email to Mrs Collier copied to Ms Massage and Mr Berg, to which were attached Mrs Collier's affidavit dated 16 March 2017, her application in a case, the orders made by the primary judge and a pdf described as "correspondence". The email notes that the documents were sent to Registrar Byrne the day before and Mrs Collier managed to get them e-lodged at 6 pm on 16 March 2017, although they had to be rejected because the documents were put in incorrectly. The documents were lodged internally and referred to the primary judge's chambers. The email advised that the matter was now listed for an interlocutory hearing on 24 March 2017 at 9.30 am. The documents were also forwarded to Mrs Collier, Mr Berg and Ms Massage by the primary judge's associate by an email sent at 1.01 pm on 17 March 2017. It advised that when the primary judge had considered the attachments, further procedural orders might be made.
66 At 5.30 pm on 17 March 2017, Mr Berg sent an email to Mrs Collier, Ms Massage, Telstra's barrister and Mr O'Donovan requesting the primary judge to vacate the listing on 24 March 2017 and to make orders providing for the respondents to file and serve any evidence upon which they propose to rely by 22 March 2017 and that the matter be listed on 28 March 2017 or 3 April 2017 with an estimate of half a day. Mr Berg indicated that at that stage the TIO required Mrs Collier to be available for the purpose of cross examination.
67 At 9.44 pm on 17 March 2016, Mrs Collier sent an email to the Principal Registrar of the FCA, Sia Lagos, Registrar Mathieson and another person in the FCC, responding to the primary judge's associate's email sent at 11.53 am on 17 March 2017. She stated that her documentation had been filed on 16 March 2017 and the primary judge was "both negligent and out of control, not to mention going against a Doctor's Certificate to make such orders today". She noted that she had advised that she would be unavailable on 17 March 2017 and said that she had told Registrar Morgan of her ill-health and provided information to "the Associate and Senior officers" that she will be getting the medical certificate which was e-lodged. She said that she was going to bed for four or five days on the advice of her doctor and that the certificate covered 24 March 2017. She complained that she would be expected to prepare and file necessary paperwork in seven days, a task which she said would not be expected of a barrister.
68 At 10.48 am on 20 March 2017, the primary judge's associate sent an email to Mrs Collier, Mr Berg, Ms Massage and Mr O'Donovan in which he referred to his email of 1.01 pm on 17 March 2017 and Mr Berg's response at 5.30 pm and noted that no one else had proposed alternative orders. It went on to say (as written):
I enclose a copy of a medical reported dated 17 March 2017 which was lodged at the Sydney Registry by Mrs Collier at 10.03am on 17 March but not included as an attachment to [the Senior Coordinator in the NSW District Registry]'s email of 17 March 2017 at 12.36pm (forwarded to the parties under cover of my email of 1.01pm) and only seen by his Honour at 7.52am this morning.
It is important that Mrs Collier's Application in a Case filed on 17 March 2017 (the Application in a Case) be heard as soon as possible. The first available date on which his Honour can list the Application in a Case with a half-day estimate is 28 March 2017. This date falls subsequent to the range of Mrs Collier's incapacity stated in the medical certificate.
Accordingly, his Honour has made the following Orders in Chambers this morning:
1. Vacate the return date for the Application in a Case of 24 March 2017.
2. Direct the respondents to the Application in a Case to file and serve any affidavit evidence upon which they propose to rely by 22 March 2017.
3. The Application in a Case is listed for hearing on 28 March 2017 at 2pm at Court 8.3, Level 8, 80 William Street, Sydney.
Mrs Collier ought to note that she will need to be personally present in Court on 28 March 2017 to run and argue the Application in a Case.
69 In this context it is useful to note that, stamped as received by the FCC at 10.03 am on 17 March 2017, is a medical certificate from Dr Michael Wright of Woollahra Doctors which was headed "regarding Mrs Marion Collier" and setting out her date of birth and residential address. The certificate provides as follows:
This letter is to confirm that the above person has attended a medical appointment today and has a respiratory tract infection and otilis media and will be unfit to attend court from 16 March 2017 until 24 March 2017.
70 By an email dated 21 March 2017 at 8.56 am, the primary judge's associate told the parties that, with reference to Mr Berg's email sent on Friday, 17 March 2017 at 5.30 pm, his Honour wished to remind parties of the associate's email sent on 16 March at 9.03 am which directed all parties to communicate with chambers via NSWListings@fedcout.gov.au rather than by direct email to the associate. Correspondence from Chambers would be sent directly to the parties and not via the Registry.
71 At 8.30 am on 24 March 2017, Mrs Collier sent an email to Ms Massage, Telstra's barrister and the associate to the Chief Judge of the FCC complaining about a number of matters and telephone conversations associated with complaints made by Mrs Collier about her Telstra bills and an email she received from a person described as "Megan High Risk Complaints Telstra Retail". The email asked Mrs Collier to direct any correspondence relating to her bills directly to Megan rather than contacting Telstra's Front of House staff. Mrs Collier appears to have attributed this to correspondence received by the primary judge's associate from Mrs Collier and forwarded to the other parties on 15 March 2017. Mrs Collier concluded "I further note, that the e-mail sent, on the instructions of the [primary judge] at 11.09PM on the 16th. March 2017, ridiculing and trying to make a fool of me, with the Clerk at Dubbo Family Court, to you and Mr. Berg, was a further encouragement to have you and your client, treat me in this manner".
72 Based on the correspondence, Mrs Collier's conclusion that the primary judge had attempted to make a fool of her with the clerk in the Dubbo Family Court was plainly not open nor was the conclusion that it acted as an encouragement to mistreatment of her by anyone.
73 At 8.18 am on 27 March 2017, Mrs Collier sent an email to Registrars Segal and Morgan, the New South Wales District Registry, Ms Massage and Mr Berg headed "Short Minutes of Order". Mrs Collier appears to have been under the impression that the associate for the primary judge insisted on everything going through the "List Office" although the email appears to have been directed to Ms Massage and Mr Berg. Mrs Collier stated that she would shortly be "leaving for Sydney and unable to be involved in e-mail or home telephone communication". Mr Berg responded at 8.32 am noting that communications between the parties need not include the Court and made a number of comments which included that his client would oppose an application to adjourn the hearing on 28 March 2017 and that the orders proposed in the short minutes would be opposed. At 9.56 am, Ms Massage sent an email indicating that Telstra would oppose Mrs Collier's proposed orders. At 12.11 pm Mrs Collier responded that that was fine because she did not consent to their proposed short minutes or consent orders either.
74 On 27 March 2017 at 9.56 am, the primary judge's associate sent an email to the parties enquiring whether Flick J had issued reasons in connection with his decision to transfer the proceedings to the FCC. Mrs Collier responded 12.04 pm stating:
I do not believe it appropriate the e-mail you sent. It is totally irrelevant and in the past, what occurred on the 16th . November 2016. Any argument for the reason to remit the matter to the FCA, which might pay better attention to it, is a matter for discussion tomorrow afternoon.
75 At 10.48 am on 27 March 2017, Ms Massage responded by email sent to the primary judge's associate and copied to Mrs Collier, Mr Berg and Ms Munro, the barrister who appeared in the proceedings before Flick J as follows:
My understanding from the appearance on 16 November 2016 was that Justice Flick enquired from Mrs Collier why the matter should not be sent to the Federal Circuit Court. Mrs Collier responded that she is seeking exemplary damages under the Consumer and other legislation from both Respondents and sought an adjournment to file submissions on the issue of jurisdiction.
Flick J sought the views of the Respondents. The First Respondent's representative submitted that, based on the documents filed in Court, the matter is not one that should have been brought before the Federal Court of Australia. The Second Respondent submitted that they agreed that the matter may be more appropriately dealt with by the lower court.
Accordingly, Flick J made orders transferring the case to the Federal Circuit Court (pursuant to section 32AB(1) of the Federal Court of Australia Act 1976 (Cth) and reserving its order on costs.
As far as I am aware, there are no written reasons with respect to the transfer of the proceedings to the Federal Circuit Court.
76 At 5:35 pm on 27 March 2017, Mrs Collier sent an email to Registrar Segal, Registrar Mathieson and the NSW District Registry advising as follows:
Dear Registrars & Associate,
I was delayed getting to the Railway Station, not due to my own circumstances, a Dubbo Ranger asking me some questions about a car outside, following which, a Taxi I had ordered, did not come to my home, rather further up the street and then left.
When I got within a short distance of the Railway, after running most of the way in 33% temp., the XPT left. I have spent all afternoon trying to get a ride to Orange, which I was prepared to pay for, put not the $250 + that a Taxi was asking, so it could be a lot more, once we got to Orange.
I tried the Airports at Mudgee and Dubbo, but the planes are from $189.00-$220.00, which can get me to the Court and the Dubbo leaves at 6.40AM, so I have to have someone up at 4.30AM, with the Mudgee being 100 ks away. The $151.00 plane from Dubbo, does not leave until later in the morning and could delay me being at the Court by 2.00PM.
I am therefore asking to appear by telephone, as I have been able to put off the Doctor's appointment until 12 Noon on Friday. I realise, that this is a great inconvenience, but can assure you, that I and some friends have tried everything possible and have not been able to find anything better to assist.
If this is not suitable, maybe Friday would be more suitable to everyone, as I am fully aware, that the Respondent's representatives are in Sydney. That way, we could all be in person.
Whilst I was down the Street, I did injure my foot, which as this was most important, I have not yet treated it.
I again apologise for the inconvenience that this has caused you and await your instructions.
77 At 6.13 pm on 27 March 2017, the primary judge's associate sent an email to Mrs Collier, copied to the other parties, as follows:
Thank you for your email which I have referred to his Honour.
His Honour asked me to advise that as indicated in my email of 20 March 2017 you need to be personally present to run and argue your Application in a Case and accordingly he is not prepared to permit you to appear by telephone or video link.
It is your Application and so you will need to make all necessary arrangements to be in Court tomorrow.
In your absence it is likely that his Honour will be asked to dismiss your Application in a Case for want of appearance, with costs.
78 At 7.19 pm on 27 March 2017, Mrs Collier wrote to the associates of the primary judge and the Chief Judge of the FCC asserting that any orders made on 20 March 2017 were against a medical certificate and suggested that the primary judge "knowingly" listed the matter on 30 January 2017 "in the middle of a Doctor's Certificate". Mrs Collier complained about the directions hearing on 17 March 2017 and noted that she had said she would be unavailable on that day and would not be anywhere near Wellington or Dubbo. She said that 4 pm was the earliest that she could get to Sydney and noted that she had offered to be there on Friday. Mrs Collier suggested that the primary judge wished to "cancel the proceedings" as he is "on Telstra's side all the way". She suggested that the primary judge required her presence in person to "check my face as I say things" because the primary judge thinks "as has been made out, that I am a liar". She again claimed that the primary judge had indicated on 24 February 2017 that he was in a hurry, she should "get on with it" and that he was "not interested". She asked them to get back to her as soon as possible.
79 Included in Mrs Collier's affidavit sworn on 15 September 2017 are short minutes of order for 28 March 2017 of which she says "she formally requested putting into a Statement of Claim, her Summons, which she had verbally requested both of Flick J and [the primary judge] on the 8th. November 2016 and 24th. February 2017."