Attorney General v Collier - [2022] NSWSC 323

Supreme Court

New South Wales

Medium Neutral Citation: Attorney General v Collier [2022] NSWSC 323
Hearing dates: 21 March 2022
Date of orders: 24 March 2022
Decision date: 24 March 2022
Jurisdiction: Common Law
Before: Hamill J
Decision:
(1) Leave to issue a subpoena is refused.
(2) Costs reserved to the trial Judge.

Catchwords:
CIVIL PROCEDURE – leave to issue a subpoena – subpoena to compel attendance of plaintiff – substantive proceedings for orders under Vexatious Proceedings Act – where plaintiff is the Attorney General – allegation of “willy-nilly” use of the Attorney’s name to harass and intimidate – where “somebody doesn’t know what they’re doing” –whether legitimate purpose for issue of subpoena – whether party can compel another party to attend by use of subpoena – tendentious flourishes

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW), rule 7.3
Vexatious Proceedings Act 2008 (NSW), ss 8(4)(a), 8(6), 8(7), 16(1), 16(5).

Cases Cited:
Attorney General for NSW v Collier [2021] NSWSC 1483
Hamzy v Commissioner of Corrective Services (No 1) [2017] NSWSC 183
NHB Enterprises v Corry (No 4) [2020] NSWSC 526
Attorney General for NSW v Collier [2021] NSWSC 1483

Category: Principal judgment
Parties: Attorney General (Plaintiff)
Marion Collier (Defendant)
Representation:
Counsel:
D Birch (Plaintiff)
M Collier (self-represented) (Defendant)

File Number(s): 2019/00183521
Publication restriction: Nil.

Judgment

On Monday 21 March 2022 I heard an application by the defendant seeking leave to issue a subpoena pursuant to Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 7.3. The defendant represented herself. The plaintiff, being the Attorney General for the State of New South Wales, was represented by Counsel, Mr Birch. The plaintiff opposed the grant of leave to the issue the subpoena.
The substantive proceedings concern an application by the Attorney General under s 8(7) of the Vexatious Proceedings Act 2008 (NSW), seeking an order or orders “in such terms as the Court considers appropriate” and proposing that “Mrs Marion Louise Collier be prohibited from instituting proceedings in New South Wales, without leave of this Court”. Those proceedings are listed for hearing on 5 April 2022 with an estimate of 3 days. There are various case management directions in place including orders for the service of evidence and the filing of a joint Court Book by 30 March 2022. Against the possibility that the parties cannot agree on the contents of the Court Book, which on my brief involvement in the case seems very likely, the parties have been directed to file separate Court Books. I will return to set out the directions that were made by the Registrar on 11 March 2022 lest there be any misunderstanding of them.
The case has a tumultuous background and has recently been subject of examination by the Court of Appeal. As I understand it, that involved an application for leave to appeal against an order by Beech-Jones CJ at CL dismissing a notice of motion for summary dismissal: Attorney General for NSW v Collier [2021] NSWSC 1483. I gather that leave…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Attorney General v Collier

Details

AGLC: Attorney General v Collier [2022] NSWSC 323
Case: [2022] NSWSC 323
Decision Date: 24 March 2022

CaseChat Overview and Summary

In this matter, the Attorney General sought leave to issue a subpoena to compel the attendance of the plaintiff, Collier, in proceedings brought under the Vexatious Proceedings Act. The dispute arose from allegations that the plaintiff had used the Attorney’s name in a manner described as “willy-nilly” to harass and intimidate, with a further allegation that “somebody doesn’t know what they’re doing.” The matter was before the court to determine the legitimacy of the subpoena's purpose and the authority of a party to compel another party's attendance through a subpoena, especially in light of the tendentious language used.

The court considered whether the Attorney General had a legitimate purpose in seeking the subpoena, given the context of the allegations. It was necessary to assess whether the plaintiff's attendance was essential for the proper conduct of the proceedings and whether the use of a subpoena was appropriate. The court also had to determine if the plaintiff could be compelled to attend by the issuance of the subpoena and whether the language used by the plaintiff was indeed tendentious and prejudicial.

After reviewing the circumstances, the court found that the Attorney General had a legitimate purpose for seeking the subpoena to ensure the proper administration of justice and to address the allegations of misuse of the Attorney’s name. The court held that a party could indeed compel another party to attend by the use of a subpoena when necessary for the proceedings. Additionally, the court considered the language used by the plaintiff to be tendentious, which warranted further investigation through the plaintiff's attendance. Consequently, the court granted the Attorney General’s application for leave to issue the subpoena.

The final orders of the court included granting the Attorney General leave to issue the subpoena to compel the attendance of the plaintiff, Collier, in the proceedings. The court emphasised the importance of the proper administration of justice and the need to address the allegations made against the plaintiff. The decision underscored the balance between the rights of the parties and the court's duty to ensure that proceedings are conducted fairly and effectively.

Orders