Collier v Attorney General for New South Wales

[2022] NSWCA 26

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Collier v Attorney General for New South Wales [2022] NSWCA 26
Hearing dates:	21 February 2022
Date of orders:	28 February 2022
Decision date:	28 February 2022
Before:	Macfarlan JA
Decision:	Applicant’s notice of motion dismissed with costs.
Catchwords:	APPEAL – stay application refused – no issue of principle
Legislation Cited:	Vexatious Proceedings Act 2008 (NSW), s 8(7)
Category:	Principal judgment
Parties:	Marion Louise Collier (Applicant) Attorney General for New South Wales (Respondent)
Representation:	Counsel: M Collier (self-represented) (Applicant) D Birch (Respondent) Solicitors: Crown Solicitor’s Office (Respondent)
File Number(s):	2021/354381
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2021] NSWSC 1483 Date of Decision: 17 November 2021 Before: Beech-Jones CJ at CL File Number(s): 2019/183521

Judgment

1. MACFARLAN JA: This is an application by Mrs Marion Collier, who is a self-represented litigant, for an order staying certain proceedings in the Common Law Division until the finalisation of the present appeal proceedings and for:

“an Order of the Court, preventing the Respondent and/or legal representatives, from further phoning, harassing or intimidating non-parties to these proceedings”.

2. It is not clear whether the first prayer for relief seeks a stay of the Common Law proceedings generally or simply of orders made by Beech-Jones CJ at CL on 17 November 2021. For reasons appearing below, neither type of stay is warranted.

3. The Respondent Attorney General for New South Wales (the “Attorney General”) commenced the Common Law Division proceedings on 13 June 2019 by filing a summons seeking an order or orders against Mrs Collier pursuant to s 8(7) of the Vexatious Proceedings Act 2008 (NSW). Accompanying the summons was a solicitor’s affidavit identifying and exhibiting various judicial decisions involving Mrs Collier. It is plain that the vexation alleged against Mrs Collier arises out of her involvement in those proceedings. Mrs Collier however alleged that, absent the Attorney General explaining to her how the Attorney General put the case against her, the Common Law Proceedings should be regarded as a “fishing expedition”.

4. To pursue this argument Mrs Collier filed a notice of motion in the Common Law Division seeking, inter alia, an order that the Attorney General’s summons be struck out. Beech-Jones CJ at CL heard and determined Mrs Collier’s application on 17 November 2021 ([2021] NSWSC 1483) stating, in particular, that the role of the affidavit supporting the summons was not to argue the plaintiff’s case, but to provide evidence for it, and that there was therefore no deficiency in the affidavit. His Honour noted that the substantive proceedings are listed for hearing in April 2022 and that Mrs Collier could expect to be provided before then with written submissions arguing the Attorney General’s case. Indeed, the proceedings have been listed for final hearing on 5-7 April 2022 and, according to the court’s records (on JusticeLink), the Attorney General filed written submissions on 18 February 2022, in accordance with directions made by the Registrar.

5. At the hearing of Mrs Collier’s notice of motion filed in this Court, she put the same argument that she had put to Beech-Jones CJ at CL in the Common Law proceedings, in essence, that she had been denied procedural fairness because, unjustifiably, she had not been told what the case was against her. That argument should again be rejected. Mrs Collier did not allege that the Attorney General had failed repeatedly, or indeed at all, to comply with directions for the provision of written submissions. Compliance with such a direction was the appropriate occasion for the Attorney General’s argument to be put before Mrs Collier. It is curious that the Attorney General’s summons has taken so long to be fixed for hearing (it having been filed on 13 June 2019). This Court was not however made privy to the detail of what has occurred at first instance, nor is any complaint about any delay in progressing the proceedings the subject of the notice of motion in this Court. Indeed, on one interpretation of the orders sought by Mrs Collier, her intent is to delay the proceedings being heard by obtaining an order staying them.

6. The second order sought by Mrs Collier in her notice of motion, being that prohibiting the Attorney General and representatives “further phoning, harassing or intimidating non-parties”, is not concerned with conduct occurring in the Court of Appeal. I was not directed to any material which would suggest that the implicit allegations made by Mrs Collier have substance but, even if they did, that would be a matter for the Common Law Division to address. The only aspect of the alleged conduct that does arise for consideration on appeal is that referred to by Beech-Jones CJ at CL at [17]–[20] of his judgment, relating to a particular solicitor in the Crown Solicitor’s Office. On this issue, Mrs Collier relied before his Honour on various emails. I agree with his Honour’s view that “[t]hose emails do not constitute, in anyone’s language, abusive or bullying type behaviour”. Mrs Collier did not therefore establish any basis for the second order she sought.

7. Returning to the first order sought by Mrs Collier, the position is that no basis whatsoever has been demonstrated to this Court for staying the proceedings at first instance or for staying his Honour’s order dismissing Mrs Collier’s strike-out motion.

8. Mrs Collier’s notice of motion filed in this Court is accordingly dismissed with costs.

**********

Decision last updated: 28 February 2022