Collier v Country Women's Association of New South Wales

Case •

[2018] NSWCA 36

•

09 March 2018

No judgment structure available for this case.

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Collier v Country Women’s Association of New South Wales [2018] NSWCA 36
Hearing dates: 6 March 2018
Date of orders: 09 March 2018
Decision date: 09 March 2018
Before: Gleeson JA
Decision:

First motion:
(1)   Confirm the orders made by the Registrar on 6 December 2017.

 

(2)   Stand over paragraph 10 of the applicant’s notice of motion filed 15 December 2017 to 28 March 2018 for mention before the Registrar.

 

(3) Direct the appellant to file and serve an affidavit pursuant to UCPR, r 51.22(3), within 14 days.

 

(4)   Otherwise dismiss the applicant’s notice of motion filed 15 December 2017.

 

(5)   The applicant to pay the respondent’s costs of the notice of motion filed 15 December 2017, including the reserved costs of 5 February 2018 on an ordinary basis.

 

Second motion:
(6)   Dismiss the applicant’s notice of motion filed 22 February 2018.

 (7)   The applicant to pay the respondent’s costs of the motion filed 22 February 2018 on an ordinary basis.
Catchwords:

PROCEDURE – notices of motion – review of case management orders made by Registrar – application for referral of various persons for alleged criminal actions

  BIAS – actual bias – apprehended bias – application for recusal of judge – application for disqualification of Registrar
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 98
Crimes Act 1900 (NSW), ss 319, 338
Criminal Procedure Act 1987 (NSW), ss 14, 49
Oaths Act 1900 (NSW), s 29
Supreme Court Act 1970 (NSW), ss 39, 75A, 101(2), 101(3), 121(3)
Uniform Civil Procedure Rules 2005 (NSW), rr 4.3(2)(b), 42.1, 49.19, 51.22, 51.37, 51.51, 51.59, Pt 49
Cases Cited: British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2
Cabassi v Vila (1940) 64 CLR 130; [1940] HCA 41
Collier v Country Women’s Association of NSW [2016] NSWSC 1361
Collier v Country Women’s Association of NSW [2017] NSWCA 22
Collier v Country Women’s Association of NSW [2017] NSWSC 1573
Collier v Country Women’s Association of NSW (No 2) [2017] NSWSC 1729
Council of the Municipality of Woollahra v Sved (1998) NSWCA 63
Dae Boong International Co Pty Ltd v Gray [2009] NSWCA 11
Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2005] HCA 63
Harrison v Schipp [2001] NSWCA 13
House v The King (1936) 55 CLR 499; [1936] HCA 40
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Mead v Watson [2005] NSWCA 133
Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Rajski v Wood (1989) 18 NSWLR 512
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
Re JRL; Ex parte CJL(1986) 161 CLR 342 at 352; [1986] HCA 39.
Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369
Texts Cited: Practice Note No SC CA 1
Category:Procedural and other rulings
Parties: Marion Louise Collier (Applicant)
Country Women’s Association of New South Wales (Respondent)
Representation:

Counsel:
Applicant (in person)
S Chrysanthou (Respondent)

  Solicitors:
Applicant (in person)
Mills Oakley (Respondent)
File Number(s): 2017/360202; 2016/297965
Publication restriction: No
 Decision under appeal 
Court or tribunal:
Supreme Court of New South Wales
Jurisdiction:
Common Law
Citation:
[2017] NSWSC 1573
Date of Decision:
17 November 2017
Before:
Adamson J
File Number(s):
2016/122571; 2017/72463

Judgment

  1. GLEESON JA: Application is made by Mrs Marion Louise Collier by notices of motion filed on 15 December 2017 and 22 February 2018 for a variety of interlocutory relief with respect to two proceedings: an appeal commenced by her (proceeding 2017/360202) and a re-opening application filed by her with respect to earlier proceedings in this Court (proceeding 2016/297965).

  2. The first motion primarily seeks a review of orders made by the Registrar of the Court on 6 December 2017 and asserts that the Registrar “was negligent and showed perceived bias towards” Mrs Collier. The second motion primarily seeks an order that I recuse myself on the grounds of actual bias, an order that the Registrar of the Court be disqualified from any further hearings in the two proceedings on the grounds of actual bias, and that an investigation be directed to be undertaken in relation to alleged criminal actions of various persons.

  3. Mrs Collier is self-represented and resides in country New South Wales. At her request, she appeared by way of telephone on the hearing of the motions.

Background

Appeal

  1. The notice of appeal was filed by Mrs Collier on 28 November 2017.

  2. The appeal concerns a judgment of Adamson J given on 17 November 2017. [1] That judgment dealt with two proceedings brought by Mrs Collier against the Country Women’s Association of NSW (CWA), one in the Common Law Division (2016/122571) claiming damages for defamation, and the other in the Equity Division (2017/72463) claiming an order that Mrs Collier’s removal from the position of secretary of the Wellington branch of the CWA was illegal.

    1. Collier v Country Women’s Association of NSW [2017] NSWSC 1573.

  3. Adamson J ordered judgment for the CWA in the Common Law proceedings and reserved costs, and dismissed the summons in the Equity proceedings and again reserved costs. On 12 December 2017, Adamson J made costs orders against Mrs Collier in both proceedings. [2]

    2. Collier v Country Women’s Association of NSW (No 2) [2017] NSWSC 1729.

  4. The notice of appeal contains 109 grounds, nearly all of which assert either actual or apprehended bias against the primary judge. The relief sought includes damages (in an unspecified amount) and an order (par 5) that three named persons (it seems officers of the CWA) be referred to the Director of Public Prosecutions for criminal charges to be laid against them.

  5. Mrs Collier claims that she has an appeal as of right under the Supreme Court Act 1970 (NSW), s 101(3). Section 101(3) provides that the restrictions on an appeal to the Court of Appeal except by leave (in s 101(2)) do not apply, relevantly, to an order for the committal or arrest of any person. It seems that Mrs Collier considers that s 101(3) is engaged in the present case because of the nature of the relief sought on appeal, rather than the nature of the judgment or order from which the appeal lies. While that may be doubted, it is not necessary to express any concluded view on the competency of the appeal to dispose of the present motions.

Re-opening application

  1. On 17 February 2017, this Court (Ward JA and Payne JA) [3] dismissed Mrs Collier’s summons seeking leave to appeal against an interlocutory decision of McCallum J in the Common Law proceedings, refusing leave to Mrs Collier to file a proposed amended statement of claim and ordering Mrs Collier to pay the costs of that application. [4]

    3. Collier v Country Women’s Association of NSW [2017] NSWCA 22.

    4. Collier v Country Women’s Association of NSW [2016] NSWSC 1361.

  2. On 24 October 2017, Mrs Collier filed a notice of motion seeking to re-open her application for leave to appeal (the re-opening application).

  3. On 22 November 2017, I made the following orders and directions for the filing of evidence and submissions with respect to the re-opening application:

(1) Mrs Collier to file and serve her written submissions and any affidavit in support of her motion on or before 20 December 2017;

(2) CWA to file and serve written submissions and any affidavit material in response on or before 7 February 2018;

(3) Mrs Collier to file and serve any submissions in response on or before 21 February 2018;

(4) Stand over the motion on 26 February 2018 at 9am before the Registrar.

CWA’s motion

  1. On 5 December 2017, the CWA filed a notice of motion challenging the competency of the appeal. The CWA asserts that leave to appeal is required because the amount in issue is less than the value of $100,000: Supreme Court Act, s 101(2)(r). The CWA’s motion also seeks security for costs of the appeal and the re-opening application. That motion has not yet been heard.

Directions hearing – 6 December 2017

  1. On 6 December 2017 the following orders were made by the Registrar of the Court:

1. Any Motion to adduce additional evidence is to be filed and served by 31 January 2018 and is to be returnable at the Directions Hearing. The fee for the Motion is waived.

2. Appellant’s submissions to be filed and served by 31 January 2018.

3. Any Summons for Leave to Appeal is to be filed and served by 31 January 2018. and listed for Directions on 14 February 2018. The fee for the summons is waived.

4. Respondent's Motion stood over to 14 February 2018 for Mention.

5. Respondent to file submissions by 12 February 2018.

6. Stood over for further Directions on 14 February 2018 at 9:45AM by telephone.

7. Vacate the return date of Motion on 11 December 2017.

8. Vacate the Directions Hearing in Matter 2016/297965 from 7 February 2018 to 14 February 2018.

First motion – procedural history

  1. Mrs Collier’s first motion was initially returnable before the Registrar in the motions list on 29 January 2018. On that occasion, Mrs Collier appeared in person by telephone and Ms Chrysanthou, of counsel, appeared for the CWA.

  2. The transcript records that Mrs Collier indicated that she was ready to proceed with her motion. [5] Mrs Collier also indicated that she did not have any objection to my dealing with her motion. The Registrar informed Mrs Collier that I was available to hear the motion on 5 February 2018. [6] The first motion was stood over to that date for hearing before me. The Registrar also gave directions with respect to the provision by Mrs Collier of particulars of some of her allegations in the first motion.

    5. Tcpt, 29 January 2018, p 2(31).

    6. Tcpt, 29 January 2018, p 4(29).

  3. On 30 January 2018 (at 10:31am), Registrar Riznyczok sent an email to Mrs  Collier, copied to the solicitor for the CWA, informing Mrs Collier that I had been provisionally allocated to hear her motion by the President of the Court of Appeal, and that the motion had been adjourned to the first date that I was available to hear the motion.

  4. On 5 February 2018, part way through the hearing, Mrs Collier applied for and obtained an adjournment of the first motion. Mrs Collier stated that she was of the understanding having contacted the Registry and spoken to the manager of Court Services, that the motion was listed for mention, not a hearing. [7] The hearing of the first motion was stood over before me on 22 February 2018.

    7. Tcpt, 29 January 2018, p 6(17-19).

  5. Prior to the adjourned hearing of the first motion, Mrs Collier sought a further adjournment on the ground that she had suffered injuries while moving house in Young and needed to attend a physiotherapy appointment in Campbelltown on the day fixed for hearing. The hearing of the first motion was adjourned by the Registrar to 6 March 2018.

Second motion

  1. On 22 February 2018, Mrs Collier filed her second motion which was listed for hearing together with the first motion on 6 March 2018.

  2. As the second motion seeks an order that I recuse myself on grounds of actual bias, it is necessary to deal with that application first. In oral argument, Mrs Collier also relied upon an assertion of apprehended bias.

Evidence on the motions

  1. On the hearing of the motions, Mrs Collier read without objection her affidavits sworn 8 December 2017 and 7 February 2018. The CWA tendered a copy of the transcript of the proceedings before Registrar Riznyczok on 6 December 2017 (Ex 1) and the revised transcript of the directions hearing before Registrar Riznyczok on 29 January 2018 (Ex 2). On the question of costs, the CWA tendered an email sent by Mrs Collier dated 21 February 2018 (at 10:10pm) to, among others, Registrar Riznyczok (Ex 3) and Mrs Collier tendered an email from Daren Curry of Mills Oakley, solicitors for the CWA, to Mrs Collier dated 18 August 2018 (9:14pm) (Ex A).

  2. After the conclusion of the hearing, Mrs Collier sent two emails to my Associate on 7 March 2018; the first was copied to the solicitor for the CWA, the second was not copied to the solicitor for the CWA. My Associate replied to both emails indicating that I would disregard the content of those emails and the attachments which were not before the Court on the hearing of the two motions. Mrs Collier did not seek leave to re-open the hearing and tender any further material.

Recusal application

Apprehended bias – relevant principles

  1. The test for recusal is whether a fair-minded lay person, with knowledge of the matters relied upon by Mrs Collier, might reasonably consider that the judicial officer might not carry out his judicial functions with an impartial and unprejudiced mind. [8]

    8. Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11]-[13]; Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]; Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48 (Michael Wilson & Partners) at [31].

  2. The test for apprehension of bias is objective. It does not require an assessment of the state of mind of the judicial officer in question, as is necessary on an inquiry about actual bias. [9]

    9. Michael Wilson & Partners at [33].

  3. The application of the apprehension of bias principle involves two steps. The first is to identify what it is said might lead the judicial officer to decide a case other than on its legal and factual merits. The second is to articulate the logical connection between the circumstances identified in that matter and the apprehension that the case might not be decided on its merits. [10]

    10. Ebner v Official Trustee in Bankruptcy at [8]; Michael Wilson & Partners at [32]-[33]; British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 at [139] (Heydon, Kiefel and Bell JJ).

  4. Accordingly, an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judicial officer might not bring an impartial mind to bear upon the issues that are to be decided. The question is not whether the judicial officer had in fact prejudged an issue. [11]

    11. Michael Wilson & Partners at [67].

Actual bias – relevant principles

  1. In Reid v Commercial Club (Albury) Ltd, [12] the following summary of principles was stated:

    12. [2014] NSWCA 98 at [68]–[73] (Gleeson JA, Emmett JA and Tobias AJA agreeing).

[68] A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) (Sun v Minister) 81 FCR 71 at 127 per Burchett J. Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97] and the authorities there cited.

[69] Where the issue is actual bias in the form of prejudgment, the appellant had to establish that the primary judge was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [72] per Gleeson CJ and Gummow J (Hayne J agreeing at [176]). See also Kirby J at [127].

[70] As Gleeson CJ and Gummow J observed in that case at [71]:

“The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion.”

[71] In the same case, Hayne J noted at [185] the several distinct elements underlying the assertion that a decision-maker has prejudged or will prejudge an issue, or the assertion that there is a real likelihood that a reasonable observer might reach that conclusion. The first is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. The second is the contention that the decision-maker will apply that opinion to the matter in issue. The third is the contention that a decision-maker will do so without giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the particular case.

[72] His Honour observed at [186] that allegations of actual bias through prejudgment often fail at the third step he had identified. This was because notwithstanding whatever expression of preconceived opinions by the decision-maker, it does not follow that the evidence will be disregarded.

[73] The test of actual bias in the form of prejudgment requires an assessment of the state of mind of the judge in question: Michael Wilson & Partners Limited v Nicholls & Others [2011] HCA 48; 244 CLR 427 at 437 [33]. However, actual bias need not be confined to an intentional state of mind. Bias may be subconscious, provided it is real: Bilgin v Minister for Immigration and Multicultural Affairs (Bilgin v Minister) (1997) 149 ALR 281 at 289-290 per Finkelstein J; Sun v Minister at 127 per Burchett J and 135 per North J. As Finkelstein J said in Bilgin v Minister at 290:

“The wrong involved is the failure to decide a case impartially. Whether that failure was deliberate or not should be beside the point insofar as the validity of the decision is concerned.”

Application of principles to the facts

  1. The grounds of Mrs Collier’s assertion of actual bias are to be gleaned from her affidavits, as supplemented by her oral submissions. Those grounds seem to be:

  1. that the Registrar had not informed Mrs Collier on 29 January 2018 that another Judge (McColl JA) was the referrals judge on that day. The complaint seems to be that Mrs Collier would not have indicated that she had no objection to my hearing the first motion, if she had been made aware by the Registrar that another judge was the referrals judge on 29 January 2018;

  2. that I was not impartial because I had “blindly” accepted on 5 February 2018 the CWA’s objection to two paragraphs of Mrs Collier’s affidavit sworn 8 December 2017 (pars 4(a) and 7);

  3. that I had intimidated and ridiculed Mrs Collier on 5 February 2018 because I had accepted “point blank” that she had breached earlier orders of the Court made on 22 November 2017 in relation to the timetable for evidence and submissions with respect to the re-opening application (referred to at [11] above);

  4. that I had ignored that pars 4, 5 and 6 of the first motion had been withdrawn by Mrs Collier at the directions hearing on 29 January 2018;

  5. that I had raised with Mrs Collier the prospect of her filing an application for leave to appeal, which might be heard concurrently with her appeal;

  6. that I had asked counsel for the CWA whether the proposed adjournment date suited that party without asking whether it suited Mrs Collier; and

  7. that I had drawn to Mrs Collier’s attention on 5 February 2018 parts of emails sent by the Registrar to the parties on 30 January 2018 (confirming that the first motion was fixed for hearing before me on 5 February 2018 at 2:15pm) and did not allow Mrs Collier to read out onto the transcript other emails.

  1. As to (a), accepting that Mrs Collier was unaware on 29 January 2018 that another judge was the referrals judge on that day, says nothing about her assertion of actual bias. Insofar as Mrs Collier is to be taken as contending that the President of the Court of Appeal cannot nominate or allocate a judge to hear and determine her motions, that contention must be rejected.

  2. Section 39(1) of the Supreme Court Act relevantly provides:

(1) Intra-curial arrangements for the transaction by the Judges of Appeal of the business of the Court of Appeal shall be made by the President of the Court of Appeal with the concurrence of the Chief Justice.

  1. In Rajski v Wood, [13] Hope AJA said:

… it is in my opinion not open to a litigant to institute proceedings in the court to challenge the right or power of a particular judge to hear and determine a case to which he, the litigant, is a party. There is no difference in this regard whether the assignment of the judge to the case has been made pursuant to s 39, or pursuant to the inherent power of the court. In neither case can the litigant challenge the assignment, and proceedings to make such a challenge disclose no reasonable cause of action.

13. (1989) 18 NSWLR 512 at 526.

  1. Priestley JA agreed with Hope AJA, [14] noting that there was nothing in s 39 of the Supreme Court Act or otherwise in the law of New South Wales which suggests that it is open to a litigant to make a challenge, by further litigation within the Court, to the administrative arrangements within the Court by which the business of the Court is allocated amongst its judges.

    14. Rajski v Wood at 523.

  2. As to (b), Mrs Collier asserted that, having regard to the evidentiary ruling I made on 5 February 2018, my mind was not open to persuasion when dealing with her two motions, whatever evidence or arguments may be presented by her on the hearing of those motions.

  3. Contrary to the assumption which seems to be implicit in Mrs Collier’s submissions, the hearing of the first motion was not stood over part-heard. The hearing of the first motion will commence afresh. Assuming that Mrs Collier sought to read pars 4(a) and 7 of her affidavit of 8 December 2017, and assuming that those paragraphs were objected to by the CWA, Mrs Collier would be entitled to advance further argument in support of her contention that those paragraphs are admissible. Alternatively, Mrs Collier might seek to tender other evidence in admissible form, as she foreshadowed on 5 February 2018. [15] Of course, the CWA might not object to those two paragraphs at the adjourned hearing. (As recounted at [21] above, the relevant pars of Mrs Collier’s affidavit of 8 December 2017 were subsequently read without objection.)

    15. Tcpt, 5 February 2018, p 4(47-48).

  4. Mrs Collier has not established that I have an opinion with respect to her two motions, that such opinion is adverse to her and is one that I would apply on the determination of her motions, or that I would do so without giving those motions consideration in light of whatever the facts and arguments may be relevant to those motions.

  5. As to (c), Mrs Collier explained on 5 February 2018 that she had not complied with the orders of the Court made on 22 November 2017 for the filing and service of affidavits and submissions with respect to the re-opening application (see [11] above) because she was under the impression that the “timetable” had been set aside by the Registrar on 6 December 2017. Her view was mistaken. Nonetheless, as I indicated to Mrs Collier on 5 February 2018, the question of breach of the timetable would be dealt with when the re-opening application was next before the Court for directions.

  6. That the Judge raises a case management issue with respect to compliance with earlier orders of the Court, does not constitute actual bias in the form of pre-judgment or lack of partiality.

  7. As to (d), that pars 4, 5 and 6 of the first motion repeat the same relief sought in pars 1, 2 and 3 was obvious on the face of the first motion. It was unnecessary to address that error on 5 February 2018, since the hearing of the first motion was adjourned.

  8. As to (e), the transcript of the hearing on 5 February 2018 records that I raised with Mrs Collier the possibility of her filing an application for leave to appeal as a defensive measure to address the CWA’s challenge to the competency of her appeal. Mrs Collier responded that she did not intend to take that step because she relied upon what she asserted was an appeal as of right under s 101(3) of the Supreme Court Act.

  9. That a Judge raises with a party the possibility of taking a procedural step in advance of a challenge to the competency of the appeal, does not involve pre-judgment of the substantive issue.

  10. As to (f), the transcript of 5 February 2018 records [16] that when discussing the proposed adjourned date for the hearing of the first motion with both counsel for the CWA and Mrs Collier, each party was given an opportunity to indicate whether proposed dates were convenient. Insofar as Mrs Collier initially took objection on 5 February 2018 that she had not been asked whether the proposed date was suitable to her, she subsequently withdrew that remark.

    16. Tcpt, 5 February 2018, p 8(41) - p 9(9).

  11. As to (g), it is correct that during the hearing on 5 February 2018 Mrs Collier sought to read from an email dated 20 November 2017 (at 12:46pm). [17] That email had not been tendered in evidence. I asked Mrs Collier to clarify whether she was making an adjournment application with respect to the hearing of her first motion and she indicated that she was. As indicated, that application was ultimately successful over objection by the CWA.

    17. Tcpt, 5 February 2018, p 6(34-36).

  12. Neither of the matters referred to in (e) and (f) above, involve pre-judgment or lack of partiality.

  13. Insofar as Mrs Collier asserted apprehended bias, she was unable to identify any logical connection between any of the complaints made in relation to the hearing on 5 February 2018 and the issues that need to be determined on the two motions, such that a fair-minded lay person might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the questions for decision on those motions.

  14. I am also mindful that it is my duty to determine matters which come before me as a member of this Court and also that it is my duty not to withdraw unless there are reasons which require me to do so. As Mason J said in Re JRL; Ex parte CJL: [18]

Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

18. (1986) 161 CLR 342 at 352; [1986] HCA 39.

  1. For these reasons, I declined to recuse myself.

FIRST MOTION

Review of Registrar’s decision

  1. The nature of a review of a decision of a Registrar of the court under s 121(3) of the Supreme Court Act and Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 49.19, was considered by this Court in Tomko v Palasty (No 2). [19]

    19. (2007) 71 NSWLR 61; [2007] NSWCA 369 at [4]-[10] (Hodgson JA, Ipp JA agreeing) and [52] (Basten JA).

  2. In summary, a review of a decision of a Registrar is not an appeal, and in such a review the Court must exercise its own discretion. This discretion extends to a discretion as to whether and, if so, how to intervene. The onus is on the person seeking to have the court set aside or vary a Registrar’s decision to make out a case that the Court, in the interests of justice, should exercise its discretion to do so. [20]

    20. Dae Boong International Co Pty Ltd v Gray [2009] NSWCA 11 at [18] (Hodgson JA).

  3. In the case of a decision on practice or procedure, this will normally require at least a demonstration of error of law or an error of the kind referred to in House v The King [21] or a material change of circumstances or evidence satisfying the requirements of fresh evidence. [22]

    21. (1936) 55 CLR 499; [1936] HCA 40.

    22. Dae Boong International Co Pty Ltd v Gray at [19].

  4. A judge of appeal may exercise the powers of the Court under Pt 49, UCPR, to review a decision of the Registrar: UCPR, r 51.59.

Orders 1 and 2: Challenge to Registrar’s decision – 6 December 2017

  1. The principal relief sought in Mrs Collier’s motion (order 1) is to set aside the orders made by the Registrar on 6 December 2017 (set out at [13] above]).

  2. In lieu of those orders, Mrs Collier seeks an order:

2. That the timetable issued by Gleeson JA on the 22 November 2017, be reinstated.

  1. The relief sought by Mrs Collier in order 2 proceeds on a mistaken view that the “timetable” made on 22 November 2017 with respect to the re-opening application (referred to at [11] above) was set aside by the Registrar on 6 December 2017. As I have said, that is not so. Unfortunately, that apparent misunderstanding by Mrs Collier has permeated many of her subsequent complaints.

  2. Turning to the complaints made by Mrs Collier with respect to the orders made by the Registrar on 6 December 2017.

Order 1

  1. Order 1 concerns the filing of any motion to adduce further evidence on appeal. Under the Supreme Court Act, s 75A(7), the Court may receive further evidence on appeal. However, after a hearing on the merits, the Court is to do so only in special circumstances: s 75A(8), other than where it is evidence concerning matters occurring after the trial: s 75A(9).

  2. Mrs Collier submits that order 1 is unnecessary because the documents to which she seeks to refer in support of her appeal do not constitute further evidence on appeal, but are documents which were before the primary judge. Accordingly, she argues that leave to rely upon that evidence on appeal is not required.

  3. Order 1 does not pre-judge the question of whether the documents annexed to Mrs Collier’s affidavit constitute further evidence on appeal. It is a facilitative order, directed to ensuring that any application to adduce further evidence on appeal is made in a timely manner: UCPR, r 51.51. Order 1 is appropriate. It is entirely a matter for Mrs Collier to decide whether to make such an application.

Order 2

  1. Ordinarily, Mrs Collier’s submissions were required to be filed and served within six weeks of the filing of the notice of appeal: UCPR, r 51.37(1). The effect of order 2 was to extend that time to 31 January 2018. There is no basis for complaint in relation to order 2. It should be noted that on 29 January 2018, the time for the filing and service of Mrs Collier’s submissions was extended to 5 March 2018. In addition, on 6 March 2018, Mrs Collier sought a further extension until 20 March 2018, which was granted.

Order 3

  1. Order 3 made provision for the filing of any summons for leave to appeal. That order was made in circumstances where the CWA had challenged the competency of the appeal on the ground that leave was required because the matter in issue amounted to a value of less than the threshold of $100,000. [23]

    23. Supreme Court Act, s 101(2)(r); CWA’s notice of motion filed 5 December 2017.

  2. The transcript of the directions hearing on 6 December 2017 makes plain that the Registrar did not pre-judge the question of whether leave to appeal is in fact required. The Registrar drew Mrs Collier’s attention to the terms of the relevant Practice Note,[24] which states that if an appellant is faced with a formal objection to the competency of its appeal and intends to seek leave to appeal, the application for leave to appeal should be filed before the hearing of the contested competency application so that the two matters can be heard concurrently. [25]

    24. Practice Note No SC CA 1 (issued 27 March 2009), at [34]. (This Practice Note was subsequently replaced on 13/12/2017 effective 1/01/2018.)

    25. Council for the Municipality of Woollahra v Sved [1998] NSWCA 63.

  3. The Registrar informed Mrs Collier that he was not directing her to file a summons seeking leave to appeal, but that it was a matter for her as to how she ran her matter. [26] The order made by the Registrar is commonly made where a respondent indicates a challenge to the competency of an appeal.

    26. Tcpt, 6 December 2017, p 20(16-25).

  4. The complaint in relation to order 3 is misconceived.

Orders 4, 5 and 6

  1. Mrs Collier did not advance any specific complaint in relation to orders 4, 5 and 6.

Order 7

  1. Order 7 vacated the return date of the CWA’s motion which was listed for 11 December 2017. That order was appropriate in circumstances where the Registrar had, by order 4, stood the CWA’s motion over to 14 February 2018 for mention.

Order 8

  1. Order 8 vacated the next directions hearing in the re-opening application (which the Registrar took to be 7 February 2018, although in fact it was 26 February 2018) and stood that application over for directions on 14 February 2018, being the next date for a directions hearing in the appeal proceeding.

  2. Mrs Collier complained that the Registrar should not have directed a common date for a directions hearing with respect to the two proceedings. There is no merit in that complaint. The Registrar formed the view that efficient case management was best served by avoiding multiple court appearances. The Registrar’s decision on its face is not unreasonable. That is a sufficient reason for the Court to refuse to intervene.

  3. Insofar as order 8 assumed that the next directions hearing in the re-opening application was 7 February 2018, rather than 26 February 2018, that slip is immaterial. Those dates have all now passed.

  4. I am not persuaded that it is in the interests of justice to set aside or vary orders 1-8 made by the Registrar on 6 December 2017. The Registrar’s decision involved a matter of practice or procedure. Mrs Collier has not demonstrated any error of law, or an error of the kind identified in House v The King, or a material change of circumstances.

Order 3: Affidavit under UCPR, r 51.22

  1. In an appeal to which the threshold value of $100,000 applies, UCPR, r 51.22(3) provides that the Registrar may direct a party in an appeal, or cross-appeal, to file and serve on each necessary party an affidavit which sets out the material facts on which the appellant or cross-appellant relies to show that the restriction does not apply. The Registrar informed Mrs Collier in an email on 20 November 2017, that an affidavit complying with r 51.22(3) should be filed and served with any notice of appeal.

  2. It seems that on 20 November 2017, Mrs Collier forwarded to the Registry by post her notice of appeal, and a supporting affidavit and a copy of the judgment of Adamson J. So far as I understand Mrs Collier’s submissions, the supporting affidavit did not address the requirements of UCPR, r 51.22(3) since Mrs Collier disputes that the restriction in the Supreme Court Act, s 101(2)(r) applies to her appeal. The documents were apparently rejected by the Registry on the grounds that the documents were not properly bound or secured (it seems that the documents were not stapled: UCPR, r 4.3(2)(b)) and no additional copies of the documents were provided for sealing for the purpose of service.

  3. On 24 November 2017, the Registrar of the Court informed Mrs Collier by email that the Registry had returned the documents she had posted for filing and advised that she should email the documents to him for filing. As I have said, the notice of appeal was filed on 28 November 2017.

  4. Neither the original nor a copy of Mrs Collier’s November 2017 affidavit was provided to the Court on the hearing of her motion. What it contains is presently unknown. As indicated at [22] above, I have disregarded the content of emails and attachments forwarded by Mrs Collier to the Court after I had reserved judgment on the two motions following the conclusion of the hearing.

  5. There is no evidence that Mrs Collier has filed an affidavit complying with UCPR, r 51.22(3). In the circumstances, including Mrs Collier’s asserted reliance on an appeal as of right under s 101(3) of the Supreme Court Act, it is appropriate that Mrs Collier be directed to file and serve such an affidavit. Whether Mrs Collier files her November 2017 affidavit is a matter for her to decide.

Orders 4, 5 and 6

  1. Orders 4, 5 and 6 merely repeat the relief sought in orders 1, 2 and 3. Mrs Collier confirmed that these orders may be put aside.

Order 7

  1. Order 7 seeks the following relief:

That the person/s responsible for divulging private and confidential information of the appellant to the respondent, be brought before the Court for punishment.

  1. In her written submissions, Mrs Collier complained that Mr Papaianni, the CWA’s solicitor, used private and confidential information obtained illegally through the Court in relation to the proceedings below when swearing his affidavit of 5 December 2017 in support of the CWA’s application for security for costs. Mrs Collier seems to assert that information available by electronic search of the Court’s online Registry in some way infringes her privacy or confidentiality.

  2. The affidavit of Mr Papaianni was not read or tendered in evidence on the hearing of the first motion. That creates some difficulty in dealing with Mrs Collier’s complaint. It is not possible to assess Mrs Collier’s assertion that information was illegally obtained by Mr Papaianni from the Court. In any event, there is no evidence before the Court of any breach of confidence or illegality. Order 7 should be rejected.

Order 8

  1. Order 8 seeks the following relief:

That the person/s responsible for not filing the Appellant’s Notice of Appeal and Affidavit, on the 19th November 2017, be brought before the Court for their gross neglect of duty and failure to comply with the Code of Conduct of the Court.

  1. In the circumstances recounted above there is no basis for this relief. That makes it unnecessary to address the unstated premise of this order, namely, that the staff of the Registry owe a relevant duty of care to Mrs Collier.

  2. I would add that it has not been demonstrated that the Registry’s rejection of Mrs Collier’s documents for filing was erroneous. Further, the difficulty experienced by Mrs Collier in filing her notice of appeal was addressed in a timely fashion by the Registrar of the Court subsequently accepting the filing of the notice of appeal by email.

Orders 9, 10 and 11

  1. Orders 9, 10 and 11 of the motion are connected and relate to the CWA’s notice of motion filed 5 December 2017.

  2. It is unnecessary to make order 9 (which seeks that the CWA’s motion be heard prior to the hearing of the appeal). In the ordinary course, the CWA’s motion, if pressed, will be heard in advance of the hearing of the appeal.

  3. Order 10 (which seeks dismissal of the CWA’s motion as an abuse of process) should be stood over for hearing at the same time as the CWA’s motion.

  4. Order 11 (which alleges false swearing of an affidavit by Mr Papaianni) raises serious allegations of a criminal nature. Such allegations are not appropriately dealt with in the appeal proceedings. In Cabassi v Vila, [27] Starke J said that the remedy against a witness who has given or procured false evidence is by means of the criminal law or by the punitive process of contempt of court. There are, however, restrictions on who may bring a prosecution for perjury. [28] These restrictions apply to an offence of wilfully swearing falsely an affidavit[29] because a person committing such an offence is deemed to be guilty of perjury.

    27. (1940) 64 CLR 130 at 141; [1940] HCA 41.

    28. Crimes Act 1900 (NSW), s 338.

    29. Oaths Act 1900 (NSW), s 29.

Orders 12, 13 and 14

  1. Orders 12, 13 and 14 are connected and assert that the Registrar of the Court of Appeal “was negligent and showed Perceived Bias towards [Mrs Collier]” on each of 19 November 2017, 24-30 November 2017 and 6 December 2017.

  2. Mrs Collier’s affidavit sworn 8 December 2017 does not identify any conduct or actions of the Registrar on 19 November 2017 in respect of which complaint is made.

  3. In respect of the period 24-30 November 2017, Mrs Collier’s complaint seems to be directed to the circumstances in which her notice of appeal and affidavit were rejected by the Court Registry on 24 November 2017. It has not been shown that the Registrar was either responsible for or involved in that decision of the Court Registry.

  4. Insofar as Mrs Collier complains about the Registrar’s conduct when making orders on 6 December 2017, there can be no basis for the complaint of negligence on the part of the Registrar.

  5. Insofar as Mrs Collier asserts apprehended bias against the Registrar, the relevant principles have been referred to above. Applying these principles, it is plain that the assertion of apprehended bias is misconceived because the premise of this contention is unfounded.

  6. No relevant error has been demonstrated in the case management directions given by the Registrar on 6 December 2017. Even if error had been established, Mrs Collier was unable to identify any logical connection between any asserted error in the case management directions and the issues that need to be determined by the Registrar within the exercise of his powers, such that a fair-minded lay person might reasonably apprehend that the Registrar might not bring an impartial and unprejudiced mind to the resolution of a question for the decision by the Registrar. The assertion of apprehended bias against the Registrar must be rejected.

SECOND MOTION

Order 2

  1. Order 2 seeks an order that I afford Mrs Collier “the same respect and curtisey (sic) which he has shown to counsel for the respondent”.

  2. There is no basis for this complaint. As indicated, on 5 February 2018 Mrs Collier sought and obtained an adjournment of the hearing of the first motion over the objection of counsel for the CWA.

Order 3

  1. Order 3 seeks a direction that the Registrar and the Registry “abide by the full title of proceedings and afford the correct rank to the appellant, which to date, has not been the case”.

  2. This complaint seems to be directed to the subject heading in some email communications between the Registrar of the Court and Mrs Collier. One such email of 6 December 2017 described the subject heading in these terms:

Country Women’s Association of New South Wales ats Marion Louise Collier/Court of Appeal case number 2017/360202 and 2016/297965.

  1. In other email communications between the Court and Mrs Collier the subject heading is stated as Collier v Country Women’s Association of NSW.

  2. This complaint goes nowhere. It goes to matters of form, not substance.

Order 4

  1. Order 4 seeks an order that the orders made in “October 2017” be struck out. I assume order 4 is intended to refer to the orders made by me on 22 November 2017 with respect to the re-opening application: see [11] above. The relief sought in Order 4 is inconsistent with the relief sought in order 2 of the first motion: see [52] above. In addition, the time for compliance by Mrs Collier with the orders made on 22 November 2017 has now passed.

  2. Mrs Collier has not shown any reason to discharge the orders made on 22 November 2017 with respect to the re-opening application. Insofar as Mrs Collier sought an extension of time to file and serve any affidavit material and her submissions with respect to the re-opening application, orders to that effect were made by the Court on 6 March 2018.

Order 5

  1. Order 5 seeks the following relief:

The Court directs, that the Court of Appeal Registrar and the Registry, file the supporting Affidavit of the Applicant in proceedings number 2017/360202, with the marking, that in accordance with the Rules of the Court, the actual date was the 15th November 2017.

  1. As I have said, the affidavit to which Mrs Collier refers in order 5 is not held on the Court file (as it was returned to Mrs Collier by the Court Registry in the circumstances referred to at [70]-[71] above). Mrs Collier did not provide a copy of that affidavit on the hearing of her motions.

  2. The relief sought in order 5 is misconceived. As indicated, it is a matter for Mrs Collier whether she chooses to file her November 2017 affidavit.

Order 6

  1. Order 6 seeks an order that Registrar Riznyczok have no further participation in these proceedings “due to his deliberate BIAS of the Applicant and his interference with the filing of her paperwork and refusal to investigate such”.

  2. The application to disqualify Registrar Riznyczok is advanced on the ground of actual bias. The relevant principles have been referred to above.

  3. Mrs Collier’s assertion that the Registrar deliberately refused to accept her supporting affidavit with her notice of appeal lodged on 20 November 2017 must be rejected. Her supporting affidavit was rejected by the Court Registry, not Registrar Riznyczok. So much is acknowledged in Mrs Collier’s affidavit sworn 7 February 2018 (par [3]).

  4. Next, Mrs Collier complains that the Registrar made orders on 6 December 2017 requiring the filing of fresh evidence in support of the appeal and an application for leave to appeal, when she did not seek to rely upon fresh evidence and she had an appeal as of right.

  5. The circumstances in which the 6 December 2017 orders were made are outlined above. For the reasons given above, Mrs Collier’s complaints misstate the effect of the Registrar’s orders. The orders made on 6 December 2017 are consistent with the overriding purpose stated in s 56 of the Civil Procedure Act 2005 (NSW), namely, to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The orders did not require Mrs Collier to take a step which she does not wish to take. Orders 1 and 3 were prefaced by the word “Any”.

  6. The orders were directed to ensuring that if Mrs Collier intended either to seek leave to appeal, or to rely upon fresh evidence at the hearing of the appeal, then those steps should be taken in advance of the hearing of the CWA’s objection to the competency of the appeal or the hearing of the appeal (as the case may be). The orders did not pre-judge whether or not leave to appeal is required, nor whether or not Mrs Collier seeks to adduce fresh evidence on appeal.

  7. Insofar as Mrs Collier seemed to assert apprehended bias against the Registrar, there is also no merit in this complaint. Mrs Collier failed to identify what it is said might lead the Registrar to decide matters of case management other than on their legal and factual merits and in accordance with the “just, quick and cheap resolution of the real issues in the proceedings”: s 56(1), Civil Procedure Act. Nor has Mrs Collier articulated any logical connection between the conduct of the Registrar with the possibility of departure from impartial decision making. [30]

    30. Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [8].

Orders 7-10

  1. Orders 7-10 are related and seek the following relief:

7. The Court directs the Principal Registrar of the Court or Chief Justice, to investigate the deliberate interference with the Applicant in the proceedings, of Deputy Registrar Christopher Bradford and/or other parties in the Registry.

8. The Court directs the Principal Registrar or Court of Appeal Registrar, to refer Deputy Registrar Christopher Bradford for his criminal actions in perverting the course of justice.

9. The Court directs the Principal Registrar or Court of Appeal Registrar, to refer Deputy Registrar Brendan Bulluch (sic) for his criminal actions in perverting the course of justice.

10. The Court directs the Principal Registrar or Court of Appeal Registrar, to refer the Crown Solicitor of New South Wales for her criminal actions in perverting the course of justice.

  1. Any act or omission intending in any way to pervert the course of justice is a criminal offence. [31] Orders 7-10 raise serious allegations of a criminal nature against officers of the Court and the Crown Solicitor for New South Wales. Again, such matters are not appropriately dealt with in the appeal proceedings. Any assertion by Mrs Collier of criminal conduct would need to be the subject of a private prosecution, assuming no relevant restriction. [32] The relief sought in orders 7-10 is misconceived.

    31. Crimes Act, s 319.

    32. Criminal Procedure Act 1986 (NSW), ss 14 and 49.

Conclusion, Costs and Orders

  1. Mrs Collier’s first notice of motion, except the relief sought in order 10, should be dismissed. Order 10 should be stood over for mention on the same date as the CWA’s motion filed 5 December 2017, with a view to both motions being fixed for hearing on the same date. No basis has been shown for setting aside the orders made by the Registrar on 6 December 2017. Those orders should be confirmed.

  2. Mrs Collier’s second notice of motion should also be dismissed.

  3. As to costs, Mrs Collier submitted that costs should be costs in the proceedings. The CWA submitted that a special costs order should be made against Mrs Collier on an indemnity basis. The CWA pointed to three matters. First, the alleged misconduct by Mrs Collier in pursuing the relief sought in her two motions. That conduct was identified as making groundless allegations, including against Mr Papaianni for allegedly knowingly swearing a false affidavit, as well as serious allegations of criminal conduct against various persons.

  4. The second matter related to the adjournment of the hearing on 5 February 2018 on the ground that Mrs Collier was not ready for a hearing when, it was submitted, she had informed the Court on 29 January 2018 that she was ready to proceed with the hearing of the first motion.

  5. The third matter concerned the allegation by Mrs Collier in Ex 3 (the email dated 21 February 2018 (at 10:10pm)) that Registrar Riznyczok had a private ex parte communication with counsel for CWA on 29 January 2018 after the conclusion of the directions hearing at which Mrs Collier had appeared by telephone.

  6. Pursuant to the Civil Procedure Act 2005 (NSW), s 98, costs are in the discretion of the Court, and the Court may order that costs be awarded on the ordinary basis or on an indemnity basis. Section 98 is subject to any other Act and is subject to, relevantly, the UCPR. UCPR, r 42.1 provides, relevantly, that costs follow the event, unless the Court considers some other order ought to be made.

  7. The discretion to order indemnity costs must be exercised judicially. The authorities make plain that there must be some special or unusual feature or circumstance in the case justifying such an award. [33] In Oshlack v Richmond River Council, [34] Gaudron and Gummow JJ referred to some “relevant delinquency” on the part of the unsuccessful party bearing a relevant relation to the conduct of the case as justifying an award of indemnity costs.

    33. Mead v Watson [2005] NSWCA 133 at [8]; Harrison v Schipp [2001] NSWCA 13 at [139].

    34. (1998) 193 CLR 72; [1998] HCA 11 at [44].

  8. I regard this as a borderline case of unreasonable conduct in the three respects identified above. However, on balance, I am not persuaded that it is appropriate to order indemnity costs against Mrs Collier.

  9. First, it seems that the raising of allegations of a criminal nature for investigation was a result of a misunderstanding by Mrs Collier, based on advice which she said she had been given by the police, that the Court and not the police was the appropriate body to investigate those allegations.

  10. Second, I regard the assertion by Mrs Collier in Ex 3 (that the Registrar had a private ex parte communication with counsel for the CWA on 29 January 2018) as unfortunate and misguided. The explanation for her unfounded assertions against the Registrar seems to be an error in the original transcript of the directions hearing on 29 January 2018. That error was subsequently corrected and a revised transcript issued. On the hearing of the two motions, Mrs Collier did not pursue her allegation against the Registrar that he had a private ex parte communication with counsel for the CWA on 29 January 2018.

  11. Third, the ground relied upon by Mrs Collier for the adjournment on 5 February 2018 involved events subsequent to 29 January 2018. In particular, Mrs Collier asserted, without contradiction [35] , that she had been informed in a telephone conversation with the manager of Court Services that the matter was listed for mention, not hearing, on 5 February 2018. I was not in a position on that occasion to determine the correctness of that statement. Nor am I in any better position to determine that matter on the materials presently before the Court.

    35. Tcpt, 5 February 2018, p 6 (14-19).

  12. In my view, there is no reason why costs should not follow the event: UCPR, r 42.1. But such costs should be awarded on the ordinary basis.

  13. I make the following orders:

First motion:

  1. Confirm the orders made by the Registrar on 6 December 2017.

  2. Stand over paragraph 10 of the applicant’s notice of motion filed 15 December 2017 to 28 March 2018 for mention before the Registrar.

  3. Direct the appellant to file and serve an affidavit pursuant to UCPR, r 51.22(3), within 14 days.

  4. Otherwise dismiss the applicant’s notice of motion filed 15 December 2017.

  5. The applicant to pay the respondent’s costs of the notice of motion filed 15 December 2017, including the reserved costs of 5 February 2018 on an ordinary basis.

Second motion:

  1. Dismiss the applicant’s notice of motion filed 22 February 2018.

  2. The applicant to pay the respondent’s costs of the motion filed 22 February 2018 on an ordinary basis.

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Endnotes

Decision last updated: 09 March 2018

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Cases Citing This Decision

29

Ezekiel-Hart v Council of the Law Society of the Act [2023] ACTCA 5
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Cases Cited

25

Statutory Material Cited

6

Collier v Country Women's Association of NSW [2017] NSWSC 1573
Collier v Country Women's Association of NSW (No 2) [2017] NSWSC 1729
Collier v Country Women's Association of New South Wales [2017] NSWCA 22