Collier v Lancer

[2013] NSWCA 14

Court of Appeal

New South Wales

Case Title:

Collier v Lancer

Medium Neutral Citation:

[2013] NSWCA 14

Hearing Date(s):

6 February 2013

Decision Date:

06 February 2013

Before:

Allsop P

Decision:

1. Notice of motion filed 29 January 2013 dismissed with costs.

2. Expedite the hearing of the application for leave to appeal to a date in March to be arranged in consultation with the Registrar. On that date, if there be any application to review the Court's decision, that application for review may be listed with the application for leave to appeal.

Catchwords:

PRACTICE AND PROCEDURE - no question of principle

Category:

Procedural and other rulings

Parties:

Marion Louise Collier (Applicant)
Constable Kate Lancer (First Respondent)
Local Court of New South Wales (Second Respondent)
Magistrate Jan Stevenson (Third Respondent)

Representation

- Counsel:

In person (Applicant)
Crown Solicitor (Respondents)

File Number(s):

2012/27475

Decision Under Appeal

- Before:

Adams J

- Date of Decision: 

29 November 2012

- Citation:

Collier v NSW Police Service [2012] NSWSC 1525

- Court File Number(s):

2012/201151

JUDGMENT

1. ALLSOP P: In this matter the applicant, Mrs Collier, seeks leave to appeal against orders made by a Judge of the Supreme Court Common Law Division, Adams J, on 29 November 2012. A white book for that application has been prepared.

2. The applicant filed a notice of motion on 29 January 2013 seeking various orders which I will identify. The orders that I identify are the ones pressed by Mrs Collier today. Order 2 is an ex parte interim injunction against the Local Court of New South Wales and Magistrate Stevenson, said to be until Crown solicitors can be served and attend a further hearing of this motion. I take it that the injunction is to prevent both the Local Court of New South Wales and Magistrate Stevenson taking any step in relation Mrs Collier.

3. Order 4 was an order that the first respondent's name, that is the name of the informant, Constable Kate Lancer, be changed to read "the Commissioner of Police". This was said to be necessary to embrace the manner in which the matter was commenced before Adams J. To that end there will be added to the white book a summons and an amended summons that was before Adams J, the first defendant being variously entitled the New South Wales Police Service and the Commissioner of Police.

4. One of the orders made by Adams J was in fact to amend the proceedings to remove the New South Wales Police Service as a party and substitute Constable Lancer as the first defendant. The order that is sought today is to reverse that. To the extent that that is an issue on an application for leave to appeal, that can be dealt with at that point and I do not propose to make order 4. I will later return to order 2.

5. Order 6 is an order for costs. That would depend on the outcome of the motion.

6. Orders 7 and 8 seek an order for the attendance of Superintendent Zenio Fesczuck of the New South Wales Police to give oral evidence at the hearing of this motion.

7. Order 10 is an order seeking prohibition of the third respondent, being Magistrate Stevenson, from any further participation in proceedings to which Mrs Collier is a party, other than these proceedings. And order 11 is an order that directs the Local Court to produce all paperwork held at Wellington Local Court relating to an application for an apprehended violence order on 24 January 2013 by the appellant against an officer of the New South Wales Police Service. I will deal with these matters variously below.

8. Read before me today are two affidavits of Mrs Collier, one sworn 25 January 2013, the other filed 26 January 2013. There was some confusion about the state of the affidavits. Mrs Collier has filed affidavits without stapling, which has meant they have come apart. There is now in the Court file a copy of the 26 January 2013 affidavit that is stapled together with its annexures. Those affidavits have been read. Also admitted into evidence today was the transcript before Magistrate Stevenson of 26 March 2012.

9. I shall first deal with orders 7 and 8. In my view no proper basis has been identified for the issuing of a subpoena and the requirement for Superintendent Fesczuck to be in attendance at this motion or at the application for leave to appeal. Mrs Collier made reference to page 11 of the affidavit of 26 January. That relates to para 25 of the affidavit. I am not persuaded that material in that paragraph has any real bearing on the outcome of either this motion or the application for leave to appeal.

10. As to order 2, I do not propose to issue an interim injunction preventing the Local Court or a Magistrate attending to their functions. Nor am I prepared to issue a prohibition in a motion of this kind against Magistrate Stevenson. The proper way to deal with applications for apprehended bias is for the application to be made to the judicial officer in question. If it is refused, an appeal can be brought either in the proceedings or separately.

11. As to order 11, that relates to an application for an apprehended violence order of last month. It, in my view, can bear no relationship to an application for leave to appeal from Adams J. It can have no relevance to whether or not Adams J erred in the making of his orders in November last year. I refuse to make order 11.

12. That deals with the orders that are live and therefore the notice of motion will be dismissed.

13. I will expedite the hearing of the application for leave to appeal to a date in March to be arranged in consultation with the Registrar. On that date, if there be any application to review my decision today, that application for review will be listed with the application for leave to appeal.

14. I see no reason why the applicant should not pay costs. The motion is dismissed with costs.

15. I therefore order as follows:

    1. Notice of motion filed 29 January 2013 dismissed with costs.

    2. Expedite the hearing of the application for leave to appeal to a date in March to be arranged in consultation with the Registrar. On that date if there be any application to review the Court's decision, that application for review may be listed with the application for leave to appeal.