Collier v State of New South Wales (No 2)

[2014] NSWCA 461

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Collier v State of New South Wales (No 2) [2014] NSWCA 461

Hearing dates:

On the papers

Decision date:

22 December 2014

Before:

Leeming JA

Decision:

Dismiss the notice of motion dated 28 November 2014.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PRACTICE - application for interlocutory orders - abandoned by applicant - no merit in orders sought - application dismissed

Legislation Cited:

Judiciary Act 1903 (Cth) s 78B

Cases Cited:

Collier v State of New South Wales [2014] NSWCA 442

Category:

Interlocutory applications

Parties:

Marion Louise Collier (Applicant)
State of New South Wales (Respondent)

Representation:

Counsel:
In person (Appellant)
GF Mahony (Respondent)
Solicitors:
NSW Crown Solicitor (Respondent)

File Number(s):

2014/290461

 Decision under appeal 

Date of Decision:

2014-10-01 00:00:00

Before:

Campbell J

File Number(s):

2014/290461

Judgment

1. LEEMING JA: Mrs Collier's notice of motion dated 28 November 2014 seeking various orders said to be ancillary to her application for leave to appeal from the summary dismissal of proceedings brought by her came before me on 8 December 2014. During the course of the hearing, Mrs Collier confirmed that all that she sought was the orders in paragraphs 2, 3 and 9 of that motion. I delivered reasons for judgment dismissing paragraphs 2, 3 and 9 of that motion immediately following hearing from her: see Collier v State of New South Wales [2014] NSWCA 442. Ms Collier then said that she pressed the remaining paragraphs of her motion. There was then this exchange:

"HIS HONOUR: Why, Mrs Collier? Did I get it wrong? I thought you said very clearly that all the other paragraphs of the notice of motion fell away. Was I wrong about that?

APPLICANT: Well, they would if they came into play but if you are going to be so excuse my expression 'cover-up' for goes on in this Court

HIS HONOUR: Please, Mrs Collier, you should withdraw that statement.

APPLICANT: I am not being rude to you, your Honour. I have had to put up with a case that has now gone on for the last four years, basically because it started off with a prerogative writ in this Court where, in those exhibited documents, is an email from the registrar of this present Court of Appeal, Jerry Riznyczok, telling me not to turn up at Court the next day and the following day the transcript gave the DPP access to breach s 69 of the Supreme Court Act.

HIS HONOUR: Mrs Collier, what I am minded to do is this. First of all, give you an opportunity, if you want to say anything here and now as to why you should not pay the State's costs of this afternoon. After all, you have lost on what were the only issues before this Court. Secondly, give you a limited period of time in writing to put anything you want in support of any other paragraphs of the notice of motion and to give Ms Mahony or whoever else the State is briefing a limited period of time to respond to that and deal with it on the papers. How does that course strike you?

APPLICANT: It might be the best for both of us, might it not?"

1. Despite the directions made by me on 8 December 2014, Mrs Collier has not filed and served written submissions in support of paragraphs 1, 4, 5, 6, 7 and 8 of her notice of motion.

1. There are two reasons why I will dismiss the balance of the notice of motion. First, despite what I regarded as her unequivocal abandonment of those paragraphs during the course of the hearing on 8 December 2014, I permitted (perhaps over generously) a further opportunity for Mrs Collier to be heard. She has not availed herself of that opportunity. In the circumstances of this case, it is appropriate that she be taken to have abandoned any continued reliance upon the balance of her motion. I add, for completeness, that there have been communications between Mrs Collier and the Court concerning an application to prevent any further hearing by me of her motion, in part in reliance upon s 78B of the Judiciary Act 1903 (Cth). However, I am not aware of any reasonable basis for such application, nor any orders preventing the resolution of the motion.

1. Secondly, even the briefest perusal of the remaining paragraphs of the notice of motion discloses that they are without merit. In the present circumstances, I will be briefer than would otherwise be the case.

1. The remaining paragraphs fall into four categories. Paragraph 6, 7 and 8 are all directed to the making available of records of "Telstra Australia Corporation" which cannot, for the reasons given by me on 8 December 2014, have any material bearing upon her leave application.

1. Likewise, paragraph 5, which seeks an order that "the transcript of the 24th November 2014 be recorded correctly and not as cited by Registrar Riznyczok, to protect Registrar Bradford", has no relevance to any proposed ground of appeal, even if there were a basis in the evidence for the allegation contained in it.

1. Paragraph 4 sought an order that "the transcript of Tuesday 13th May, cited as Tuesday 15th May 2014 is a falsification". True it is that the transcript erroneously records the date of Tuesday 15 May (although its footer correctly records the date as 13 May 2014). As much was acknowledged by the State of New South Wales during the hearing. There is a patent and purely administrative error, as to which there is no dispute between the parties. There is no basis for any suggestion of "falsification", and no occasion for any order of the Court.

1. Paragraph 1 of the notice of motion sought a "review of the orders of Registrar Riznyczok of 24 November 2014". The Registrar's decision itself had four elements: (a) to decline to set the matter down for hearing, (b) to refuse an application that he recuse himself, (c) to refer the motion to a "referrals judge" and (d) to decline to issue a subpoena upon the police. Although no basis for any review has been articulated by Mrs Collier, it is easy to see there is no reviewable error in the Registrar's decision not to set the matter down for hearing, in circumstances where Mrs Collier (a) intended to update or supplement her submissions, (b) had identified a matter under the Constitution and proposed to issue notices pursuant to s 78B of the Judiciary Act, and (c) has identified problems with the transcript. There is no basis in any of the material before me to conclude that the Registrar ought be disqualified for apprehended bias. The fact of the matter is that the motion has been heard and determined by me, such that even if (which there is not) there were reviewable error in declining to refer the motion to a "referrals judge", that order has now been superseded. Finally, my reasons on 8 December 2014 explain why there is no legitimate forensic purpose in issuing a subpoena to the police; the Registrar was correct to decline to do so.

1. Accordingly, I dismiss the remaining paragraphs of the notice of motion dated 28 November 2014. The State would not appear to have incurred any additional costs in respect of the motion.

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Decision last updated: 22 December 2014