Collier v Telstra Corporation Ltd
[2017] FCCA 615
•28 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COLLIER v TELSTRA CORPORATION LTD & ANOR | [2017] FCCA 615 |
| Catchwords: PRACTICE AND PROCEDURE – Federal Circuit Court Rules 2001 (Cth) – application in a case for recusal of Judge and other relief – applicant does not appear at scheduled hearing – implicit adjournment application refused – no grounds for recusal or for any other orders as sought in the application in a case – application in a case dismissed with costs. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s.39 Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: Ross Kennedy v Secretary, Department of Industry (No 2) [2015] FCA 884 Truong Giang Corporation v Quach [2016] FCA 50 |
| Applicant: | MARION LOUISE COLLIER |
| First Respondent: | TELSTRA CORPORATION LTD |
| Second Respondent: | TELECOMMUNICATION INDUSTRY OMBUDSMAN LIMITED |
| File Number: | SYG 3174 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 28 March 2017 |
| Delivered at: | Sydney |
| Delivered on: | 28 March 2017 |
REPRESENTATION
| No appearance by or for the Applicant. |
| Counsel for the First Respondent: | Ms P Abdiel |
| Solicitor for the First Respondent: | Ms J Massage |
| Counsel for the Second Respondent: | Mr J Gracie |
| Solicitors for the Second Respondent: | DLA Piper |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application in a Case filed in this Court on 17 March 2017 by the Applicant, Mrs Collier, is dismissed.
The Applicant, Mrs Collier, is to pay the costs of the First and Second Respondents of the Application in a Case.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3174 of 2016
| MARION LOUISE COLLIER |
Applicant
And
| TELSTRA CORPORATION LTD |
First Respondent
| TELECOMMUNICATION INDUSTRY OMBUDSMAN LIMITED |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)
There is before the Court for determination this afternoon the Application in a Case filed by Mrs Collier on Friday, 17 March 2017 at approximately 10.14pm. That Application in a Case seeks eleven types of order or relief and in my opinion the first that I should deal with is that I remove myself as a Judge in these proceedings due to perceived judicial bias, which I interpret as meaning an allegation by Mrs Collier of apprehension of bias rather than of actual bias, and I will proceed to deal with her recusal application on that basis.
It seems to me that I ought first to hear, consider and determine the recusal application against myself because if I were of the view that I should recuse myself, I should not proceed then to hear the balance of Mrs Collier’s Application in a Case.
Adjournment Application
However, I first wish to deal with this matter. Mrs Collier is not here. It is her Application in a Case and the onus is on her, having brought it, to appear and argue in support of it. However, yesterday at 5.35 pm, Mrs Collier sent an email to my Chambers which, in short, indicated that it was unlikely that she would be here today. She gave various reasons for not being able to be here in that email, which I do not need to recite other than to say that they were associated with her difficulties in obtaining transport from her home in Wellington to Sydney. It is clear beyond doubt that she knew of the hearing today because my Chambers also received email correspondence which indicated that she would be here, being an email sent yesterday at 8.18am in which she said she would be leaving shortly for Sydney. It is clear to me that she knew the matter was on for hearing today pursuant to my Associate’s email of 20 March 2017 at 10.48am, which vacated the original return date of 24 March 2017 for her Application in a Case and listed it for hearing at 2pm today.
To sum up, Mrs Collier’s Application in a Case had been given a return date of 24 March 2017 when she filed it on 17 March 2017, and I had ordered in Chambers and, by email sent to the email address which she has given the Court for service of communications, advised her and all the other parties that her Application in a Case was listed for hearing today in this Court at 2pm and further advised that she would need to be present in Court today. The change in the return date from 24 March 2017 to 28 March 2017 accommodated her claim to be unfit to attend Court from 16 March 2017 until 24 March 2017 which is contained in the medical certificate to which I will refer.
In this hearing I am not going to go through all the correspondence, which amounts to some 90 communications with the parties that have passed through my Chambers since this case was transferred to this Court by Flick J from the Federal Court on 16 November 2016.
I think it appropriate to proceed first in this way. I am going to take Mrs Collier’s email of last night at 5.35pm to which I have already referred, and in which she states that she will not be here today and gives certain reasons for not being here, as a written implicit application for an adjournment of today’s hearing. I think that is the sensible way of treating it.
I refuse to grant an adjournment. I am not going to go through all the correspondence. On the application for adjournment, the application to recuse myself and otherwise generally for the purposes of today, I mark for identification as MFI-1 a folder which my Associates assure me contains all the correspondence between the parties, including Mrs Collier, since this case was docketed to me.
That correspondence will speak for itself, but the short point is that this is a serious application that Mrs Collier has brought. It behoves her to be present for its hearing. She has brought the proceeding in this Court and she has known since its inception that the case will be heard in Sydney. I have accommodated her previously at a directions hearing on 24 February 2017 where she was able to attend the Dubbo Registry and appear by video link to save her coming to Sydney.
Nevertheless, at the end of the day this correspondence and the circumstance show, in my view, that Mrs Collier is not treating the propounding of her case in this Court with sufficient seriousness and she is not making herself sufficiently available.
At the first directions hearing in this proceeding on 24 February 2017 the parties agreed to mediate on 21 March 2017 before a Registrar of the Court. On 14 March 2017 my Associate received an email from Mrs Collier notifying that she would not be attending the mediation. She also advised that she wished to appear at the mediation by video link and to have the proceeding transferred back to the Federal Court of Australia, where she asserted “it actually belongs”.
On 15 March 2017 the parties were advised that the matter was relisted on Friday 17 March 2017 and that all parties were expected to appear. My Associate was able to arrange a video conference from the Dubbo Registry at 9.30am on 17 March 2017 and Mrs Collier was given the option by email on 15 March 2017 of either attending Dubbo Registry for a video link with Sydney or to give a telephone number on which the Court could ring her. Mrs Collier almost immediately replied to my Chambers by email saying:
“I hope you enjoy Friday morning, as I am out all day, away from Wellington, attending medical appointments, so am unavailable or in transit.”
When the matter was called at 9.30am on 17 March 2017 my Associate rang both the Dubbo Registry, where it was ascertained Mrs Collier had not attended and then her home telephone number, which rang out.
In actual fact, rather than attending at the Dubbo Registry, or taking the telephone call or otherwise making herself available for the Court appearance on 17 March 2017, Mrs Collier came to Sydney and attended the Court Registry at approximately 10.00am and filed the Application in a Case presently before me, together with certain other documents, including a medical certificate from her doctor stating that she “would be unfit to attend Court from 16 March 2017 until 24 March 2017”. In other words, rather than making herself available for the Court appearance, she was at the Court Registry in Phillip Street filing documents, including the medical certificate stating that she was unfit to attend Court. I have no confidence that Mrs Collier would make herself available to run and argue her Application in a Case at any time the Court nominated.
Mr Gracie of Counsel, who appears for the Second Respondent, asks for the hearing to proceed and does not ask for Mrs Collier’s Application in a Case to be dismissed on the basis of her absence pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). Rule 13.03C(1)(e) authorises me to proceed even if Mrs Collier is absent and in the exercise of my discretion I consider that the hearing of her Application in a Case should proceed.
Accordingly, I am of the view that this Application in a Case, which is of a serious nature, should be heard and determined today, even if it has to be in Mrs Collier’s absence. My view is fortified by the fact that it appears from the transcript of the hearing before Flick J in the Federal Court on 16 November, 2016 (when he transferred the proceeding to this Court), that her aim is to have remitted by the First Respondent the sum of $300, or alternatively $500 from her account, in circumstances where the First Respondent has already offered to do that and even to also modify her mobile phone plan with the First Respondent to give her phone calls to Telstra mobiles for the next two years without any additional charge.
The authorities make clear that a recusal application should be dealt with at an early stage of any proceeding and before any substantive issues in the case are decided. Other very serious matters are raised in the Application in a Case which Mrs Collier has seen fit to file.
In all the circumstances, I consider that I should neither adjourn Mrs Collier’s Application in a Case nor dismiss it on the basis of her absence, but rather that I should proceed to hear and determine it.
Recusal Application
Order 4 as sought in Mrs Collier’s Application in a Case is that I remove myself from any further action in these proceedings due to perceived judicial bias towards the Applicant, Mrs Collier.
The application of the apprehension of bias principle requires two steps. First, an identification of what it is said might lead the judge who is challenged to decide the case other than on its own legal and factual merits, and second, an articulation of the logical connection between that matter and the feared or asserted deviation from the course of deciding the case on its merits.
In other words, the party seeking recusal must identify the issues which will need to be determined substantively in the case, the conduct which gives rise to the apprehension of bias and the logical connection between the conduct and the issues. The general principle to be applied is whether a fair minded lay observer might reasonably apprehend that a judge might not bring an impartial and unprejudiced mind to the resolution of the questions which the particular judge being challenged is required to decide.
There are various kinds of bias. There is disqualification for interest, pecuniary or otherwise. There is disqualification by conduct, including published statements, whether outside or in the course of the relevant legal proceeding. There is disqualification by association. There is disqualification where extraneous information or knowledge of some prejudicial but inadmissible fact or circumstance might give rise to an apprehension of bias.
When a judge is faced with an application to recuse himself or herself, there needs to be a decision made by that judge as to what extent and in what depth and length reasons will be given, in particular for a refusal to recuse himself or herself. That is a discretionary matter and I have come to the view that my reasons in this case should be brief. In short, having regard to the correspondence comprising MFI1, to what Mrs Collier has said in her affidavit and to the transcript on the only occasion that I have ever been in Court where she has appeared, namely when she appeared by video-link from the Dubbo Registry, I do not consider that a fair-minded lay observer would reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the issues in the case which I will be required to decide.
I first heard of this matter when it was docketed to me by the Registry after it had been transferred from the Federal Court by Flick J in November 2016. The case has not proceeded in any way other than for procedural orders and to prepare for the hearing of the Second Respondent’s Application in a Case to strike out Mrs Collier’s claim against it. I have made procedural orders for the putting on of evidence and Submissions in relation to that Application in a Case and have also made procedural orders for the getting ready for hearing of the substantive case.
In my view, nothing has occurred in the case which could indicate in any way an apprehension of bias. I have had marked for reference MFI-1 which, I believe, contains all the considerable body of correspondence which has passed through my Chambers from the parties and in particular, Mrs Collier. I have reviewed that correspondence which, of course, will speak for itself. There is nothing in that correspondence which would indicate to the reasonable observer that there could be a relevant apprehension of bias. I regard the application that I recuse myself as wholly lacking in merit and I accordingly refuse to do so.
Other Orders Sought
Order 1
Order 1 seeks that the hearing date of 17 March 2017 be vacated. That was a directions hearing. That was the occasion when Mrs Collier, instead of attending this Court at 9.30am went to the Federal Court Registry and filed her Application in a Case and the other documents which I have had marked for identification and which are before me today. The directions hearing of 17 March 2017 has occurred. Order 1 is otiose and will not be made.
Orders 2 and 3
I now turn to deal with orders 2 and 3 as sought. Order 2 seeks that the short minutes of the First Respondent be struck out as incompetent and an abuse of the Court’s process. Order 3 seeks that the short minutes of the Second Respondent be struck out as incompetent and an abuse of the Court’s process. The impugned short minutes are not identified. It is true that during the history of the case to date, at some points I instructed my Associates to invite the parties to submit draft short minutes for my consideration, and if all parties agreed, for the making of them in Chambers. I cannot particularly recall any that have been agreed. But the short point is that any orders which have been made by me I regard as proper and to have been made appropriately. Any other short minutes, if any, are not such as need to be struck out or could be termed and regarded as “incompetent” or “an abuse of the Court’s process”. I refuse to make any orders as sought in paragraphs 2 and 3 of Mrs Collier’s motion.
Order 5
Order 5 of Mrs Collier’s Application in a Case filed on 17 March 2017 seeks that this proceeding be “remitted back to the Federal Court of Australia”. I consider that the power to transfer to the Federal Court or Family Court is found in Rule 8.02 of the Federal Circuit Court Rules 2001 (Cth), and/or section 39 of the Federal Circuit Court of Australia Act 1999 (Cth). I refuse to transfer this proceeding back to the Federal Court. First, to do so would seem to be in direct defiance of the order of Flick J of 16 November 2016 transferring the matter into this Court. I am not aware of anything that has changed since that date which would render it appropriate for me to transfer the matter back to the Federal Court.
Second, none of the factors to which the Court is told to have regard when considering whether to transfer a matter from this Court into the Federal Court seem to me to apply. In my view, the case is unlikely to involve questions of general importance such that it would be desirable for there to be a decision of the Federal Court. It is not likely to be heard and determined at less cost and convenience than in the Federal Court of Australia. It is not likely to be heard any earlier in the Federal Court than in this Court.
As to the wishes of the parties, obviously Mrs Collier wishes that these proceedings be heard in the Federal Court but Mr Gracie for the Second Respondent says that his client has no wish for it to go back to the Federal Court. The First Respondent does not seek to have the proceeding go back to the Federal Court. In all the circumstances I accordingly refuse the order sought by order 5 to remit this matter back to the Federal Court.
Order 6
Order 6 seeks that the mediation be put over until a date that the Applicant can file documentation against the Second Respondent. The only appointed mediation was for 21 March 2017, which date has passed. This documentation against the Second Respondent is not identified. The filing of documentation against the Second Respondent is hardly likely to advance the prospects of a successful mediation, and the present state of play as I understand it is that neither Respondent is prepared to attend a mediation. So I refuse to make order 6 as sought.
Orders 7 to 10
I now turn to address orders 7 to 10 as sought by Mrs Collier. I do not, as I have done with the other orders, intend in this judgment to set them out verbatim because they make in my view either incorrect or improper and scandalous allegations about the legal practitioners appearing in this proceeding which should not be recorded in a public judgment unless absolutely necessary. I do not intend to do so. Suffice it to say that this Court has no jurisdiction to make any of the orders sought and there is not a skerrick of evidence before the Court to support the allegations made in the orders and in the affidavit of Mrs Collier in support of her Application in a Case. Accordingly, I refuse to make orders 7 to 10 as sought in Mrs Collier’s Application in a Case.
Costs
The First and Second Respondents seek costs.
In this matter I have found that none of the relief sought by Mrs Collier in her Application in a Case is to be granted. I consider that the bringing of this Application in a Case was wholly unjustified, that the orders sought completely lack any merit and that Mrs Collier objectively at least ought to have known that her Application in a Case would fail. I regard the Application in a Case as brought mischievously.
Costs are not awarded to punish an unsuccessful party. They are to compensate the successful party who has been put to the expense of resisting, relevantly here, the Application in a Case. Mrs Collier is a self-represented litigant. There has been a tendency over the years to perhaps be a little reluctant to order costs against litigants in person, but the authorities are clear that the mere fact of self-representation by itself does not relieve an unsuccessful, self-represented litigant from an obligation to pay costs if an order for costs is otherwise justified.
In dealing with the application for costs by the Respondents against a litigant in person, I am guided by the judgment of Buchanan J in Ross Kennedy v Secretary, Department of Industry (No 2) [2015] FCA 884 and the judgment of Wigney J in Truong Giang Corporation v Quach [2016] FCA 50. In my view, in this case, the fact that Mrs Collier is a self-represented litigant ought not to protect her from an order for costs in a situation where there would not be any doubt at all that a party who had been legally represented and had brought this Application in a Case would certainly have had costs ordered against them. Mrs Collier should pay the costs of her failed Application in a Case.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 30 March 2017
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