Supreme Court New South Wales Medium Neutral Citation: Attorney General v Collier [2022] NSWSC 323 Hearing dates: 21 March 2022 Date of orders: 24 March 2022 Decision date: 24 March 2022 Jurisdiction: Common Law Before: Hamill J Decision: (1) Leave to issue a subpoena is refused. (2) Costs reserved to the trial Judge. Catchwords: CIVIL PROCEDURE – leave to issue a subpoena – subpoena to compel attendance of plaintiff – substantive proceedings for orders under Vexatious Proceedings Act – where plaintiff is the Attorney General – allegation of "willy-nilly" use of the Attorney's name to harass and intimidate – where "somebody doesn't know what they're doing" –whether legitimate purpose for issue of subpoena – whether party can compel another party to attend by use of subpoena – tendentious flourishes Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rule 7.3 Vexatious Proceedings Act 2008 (NSW), ss 8(4)(a), 8(6), 8(7), 16(1), 16(5). Cases Cited: Attorney General for NSW v Collier [2021] NSWSC 1483 Hamzy v Commissioner of Corrective Services (No 1) [2017] NSWSC 183 NHB Enterprises v Corry (No 4) [2020] NSWSC 526 Attorney General for NSW v Collier [2021] NSWSC 1483 Category: Principal judgment Parties: Attorney General (Plaintiff) Marion Collier (Defendant) Representation: Counsel: D Birch (Plaintiff) M Collier (self-represented) (Defendant) File Number(s): 2019/00183521 Publication restriction: Nil. Judgment 1. On Monday 21 March 2022 I heard an application by the defendant seeking leave to issue a subpoena pursuant to Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 7.3. The defendant represented herself. The plaintiff, being the Attorney General for the State of New South Wales, was represented by Counsel, Mr Birch. The plaintiff opposed the grant of leave to the issue the subpoena. 2. The substantive proceedings concern an application by the Attorney General under s 8(7) of the Vexatious Proceedings Act 2008 (NSW), seeking an order or orders "in such terms as the Court considers appropriate" and proposing that "Mrs Marion Louise Collier be prohibited from instituting proceedings in New South Wales, without leave of this Court". Those proceedings are listed for hearing on 5 April 2022 with an estimate of 3 days. There are various case management directions in place including orders for the service of evidence and the filing of a joint Court Book by 30 March 2022. Against the possibility that the parties cannot agree on the contents of the Court Book, which on my brief involvement in the case seems very likely, the parties have been directed to file separate Court Books. I will return to set out the directions that were made by the Registrar on 11 March 2022 lest there be any misunderstanding of them. 3. The case has a tumultuous background and has recently been subject of examination by the Court of Appeal. As I understand it, that involved an application for leave to appeal against an order by Beech-Jones CJ at CL dismissing a notice of motion for summary dismissal: Attorney General for NSW v Collier [2021] NSWSC 1483. I gather that leave to appeal was refused. During the brief hearing of the current application, the defendant outlined a catalogue of complaints as to the conduct of those representing the plaintiff, which is to say the Crown Solicitor's Office and Counsel, as well as various judicial officers and other officers of the Court. There was also the suggestion of a conflict of interest in Counsel for the plaintiff or, perhaps more correctly, an assertion that he had information about the case acquired from sources outside of the confines of the present application. 4. Three documents were tendered on the application. Those documents were the application for leave to issue the subpoena (Ex A), the proposed subpoena itself (Ex B), and a letter dated 15 March 2022 from the defendant to the Chief Justice and the Registrar (Ex C). I raised the existence of a Court Book which travelled with the file but was told this was relevant to the application for summary dismissal dealt with by the Chief Judge at Common Law. The file was also full of a large number of documents which I take to include various affidavits relevant either to earlier interlocutory skirmishes or to the substantive proceedings. None of this material was tendered on the current application and I have avoided reading it for three reasons. First, because neither party suggested it was relevant. Secondly, for fear that it would impact on my deciding the present, confined, issue and the associated concern that it might operate unfairly to one or other of the parties. Finally, because of the time constraints in dealing with matters such as this in the course of a busy duty list. 5. UCPR rule 7.3 provides: 7.3 Issue of subpoena in certain circumstances requires leave (cf SCR Part 66, rule 1A) (1) A subpoena may not be issued, except by leave of the court, unless the party at whose request the subpoena is to be issued is represented by a solicitor in the proceedings. (2) Leave under subrule (1) may be given either generally or in relation to a particular subpoena or subpoenas. (3) Despite subrule (1), a subpoena may not be issued in relation to proceedings in the Small Claims Division of the Local Court, except by leave of the court, in any circumstance 1. It is for the defendant to establish that leave should be granted. In NHB Enterprises v Corry (No 4) [2020] NSWSC 526 Williams J said at [11]: "As the party seeking leave under UCPR r 7.3, Mr Corry bears the onus of demonstrating that the subpoenas have a legitimate forensic purpose. Leave should not be granted unless that purpose is established…" 1. It is unnecessary to consider the issues her Honour went on to consider by reference to the decision of Bellew J in Hamzy v Commissioner of Corrective Services (No 1) [2017] NSWSC 183 at [5]-[6]. 2. In her application for leave to issue the subpoena (Ex A), the defendant set out the reasons why the person ("Mr Mark Raymond Speakman - Attorney for the State of New South Wales") is required to give evidence and how they are relevant to the issues in dispute in the case: "For the plaintiff (himself) to explain / give evidence, as neither the Solicitors (Crown) or their Counsel (there have been at least 2-3 different ones, with the original solicitor, no longer working for the Crown. If the actual Plaintiff gives evidence, he Should Know What the actual complaint is, as no-one representing can explain." 1. In her oral submissions, these reasons were expanded upon in various ways, including: "DEFENDANT: Well, that's the thrust of it, your Honour, because if you were to issue a subpoena on someone and it goes on for a couple of years and you can't seem to get it explained what the person is actually talking about, then you should know what you're talking about - without being flippant - and the Attorney General has been the Attorney General since early 2017, so had been for two and a half years prior to the issue of this summons and only, well - excuse the expression - every time you turn around they suddenly want to add other things which are always the same things and it has just been dragged on and on and on…" [1] "DEFENDANT: Apart from the fact that it is in the interests of natural justice, the other point I would like to make is something that Mr Birch said. He said that the Attorney couldn't supply any evidence that would support what wasn't already in the paperwork. Then he said, 'We are instructed by our client'. On that basis, I take it that the Attorney isn't the person who ordered the case and should not therefore be in the name of the Attorney General for the State of NSW because that position, which there's been one since 1834, but that position has, since January 2017 been held by Mark Speakman, and if somebody doesn't know what they're doing, then they need to definitely know that solicitors engaged and paid for by the State are going to be willy-nilly using his name to harass and intimidate old women, which is what this is based on, because I'm 69 in August. … DEFENDANT: What I'm saying is the fact that the Court of Appeal by the way didn't find - the Court of Appeal, Leeming JA, at the end of the case said to Mr Birch, 'Am I correct, the submission you put in the other proceedings on 18 February 2022 explains the case?' Mr Birch said, 'Yes'. They don't explain the case in its proper context other than, I would say, willy-nilly submissions and what they don't explain is when it says a 'summary'. In these proceedings the Attorney General seeks an order. If it's the Attorney General that seeks the order he's the one that should be saying what is what." [2] 1. Stripped of its more tendentious flourishes, the submission seems to be that the named plaintiff is required to give evidence or should be available at the request of the defendant. I am unaware of any authority supporting the proposition that a party in the normal course of litigation is required to give evidence or to expose themselves to cross-examination. I am not satisfied that the fact that the Attorney General is the named plaintiff in the proceedings is sufficient reason to require the current holder of that office to be subject to compulsion, by means of a subpoena, to attend the hearing and give evidence. If the defendant is correct, and the lawyers presenting the case against her, are unable to articulate "what the actual complaint is", the summons will no doubt be dismissed. In reaching this determination I have taken into account the defendant's submission that the current holder of the office also held the office when the proceedings were commenced. I am unable to see how that fact is pertinent to the issue before me. It is unnecessary to discuss the particular role of the Attorney General under the relevant legislation in terms of the institution of proceedings. [3] 2. For those reasons leave pursuant to UCPR rule 7.3 will be refused. 3. Counsel for the plaintiff resisted the suggestion that the issue be deferred until the hearing, submitting that "there could well be significant disruption if the decision of whether the Attorney General is required to personally attend is left until the first day of the hearing on 5 April." [4] I accept that submission but cannot rule out the possibility that the Judge hearing the case in April, seized of the true issues between the parties and the evidence upon which the competing cases is based, may be asked to revisit the issue. 4. Apart from the order refusing leave under rule 7.3, I also confirm the hearing date of 5 April 2022 and note the directions made by the Registrar on 11 March 2022 concerning a notice of motion filed 18 February 2022, which I repeat for the parties' benefit: 1. The defendant is to file and or serve any evidence in answer to the Notice of Motion by 31 March 2022. 2. By 31 March 2022 the defendant is to file and or serve any answer evidence to the Affidavit of Tom Allchurch affirmed on 18 February 2022 and the exhibits to TA-3, TA-4 and TA-5. 3. The defendant is to file and serve any written submissions by 23 March 2022. 4. The parties are to file a joint Court Book by 30 March 2022, and if there is no agreement are to file separate Court Books. Orders 1. The application for leave to issue a subpoena is refused. 2. The costs of the application are reserved and to be determined by the Judge who hears the substantive proceedings. ********** Endnotes 1. Tcpt, 21 March 2022, p 4(14-22). 2. Tcpt, 21 March 2022, pp 12-13. 3. But see, for example, Vexatious Proceedings Act 2008 (NSW), ss 8(4)(a), 8(6), 16(1), (5). 4. Tcpt, 21 March 2022, p 12(11-13). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 March 2022