Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Collier v State of New South Wales [2014] NSWCA 442 Hearing dates: 8 December 2014 Decision date: 08 December 2014 Before: Leeming JA Decision: 1. Paragraphs 2, 3 and 9 of the Notice of Motion dated 28 November 2014 are dismissed. 2. Costs of the Notice of Motion dated 28 November 2014 will be costs in the cause. 3. I direct that Mrs Collier file and serve any written submissions in support of the orders in paras 1, 4, 5, 6, 7, and 8 of the Notice of Motion dated 28 November 2014 on or before 4pm Friday 12 December 2014. 4. I direct that the State of NSW file and serve any written submissions in response by 4pm Tuesday 16 December 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 to issue subpoenas and for discovery - no legitimate forensic purpose Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 13.4 Cases Cited: Collier v State of New South Wales (No 2) [2014] NSWSC 1359 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 1LEEMING JA: Before me is a notice of motion dated 28 November 2014. It seeks 11 orders although Ms Collier, who is the applicant for leave to appeal, has confirmed that today she seeks the orders sought in paragraphs 2, 3 and 9. Those paragraphs are in the following terms: "2. An Order that the Subpoena applied for by way of Notice of Motion of the 14th, filed 19th November 2014, against NSW Police Service, be issued forthwith; 3. An Order of the Court for the issue of a Subpoena on Telstra Australia Corporation, for all calls made to the Applicant's then telephone service of 02 68XXX828 on, the 13th August, 17th and 24th November 2014. Including to, the telephone service of 68XXX820 the 13th May 2014, between 11.41 - 11.57AM; ... 9. An Order of the Court, compelling the Crown Solicitor's Office to provide to this Court all evidence of their advice to attend this Court Common Law Division of, on the 29th April 2014, notwithstanding but including any advice that said orders made that day were vacated, as advised in writing, by Principal Registrar Murphy to the Applicant." 2The matter comes to this Court because, by application for leave to appeal filed 3 October 2014, Mrs Collier appeals from the ex tempore decision of the primary judge, made on 1 October 2014, summarily dismissing her amended statement of claim pursuant to r 13.4 of the Uniform Civil Procedure Rules: see Collier v State of New South Wales (No 2) [2014] NSWSC 1359. It is convenient, by way of background, to reproduce paragraphs 1 - 3 of his Honour's reasons: "I have before me two notices of motion: one brought by the defendant, the State of New South Wales, seeking that the proceedings be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005; the second is a motion brought by the plaintiff which claims a number of different types of relief, but principally Mrs Collier today is pressing for a decision about whether the subpoena she issued to the Commissioner of Police must be complied with. Mrs Collier has issued proceedings in this Court which are complex and go back a long way. She initially commenced by summons supported by affidavit, but was ordered to plead in a statement of claim. She brought forward a statement of claim which was filed on 28 April 2014, but it was struck out by Harrison J on 12 June 2014, leave being granted to Mrs Collier to re-plead. The matter came before me on a notice of motion filed by Mrs Collier. That matter was heard by me on 27 August 2014, and on that occasion, I extended the time for Mrs Collier to re-plead to 24 September, reserved liberty to the defendant to restore its motion for dismissal if the plaintiff decided not to file amended statement of claim, and I extended the contentious subpoena for consideration today by the duty judge." 3The proposed notice of appeal, if leave be granted, contains no fewer than 47 grounds. Many of them fall well outside any question which could possibly arise on an appeal from either of the decisions of Campbell J on 1 October 2014 or Harrison J on 12 June 2014 to strike out the versions of Ms Collier's pleadings in the form they took before their Honours. For example, grounds 22, 23, 25, 30, 32, 33, 34, 35 and 47 are as follows: "22. Members of the Legislative Assembly of New South Wales, are not exempt from Prosecution. 23. Members of the Legislative Council of New South Wales, are not exempt from Prosecution. ... 25. The Statute of Limitations does not exist on the Appellant's claims. ... 30. The Appellant, did not make claims "in the hope something might stick." ... 32. Campbell J, concealed criminal actions of employees of the NSW Police Service. 33. Campbell J, concealed criminal actions of members of Legislative Assembly. 34. Campbell J, concealed criminal actions of members of the Legislative Council. 35. Campbell J and Supreme Court of NSW breached State Statue on 25th July 2011. ... 47. Campbell J on the 1st October 2014, breached the Commonwealth of Australia Constitution Act 1900 section 109." That said, there are other complaints that are made in earlier grounds which the respondent, the State of New South Wales, accepts by way of its opponent's response dated 31 October 2014 are capable of extending to claims of a denial of procedural fairness, an absence of power, or errors of fact and law. 4The essential question before this Court when determining whether leave to appeal is granted or refused will be whether the amended statement of claim summarily dismissed by Campbell J disclosed a cause of action that should have gone to trial and be determined on its merits, or whether it was bad in law and should have been struck out summarily. In addition, the way in which the Court resolved the State's notice of motion before it may also be relevant to the grant or refusal of leave. 5With that in mind I return to the three paragraphs of the notice of motion that are pressed today. Mrs Collier, who appeared for herself, candidly acknowledged that the main order that she sought today was that in paragraph 3, directed to a subpoena on Telstra Australia Corporation. It is unusual in this Court for subpoenas to issue in any matter. The principal reason for that is that this is a Court of Appeal. A subpoena issuing in this Court necessarily calls for production of documents which were not before the primary judge. It is possible, through an application for fresh evidence, for such a subpoena to issue and for documents to be properly tendered in an appeal in this Court. However this is not a case where an application for leave to appeal is brought from a trial. The question before Campbell J on 1 October 2014 was whether the pleading in its amended form should go to trial or be struck out. That is a question capable of answer by reference to the pleading, and the pleading alone. One of Mrs Collier's complaints this afternoon was that the State's motion was unaccompanied by an affidavit in support. That rather illustrates the nature of the application that was heard and determined by the primary judge. It is not an application that stands or falls by reference to evidence; it is an application that stands or falls by reference to whether ultimately the pleading is bad in law. 6Another way of putting the point is this: it is to my mind impossible to conceive of a circumstance where any documents produced by Telstra in answer to a subpoena which is directed to producing records of telephone calls made between Mrs Collier's home number and the Court on various occasions: 29 April, 13 May, 13 August, 17 November and 24 November 2014 (which are all, or mostly all, directions hearings before Registrars in the Common Law Division or, in the case of the latter two, the Registrar of the Court of Appeal) could have any bearing whatsoever on whether the pleading should go to trial or be bad in law. In those circumstances the subpoena lacks any legitimate forensic purpose and there is no utility in making the order sought by Mrs Collier. 7Mrs Collier also seeks leave to issue a subpoena addressed to an Assistant Commissioner in the New South Wales Police Service. The proposed subpoena seeks production of the following documents: "1. All written documentation, emails, telephone correspondence, notes, COP's entry from 19th August 2008, including the sworn official statement of Marion Louise Collier, taken by and witnessed by Detective Constable Gary Miller at Mudgee Local Area Command, on the 19th Sept 2008, with respect to documentation missing from the private medical file of Marion Louise Collier; 2. All written documentation, e-mails, telephone correspondence, daily occurrence pads, official notebook/s, for Tuesday 22nd and Wednesday 23rd January 2014 and thereafter, with reasons for Sergeant Rod Buhr's and a female named Judy's attendance, at XXXX Street, Wellington, on Wednesday the 23rd January 2014. Including Professional Standards Command of NSW Police investigation of the complaint made by Marion Louise Collier." 8Those were documents which were not before the primary judge. Nor were they before Harrison J. For the reasons I have already given, those documents, whether or not they exist, whether or not they are the subject of a fresh evidence application and whether or not they are tendered on the hearing of the leave application, could have no bearing upon its ultimate success or failure. For the same reasons, I would not grant leave to issue that subpoena. 9The third order, paragraph 9, is an order in effect by way of compulsive production of documents relating to an attendance which occurred on 29 April 2014. A copy of the transcript of that directions hearing, before a Registrar of this Court (which is four pages long) has been provided to me on the hearing of this application. Mrs Collier has contended, at some length, and with force, that she is greatly concerned by the ways in which from time to time this Court, in the course of managing directions hearings in connection with her litigation, has contacted, and on occasion failed to contact her, by way of telephone link. I think it is fair to say that the largest issue raised by Mrs Collier this afternoon concerns what happened before a Registrar in the Common Law Division of this Court in April 2014. That is what paragraph 9 of the notice of motion is directed to. However, at the end of the day, the State by motion sought to strike out the pleading. It succeeded before Harrison J but Mrs Collier was given liberty to replead. She did so, but Campbell J on 1 October 2014 determined that the amended pleading provided by her likewise was bad in law. Even if there was some irregularity at a directions hearing in April (irrespective of whether that was innocent, negligent or deliberate, as some of Mrs Collier's written materials would suggest) that could have no bearing upon the ultimate fate of her application for leave to appeal against the substantive decisions which are those striking out her pleading and dismissing the proceedings. 10For those reasons I will dismiss paragraphs 2, 3 and 9 of the notice of motion dated 28 November 2014. Mrs Collier accepted that the other paragraphs of her notice of motion were in effect ancillary to those paragraphs. Subject to hearing anything she wants to say in relation to the notice of motion including costs I would propose to dismiss the whole of the notice of motion filed 28 November 2014. [Submissions as to costs; the State indicated it was content for costs to be costs in the cause.] 11LEEMING JA: It is now well after 5.00pm. There is no more favourable exercise of costs discretion that I could conceive of than that the costs of your notice of motion, in all aspects of which you have been unsuccessful today, be costs in the cause. 12I accordingly order that the costs of today of the notice of motion of 28 November 2014 be costs in the cause. [Discussion about the balance of the notice of motion] 13LEEMING JA: I direct that Mrs Collier file and serve new written submissions in support of the orders in paragraphs 1, 4, 5, 6, 7 and 8 of her notice of motion on or before 4pm on Friday 12 December 2014. I direct that the State file and serve any submissions in response on or before 4pm Tuesday 16 December 2014. ********** 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: 17 December 2014