Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Collier v State of New South Wales [2015] NSWCA 78 Hearing dates: 30 March 2015 Decision date: 30 March 2015 Before: Basten JA at [1], [43]; Macfarlan JA at [40]; Emmett JA at [42] Decision: (1)Dismiss the application to discharge or vary the orders made by Leeming JA on 8 December 2014 and 22 December 2014. (2)Dismiss the notice of motion filed on 25 February 2015. (3)Dismiss the notice of motion filed on 11 March 2015. (4)Dismiss the application for leave to appeal from the judgment of Campbell J of 1 October 2014. (5)Upon the respondent's undertaking that the State will not seek to enforce such an order until the expiration of the applicant's right to seek special leave to appeal to the High Court and if leave is sought the determination of any proceedings in that Court the applicant is ordered to pay the respondent's costs in this Court, as assessed or agreed. Catchwords: COSTS – application for gross costs order under the Civil Procedure Act 2005 (NSW), s 98(4)(c) – late service of supporting affidavit – whether appropriate to make order PROCEDURE – amended statement of claim struck out – failure to identify a cause of action – whether appropriate to dismiss proceeding – effect of dismissing proceeding – Civil Procedure Act 2005 (NSW), s 91, Uniform Civil Procedure Rules 2005 (NSW), r 13.4 PROCEDURE – review of decision of a single Judge of Appeal – whether error of single judge or change in circumstances – Supreme Court Act 1970 (NSW), s 46 PROCEDURE – subpoena – application to call on subpoena before motion to dismiss proceedings – whether evidence relevant to existence of cause of action – whether validity of subpoena assessable absent pleading of cognisable cause of action Legislation Cited: Civil Procedure Act 2005 (NSW), ss 91, 98 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 95 Supreme Court Act 1970 (NSW), ss 46, 75A Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28; Pt 5 Cases Cited: Collier v Cook [2012] NSWCA 50 Collier v Director of Public Prosecutions [2011] NSWCA 202 Collier v NSW Police Service [2012] NSWSC 1525 Collier v State of New South Wales [2014] NSWCA 442 Collier v State of New South Wales (No 2) [2014] NSWCA 461 State v Williams Tyneside Property Management Pty Ltd v Hammersmith Management Pty Ltd [2014] NSWCA 417 Category: Principal judgment Parties: Marion Louise Collier (Applicant) State of New South Wales (Respondent) Representation: Counsel: Applicant Self-represented Ms G F Mahony (Respondent) Solicitors: Applicant Self-represented I V Knight, Crown Solicitor's Office (Respondent) File Number(s): 2014/290461 Decision under review Court or tribunal: Supreme Court; Court of Appeal Citation: [2014] NSWSC 1359; [2014] NSWCA 442; [2014] NSWCA 461 Date of Decision: 1 October 2014; 8 December 2014; 20 December 2014 16 February 2015 Before: Campbell J; Leeming JA; Beazley P File Number(s): 2014/94670; 2014/290461 [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.] Judgment 1. BASTEN JA: There are a number of motions and an application for leave to appeal involving the present applicant, Marion Louise Collier, listed for consideration by the Court. Apart from the one involving the application for leave to appeal the second matter involves an application for review of two judgments of Leeming JA refusing relief sought by way of notice of motion in this Court. The purpose of the motion was ostensibly to obtain evidence which might be proffered to the Court in support of the leave application. Accordingly, it is logical to deal first with the application for review of the decisions of Leeming JA: the applicant seeks to have access to relevant material before the leave application is disposed of. However, for reasons which will be explained shortly the matters are not readily separable. 2. Some brief background is required. Proceedings were first brought by the applicant against the State of New South Wales by summons filed on 28 March 2014. The claims were pleaded by a statement of claim filed on 28 April 2014. One month later, on 28 May 2014, the State sought to have the proceedings summarily dismissed. That application came before Harrison J in the Common Law Division on 12 June 2014. 3. Harrison J declined to dismiss the proceedings, pursuant to the Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR"), r 13.4, but did make an order striking out the statement of claim, pursuant to the UCPR, r 14.28(1). That order was made on the basis that, although the first statement of claim was palpably deficient, the applicant should have an opportunity to replead, so as to identify a cognisable cause of action. 4. Harrison J gave the applicant 21 days within which to undertake that task. Ultimately, an amended statement of claim was filed on 17 September 2014. The pleading covered some 40 pages. The State considered that the amended statement of claim was also manifestly deficient and sought to have it struck out or the proceedings dismissed. 5. That application came before Campbell J in the Common Law Division on 1 October 2014, together with a motion filed by the applicant seeking to have the Commissioner of Police comply with a subpoena which had been issued. 6. Campbell J dealt with the motion by the State before considering compliance with the subpoena. Because the State's complaint was not that the applicant had no factual basis for her claims, but rather that she had not identified any legally cognisable cause of action, it was not inappropriate for the judge to deal with the matter in that way. Campbell J decided that there was no sufficient indication of a pleadable cause of action, sufficient to allow the applicant a further opportunity to replead, and summarily dismissed the proceedings. 7. On 3 October 2014 the applicant filed a summons seeking leave to appeal from the orders of Campbell J made on 1 October 2014. On 19 November 2014, the applicant filed a notice of motion seeking leave to file and serve a subpoena on an Assistant Commissioner of Police for the Western Region of New South Wales. The motion made clear that compliance was sought prior to the hearing of the applicant's summons for leave to appeal. 8. On 24 November 2014 Registrar Riznyczok refused that application. He noted that an application for leave to appeal "is not an opportunity for the parties to explore fresh evidence or to undertake discovery or other matters of that nature." The Registrar noted that fresh evidence might be adduced on an appeal [1] but that an application in support of such a motion should be made after leave was granted and not before. 9. On 28 November 2014 the applicant filed a notice of motion seeking to review the orders of the Registrar of 24 November 2014, and seeking the issue of two subpoenas, an order directed to the Crown Solicitor's Office to produce certain materials and a number of other orders. In support of that motion the applicant filed an affidavit dated 28 November 2014. 10. In the course of a hearing on 8 December 2014, Leeming JA ascertained that it was the relief sought in pars 2, 3 and 9 of the notice of motion which the applicant agreed were "basically what I need from [the Court] today." [2] 11. Leeming JA noted in his reasons for judgment, delivered ex tempore: [3] "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." 1. The further reasoning followed this line: the result was that the judge declined to make the orders sought. 2. After delivery of that judgment, the applicant filed written submissions in support of six other paragraphs in the notice of motion. In a second judgment, delivered on 22 December 2014, Leeming JA dismissed this application. [4] He did so for two reasons: first, what he regarded as "her unequivocal abandonment" of those prayers for relief during the hearing on 8 December 2014 [5] and, secondly, because they were without merit. [6] 3. On 5 January 2015 the applicant filed a notice of motion seeking review of the two judgments and orders of Leeming JA and consequent reconsideration of the notice of motion filed on 28 November 2014. She filed an affidavit in support of that application for review, to which further reference will be made shortly. 4. On 11 March 2015 the applicant filed a further motion, but its contents largely repeated those in the motion of 28 November 2014. Nature of review proceedings 1. The power to review the decision of Leeming JA is conventionally identified as being found in s 46 of the Supreme Court Act 1970 (NSW). So far as relevant, that section provides: 46 Powers of Judge of Appeal … (2) A Judge of Appeal may exercise the powers of the Court of Appeal: … (b) to make any order or give any direction in any appeal or other proceedings, but not an order or direction involving the determination or decision of the appeal or other proceedings. … (4) The Court of Appeal may discharge or vary a judgment given by a Judge of Appeal, or an order made or direction given by a Judge of Appeal. 1. There is no doubt that Leeming JA had power to make the decisions he did, pursuant to s 46(2)(b). The nature of this Court's power to "discharge or vary" such a judgment, pursuant to s 46(4), is less clear. In Tyneside Property Management Pty Ltd v Hammersmith Management Pty Ltd, [7] I suggested that the power was available where either there had been a demonstration of error on the part of the single judge, or a change in circumstances, so as to render the continued operation of the interlocutory order (or its enforcement) unjust. [8] The conventional (and more constrained) approach was set out by Emmett JA (with the agreement of Meagher JA) at [82]. The present case can be decided without resolving this issue: even on the more relaxed approach, the application should be dismissed. Application of principles 1. It is convenient to commence by referring to the application to have the Court listen to a transcript of proceedings before a Registrar of the Common Law Division conducted on 29 April 2014. This was said to be the beginning of a course of problems the applicant encountered in pursuing her claims in this Court. This was also the focus of the applicant's oral submissions today. The recording was concerned with an attempted telephone directions hearing. The hearing was aborted because the Registrar was unable to get the applicant on the line. The reason why he had what was clearly a wrong number (as appears from the transcript) is not relevant for present purposes. This hearing pre-dated the hearing before Harrison J on 12 June 2014. Harrison J struck out the applicant's first statement of claim: no appeal was brought from that order. There has been no scintilla of evidence to support her claim that she was prejudiced in the hearing before Campbell J on 1 October 2014 by whatever did or did not happen before Registrar Bradford. The vigorous complaints of the applicant that she has been badly treated by court staff do not of themselves demonstrate a basis for allowing her an opportunity to re-plead. 2. Turning to the question of the subpoenas, there can be no universal rule precluding the calling of evidence (and thus the possible need for a subpoena) on a leave application. A complaint of bias (or apprehended bias) on the part of a trial judge may depend on evidence unrelated to that called at a trial. Other aspects of a denial of procedural fairness may also require extraneous evidence. In this case, it is true that there was a ground alleging bias on the part of the primary judge, based on prejudgment, but that was not amenable to proof by the issue of the proposed subpoenas. 3. The subpoenas sought to be issued in this case have the same purpose, it appears, as those sought to be called on in the trial court. In a practical sense, the applicant's complaint is that the primary judge, before dismissing the proceedings, should have allowed the applicant to obtain the material sought under the subpoenas, which had not been set aside. 4. That approach overlooks the fact that a subpoena is a compulsory process available in the course of, and subservient to the purposes of, a properly constituted proceeding. The validity of a subpoena depends on demonstration of a legitimate forensic purpose: that purpose cannot be established absent a cognisable cause of action arising in defined circumstances. Where those conditions are not fulfilled, a subpoena is truly a "fishing expedition" in the vernacular phrase commonly called in aid by a recipient, seeking to have a subpoena set aside. It follows that, absent a specific conferral of power, a court cannot enforce a subpoena as a form of pre-proceeding (or preliminary) discovery. Such a power may in particular circumstances be found in the UCPR, Pt 5, although it was not invoked in the present case. 5. Ultimately, the resolution of this application must depend on the ability of the Court to discern a cause of action in the current pleading, allowing appropriate leniency with respect to compliance with the rules of procedure for an unrepresented litigant without legal training. 6. As Campbell J noted in the Common Law Division, the factual substratum of the applicant's case must be gleaned from the particulars. He noted that the conduct the subject of complaint involved four broad areas, identified by reference to the position of the participants. They were: (a) police officers, over a period extending from 1986 to 2004; (b) officers with the Department of Attorney General and Justice, from about 1990 to 2014; (c) persons working in Mudgee, Gulgong and Wellington Hospitals, between about April 2011 and January 2014, and (d) several government ministers and members of parliament. 1. Whether the State was responsible for all of the conduct complained of is by no means clear. Apart from the fact that the conduct was said to have caused harm to the applicant (in ways which may not necessarily be compensable), there was little connection between the identifiable events. Further, as Campbell J noted, it was difficult to discern from the facts particularised, any legitimate cause of action. 2. It is inconceivable that a coherent trial could eventuate, even if the State pleaded to the particulars in some manner. There is no doubt that Campbell J was correct to strike out the pleading. 3. The more difficult question, as Campbell J recognised, was whether the proceedings should be dismissed at this early stage, or the applicant be given what would only be a second opportunity to replead. Adopting by analogy the principles identified in State v Williams [9] in relation to the strike-out of a defence (with potentially fatal consequences for the defendant), Campbell J concluded that "this is one of those plain and obvious cases" in which the proceedings should be dismissed summarily. [10] He said that he took that step "under s 91(1) of the Civil Procedure Act and r 13.4 of the UCPR". Section 91(1), it may be noted, did not confer a power to dismiss proceedings: rather it states the consequence of dismissal which, in the absence of any preclusive condition (and none was imposed in this case), does not prevent the applicant bringing fresh proceedings. Thus, the only certain detriment for the applicant in starting again would be the possible running of a limitation period against a particular cause of action and a fresh filing fee. She may, however, also face an application for a stay with respect to any further proceedings pending payment of costs ordered in the dismissed proceedings. [11] 4. It is necessary to say a little more about the circumstances underlying the applicant's claims. That may be done briefly, because they are not entirely new to the courts. They involve a history of traffic offences and health problems. Some of the history is set out by Campbell JA in Collier v Cook. [12] The fate of the traffic offences in the criminal jurisdiction is to be found in Collier v Director of Public Prosecutions. [13] Further details are to be found in the first statement of claim filed in these proceedings and in the subsequent affidavits of the applicant. 5. The particulars in the amended statement of claim commenced with allegations against a senior constable of police in relation to conduct which took place on 5 August 1986. These particulars appear to form a background to alleged police harassment on more recent occasions. Given the dates involved they could not form the basis of a cause of action which could still be maintained against the State. 6. One particular complaint can be identified with greater precision from the judgment of Adams J in 2012. [14] Adams J noted that the applicant had been convicted and sentenced in relation to six charges in the Local Court. On two, she had been required to enter into bonds under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the "Sentencing Procedure Act"). A s 9 bond may be subject to conditions imposed pursuant to s 95 of the Sentencing Procedure Act. There was, possibly, a standard form used in Local Court registries. In any event, the form used included a requirement that the offender undergo drug and alcohol counselling. The applicant refused to enter into a bond in those terms and, when the matter returned before the magistrate on a later occasion, the magistrate made it clear that she had not intended such a condition to be imposed. However, finding that the applicant had not entered into the bonds, the magistrate revoked her order and imposed fines in lieu. It was that decision which was the subject of review before Adams J. 7. It appears to be some aspect of those proceedings which gave rise to allegations of conspiracy between an inspector of police and the magistrate and various allegations against persons in the Local Court registry. There were further allegations that, as late as March 2012, the same police inspector had "either conducted and/or orchestrated police harassment, intimidation as well as intimidating telephone calls against [the applicant]." [15] It included a sub-particular that the inspector had instructed police officers "not to take [applicant's] complaint" and had "falsified" a police record. Other particulars simply allege that various officers had caused the applicant to "fear for her personal safety and wellbeing" and had "breached State statute" and "breached Commonwealth statute." 8. With respect to the applicant's treatment at the various hospitals noted above, there were allegations that on particular days, an identified nurse was "medically and criminally negligent in her duty of care towards the [applicant]"; and also numerous allegations that there had been breaches of the Crimes (Domestic and Personal) Violence Act 2007 (NSW) and the Privacy and Personal Information Protection Act 1998 (NSW). 9. The particulars leave the reader in no doubt that the applicant has had a long history of health problems and contact with the police and members of parliament. Whatever the subject matter of her contacts (which is not revealed in any case) it is possible that she did not receive the assistance she thought was her due. However, none of that can constitute a cause of action for breach of duty compensable under the law. No ground had been revealed which casts doubt upon the appropriateness of the order made by the primary judge dismissing the proceedings. Other motions 1. In addition to the motions dealt with by Leeming JA, and the motion to review his decisions, the applicant has filed two further notices of motion which, by direction of Ward JA made on 16 March 2015, have been listed before this Court. The first, filed on 25 February 2015, sought to review a decision of the President made on 16 February 2015 and, secondly, an order removing the Registrar from further participation in the proceedings, due to his "private communications" with the respondent. 2. Listing directions may be varied by this Court if appropriate, as has in fact happened on the present occasion, with the motion to review Leeming JA and the application for leave to appeal, originally listed for consecutive hearing, to be heard by the same bench concurrently. So far as the applicant has expressed concern with the Registrar further participating in the proceedings, two matters should be noted. Since the decision which the applicant had reviewed by Leeming JA, the Registrar has had no substantive role in the determination of the proceedings, nor will he have in the future, as the matters before this Court will be determined today. Secondly, the material provided to this Court fails to establish that the Registrar has acted other than in an entirely appropriate and procedurally correct manner in his dealings with the applicant. It follows that there is no basis for this Court to make any directions with respect to the involvement of the Registrar in these proceedings. 3. It is convenient to note that the applicant has been at pains to establish that communications which have taken place between two Registrars of the Court and representatives of the respondent have, in some way, been inappropriate "private communications" with one party. The occasions on which these events have taken place involve directions hearings which the applicant has sought to attend by telephone. That is an indulgence (being a departure from normal procedure) which the Court has allowed to this applicant on the basis that her personal circumstances make it difficult for her to attend in person in Sydney. That there may have been administrative problems on some occasions provide no basis for any assumption that communications in the courtroom when she was not present have been inappropriate. Apart from there being no basis for concern, it is no function of the Court to investigate such allegations as part of this litigation. 4. Accordingly, the notice of motion filed on 25 February 2015 should be dismissed. 5. The applicant also filed a notice of motion on 11 March 2015. It sought an order that a recording of proceedings before a Common Law Registrar on 29 April 2014 be played in Court. For reasons already noted, there is no purpose to be served in the Court listening to such a recording and the order will not be made. 6. The notice of motion also sought orders dealing with other procedural matters which involved solicitors and counsel representing the State, failure of the Police Commissioner to comply with a subpoena and various other matters including an order that "all procedural matters conducted in proceedings [in the applicant's matter] have been illegal and improper at the hands of the NSW Supreme Court since 22 April 2014". There is no basis for the Court to make any of the orders sought. The notice of motion of 11 March 2015 should be dismissed. 7. The Court should make the following orders: (1) Dismiss the application to discharge or vary the orders made by Leeming JA on 8 December 2014 and 22 December 2014. (2) Dismiss the notice of motion filed on 25 February 2015. (3) Dismiss the notice of motion filed on 11 March 2015. (4) Dismiss the application for leave to appeal from the judgment of Campbell J of 1 October 2014. 1. MACFARLAN JA: I agree with Basten JA's judgment. In addition I refer to Campbell J's statement in para 45 of his judgment that: "If the facts upon which Mrs Collier relies give rise to a serious question to be tried, it is not in any way, shape or form obvious on the material that is being put before me or in the amended statement of claim." 1. The same observation is applicable to the proceedings in this Court as nothing has been said or shown to the Court that suggests that there would have been any point in giving leave to Mrs Collier to re-plead her statement of claim rather than dismissing her proceedings. The possibility of Mrs Collier having an arguable cause of action remains entirely a matter of speculation. 2. EMMETT JA: I agree with the orders proposed by Basten JA for the reasons given by his Honour. Mrs Collier in particular has been unable to explain to this Court the nature of the causes of action on which she relies in order to obtain the relief she claims in these proceedings. The causes of action are certainly not discernible from the amended statement of claim. I agree therefore that there is no point in the proceedings continuing. 3. BASTEN JA: The respondent seeks a gross costs order pursuant to s 98(4)(c) of the Civil Procedure Act. In support thereof an affidavit has been filed of Sarah Therese Ryan dated 26 March 2015. The content of that affidavit was only provided by electronic form to the applicant last week. Consideration of the content is not something that this Court could undertake immediately. The Court therefore is not prepared to make an order in that form. 4. An order for costs in favour of the respondent will, however, be made in the usual form. The order is as follows: (5) Upon the respondent's undertaking that the State will not seek to enforce such an order until the expiration of the applicant's right to seek special leave to appeal to the High Court and, if leave is sought, the determination of any proceedings in that Court, the applicant is ordered to pay the respondent's costs in this Court, as assessed or agreed. ********** Endnotes 1. Pursuant to s 75A of the Supreme Court Act 1970 (NSW). 2. Tcpt, 08/12/14, p 4(46). 3. Collier v State of New South Wales [2014] NSWCA 442 at [5]. 4. Collier v State of New South Wales (No 2) [2014] NSWCA 461. 5. Judgment at [3]. 6. Judgment at [4]ff. 7. [2014] NSWCA 417. 8. Tyneside at [3]-[7]. 9. [2014] NSWCA 177 at [71]. 10. Judgment at [46]. 11. UCPR, r 12.10. 12. [2012] NSWCA 50. 13. [2011] NSWCA 202. 14. Collier v NSW Police Service [2012] NSWSC 1525 (Adams J). 15. Particular 1(r). 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: 01 April 2015