Collier v Attorney General for New South Wales (No 1)

LEEMING JA: Shortly after hearing oral submissions from her, I advised that I would not accede to an application made by Ms Marion Louise Collier that I recuse myself from participating in the hearing of her application for leave to appeal from interlocutory orders made in the Common Law Division late last year. In order to save time and to deal with the substance of the application for leave, I indicated my preference to give reasons at a later time, if that were convenient to her, and Ms Collier agreed to that course. These are my reasons.

Ms Collier’s application for leave was listed to be heard on the morning of 15 March 2022. On the afternoon of 14 March 2022, my Associate advised Ms Collier and counsel appearing for the respondent that the application would be conducted by audio-visual link, and provided details of that link. That led to an email from Ms Collier at 3.57pm, in the following terms:

My Associate responded to the parties in these terms at 4.50pm:

At 5.01pm, Ms Collier responded:

At 11.01pm that evening, Ms Collier supplied a further email:

At the commencement of the hearing, I advised of the sequence of emails, and that I was not sure that any complaint would have concerned me, Justice Allsop having ceased to be President of the Court of Appeal in March 2013, almost two years prior to the hearing in December 2014, and that if there was a complaint, I did not know what it was or how it was resolved.

Ms Collier said that she had been wrong to refer (twice) to a complaint to Justice Allsop, and that instead it had been made to Justice Beazley. She said that her complaint was that it had been inappropriate for me to suggest that, rather than issuing a subpoena, she should “just go and ring Telstra and ask them to give you the information”. I said that after learning of her email, I had read the transcript of 8 December 2014, and that I had said no such thing. Ms Collier said that she did not have the transcript.

I said that I had refused her application to issue a subpoena to the police, for reasons given on that day, on the basis that subpoenas were unusual in the Court of Appeal, which ordinarily heard and determined appeals on the basis of the material tendered at trial. Ms Collier had been seeking leave to issue a subpoena with a view to tendering documents produced in support of her pending appeal against the summary dismissal of a statement of claim. The reasons I gave on 8 December 2014 that day included the following at [5]-[6]:

Ms Collier did not otherwise elaborate submissions as to the nature of her complaint in 2014, or the basis on which I should recuse myself.

It may be doubted whether a complaint was in fact made concerning the hearing on 8 December 2014. If Ms Collier is correct that she is remembering a complaint made to Justice Allsop, then it is likely that her complaint related either to earlier proceedings in this Court before my appointment in 2013 and before the hearing in 2014, or alternatively to later proceedings in the Federal Court. I note that there were proceedings brought by her against Telstra which record that on 23 and 24 November 2016 Ms Collier made complaints to the associate to the Chief Justice concerning the conduct of a judge of the Federal Court: Collier v Telstra Corporation Ltd [2018] FCA 1569 at [11] and [13] (this is one of the decisions relied on by the Attorney in support of his summons).

Alternatively, if a complaint was made to Justice Beazley (who was indeed the President of the Court of Appeal at the relevant time more than seven years ago), its nature is unknown. Ms Collier had an opportunity, in answer to my Associate’s request by email, and my own inquiry in Court, to adduce evidence of the complaint and how it was resolved.

Ms Collier’s recollection of what occurred on 8 December 2014 is faulty. That is not said in any way which is critical of her. Aside from the transcript, I have no independent recollection of the hearing.

The question is whether a fair minded observer might reasonably apprehend that, seven years later, I might not bring an impartial mind to the determination of whether to grant or refuse leave to appeal from an interlocutory decision dismissing Ms Collier’s application for summary dismissal of the Attorney’s summons seeking her to be declared a vexatious litigant. I concluded that nothing that Ms Collier had said or written would lead to that question being answered affirmatively, even if a complaint had been made about something that occurred on that day. Accordingly, I refused to accede to her application.