Attorney General for the State of New South Wales v Collier

1. [1]

   HIS HONOUR: By notice of motion filed on 22 October 2019, the plaintiff, the Attorney General for the State of New South Wales, seeks access to certain court files in relation to nine identified proceedings brought in this Court, pursuant to r 33.13 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). A second order sought by the plaintiff, that the Return of Subpoena List on 24 October 2019 be vacated, is unnecessary to consider, since the hearing of this matter post-dated that event. The plaintiff also seeks an order that the defendant, Marion Collier, pay the costs of the motion. There are five other respondents to the motion, none of whom participated in the proceedings.

Background

1. [2]

   On 13 June 2019, the plaintiff filed a summons seeking an order against the defendant pursuant to s 8(7) of the Vexatious Proceedings Act 2008 (NSW) (“a vexatious proceedings order”).

2. [3]

   Two affidavits in support of the notice of motion were affirmed and filed on 22 October 2019 and 4 December 2019 by Tram Nguyen, a solicitor in the employment of the Crown Solicitor of New South Wales, who had carriage of this matter for the plaintiff at the time it came before me. Ms Nguyen related certain steps that had been taken by Kyle Hudson, who was a solicitor of the plaintiff with carriage of matter at the time, in relation to this matter, as follows.

3. [4]

   On 7, 22 and 23 August 2019, Mr Hudson made applications to the Registry of this Court (“the Registry”), pursuant to r 33.13 of the UCPR (“the r 33.13 applications”), for the production of a total of ten court files. The judgments in each proceeding identify the defendant as a plaintiff.

4. [5]

   On 7 August 2019, Mr Hudson forwarded copies of the r 33.13 applications made that day, by email and post, to the defendant, with a covering letter in which Mr Hudson stated: “I refer to the above matter, in which I act for the plaintiff”. The matter identified in the title was “Attorney General for New South Wales v Marion Louise Collier (NSW Supreme Court Case No. 2019/00183521)”. I note that is the file number of the proceedings in which the plaintiff seeks a vexatious proceedings order. The defendant replied by email the same day, stating: “I will not accept what is a fishing expedition. I am now deleting this copy”. On 23 August 2019, Mr Hudson forwarded copies of the applications made on 22 and 23 August, by email and post, to the defendant. On 24 September 2019, the posted items were returned, marked “return to sender”.

5. [6]

   On 17 October 2019, Mr Hudson was advised by the Registry that all but one of the ten files had been located, and that the matter could be listed in the Return of Subpoena List. He was subsequently advised by the Registry that it had been listed for 24 October 2019. At a directions hearing on 17 October 2019, the defendant stated that she objected to the plaintiff being provided access to any of the court files. The Senior Deputy Registrar made orders that the plaintiff was to file and serve any notice of motion seeking access to the court files by 31 October 2019, and that it was to be made returnable on 8 November 2019 for directions before the Common Law Registrar. It was stood over to that date, the defendant to attend by telephone.

6. [7]

   Ms Nguyen served the r 33.13 applications sought on 22 and 23 August 2019, by email or post, on each of the defendants in those cases, and other affected parties. The letters, which are annexed to her affidavit, enquired of each defendant or affected party whether they had an objection to the court file being provided to the plaintiff. In submissions, the plaintiff offered that two affected parties were not served (being the Local Court of New South Wales and Stevenson LCM), because both had filed submitting appearances in the matters for which court file access was being applied for.

7. [8]

   One such letter was sent to the defendant’s former husband, Robert Collier, at a particular address in Wellington, New South Wales. Mr Collier is a respondent to this notice of motion. The letter concerned the case file for Collier & Anor v Chief Executive Officer and Director-General of the Department of Child Safety Queensland & Anor [2009] NSWSC 229. In that case, Mr Collier and the defendant were both plaintiffs. The letter was sent on 30 September 2019 and returned on 9 October 2019, with “RTS” handwritten on the envelope. On 16 October 2019, Ms Nguyen sent the material to Mr Collier at his address for service noted in the summons that commenced the case in which the file was sought, which was a Post Office Box in Gulgong. In an affidavit sworn on 7 November and filed on 25 November 2019, Mr Collier stated that he is “the ex-husband and house sharer” of the defendant, that he did not reside at the address in Wellington to which Ms Nguyen’s letter had been sent and that he no longer used the Gulgong Post Office Box address, and provided a current address, which was a different number in the same street in Wellington. He stated that he objected to “the production of any documents, of which I have been a party to”.

8. [9]

   In relation to four of the case files, the Director, Tort and Compensation Law, Office of the General Counsel, the New South Wales Police Force, replied:

9. [10]

   In her second affidavit, Ms Nguyen affirmed that she had served the notice of motion subject of these proceedings on 22 October 2019, along with her first affidavit, on the relevant parties, including Mr Collier. She sent this letter to Mr Collier at his current address in Wellington, that he had provided in his affidavit.

The relevant law

1. [11]

   Rule 33.13 of the UCPR provides:

2. [12]

   Rule 33.13 of the UCPR is under Pt 33, which is titled “Subpoenas”, but provides an alternative process by which to access certain documents, which involves application to the Court.

3. [13]

   The Vexatious Proceedings Act 2008 (NSW) (“the Act”), being the act underpinning the relief sought in the summons by the plaintiff, is also relevant. The relevant sections of the Act are as follows:

Written submissions

1. [14]

   The plaintiff pressed its request in relation to the nine files that had been located by the Registry. It acknowledged that the final judgments in each of the nine cases were publicly available, but that there may be publicly unavailable material in the case files that is relevant to the issue of whether proceedings are vexatious, as defined in s 6(1) of the Act, and s 8(1), as to when an order may be made:

2. [15]

   The plaintiff advanced three reasons for seeking access to the files. The first is that, if the Court’s discretion to grant orders pursuant to r 33.13 was to be exercised by references to standards which govern applications to set aside subpoenas or notices to produce, which it did not concede is the appropriate standard, the plaintiff’s application would satisfy them. There is a legitimate forensic purpose to the applications and it is “on the cards” that the documents are sufficiently likely to be relevant to the relief sought, since the documents are necessary to ascertain whether the defendant “frequently instituted or conducted vexatious proceedings”, pursuant to s 8(1) of the Act; it was submitted that the quality of the vexatiousness and nature of the proceeding itself would form part of the determination of that question, citing Potier v Attorney General in and for the State of New South Wales (2015) 89 NSWLR 284; [2015] NSWCA 129, at [116]. Accordingly, the plaintiff therefore would need to access judgments and documentation not publicly available in order to properly inform the application for a vexatious proceedings order.

3. [16]

   The second reason is that, according to the plaintiff, the standard for determining the application is not in fact the standards governing subpoenas and notices to produce, but is rather a less-stringent standard due to “the importance of public access to certain information on court files, particularly material which has been deployed in open court”. The plaintiff relied on the principles expounded in the Court’s Practice Note SC Gen 2, Australian Securities & Investments Commission v Rich (2001) 51 NSWLR 643; [2001] NSWSC 496 at [18]-[23], and the Court Information Act 2010 (NSW), the latter having received royal assent but as yet has not come into operation. These sources are intended to be “aid[s] to construction”.

4. [17]

   The third reason is that the application is made in the context of a vexatious proceedings order, and the purpose of such an order is:

5. [18]

   In support of this submission, the plaintiff also cited Fagan J in Kostov v State of New South Wales [2018] NSWSC 1794 at [50]-[51], in which his Honour relevantly said:

6. [19]

   The defendant filed an affidavit on 25 November 2020 which is in the nature of written submissions, rather than evidence. The essence of her affidavit, insofar as it is relevant at all to the plaintiff’s first prayer, is as follows:

   1. (1)

      The defendant objects to the production of the court files.

   2. (2)

      The plaintiff has failed to issue subpoenas. Its dependence on r 33.13 of the UCPR is a “fishing expedition”.

   3. (3)

      The plaintiff has not obtained Mr Collier’s permission for the production of the documents. The defendant relies on Mr Collier’s affidavit, sworn on 7 November 2019.

   4. (4)

      The proceedings are frivolous and vexatious and are in breach of r 13.4 of the UCPR.

7. [20]

   Irrelevant aspects of the affidavit included submissions that the plaintiff should be declared a vexatious litigant and that the proceedings should be dismissed pursuant to r 12.11 of the UCPR, because the New South Wales Premier, various ministers of her government and an Assistant Commissioner of the New South Wales Police Force have committed the tort of misfeasance.

The hearing of the notice of motion

1. [21]

   The defendant was granted leave to appear at the hearing of the notice of motion by telephone, in view of public transport difficulties from her place of residence in the state’s central west region to Sydney.

2. [22]

   At the outset of the hearing, counsel for the plaintiff sought to read the two affidavits of Ms Nguyen. The defendant objected to their tender, claiming that they were “falsely sworn”. In her first affidavit, Ms Nguyen had stated:

3. [23]

   The defendant submitted that Mr Collier had moved from the address to which the letter of 30 September 2019 was sent on and had notified the Federal Electoral Commission. She referred to an annexure to Mr Collier’s affidavit sworn on 7 November 2019, which was a copy of a letter from the AEC addressed to Mr Collier, noting he had “enrolled” at that address on 18 September 2019. In her second affidavit, Ms Nguyen stated that the “check my enrolment” page on the Australian Electoral Commission website used by the plaintiff indicated Mr Collier’s street name, but not the street number. An affidavit of the defendant had been located, stating that Mr Collier resided with the defendant and that the defendant’s address was the one to which the original letter had been sent. The affidavits were read.

4. [24]

   When asked what material, if any, she wished to tender, rather than responding to that request, the defendant noted that Mr Collier was identified on the notice of motion as a respondent and submitted that he had not been advised when to be at court. His name appears on the cover sheet of the notice of motion, under the heading “Person affected by orders sought”. The entries under that heading are, firstly, the defendant who was identified as such, followed by the following who are each described as “Respondent”: Mr Collier; the Chief Executive Officer and Director-General of the Department of Child Safety; Damien Carter; the State of New South Wales; and the Country Women’s Association of New South Wales.

5. [25]

   The defendant submitted that Mr Collier had not been advised “when to be at Court” and therefore “the plaintiff has been sneaky and sly and refused to abide by the correct procedure”. She declined to indicate what material she wished to tender until that issue was addressed, and then made a submission that I should recuse myself, on two bases, being a demonstration of bias by me in relation to the exchanges that had just occurred in court, and an alleged unreasonable delay in me granting leave for the defendant to appear by telephone. I responded as follows:

6. [26]

   I then invited the defendant again to seek to tender any material on which she relied. She responded that she sought to tender in court a document titled a “Cross-claim” and “Cross-summons”, based on the Court’s “inherent jurisdiction”. To facilitate her application, the plaintiff handed up a copy that Ms Nguyen had received by email from the plaintiff. The defendant explained that she had posted it to the Court and had been advised that the prothonotary had determined that it would be returned to her. I advised the defendant that the appropriate course was for her to file the document in the normal way with the registry, who would set a timetable. The defendant then referred to a notice of motion that she had filed on 19 June 2019, together with a supporting affidavit of the same date. She said that those proceedings had been referred to me as the Duty Judge on the day of hearing of this notice of motion. She then stated:

7. [27]

   At that point, I interrupted the defendant and asked her if she sought to have read her affidavit and that of Mr Collier, both sworn on 7 November 2020. She replied in the affirmative, and they were read. I drew to her attention that in her affidavit, she referred to a notice of motion. She stated that she had forwarded a notice of motion with her affidavit to the Registry on the same date, and on 8 November she was advised that it had not arrived. She then sent the “Cross-claim” to the Registry and was advised that she needed to pay the filing fee, but in any event, it “wasn’t a necessary step in the proceeding”, by which I assume she meant that she was advised that it was not relevant to that matter as a cross-claim or cross-summons. I indicated that I was minded to disallow her application to file the cross-claim and cross-summons and offered to allow her a few minutes if she wished to make further submissions on that issue. She indicated that she would need 20 minutes, which I indicated I would not allow. Ms Collier then said, “I will lodge an appeal to the Registrar of the Court of Appeal” and terminated the call. I asked the court officer to attempt to call the defendant to offer her an opportunity to continue with the proceeding, but it went to a recorded message. I stated for the record:

8. [28]

   I then heard from counsel for the plaintiff who, in fairness to the defendant, tendered a further affidavit by the defendant that was sworn on 22 November 2019. However, in my opinion, other than a passing reference to the plaintiff’s “application” being “not a legitimate application”, which possibly refers to the vexatious proceedings summons or notice of motion, the contents of that affidavit were not relevant, but rather, appeared to canvass past and other grievances with individuals that included the plaintiff, a named solicitor and a barrister who have acted for the plaintiff in other proceedings, named court officers and a named police officer.

Consideration

1. [29]

   As has been observed, r 33.13 of the UCPR says nothing about the basis upon which the court will allow the party who seeks production of the document or thing to have access to it, and leaves open the question of when the Court should give access to that document or thing to the party who has caused it to be produced under the rule: UTSG Pty Ltd v Gwynvill Properties Pty Ltd [2017] NSWSC 558 per Robb J at [37]-[38]. Practice Note SC Gen 2 prescribes procedures for the provision of access to court files, and provides at cl 7 that leave may be granted to non-parties to have access to:

2. [30]

   In my view, the plaintiff has established, prima facie, a reasonable basis for access to be provided to it of the sought court files. Reference was made during the hearing to an affidavit that had been filed by Mr Hudson on 13 June 2019 in support of the summons, which is the originating process in these vexatious proceedings. Mr Hudson had identified 42 judgments in which the defendant was either the plaintiff or a co-plaintiff. I note that 20 of those judgments have been handed down between 2014 and 2019.

3. [31]

   In relation to the second of the defendant’s submissions that I have summarised at [19] above, I am satisfied that it is appropriate for the plaintiff to have access to the files of the nominated cases in order to ascertain if there are documents, filings and/or interlocutory judgments that cast light on whether those proceedings come within the definition of “vexatious proceedings” as defined at s 6 of the Act. That definition involves consideration of a plaintiff’s intention behind the institution of proceedings and includes interlocutory proceedings or applications and procedural applications that are taken in conjunction with, or are incidental to, civil proceedings. An examination of the file is an obvious means for such material to be located and examined.

4. [32]

   In relation to the defendant’s third submission, Mr Collier’s “permission” is not required for the Court to make the orders sought. Rather, his concerns are matters to be considered. In her oral submissions, the defendant submitted that Mr Collier had not been informed of the hearing date. Since the defendant and Mr Collier cohabit and the defendant attended the hearing, one might reasonably assume that if Mr Collier wished to be present, he was aware of the date.

5. [33]

   I note the content of Ms Nguyen’s second affidavit to the effect that she gave notice to Mr Collier of the notice of motion. The letter was attached to her affidavit and bore the address which Mr Collier provided in his affidavit as his current address, and had attached to it the notice of motion filed on 22 October 2019. In any event, in his affidavit, Mr Collier stated his objection to the orders sought by the plaintiff:

6. [34]

   I understood Mr Collier to be referring to the case file for Collier & Anor v Chief Executive Officer and Director-General of the Department of Child Safety Queensland & Anor [2009] NSWSC 229. Mr Collier’s affidavit was read at the hearing and thus his concerns are considered.

7. [35]

   In response to Mr Collier’s objection, the plaintiff submitted:

8. [36]

   In oral submissions, counsel for the plaintiff conceded it was probable that the absence of access to that file would not impede the application, but:

9. [37]

   I am inclined to permit the plaintiff to have access to the Court file, other than to any affidavit by, or correspondence from, Mr Collier.

10. [38]

    In relation to the defendant’s fourth submission, she has failed to tender or refer to any evidence that would warrant consideration of such a submission, and I reject it.

11. [39]

    As to the question of costs, ordinarily, costs follow the event and, in this case, the defendant has not advanced any ground of substance in opposition to the production of the court files. The obvious counter-argument is that the defendant is a self-represented pensioner who claims she cannot afford filing fees to mount her cross-summons and cross-claim, and therefore she is presumed to be in a vulnerable financial position. If I was to take into account the voluminous litigation that the defendant has initiated over the years, I might conclude that, as a seasoned litigant, she is well-aware of the consequences of mounting a defence without substance, but that may border on pre-judging the issue of whether she is a vexatious litigant. I will decline to make an order as to costs.

Orders

1. [40]

   I make the following orders:

   1. (1)

      The plaintiff is granted leave to access the following court files:

   2. (2)

      The plaintiff is granted leave to access the court file of Collier v Chief Executive Officer and Director-General of the Department of Child Safety Queensland (NSW Supreme Court case no. 1580/09), except for any affidavits or transcript of evidence of Mr Robert John Collier or communications from him.

   3. (3)

      No order as to costs.