Attorney General for the State of New South Wales v Collier (No 1) [2022] NSWSC 457 (5 April 2022)

Last Updated: 19 April 2022

Supreme Court New South Wales

Case Name:	Attorney General for the State of New South Wales v Collier (No 1)
Medium Neutral Citation:	[2022] NSWSC 457
Hearing Date(s):	5 April 2022
Date of Orders:	5 April 2022
Decision Date:	5 April 2022
Jurisdiction:	Common Law
Before:	Cavanagh J
Decision:	1. The defendant’s Notice of Motion filed 31 March 2022 is dismissed. 2. Grant leave to the plaintiff to rely on the further affidavit of Tom Alexander Allchurch dated 18 February 2022.
Catchwords:	CIVIL PROCEDURE — self-represented litigant — notice of motion — application to vacate the hearing date — refused
Legislation Cited:	Vexatious Proceedings Act 2008 (NSW)
Cases Cited:	Attorney-General for NSW v Collier [2021] NSWSC 1483
Category:	Procedural rulings
Parties:	Attorney General for the State of New South Wales (Plaintiff) Marion Louise Collier (Defendant)
Representation:	Counsel: D Birch (Plaintiff) Solicitors: Crown Solicitor’s Office (Plaintiff) Self-Represented (Defendant)
File Number(s):	2019/183521
Publication Restriction:	Nil

REVISED EX TEMPORE JUDGMENT

1 This matter is listed before me for the purposes of the hearing of the summons filed by the plaintiff, the Attorney-General of New South Wales on 13 June 2019 seeking orders against the defendant, Marion Louise Collier pursuant to s 8(7) of the Vexatious Proceedings Act 2008 (NSW).

2 Mr Birch appears for the plaintiff. The defendant appears in person via AVL. Although the proceedings are listed as an in-person hearing, I granted leave to the defendant to appear via AVL from her home in Tamworth (as she requested).

3 Prior to the hearing of the substantive matter, it is necessary to deal with two motions, one filed by the defendant on 31 March 2022, and the other filed by the plaintiff on 18 February 2022.

4 In her motion, the defendant seeks that this hearing be vacated and re-listed at some time after July 2022. She also seeks a stay of execution of two State Revenue fine enforcement notices, as well as other ancillary orders.

5 In his motion, the plaintiff seeks leave to rely on the hearing upon the affidavit of Tom Alexander Allchurch affirmed on 18 February 2022, as well as exhibits TA-3, TA-4 and TA-5 to that affidavit.

6 I will deal firstly with the defendant’s motion. The defendant relies on her affidavit of 31 March 2022. She also made extensive submissions in support of the orders sought in the motion. I will deal with the matters raised by the defendant in her affidavit in conjunction with the submissions that she has made.

The defendant’s contentions

7 The effect of the defendant’s motion is that these proceedings should be adjourned for a number of reasons. Firstly, she complains that the affidavit of service of the original summons is false because the original summons was not served in the way that is set out in the affidavit. Secondly, she says that she has been unable to obtain the documentation from the Supreme Court Registry that she seeks. In particular, she has been seeking documentation relating to proceedings pursued by her against the NRMA and Mr Paul Sengos in the 1990s.

8 It is apparent that the Court has been unable to provide all of the documents that she seeks. She says that one reason why the Court may have been unable to produce all of the documents is that there appear to be empty boxes and that the solicitor for the plaintiff had access to these documents before her and, in her opinion, “no doubt” destroyed any other documents which were there.

9 She says she needs to seek legal advice as to how she should conduct the case. She refers to the statement of Kirby P (as his Honour then was), as to the importance of persons being able to pursue proceedings in this Court.

10 She says that if the hearing date is vacated, she would be able to produce a white book or folder, and that would establish that the Crown’s claim is “fictitious” and “malicious”, and designed only to cause trouble to her.

11 In her submission, she makes particular reference to the NRMA and Sengos cases back in 1993 and 1995. Finally, she complains that in his judgment,^[1] Beech-Jones CJ at CL specifically said that she would be provided with detailed submissions as to the case that the plaintiff is pursuing. She denies that she has received such submissions, albeit the plaintiff has provided 20 pages of submissions to her with a further 70 pages of annexures.

12 Her point is that these submissions are ambiguous and “up in the air”. Further, it is suggested that the plaintiff has deliberately falsified file numbers in the submissions again, in some way, to mislead her. She supports the contention that the plaintiff has deliberately falsified file numbers on the basis that she has been unable to obtain such file numbers from the Court registry.

The plaintiff’s position

13 The plaintiff says that this matter has been set down for hearing for some considerable period and has been the subject of extensive case management. The defendant was ordered to serve any evidence on which she relied by 14 October 2021. There were then further extensions to 17 December 2021 and 23 March 2022.

14 The plaintiff had then sought to serve a subpoena to obtain the documents relating to the NRMA and Sengos files on or about 23 March 2022. The plaintiff submits that it is apparent that the defendant has not complied with any orders in respect of service of evidence, and that she only sought to obtain evidence that she might be seeking to rely on 23 March 2022.

Consideration

15 The defendant does not identify how the particular evidence that she says she has been unable to obtain from the Court registry, being documents relating to proceedings she pursued against the NRMA and Mr Sengos back in the 1990s, may be of any particular significance in this case.

16 Indeed, Mr Birch indicated that the plaintiff was not submitting that those proceedings were in some way originally pursued without any cause. The defendant has not identified any other evidence that she says should and would be available to her if the hearing is vacated. Nor has she provided any explanation as to why she did not obtain or serve any evidence on which she seeks to rely upon in 2021 or even up to 22 March 2022.

17 Other than making allegations of the most serious kind against the solicitor, the barrister and the Court registry without foundation, the defendant has not identified any other evidence on which she might wish to obtain and would seek to rely and has not provided any explanation for her failure to serve any evidence on which she might rely.

18 Having regard to the extensive material annexed to the affidavits of the solicitor for the plaintiff, I am unable to anticipate or understand what further evidence might be relevant in these proceedings.

19 In the circumstances, the defendant’s application for vacation of this hearing date is rejected.

20 During the course of delivering this judgment, the defendant interrupted saying that she would be appealing my decision. I indicated I would be continuing with my judgment. She terminated her link, although initially only terminating in such a way that she could not be seen (she turned the video off but not the sound). When I commented that I knew she could still hear me, she terminated the sound. I then ceased delivering this judgment and asked both my Associate and the solicitor for the plaintiff to email her asking her to reconnect. I then asked for a further email to be sent indicating that if she did not reconnect, I would continue to deliver judgment in her absence.

21 She responded saying that “His Honour did not listen to one word that was said and I do not appreciate being accused of lying when I do not.” It is a matter for the defendant what she believes but I will be continuing with this judgment.

22 By way of the plaintiff’s motion filed on 22 February 2022, the plaintiff seeks leave to rely on a further affidavit of Tom Alexander Allchurch filed 18 February 2022. The defendant opposes the plaintiff being able to rely on that affidavit, for the same reasons as she relied on in support of her own motion.

23 The plaintiff seeks leave to rely on the further affidavit of Mr Allchurch because the affidavit was served out of time, that is, not in accordance with the Court’s orders as to the service of the defendant’s evidence.

24 In his further affidavit, Mr Allchurch refers to further proceedings which either his inquiries or those made by a solicitor employed by the Crown Solicitor’s Office have located, and also refers to the further proceedings being pursued in this Court, including the motion determined by Beech-Jones CJ at CL on 17 November 2021, and the additional judgments referred to in the affidavit.

25 Obviously, these are additional proceedings of which the defendant would be well aware because they are proceedings pursued by her. I can think of no prejudice to the defendant in the plaintiff being able to rely on Mr Allchurch’s affidavit, which, in effect, merely annexes these further proceedings (being pursued by the plaintiff).

26 I thus grant leave to the plaintiff to rely on the further affidavit of Mr Tom Alexander Allchurch dated 18 February 2022.

27 At the conclusion of this ex tempore judgment, my Associate received another email from the defendant to the effect that she was on the phone to the detectives and would be lodging an appeal in respect of this allegedly pre-determined decision.

28 The plaintiff remains in Court ready to proceed. I take the defendant’s deliberate termination of her AVL to be akin to walking out of Court during the course of a hearing. That is her choice. If the defendant does not wish to participate in these proceedings again, that is her decision.

29 As the matter was listed for hearing today, the hearing will be continuing.

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Amendments

19 April 2022 - Typo identified in first sentence of paragraph [8]: "able" corrected to "unable".

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^[1] Attorney-General for NSW v Collier [2021] NSWSC 1483 at [4].