FEDERAL COURT OF AUSTRALIA

Collier v Telstra Corporation Ltd [2018] FCA 1569

ORDERS

THE COURT ORDERS THAT:

1.    Leave to appeal is refused.

2.    The application for leave to appeal is dismissed.

3.    The applicant must pay the costs of the first and second respondent as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

FARRELL J

INTRODUCTION

1    This is an application for leave to appeal the whole of a judgment of the Federal Circuit Court of Australia (FCC) delivered on 28 March 2017: see Collier v Telstra Corporation Ltd [2017] FCCA 615. On 28 March 2017, and in the absence of the applicant, Mrs Collier, the primary judge heard and dismissed an application in a case filed by Mrs Collier on 17 March 2017. The decision was interlocutory in nature. Accordingly, leave to appeal is required under s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The first respondent, Telstra, and the second respondent, TIO, oppose the grant of leave.

2    The principles to be applied on an application of this kind are well settled see Décor Corporations Pty Ltd v Dart Industries (1991) 33 FCR 397 at 398-400 and the discussion of relevant principles by the Full Court in Samsung Electronics Co Limited v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 at [25]-[37].

3    I am not satisfied that Mrs Collier has established any matter which raises sufficient doubt about the correctness of the primary judge’s decision to warrant its consideration by an appellate court. The dismissal of the application in a case did not finally determine rights such that substantial injustice would result if leave were refused. Accordingly, for the reasons which follow, leave is refused and the application is dismissed with costs.

BACKGROUND

4    This application for leave has its origin in a dispute between Mrs Collier and Telstra over a domestic telecommunications service. Mrs Collier originally applied for relief to this Court (FCA) (the substantive proceedings) by way of an originating application dated 4 October 2016 together with a supporting affidavit sworn by Mrs Collier on the same date. Against Telstra, Mrs Collier sought exemplary damages to be paid to her under Sch 2 of the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law), relying on “section 213(a)(i), (ii), (v) and (vi) and a pecuniary penalty be paid to the Commonwealth relying on Part 5-2, sections (1)(a)(i) & (ii). Also refer to sections 156(a); 159(2)(a) & (b); Section 168(1)(a) & (b)(i)”. Against the TIO, Mrs Collier sought a declaration that the TIO’s decision in relation to a complaint which she made in relation to the telecommunications service was null and void.

5    In her affidavit supporting the originating application in the substantive proceedings Mrs Collier claimed that Telstra breached ss 18(1), 20(1), 21(1)(a), 22(1)(a)-(f), (i)(i), (j)(i)-(iv) and (k)(i), 24(1)(a)-(d), 26(2)(a) and (b), 27(1) and (2)(a)-(f), 29(1)(i), 34, 36(1) and (2), 37(2)(a) and 151(1)(b) and (d)(i) of the Australian Consumer Law and that the TIO had “done nothing to rectify or bring to account” Telstra. Exemplary damages were claimed for harassment, coercion, bullying, misleading and misrepresenting, causing financial hardship, stress and strain aggravating an existing illness and causing Mrs Collier further illness.

6    Against Ms Collier’s wishes, Flick J made orders on 16 November 2016 transferring the substantive proceedings to the FCC. The notice of filing of the originating application in the FCC shows the document as being lodged on 16 November 2016 and filed on 18 November 2016. Over the days following the orders transferring proceedings to the FCC being made, Mrs Collier communicated with the Sydney Registry of the FCA, including Registrar Segal, concerning an appeal against Flick J’s decision.

7    Much of the following material is derived from MFI-1 referred to in the primary judge’s reasons and from affidavits sworn by Mrs Collier on 29 March 2017 and 15 September 2017. Please note that a number of Mrs Collier’s communications reproduced below contain serious and immoderate allegations, including that there was deliberate misleading of the Court and lying, harassment of her and other alleged misconduct by parties and their representatives, members of the Registry of the FCC and FCA and the primary judge. In my view, based on the materials referred to in “Background” below, Mrs Collier is not as careful as she should be in making such statements and overstates positions or decisions with which she does not agree and her characterisations should not be accepted. However, I consider it necessary to include some of this material as context having regard to the allegation of “Actual and Judicial Bias” made in the application in a case and the grounds of the application for leave to appeal and draft notice of appeal.

8    It is useful to know that the original return date allocated by the FCC for the substantive proceedings was 30 January 2017. Mrs Collier was advised of the listing by an email sent from the NSW District Registry at 4.48 pm on 22 November 2016. On the morning of 23 November 2016; Mrs Collier corresponded with Registrar Segal concerning the appropriateness of that date. By email sent at 10.44 am, Registrar Segal told Mrs Collier that the return date is fixed by the Judge of the FCC without knowledge of the appeal and said that if she sought an adjournment on medical grounds, that she should raise it on 30 January 2017 as “Judges don’t deal with such applications by letter or email”. That advice proved to be incorrect.

9    Soon after 11 am on 23 November 2016, Mrs Collier sent two emails to the primary judge’s associate advising that she had lodged an appeal against Flick J’s decision to transfer the proceedings to the FCC and complaining that the first return date had been set contrary to two medical certificates, the first dated 18 November 2016 (which had been sent to the FCA’s Registry on 18 November 2016) and another dated 22 November 2016. The certificate dated 22 November 2016 stated the medication Mrs Collier was taking for a sinus condition. Relevantly, the certificate dated 18 November 2016 stated:

In light of her unstable medical conditions, in my opinion Mrs Collier is unfit to deal with Court proceedings until February 2017, by which time her neck pain and knee pain should have improved or have been operated on.

I note that in the grounds of the application for leave and draft notice of appeal and in some of her later correspondence, Mrs Collier appears to have interpreted “until February 2017” as meaning “until 14th February 2017”. In my view that interpretation is not correct.

10    While there is some basis for Mrs Collier being upset that it was suggested that she should appear on 30 January 2017 to deal with the issue of the medical certificate, she took it into her own hands to draw the medical certificate to the primary judge’s attention on 23 November 2016. The primary judge responded promptly. At 12.30 pm on 23 November 2016, the primary judge’s associate forwarded a copy of Mrs Collier’s email to the respondents and Mrs Collier. In that email, the associate indicated that the return date of 30 January 2017 had been set without reference to the primary judge and that his Honour had considered the certificate and was minded to set 17 February 2017 at 9.30 am as the date for the first directions hearing.

At 12.46 pm, Mrs Collier responded, advising of the times at which the appeal and medical certificate had been filed and saying that 17 February 2017 was “inconvenient for the Applicant. as a prior arrangement is made for that date” (as written). On any view, this was an inadequate explanation for why Mrs Collier would not be able to attend the first directions hearing on the assigned date.

11    At 1.30 pm on 23 November 2016, Registrar Segal advised Mrs Collier by email that it had been pointed out to him that an appeal does not lie from a decision to remit a proceeding to the FCC by reason of s 32AB of the Federal Court of Australia Act 1976 (Cth). Registrar Segal enquired whether Mrs Collier wished to file her appeal and if so, it would be referred to the Duty Registrar to determine whether it should be accepted for filing. Emails sent by Mrs Collier to Registrar Segal (at 1.56 pm) and the associate to the Chief Justice of the FCA (at 6.11 pm) complained about this issue, the conduct of Registrar Segal and staff in the FCA Registry and the primary judge’s associate’s conduct in forwarding correspondence to the respondents. The emails to Registrar Segal and the associate to the Chief Justice were copied to the primary judge’s associate but not the respondents.

12    At 7.58 am on 24 November 2016, the primary judge’s associate sent an email to Mrs Collier (copied to the respondents) attaching her email to the Chief Justice and advising that the primary judge had directed that emails received from her which did not, on their face, indicate that they have been copied to the respondents would be put in a folder and would not be brought to the primary judge’s attention.

13    At 9.01 am on 24 November 2016, Mrs Collier again sent an email to the associates of the Chief Justice and primary judge, copied to Registrar Segal but not the other parties. Among other things, Mrs Collier complained that the primary judge had (according to an email sent the day before) ignored the medical certificate and the fact that the appeal had been lodged against Flick J’s decision and stating (as written):

… given the approach taken by His Honour, he should remove himself from any further action in these proceedings, for deliberately and intentionally going against the Medical Certificate and causing the trouble, that the e-mail from His Associate has caused to my health.

I have taken the liberty, of reprinting the e-mail of Registrar Segal of yesterday [concerning the allocation of the first return date as being 30 January 2017], which like His Honour [the primary judge], has deliberately ignored the deliberate and intentional abuse of the Court and its rules and then expected everyone to simply go along with it. The below email, creates a further question, of why would a Federal Circuit Judge being hearing an Appeal from a Federal Court Judge?

Also, given, that Registrar Segal, was in possession of the Medical Certificate from the 18th. November 2016, why would he expect me to disregard and ignore my Doctor’s opinion and advice and not only attend the Court on the 30th. January 2017, but also engage in the preparation and constructing of court material?

If the email is believed of Registrar Segal, then the Federal Court Judge who fixed the date, is as negligent as was [a named judge] on the 10th. November 1988, when he ignored the actions of my medical file. The Judge who set the date of the 30th. January 2017, deliberately ignored the Medical Certificate. The email sent to Registrar Segal, clearly in the first paragraph, states that paperwork is being filed in the court, not to mention a letter also sent, which no doubt no one has seen, which is attached without the signature, is no doubt someone in the Registry has disposed of it, when it should be placed on the file, after being given to [Registrar] Segal.

Please do not harass and intimidate me in this meaner any further Associate to [the primary judge].

The tone of this communication is inappropriately uncivil. It ignores the fact that the primary judge acted on the medical certificate Mrs Collier provided within an hour and a half of it being sent and therefore there was no basis for a claim of perceived bias. Some of the claims made in relation to the conduct of registry staff are scurrilous assertions made without evident basis. The claim that the communications with Mrs Collier were harassing and intimidating plainly cannot be made out. This is the first of many occasions on which Mrs Collier did not comply with the primary judge’s direction.

14    At 9.43 am on 24 November 2016, the primary judge’s associate advised the parties that the “first directions date” had been fixed at 17 February 2017.

15    At 9.57 am, Mrs Collier sent an email to the associates to the Chief Justice and the primary judge (but not the other parties) stating:

I am unavailable on the 17th February 2016, as well His Honour was notified yesterday and ignored entirely. This is Perceived Judicial Bias on his behalf.

16    At 11.15 am on 24 November 2016, the “Deputy Associate” to the primary judge sent an email to the parties, again noting that Mrs Collier had been corresponding with chambers without copying in the other parties. The email noted that the matter had been transferred to the FCC and that Mrs Collier, as the moving party, had “an obligation to co-operate in seeking that the proceeding be dealt with quickly and efficiently and to appear in the Court (either by yourself or a lawyer) at the time that it is set down for either directions or a hearing”. It noted that the date of 17 February 2017 had been selected to accommodate her because the medical certificate indicated that she would be unfit to deal with the proceedings until February 2017. It went on to say:

In response, other than merely asserting that this date is inconvenient for you because of “a prior arrangement” (as stated in your email yesterday sent at 12.46 pm) you have given no good reason why the first directions hearing should not take place on that date.

If you wish to apply for an adjournment of the scheduled hearing of 17 February 2017, you are at liberty to do so but you will need to establish to the satisfaction of the Court that there is a good and sufficient reason for an adjournment.

In the meantime pending any such successful adjournment application the first directions hearing of 17 February 2017 will stand.

In my view, this was an entirely appropriate response.

17    At 11.52 am on 24 November 2016, Mrs Collier responded to the primary judge’s associate and the Chief Justice’s associate, but not the respondents. She queried why she should be expected to act in disregard of her medical certificate and again prosecuted her right to appeal Flick J’s decision. Excerpts from the email relevantly include (as written):

Since the Registry did the wrong thing, it is not my responsibility to include the other parties in the communications, as neither party, should by rights be privy to the Appeal, which I attempted to file, but was rejected by Deputy Registrar Choo, on the prior written notice to myself, by Registrar Segal.

…

I should not have to tell you, but if you must know, I am in the Supreme Court of NSW, where I was defamed and have taken it to court. The date was set prior the 16th November 2016. I do not appreciate being called a liar by either His Honour or the Associate as is meant in the remarks:

“In response, other than merely asserting that this date is inconvenient for you because of a “prior arrangement” (as stated in your email yesterday sent at 12.46 pm) you have given no good reason why the first directions hearing should not take place on that date.”

…

His Honour, was advised yesterday, that I already have a prior commitment on the 17th. February 2017, am I expected, simply because either His Honour, yourself and/or the Registry at Sydney breach your own Act, Rules and a Medical Certificate, to disregard everyone and everything else, simply to accommodate?

I will not be applying for an adjournment of the deliberate breach by His Honour of the Court, which he has done, which further convinces me, of his perceived and judicial bias towards me. Why doesn’t he abide by the Rules of the Court and simply find out who made the mistake and arrange the change?

Please do not deliberately continue to harass me in this manner.

As Mrs Collier did not comply with the primary judge’s direction that all of her communications be copied to the respondents, she had no reasonable expectation that it would be drawn to the primary judge’s attention. Nor was it reasonable for Mrs Collier to infer from the deputy associate’s email of 11.15 am that the primary judge was calling Mrs Collier a liar - her explanation for why she would not be able to attend court on 17 February 2017 was simply inadequate. For reasons given below, Mrs Collier’s contention that the primary judge was “acting in breach of the medical certificate” by communicating with her about the first return date should not be accepted.

18    At 12.12 pm on 24 November 2016, the deputy associate to the primary judge sent an email to the parties attaching Mrs Collier’s email sent at 11.52 am, saying “Here below is another email from Mrs Collier which was not sent to you. The hearing date of 17 February 2017 is maintained.”

19    At 12.37 pm on 24 November 2016, Mrs Collier sent an email to the primary judge’s associate, but not the respondents, saying (as written):

Do you want the application for him to remove him as Judicial Bias towards me, because this is what it is? Stop this continual harassment of me.

20    At 11.14 am on 1 December 2016, a member of the NSW District Registry forwarded to the primary judge’s associate an email sent to her by the “Senior Coordinator/Harassment Contact Officer” of the NSW District Registry as follows:

As discussed, has there been a change to the directions hearing on 30 January 2017?

Mrs Collier called this morning and seems to believe that the date was changed to 17 February 2017.

Please note: she said that she has a Supreme Court date on 17 February 2017 and cannot make the FCC court date on the same day.

However, the date of 30 January 2017 is still on Casetrack.

The associate was asked to confirm so that the parties might be informed.

21    At 12.03 pm on 1 December 2016, the primary judge’s associate sent an email to the parties as follows (as written):

Ms Collier has again been in contact with the Federal Circuit Court Registry with respect to her case in the New South Wales Court of Appeal at 10:15am on 17 February 2017 and which is estimated to have a hearing time of one hour.

In these circumstances is prepared to accommodate Ms Collier by listing this matter at 2.00pm on 17 February 2017 for directions, or alternatively in his 9:30am directions list on Friday 24 February 2017.

I await your respective responses.

I take from this that when Mrs Collier’s reason for being unavailable on 17 February 2017 was brought to the primary judge’s attention, his Honour responded by accepting that explanation and changing the first return date. Had Mrs Collier corresponded with chambers in accordance with the primary judge’s direction and provided this explanation when she advised of her unavailability, it is likely that this outcome would have been achieved more quickly.

22    At 11.52 am on 2 December 2016, the primary judge’s associate sent an email to the parties, advising Mrs Collier that the other parties were agreeable to either 17 or 24 February 2017 and asking her to advise which of the two she wished to have set down for the first directions.

23    At 9.59 am on 12 December 2016, the primary judge’s associate sent an email to the parties, advising that Mrs Collier had not responded to the email sent at 11.52 am on 2 December 2016 and stating that:

The purpose of this email is to advise that the first directions hearing will be listed in his Honour’s directions list on Friday 24 February 2017, commencing at 9:30am.

24    At 10.12 am on 12 December 2016, Mrs Collier wrote to the primary judge’s associate without copying in the other parties as follows:

I do not appreciate the harassment I have endured by you, if you wish to have me appear on the 24th., the only way I can do it at that time, is by telephone.

I do not accept Mrs Collier’s characterisation of the communications she had received from the primary judge’s associate. Again, Mrs Collier gave no explanation for why she should appear by telephone rather than in person.

25    At 10.29 am on 12 December 2016, the primary judge’s associate wrote to the parties, attaching Mrs Collier’s email sent at 10.12 am, noting that it had not been copied to the other parties, and saying:

His Honour expects the corporate Respondents to appear by their respective lawyers, and Ms Collier to appear in her own person or by a lawyer. His Honour will not permit Ms Collier to appear by telephone on this first directions hearing.

26    At 10.55 am on 12 December 2016, Mrs Collier responded by an email sent only to the primary judge’s associate saying:

I do not know Ms Collier, my name is Mrs. or Marion. I will not be in attendance on February the 24th at 9.30AM, as I have to leave home before 3.00AM.

I am however very fed up with the way you have deliberately and with intent, gone against a Medical Certificate, by the continual harassment and bullying that the Federal Circuit Court and [the primary judge] have treated me.

27    At 11.16 am on 12 December 2016, the primary judge’s associate sent an email addressed to Mrs Collier and copied to the other parties as follows:

I am sending a copy of your email of today at 10.55 am to the other parties.

I further note your stated intention not to appear on 24 February 2017 in His Honour’s directions list but his Honour wishes you to be made aware that in the event of your non-appearance it is possible that the other parties will ask for dismissal of the proceedings based on Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), which concerns the dismissal of a proceeding in the absence of an applicant at a hearing, including a Court Return Date.

In the absence of an explanation from Mrs Collier about why she wished to attend the first directions hearing by telephone, this was an appropriate response. The matter was to appear in a directions list which might be expected to be busy, given the workload of the FCC. Further, there was every reason to believe that Mrs Collier would attend in person. It is significantly harder to ensure that a person without legal education or representation understands and participates adequately in proceedings when they are not in the same room as the judge and the representatives of the other parties. The nature of the communications from Mrs Collier may lead to a concern that that would be an issue in the efficient conduct of the proceedings.

28    At 5.33 pm on 17 December 2016, Mrs Collier responded to the primary judge’s associate, and the Deputy Principal Registrar of the FCC explaining that she lives 354 kms from Sydney, a round-trip which is over 700 kms, and stating that it is “not unreasonable to ask, if I can appear by telephone on the 24th. February 2017. A date, which I was not given a proper chance to reply”. Mrs Collier went on to say (as written):

I underwent a repair for a Cartage on the 29th. November 2016, not going back to the Specialist until last Wednesday the 14th., so could not spend much time, if any at the computer. I note, no person contacted me by telephone, given that you were aware, that I had undergone such an operation.

Similarly, the Solicitor in charge of the 1st Respondent/ Telstra's case is based in Melbourne and will not as usual be in attendance. As has been the case at both appearances in the FCA, her replacement cannot make any decisions and has to check with Miss Massage (Solicitor). If that is O.K., I cannot see, how it will disadvantage anyone.

If it becomes absolutely necessary, then why can I not appear by link at Dubbo, which is only 50 kilometers from Wellington and has a link. After all, I am in receipt of a pension and am being put at great expense by actions, that have not been my doing.

I trust you will actually reply to this and look forward to such. As I note from the below e-mail, His Honour was not asked, or it would not have been written in the context it was, just as I was informed, that the matter was on, on the 30th. January 2017, against a Medical Certificate, which when I supplied it, one of you, or someone else in the Chambers, replied, that the 30th. was unsuitable for His Honour, so obviously, he did not pick that date either.

I note that there is nothing in evidence which would indicate that either the FCC or the respondents had been put on notice that Mrs Collier was undergoing an operation on 29 November 2016. The medical certificate envisaged that an operation may turn out to be necessary, but there was no indication as to the date on which any operation might occur.

29    At 11.57 am on 19 December 2016, the primary judge's associate wrote to the parties advising that he had made arrangements for Mrs Collier to appear by video link at the Dubbo registry of the FCC at 10 am on 24 February 2017. Mrs Collier responded at 12.14 pm saying:

To whom it concerns,

Thankyou for your assistance, I am only sorry, that it has taken this time to be achieved. I maybe filing a further Affidavit, which will be done at the Registry on the 17th.  February 2017.

Merry Christmas and Happy New Year.

30    At 11.33 am on 21 December 2016, Mrs Collier sent an email to Deputy Principal Registrar of the FCC, Registrar Byrne in which she complained about billing which she had received from Telstra, referring to an email as a “criminal action”, and going on to say (as written):

By the way, I did not appreciate, neither did by GP, the fact of the insertion, that I am lieing and am a criminal, otherwise why would I have to be seen on the 24th. February 2017, so have to go to Dubbo to appear on Video link?

I would not send this to you, if I was able to speak to the Registry, but I get nothing but abuse from the switch, for daring to ring.

Registrar Byrne responded by at 2.09 pm, saying that “As an officer of the Court, I am unable to provide a party in proceedings with legal advice.” That response was appropriate and the inferences Mrs Collier drew from the Dubbo video link being made available to Mrs Collier are not ones which might reasonably be drawn from that circumstance.

31    At 10.02 am on 28 December 2016, Mr Berg (the solicitor acting for the TIO) sent an email to Mrs Collier in which he said that he understood from previous email communications that she had lodged an appeal in relation to the order made by Flick J but that he had not received any documents from her in relation to it. He went on to say “Given my client is an interested party in the appeal, I would appreciate being provided with the documents as soon as possible”. At 11.45 am, Mrs Collier replied to Mr Berg by email copied to Registrar Byrne and Ms Massage (an in-house lawyer at Telstra) saying “I have not, what are you talking about?????”. At 11.58 am, Mr Berg responded to Mrs Collier by email copied to Ms Massage that he was referring to her email sent at 12.45 pm on 23 November 2016 (see [10] above).

32    At 10.31 am on 28 December 2016, Mr Berg sent an email to Mrs Collier by which he first introduced a solicitor working with him (Mr O’Donovan) who had been copied in on the email. The email stated the TIO’s position that the determination by the TIO on 15 September 2016 was not binding on Mrs Collier and that a declaration to the effect that the TIO’s determination is null and void is of no effect in that circumstance. Mr Berg invited Ms Collier to explain why a declaration of that type is needed and to amend her claim or discontinue proceedings. He advised that if Ms Collier did not attend to those matters by (say) 27 January 2017, he would seek instructions to strike out her claim.

33    At 11.59 am on 28 December 2016 Mrs Collier sent an email to Mr Berg, copied to Registrar Byrne, Ms Massage and the primary judge’s associate. In it, Mrs Collier berated Mr Berg for his failure to introduce Mr O'Donovan earlier (when he had been copied in on earlier emails), for the “non service of the Change of Solicitor, which he did not think I was worthy of receiving”, and for contacting her, a self-represented litigant, while a medical certificate is extant and during the holiday period when there were at least eight weeks to go before 24 February 2017. She suggested that he “act with some decorum and wait and see what occurs”. Mrs Collier then made a scurrilous suggestion concerning his involvement in (unidentified) correspondence which Mrs Collier had received from Ms Massage of Telstra.

34    At 12.23 pm on 28 December 2016, Mr Berg responded to Mrs Collier by email sent only to her as follows:

The attached medical certificate refers to your knee pain and your neck pain. If these ailments prevent you from discussing, whether by telephone or email, aspects of your case, then I will inform my client. The medical certificate may support your requests to not have to travel to Sydney for any court appearances however I did not take it to mean you could not respond to emails about aspects of your case.

As to the length of time between now and the listing of the matter before his Honour [the primary judge], I am certain his Honour will not be impressed if the parties do not take some action towards progression of the matter between now and then. Kindly address the matters referred to in my below email as they go to the substantive issues in your claim.

I deny any harassment or intimidation in my email - it simply asks a legitimate question with respect to your claim against my client.

Finally, your absurd and offensive suggestion of my potential involvement in what you have referred to as criminal activity ought be withdrawn forthwith by way of communication to all parties who were included in your email.

Mr Berg's communications with Mrs Collier on 28 December 2016 are, on any rational basis, unexceptionable.

35    On 2 February 2017, the TIO filed an application in a case seeking dismissal of the substantive proceedings as they related to the TIO as an abuse of process or that the claim for declaratory relief against it be struck out. On that day, the primary judge's associate wrote to the parties advising that a clerk from DLA Piper had been seeking to file the application and that the primary judge had advised Registry that it could be filed. The TIO's application in a case was given a return date of 24 February 2017 (the date set down for a directions hearing in the substantive proceedings), but on the basis that it would be returnable only for mention and/or directions. At 3.43 pm, Mrs Collier sent an email to the primary judge's associate only, stating:

I received a number of emails on the 28th.  December 2016, which were totally incorrect and given, that I was informed by the Registry, that I could not file anything for the first date, I find it funny, that you are bending over backwards for DLA Piper.

The claim that anyone was “bending over backwards” for DLA Piper has no foundation in these materials.

36    At 3.59 pm on 2 February 2017, Mr Berg sent an email to Mrs Collier serving on her a response to her substantive proceeding filed on behalf of the TIO, a copy of the TIO's application in a case and an affidavit sworn by Mr Berg, noting that by the application in a case, the TIO sought to have Mrs Collier's claim against it dismissed or paragraph 4 of the claim struck out with costs and noting that it was listed for mention on 24 February 2017. Mr Berg enquired as to a convenient address for him to send hard copies of the documents and authorities on which the TIO relied. Mr Berg noted that it was likely that at the directions hearing the primary judge would want to institute a timetable geared towards determining the application and inviting Mrs Collier to give thought to the timetable and email a proposal to him before 24 February 2017.

37    At 6.44 pm on 2 February 2017, Mrs Collier sent an email to the primary judge's associate and Registrar Byrne (but not the other parties), attaching a copy of Mr Berg's email sent at 3.59 pm. She attached a copy of the medical certificate sent to Registrar Segal on 18 November 2016 and said:

I note, that the Medical Certificate, which Your Honour's Deputy & Associate abused in early December 2016, was abused yet again, not only by them, but also, by Your Honour and the Solicitor for the 2nd. Respondent, it expires on the 14th.  February 2017, which is 10 days prior to the appearance before Your Honour.

As noted above, there is nothing in the medical certificate dated 18 November 2017 which suggests that it “expires” on 14 February 2017. In any event, Mr Berg’s stated interpretation of the medical certificate was open such that communications about the time at which the first directions hearing might occur or in relation to procedural steps from the primary judge’s associate and the parties did not “breach” that certificate. If Mrs Collier thought that it did, then it was open to her to have her doctor clarify the position in writing at any time from 23 November 2016.

38    Mrs Collier’s email then goes on to note that she had contacted the Sydney and Melbourne Registries and went on to say:

As a result of the material and actions of today , given, that I was also harassed and intimidated by Mr. James Berg on the 28th.  December 2016, with his superiors claiming my Medical Certificate only allows for my leg and I can still do e-mail/court work from the computer, I will be speaking with my GP, with the view of the abuse of the Medical Certificate, by both the Federal Circuit Court of Australia and DLA Piper and whether there is any need to extend such Medical Certificate.

I will also point out, should Mr. Berg insist on relying on such material, I will pursue having him charged with knowingly swearing a false Affidavit, as it is. As well as making an Application, to have His Honour removed for Judicial Perceived Bias , as the filing and serving of such documents on myself amounts to by him. He could have advised the Registry, of the existence of the Medical Certificate and which would occur if it was served, just as he could have prevented his employee from sending such.

Mrs Collier’s attempts to communicate with registries other than that in which her matter was proceeding was inappropriate and is a sign of a querulous litigant. TIO, as a respondent, was entitled to seek to have Mrs Collier's proceedings struck out. On any rational basis, the primary judge cannot have demonstrated actual or perceived bias by not preventing such an application being filed and served.

39    At 3.46 pm on 3 February 2017, the primary judge's associate wrote to Mr Berg, copied to the other parties, requesting a hard copy of the affidavit filed by Mr Berg as it comprised 92 pages. At 3.52 pm, Mrs Collier wrote to the primary judge's associate and Mr Wjieyewardene of Telstra in the following terms:

I have not seen the document yet, but given, that you say it is 92 pages, with a Medical Certificate still in effect until the 14th. February 2017, with you or the Deputy Associate enabling Mr. Berg to be made aware of another proceeding in the New South Wales Supreme Court on the 17th., which commenced before yours, or the FCA.

Also given, I spoke with Mr Wijeyewardene, who usually represents the First Respondent this morning, who knows nothing of the existence of this, as Jacqui Massage is away until the 14th.

It is a bit much and prejudicial towards me, to expect to have this addressed adequately.

40    On 22 February 2017 at 5.56 pm, Mr O'Donovan sent to Mrs Collier and Ms Massage an email which relevantly said:

Please see attached Short Minutes of Order we have drafted in preparation for the directions hearing this Friday, 24 February 2017 at 9:30am.

Could you please review the document and indicate whether you agree with the orders we have proposed being made.

We look forward to hearing from you.

At 9.08 am on 23 February 2017, Mrs Collier advised the primary judge's associate by email, which was not copied to anyone else, that “this document … does not comply with the rules of court and I am not bothering to acknowledge such , I also note that James Berg had it sent from someone else”. This was an unnecessary response from Mrs Collier and it was provided ex parte contrary to the primary judge's direction.

41    On 24 February 2017, the primary judge ordered Mrs Collier and Telstra to attend a conciliation conference with a Registrar of the FCC at the Sydney Registry on 21 March 2017 (order 1) and set the matter down for further directions on 3 April 2017 (order 2). The orders were made with Mrs Collier’s consent. The orders contained the following notation:

Order 1 is not to be taken as precluding the Second Respondent from participating in the conciliation if so minded.

42    At 1:43 pm on 24 February 2017, the primary judge’s associate sent an email to Registrars Wall and Morgan, copied to all parties, noting that the parties had agreed to mediate on 21 March 2017 and that it was Mrs Collier's request (without demur from the other parties) that it be scheduled to take place in the afternoon.

43    On 27 February 2017, Mrs Collier wrote to the primary judge's associate, copied to the other parties and Registrars Segal, Wall and Morgan advising that:

I have changed my medical appointment from the 17th. March 2017, until the 21st. March 2017 at 11.00AM. The Doctor finishes on Tuesday at 12.00Noon and so I will only be able to attend the court after 1.00PM.

As a result, mediation was listed for 1:30 pm on 21 March 2017.

44    On 14 March 2017 at 3 pm, Mr O’Donovan sent Mrs Collier and Ms Massage the TIO's mediation summary, said to be pursuant to correspondence on 28 February 2017 from Mr Young (who I take to be a member of the NSW District Registry). At 3.40 pm, Mrs Collier sent an email (to which Mr O’Donovan's email was attached) to Registrar Morgan (who was to conduct the conciliation) and the primary judge’s associate but not the other parties, as follows (as written, emphasis in original):

As to this document received, I wish to advise, that the Mediation is cancelled.

My reason for this, is that I do not find 3.01PM, when the registry closes at 4.00PM, is an appropriate time to notify people, which really has not been done, that the 2nd Respondent is going to attend next week.

I have not been afforded the opportunity to address the 2nd Respondent's argument.

The only time the 2nd Respondent was ever represented by anyone, other than James Berg, was a Barrister, who for memory, stated from the Bar Table: “The 2nd Respondent will not be attending Mediation, if that changes, we will notify the other sides in sufficient time.”

When I contacted Mr. O'Donovan, on the advice of Registrar Mathieson this afternoon, he was very blaze saying: “We have notified you by sending the document.”

Further to that note, that is the 1st. Respondent, had my telephone and internet disconnected and Miss Massage had to have it turned back on, after informing Registrar Mathieson.

The Court is obviously taking sides, if it simply was to allow this last-minute filing of paperwork, that cannot be addressed, when it shows, that the Barrister deliberately and intentionally misled the court.

I will be making application, to have the matter transferred back to the Federal Court of Australia, as obviously the Federal Circuit Court is incapable of handling it.

I also was abused this morning by [name redacted], on behalf of you Registrar, because she claimed that both Registrar Mathieson and Byrne had complained and you said it was inappropriate, my contacting them.

I trust, that I can still appear by Video link on 3rd. April 2017 at Dubbo.

The transcript of the proceeding on 24 February 2017 was marked by the primary judge as MFI-4. This is not a fair reflection of those proceedings or the conduct of the barrister representing the TIO. Counsel for the TIO advised the Court that he did not have instructions as to whether the TIO would attend the mediation and the option for the TIO to attend was left open. This is evident from the content of the orders made by the primary judge which specifically contemplate that, although the TIO was not directed to attend the mediation, it was permitted to do so. The issue of whether the filing of a position paper (apparently within the time allowed) could be addressed adequately was dealt with the Registrar Morgan (see below). The conclusion that the Court was “obviously taking sides” was not open.

45    At 4.05 pm on 14 March 2017, Registrar Morgan sent an email to Mrs Collier, copied to Ms Massage and Mr O'Donovan, advising that, until further order of the Court had been made to cancel it, the mediation would proceed at 1:30 pm on 21 March 2017 and that failure to attend may jeopardise Mrs Collier's court proceedings. The Registrar noted that any issues Mrs Collier wished to raise in relation to the respondents' documents or the manner in which they were provided to the Court could be raised at the mediation and any further documents Mrs Collier wished to provide could be sent to him before the commencement of the mediation.

46    At 4.49 pm on 14 March 2017, Mrs Collier responded to Registrar Morgan by email copied to the primary judge's associate and Ms Massage of Telstra and Mr O'Donovan stating, among other things, that she and her husband now had to go to Sydney twice as she had problems with a knee (that had been operated on in November) and saying (as written, emphasis in original):

I will not be attending, seeing that it is obvious that the 2nd Respondent is telling the Court what to do. Maybe I should have had a Barrister at the court on the 24th. and it would be me getting away with everything. After all, if was fine for that Barrister, to lie to the Court, which is exactly what he did, by not allowing the ample notice of his or his Solicitors attendance at the Mediation.

Had I known that the 2nd Respondent was attending Mediation, I would have refused it at the 24th. February Court appearance. If this matter has to go to the High Court of Australia, so be it.

I do not find that sending paperwork at 3.01PM when the registry closes at 4.00PM. on that day, seeing that [a named employee in the Registry] sent a letter stating that each party had to supply by today. I have not addressed the TIO, as they did not have the curtisey to state that they would be at the Mediation.

Similarly, you have not bothered to address this, which was forwarded to you. It is not good enough, to say: “any issues you wish to raise in relation to the Respondents' documents or the manner in which they were provided to the Court can be dealt with at the mediation.” That is not sufficient, as you fully have no intentions of addressing this, just as [the primary judge] would not allow anything to be addressed to him on the 24th., simply hurrying everyone and saying he was too busy to discuss anything.

I hope you enjoy yourselves on Tuesday, as I will not be in attendance.

47    At 4.53 pm on 14 March 2017, Registrar Morgan replied by email sent to Mrs Collier, the respondents and the primary judge's associate reiterating that the mediation would proceed at 1.30 pm on 21 March 2017.

48    Shortly after, at 5.07 pm on 14 March 2017, Mrs Collier sent an email to the primary judge's associate only advising that she would not be attending mediation “next week” because the Registrar “has allowed the 2nd Respondent leaniancy that is not afforded to myself, given the letter sent by [Mr Young] of your Court on the 28th.February 2017” in stating that on that basis, she wished to appear by video link, as she is applying to have the matter transferred back to the FCA “where it actually belongs”.

49    At 7.25 am on 15 March 2017, Mrs Collier sent an email addressed to Deputy Principal Registrar Mathieson, Registrar Morgan and the primary judge's associate. The email complained about the content of the TIO's position paper, including as to its length (said to be 180+ pages) because she had advised the Court on 8 November 2016 that, having only a domestic computer, she needed prior advice of anything over 20 pages. Mrs Collier again asserted that the medical certificate dated 18 November 2016 had been ignored by the primary judge and his associate and that her privacy had been breached by the associate in writing to other parties. Mrs Collier complained:

    about discontinuities in her internet service;

    that Registrars Byrne and Mathieson had complained about Mrs Collier's inappropriate contact with them;

    about the change of the TIO's solicitor prior to the first court appearance in the FCA on 8 November 2016 without notice to Mrs Collier and the need for Flick J to direct the TIO to supply notice to her in respect of which she said “[the primary judge] was not interested when this was brought to his attention on 24 February 2017”;

    about aspects of (what I take to be) material in the position papers prepared by Telstra and Telstra's conduct in 2016;

    about what she said was the refusal by Registrar Morgan to “show equal standing to all parties”, the basis of her refusal to attend the mediation.

Mrs Collier said that, if she was required to attend the mediation, she asked to do so by telephone or video link from Dubbo. She asked to be told what would now be occurring.

50    At 8.40 am on 15 March 2017, the primary judge’s associate sent an email to the parties as follows:

There has been a stream of correspondence over the last day. The only part of that correspondence which I have drawn to his Honour's attention and requested him to read is the email from Mrs Collier of 14 March 2017 sent at 5.07 pm and advising that she is not now going to mediate.

In these circumstances his Honour has directed that the proceeding be listed before him this Friday in the 9.30am list.

All parties are expected to appear.

I advised Mrs Collier that it is unlikely that the Court can arrange for her to appear by videoconference from Dubbo. I will let all parties know by 11am if it is possible. Mrs Collier may wish to make her own enquiries in this regard.

So it is preferable that Mrs Collier appear in Court on Friday morning in person. Alternatively if she gives a telephone number where she can be contacted, I will nominate a definite time on Friday morning so that it can take place by telephone.

51    At 8.55 am on 15 March 2017, Mrs Collier sent an email to the primary judge’s associate (not copied to the other parties) as follows:

This morning at 7.25AM, I sent an e-mail, which the Deputy Associate refused to address. I do suggest, that His Honour be shown the true e-mails communication, particularly the last e-mail sent.

I hope you enjoy Friday morning, as I am out all day, away from Wellington, attending medical appointments, so am unavailable or in transit.

This is not a complaint that it was open to Mrs Collier to make as she had failed to comply with the primary judge’s direction to copy her correspondence with chambers to the respondents and she had been told of the consequences. Mrs Collier also did not advise where she would be or whether there was urgency attached to her “medical appointments”.

52    At 8.58 am on 15 March 2017, the primary judge's associate sent an email to the parties advising that he had been able to arrange a videoconference to take place from Dubbo at 9.30 am on Friday, 17 March 2017, so that Mrs Collier had the option of giving the Court a telephone number at which she may be reached or attending at the Dubbo courthouse. Mrs Collier was asked to confirm, as soon as possible, which option she preferred.

53    At 9.04 am on 15 March 2017, the primary judge's associate sent an email to Mr Berg and Ms Massage which he copied to Mrs Collier. The associate forwarded a copy of Mrs Collier's email sent at 8.55 am that morning and advised that:

Notwithstanding the content of that email the directions hearing in this matter will be called first in his Honour's list at 9.30 am on Friday 17 March.

Further, Dubbo Courthouse will maintain its capacity to conduct a videoconference with Court 8.2 here at Sydney at 9.30 am in the event that Mrs Collier does decide to avail herself of this option.

54    At 9.11 am on 15 March 2017, Mrs Collier sent an email to the primary judge's associate (without copying it to the other parties) saying:

Dear [primary judge]

I sent an e-mail this morning at 7.25AM, the Deputy Associate has REFUSED to show it to you, rather has sent me the below e-mail [timed at 8.58] twice this morning.

I will not be at Dubbo on Friday and not available by telephone, as I am travelling to medical appointments, the 1st at 10.30AM and therefore, will be in transit.

Had your Deputy Associate decided to show you the last e-mail, I think it explains quite a lot and gives alternatives that are most suitable and should have been suggested by Registrar Morgan yesterday.

For reasons previously given, Mrs Collier is not entitled to complain that her emails were not shown to the primary judge.

55    At 4.08 pm on 15 March 2017, Mr O'Donovan sent an email to the primary judge's associate, copied to Ms Massage and Mrs Collier, attaching proposed short minutes of order in relation to the TIO's application in the case which it proposed should be made on Friday, 17 March 2017. The email indicates that a draft of the orders had previously been circulated to the other parties.

56    At 5.21 pm on 15 March 2017, the primary judge's deputy associate sent an email to Mrs Collier, Ms Massage and Mr Berg as follows:

His Honour has considered the draft Short Minutes of Order proffered by the Second Respondent and is minded in a preliminary way to make the Orders sought therein, apart from the suggested hearing date which is not available.

So the purpose of this email is to ascertain if all parties consent to the making of the Orders and if that consent is forthcoming his Honour will make them in Chambers without the necessity for any appearance by any party on Friday.

In that event his Honour will give the parties a small number of available hearing dates for the Application in a Case, again by email.

57    In response to that email, at 5.50 pm on 15 March 2017, Mrs Collier sent an email to the primary judge's associate (without copying the other parties) as follows:

No I do not agree.

I do not know, what you are talking about as to Short Minutes and the e-mail you sent, does not have any short minutes attached.

Talk about one sided.

58    At 7.28 am on 16 March 2017, Mrs Collier sent an email to Registrar Morgan and the primary judge's associate (but not the other parties) as follows (as written):

Please find attached, what I intend on filing in the Court ; ---

1.    An Application, to have His Honour removed from the proceedings for Perceived Judicial Bias and other action against the 2nd Respondent and their Solicitor , Mr.James Berg and Barrister.

2.    An Application for Exemption fees.

I am finishing off the Affidavit, which is still to be witnessed , only found out about His Honour's total Perceived Bias towards me, at 5.21PM last night.

I have applied for e-filing, but have just noticed, that can day 1 full business day to come through.

This matter, will by the looks of it end up in the High Court of Australia, I have approached the Principal Registry for information on the Court's actions.

I trust, that you will assist me Registrar Morgan, as it is obvious, His Honour has ensured, that the Registry-the Receptionist will not speak to me, is abusive and says:

“Management have instructed, we are not to talk to you, put you through to anyone or give any names out.” The High Court is going to love getting this in writing.

On the basis of above, I do emphasise, that it would be most non-beneficial, to put this matter on tomorrow. I still do not know, but can only assume, as [a named Registrar] can attest to the 2nd Respondent having full knowledge of when costs start to mount up. His Honour would also have been, had he allowed me to speak on the 24th., without continually cutting me off and claiming he was busy and had a full Court room , which he did not.

I trust I will hear from you, as His Honour only picks what he replies to, see the 8.41AM email from his Deputy Associate on 15th. March 2017.

If you require a Doctor's Certificate on Friday , it cannot be dropped at the Sydney Registry, before 11.00AM.

The assertion that the primary judge “only picks what he replies to” is plainly wrong. The nature of the matters to which the primary judge responded to reflects the application of the direction that he gave on 24 November 2016 (see [12] above) and reiterated on a number of occasions. The transcript of 24 February 2017 indicates that the primary judge conducted the directions hearing on the basis that submissions relating to the merits of the substantive application would not be addressed. Given the nature of the first return date, that was appropriate. The discussion primarily went to whether the parties wished to mediate and the date on which it might occur given the limited availability of registrars. The primary judge indicated that he did not wish to hear from Mrs Collier concerning whether the matter of mediation was discussed before Flick J, and in that sense, did not want to go into the past.

59    At 9.03 am on 16 March 2017, the primary judge's associate sent to Mrs Collier, Mr Berg, Ms Massage and Mr O'Donovan the following email:

There have been a number of emails from Mrs Collier late yesterday afternoon and this morning. She has also been talking or seeking to talk to the Registrar of the Court, Ms Adele Byrne on the telephone.

The purpose of this email is to note what is really obvious anyway, namely that any issues that any party wishes to ventilate can be ventilated tomorrow morning at 9.30am before his Honour.

I further advise that his Honour has directed that all correspondence which any party wishes me to draw to his Honour's attention is to be sent to NSWListings@fedcourt.gov.au (marked to be brought to my attention) and not to these Chambers. Correspondence which does not come in compliance with this order via NSWListings@fedcout.gov.au will not be read or responded to.

60    At 10.51 am on 16 March 2016, the deputy associate to the primary judge sent an email to the Client Service Officer at the Dubbo registry in response to an email which she had provided advising that Mrs Collier had contacted her, seeking to file documents in that Registry. The Client Service Officer said that when Mrs Collier had been told that she could not assist her because the documents were not related to a family law matter, Mrs Collier had demanded to speak to the Registrar and wanted a contact number in Parramatta. The deputy associate advised the Client Service Officer that the only involvement of the Dubbo Registry of the Family Law Courts in the matter was to make available video conference facilities at 9.30 am on 17 March 2017, indicating that the facility should be maintained even though it was unlikely that Mrs Collier would avail herself of it. The deputy associate also advised that it was unnecessary for the Client Service Officer to speak with Mrs Collier or to comply with any of her requests/demands having regard to the Dubbo Registry's limited involvement. The associate to the primary judge forwarded a copy of that email to Mrs Collier, Mr Berg and Ms Massage at 11.01 am on 16 March 2017 saying:

The below email correspondence from and to the Dubbo Registry is self-explanatory.

Mrs Collier is to desist from making any further approaches to the Dubbo Registry.

The Dubbo Registry is the Registry for the Federal Family Law Courts. It has no involvement with the civil proceedings brought by Mrs Collier in this Court and its involvement with Mrs Collier's civil proceeding is only and solely to provide a videoconference facility at 9.30am tomorrow.

61    At 11.10 am on 16 March 2017, Mrs Collier sent an email to the primary judge's associate, Registrar Morgan and the Client Service Officer in the Dubbo Registry saying (as written):

I will not be in Dubbo at any time on 17t h.  March 2017, as you were advised yesterday, or at least Giovanni was and it has been totally ignored .

I have advised Registrar Adele Byrne's chambers of your abuse of the Dubbo Registry in this manner.

Thankyou, for again breaching my privacy with the other parties.

I apologise [name of Client Service Officer] for the manner in which Dubbo has been abused in this manner , by the Associate to [the primary judge].

62    The directions hearing proceeded at 9.30 am on 17 March 2017 in Mrs Collier’s absence. The primary judge made timetabling orders in relation to the TIO’s application in a case and for the preparation of Mrs Collier’s substantive application for hearing. Notably in relation to the substantive proceedings, order 6 provided:

Mrs Collier is to prepare a document briefly setting out the basis on which the relief set out in the Originating Application dated 4 October 2016 is sought by 31 March 2017.

63    As noted above, at 10.14 am on 17 March 2017, Mrs Collier filed the application in a case in the FCC’s Sydney Registry, notwithstanding the advice in her email sent at 7.28 am on the previous day that a medical certificate could not be dropped at the Sydney registry before 11 am on 17 March 2017 (see [58] above).

64    At 11:53 am on 17 March 2017, the primary judge's associate sent an email to Mrs Collier, Ms Massage and Mr Berg, confirming that the directions hearing had proceeded at 9.30 am following attempts made to contact Mrs Collier at the Dubbo Registry and on the telephone number as it appears in her Genuine Steps Statement. The email then set out the timetabling orders that had been made. The email noted that debate ensued concerning the mediation which had been set down for 21 March 2017 at 1:30 pm and states that the primary judge indicated to counsel for Telstra and Mr Berg that it appeared that Mrs Collier was refusing to attend the mediation in person but might well be prepared to attend by telephone or video link. After taking instructions, counsel for Telstra and Mr Berg indicated that their respective clients were not prepared to engage in a mediation on that basis. The email advised that the primary judge would, after considering his schedule, appoint a time for the hearing of the pending application in a case by the TIO and the final hearing of the substantive proceedings.

65    At 12.36 pm on 17 March 2017 a Senior Coordinator in the NSW District Registry sent an email to Mrs Collier copied to Ms Massage and Mr Berg, to which were attached Mrs Collier's affidavit dated 16 March 2017, her application in a case, the orders made by the primary judge and a pdf described as “correspondence”. The email notes that the documents were sent to Registrar Byrne the day before and Mrs Collier managed to get them e-lodged at 6 pm on 16 March 2017, although they had to be rejected because the documents were put in incorrectly. The documents were lodged internally and referred to the primary judge's chambers. The email advised that the matter was now listed for an interlocutory hearing on 24 March 2017 at 9.30 am. The documents were also forwarded to Mrs Collier, Mr Berg and Ms Massage by the primary judge's associate by an email sent at 1.01 pm on 17 March 2017. It advised that when the primary judge had considered the attachments, further procedural orders might be made.

66    At 5.30 pm on 17 March 2017, Mr Berg sent an email to Mrs Collier, Ms Massage, Telstra's barrister and Mr O'Donovan requesting the primary judge to vacate the listing on 24 March 2017 and to make orders providing for the respondents to file and serve any evidence upon which they propose to rely by 22 March 2017 and that the matter be listed on 28 March 2017 or 3 April 2017 with an estimate of half a day. Mr Berg indicated that at that stage the TIO required Mrs Collier to be available for the purpose of cross examination.

67    At 9.44 pm on 17 March 2016, Mrs Collier sent an email to the Principal Registrar of the FCA, Sia Lagos, Registrar Mathieson and another person in the FCC, responding to the primary judge's associate's email sent at 11.53 am on 17 March 2017. She stated that her documentation had been filed on 16 March 2017 and the primary judge was “both negligent and out of control, not to mention going against a Doctor's Certificate to make such orders today”. She noted that she had advised that she would be unavailable on 17 March 2017 and said that she had told Registrar Morgan of her ill-health and provided information to “the Associate and Senior officers” that she will be getting the medical certificate which was e-lodged. She said that she was going to bed for four or five days on the advice of her doctor and that the certificate covered 24 March 2017. She complained that she would be expected to prepare and file necessary paperwork in seven days, a task which she said would not be expected of a barrister.

68    At 10.48 am on 20 March 2017, the primary judge’s associate sent an email to Mrs Collier, Mr Berg, Ms Massage and Mr O'Donovan in which he referred to his email of 1.01 pm on 17 March 2017 and Mr Berg’s response at 5.30 pm and noted that no one else had proposed alternative orders. It went on to say (as written):

I enclose a copy of a medical reported dated 17 March 2017 which was lodged at the Sydney Registry by Mrs Collier at 10.03am on 17 March but not included as an attachment to [the Senior Coordinator in the NSW District Registry]'s email of 17 March 2017 at 12.36pm (forwarded to the parties under cover of my email of 1.01pm) and only seen by his Honour at 7.52am this morning.

It is important that Mrs Collier's Application in a Case filed on 17 March 2017 (the Application in a Case) be heard as soon as possible. The first available date on which his Honour can list the Application in a Case with a half-day estimate is 28 March 2017. This date falls subsequent to the range of Mrs Collier's incapacity stated in the medical certificate.

Accordingly, his Honour has made the following Orders in Chambers this morning:

1.    Vacate the return date for the Application in a Case of 24 March 2017.

2.    Direct the respondents to the Application in a Case to file and serve any affidavit evidence upon which they propose to rely by 22 March 2017.

3.    The Application in a Case is listed for hearing on 28 March 2017 at 2pm at Court 8.3, Level 8, 80 William Street, Sydney.

Mrs Collier ought to note that she will need to be personally present in Court on 28 March 2017 to run and argue the Application in a Case.

69    In this context it is useful to note that, stamped as received by the FCC at 10.03 am on 17 March 2017, is a medical certificate from Dr Michael Wright of Woollahra Doctors which was headed “regarding Mrs Marion Collier” and setting out her date of birth and residential address. The certificate provides as follows:

This letter is to confirm that the above person has attended a medical appointment today and has a respiratory tract infection and otilis media and will be unfit to attend court from 16 March 2017 until 24 March 2017.

70    By an email dated 21 March 2017 at 8.56 am, the primary judge's associate told the parties that, with reference to Mr Berg's email sent on Friday, 17 March 2017 at 5.30 pm, his Honour wished to remind parties of the associate's email sent on 16 March at 9.03 am which directed all parties to communicate with chambers via NSWListings@fedcout.gov.au rather than by direct email to the associate. Correspondence from Chambers would be sent directly to the parties and not via the Registry.

71    At 8.30 am on 24 March 2017, Mrs Collier sent an email to Ms Massage, Telstra's barrister and the associate to the Chief Judge of the FCC complaining about a number of matters and telephone conversations associated with complaints made by Mrs Collier about her Telstra bills and an email she received from a person described as “Megan High Risk Complaints Telstra Retail”. The email asked Mrs Collier to direct any correspondence relating to her bills directly to Megan rather than contacting Telstra's Front of House staff. Mrs Collier appears to have attributed this to correspondence received by the primary judge's associate from Mrs Collier and forwarded to the other parties on 15 March 2017. Mrs Collier concluded “I further note, that the e-mail sent, on the instructions of the [primary judge] at 11.09PM on the 16th. March 2017, ridiculing and trying to make a fool of me, with the Clerk at Dubbo Family Court, to you and Mr. Berg, was a further encouragement to have you and your client, treat me in this manner”.

72    Based on the correspondence, Mrs Collier’s conclusion that the primary judge had attempted to make a fool of her with the clerk in the Dubbo Family Court was plainly not open nor was the conclusion that it acted as an encouragement to mistreatment of her by anyone.

73    At 8.18 am on 27 March 2017, Mrs Collier sent an email to Registrars Segal and Morgan, the New South Wales District Registry, Ms Massage and Mr Berg headed “Short Minutes of Order”. Mrs Collier appears to have been under the impression that the associate for the primary judge insisted on everything going through the “List Office” although the email appears to have been directed to Ms Massage and Mr Berg. Mrs Collier stated that she would shortly be “leaving for Sydney and unable to be involved in e-mail or home telephone communication”. Mr Berg responded at 8.32 am noting that communications between the parties need not include the Court and made a number of comments which included that his client would oppose an application to adjourn the hearing on 28 March 2017 and that the orders proposed in the short minutes would be opposed. At 9.56 am, Ms Massage sent an email indicating that Telstra would oppose Mrs Collier's proposed orders. At 12.11 pm Mrs Collier responded that that was fine because she did not consent to their proposed short minutes or consent orders either.

74    On 27 March 2017 at 9.56 am, the primary judge’s associate sent an email to the parties enquiring whether Flick J had issued reasons in connection with his decision to transfer the proceedings to the FCC. Mrs Collier responded 12.04 pm stating:

I do not believe it appropriate the e-mail you sent. It is totally irrelevant and in the past, what occurred on the 16th . November 2016. Any argument for the reason to remit the matter to the FCA, which might pay better attention to it, is a matter for discussion tomorrow afternoon.

75    At 10.48 am on 27 March 2017, Ms Massage responded by email sent to the primary judge's associate and copied to Mrs Collier, Mr Berg and Ms Munro, the barrister who appeared in the proceedings before Flick J as follows:

My understanding from the appearance on 16 November 2016 was that Justice Flick enquired from Mrs Collier why the matter should not be sent to the Federal Circuit Court. Mrs Collier responded that she is seeking exemplary damages under the Consumer and other legislation from both Respondents and sought an adjournment to file submissions on the issue of jurisdiction.

Flick J sought the views of the Respondents. The First Respondent's representative submitted that, based on the documents filed in Court, the matter is not one that should have been brought before the Federal Court of Australia. The Second Respondent submitted that they agreed that the matter may be more appropriately dealt with by the lower court.

Accordingly, Flick J made orders transferring the case to the Federal Circuit Court (pursuant to section 32AB(1) of the Federal Court of Australia Act 1976 (Cth) and reserving its order on costs.

As far as I am aware, there are no written reasons with respect to the transfer of the proceedings to the Federal Circuit Court.

76    At 5:35 pm on 27 March 2017, Mrs Collier sent an email to Registrar Segal, Registrar Mathieson and the NSW District Registry advising as follows:

Dear Registrars & Associate,

I was delayed getting to the Railway Station, not due to my own circumstances, a Dubbo Ranger asking me some questions about a car outside, following which, a Taxi I had ordered, did not come to my home, rather further up the street and then left.

When I got within a short distance of the Railway, after running most of the way in 33% temp., the XPT left. I have spent all afternoon trying to get a ride to Orange, which I was prepared to pay for, put not the $250 + that a Taxi was asking, so it could be a lot more, once we got to Orange.

I tried the Airports at Mudgee and Dubbo, but the planes are from $189.00-$220.00, which can get me to the Court and the Dubbo leaves at 6.40AM, so I have to have someone up at 4.30AM, with the Mudgee being 100 ks away. The $151.00 plane from Dubbo, does not leave until later in the morning and could delay me being at the Court by 2.00PM.

I am therefore asking to appear by telephone, as I have been able to put off the Doctor's appointment until 12 Noon on Friday. I realise, that this is a great inconvenience, but can assure you, that I and some friends have tried everything possible and have not been able to find anything better to assist.

If this is not suitable, maybe Friday would be more suitable to everyone, as I am fully aware, that the Respondent's representatives are in Sydney. That way, we could all be in person.

Whilst I was down the Street, I did injure my foot, which as this was most important, I have not yet treated it.

I again apologise for the inconvenience that this has caused you and await your instructions.

77    At 6.13 pm on 27 March 2017, the primary judge's associate sent an email to Mrs Collier, copied to the other parties, as follows:

Thank you for your email which I have referred to his Honour.

His Honour asked me to advise that as indicated in my email of 20 March 2017 you need to be personally present to run and argue your Application in a Case and accordingly he is not prepared to permit you to appear by telephone or video link.

It is your Application and so you will need to make all necessary arrangements to be in Court tomorrow.

In your absence it is likely that his Honour will be asked to dismiss your Application in a Case for want of appearance, with costs.

78    At 7.19 pm on 27 March 2017, Mrs Collier wrote to the associates of the primary judge and the Chief Judge of the FCC asserting that any orders made on 20 March 2017 were against a medical certificate and suggested that the primary judge “knowingly” listed the matter on 30 January 2017 “in the middle of a Doctor’s Certificate”. Mrs Collier complained about the directions hearing on 17 March 2017 and noted that she had said she would be unavailable on that day and would not be anywhere near Wellington or Dubbo. She said that 4 pm was the earliest that she could get to Sydney and noted that she had offered to be there on Friday. Mrs Collier suggested that the primary judge wished to “cancel the proceedings” as he is “on Telstra's side all the way”. She suggested that the primary judge required her presence in person to “check my face as I say things” because the primary judge thinks “as has been made out, that I am a liar”. She again claimed that the primary judge had indicated on 24 February 2017 that he was in a hurry, she should “get on with it” and that he was “not interested”. She asked them to get back to her as soon as possible.

79    Included in Mrs Collier's affidavit sworn on 15 September 2017 are short minutes of order for 28 March 2017 of which she says “she formally requested putting into a Statement of Claim, her Summons, which she had verbally requested both of Flick J and [the primary judge] on the 8th. November 2016 and 24th. February 2017.”

APPLICATION IN A CASE

Mrs Collier's application in a case

80    The application in a case was lodged by Mrs Collier in the FCC's registry in person at 10.14 am on 17 March 2017. It sought orders (in summary) as follows:

(1)    A hearing date of 17 March 2017 “put down illegally” by the primary judge be vacated (proposed Order 1).

(2)    Short minutes of the first respondent (Telstra) and the second respondent (TIO) “be struck out as incompetent and an abuse of the Court's process” (proposed Orders 2 and 3);

(3)    That the primary judge “remove himself from any further action in these proceedings due to Perceived Judicial Bias towards” Mrs Collier (proposed Order 4);

(4)    The proceedings be remitted back to the FCA, Sydney Registry (proposed Order 5);

(5)    Mediation be put over “until a date, that [Mrs Collier] can file documentation against [the TIO]” (proposed Order 6). By way of background, Order 6 relates to a mediation set down for 21 March 2017 by orders made by the primary judge on 24 February 2017 at a directions hearing attended by Mrs Collier by video link from the Dubbo Courthouse.

(6)    Proposed Order 7 does not, in terms, seek relief. It is a statement that TIO and its solicitor “failed to comply with the Federal Court of Australia Act, the Federal Circuit Court Act, with respect to service of a “Change of Address” form, filed in the Sydney Registry on Monday the 7th. November 2016”.

(7)    Proposed Orders 8, 9 and 10 relate to TIO's notification of attendance at the mediation set down on 21 March 2017, an allegation of breach of the “Criminal Code Act 1914” and an allegation that there had been false swearing of an affidavit on 3 February 2017.

(8)    Proposed Order 11 was for costs and disbursements.

81    As noted above, the application was supported by an affidavit sworn by Mrs Collier on 16 March 2016. In the affidavit, Mrs Collier raises many of the matters set out in the application for leave to appeal as the basis on which she made the claim in her proposed Order 4.

Primary judge's reasons for dismissing the application in a case

82    The primary judge first addressed the question of whether the hearing of Mrs Collier's application in a case should be adjourned as she was not in attendance. His Honour noted that she had, at 5.35 pm the day before the hearing of the application in a case (27 March 2017), sent an email indicating that it was unlikely that she would be in attendance due to “difficulties in obtaining transport from her home in Wellington to Sydney” but it was “clear beyond doubt” that she knew of the hearing because, by an email sent at 8.18 am on that day (27 March 2017), she said that she would be leaving for Sydney shortly. His Honour also noted his associate's email sent at 10.48 am on 20 March 2017 which advised that the date of 24 March 2017 (on which the hearing had originally been set down) had been vacated. The change in the return date from 24 to 28 March 2017 accommodated Mrs Collier's claim to be unfit to attend court from 16 until 24 March 2017, which was the subject of a medical certificate: J[3]-[4].

83    The primary judge noted that “some 90 communications” had passed through his chambers since the case was transferred to the FCC from the FCA on 16 November 2016. His Honour decided to treat Mrs Collier's email of 5.35 pm on 27 March 2017 as a request for an adjournment of the hearing. His Honour determined to refuse the adjournment, relying on the correspondence in the folder which he marked as MFI-1 and circumstances which showed “that Mrs Collier is not treating the propounding of her case in this Court with sufficient seriousness and she is not making herself sufficiently available”. Mrs Collier's application was serious and “it behoves her to be present for its hearing”. She knew since the inception of the case that it would be heard in Sydney: J[5]-[9].

84    The primary judge accommodated Mrs Collier on 24 February 2017 by allowing her to appear by video link from the Dubbo Registry. His Honour noted that at that directions hearing the parties agreed to mediate on 21 March 2017 before a Registrar but that on 14 March 2017, his Honour’s associate received an email from Mrs Collier notifying that she would not be attending mediation and that she wished to appear at the mediation by video link and to have the proceedings transferred back to the FCA “where it actually belongs”. In relation to the listing of a directions hearing on Friday, 17 March 2017, the primary judge noted that Mrs Collier had been given the option of attending the Dubbo Registry by video link with Sydney or giving a telephone number on which the Court could ring her but Mrs Collier responded almost immediately by saying:

I hope you enjoy Friday morning, as I am out all day, away from Wellington, attending medical appointments, so am unavailable or in transit.

In fact, rather than attending the Dubbo Registry or taking the telephone call or otherwise making herself available for the Court appearance, Mrs Collier came to Sydney and attended the Court Registry at approximately 10 am and filed the application a case, together with certain other documents, including the medical certificate stating that she “would be unfit to attend Court from 16 March 2017 until 24 March 2017”. In other words, rather than making herself available for the Court appearance, she was at the Court's Registry filing documents including the medical certificate. The primary judge stated that “I have no confidence that Mrs Collier would make herself available to run and argue her application in a case at any time the court nominated”. Application was made by Counsel for the TIO for the hearing to proceed which was authorised by r 13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth): J[10]-[14].

85    The primary judge determined that it was appropriate to proceed in Mrs Collier's absence and went on to say (at J[15]) that:

My view is fortified by the fact that it appears from the transcript of the hearing before Flick J in the Federal Court on 16 November, 2016 (when he transferred the proceeding to this Court), that her aim is to have remitted by [Telstra] the sum of $300, or alternatively $500 from her account, in circumstances where [Telstra] has already offered to do that and even to also modify her mobile phone plan with [Telstra] to give her phone calls to Telstra mobiles for the next two years without any additional charge.

86    The primary judge noted that Order 4 sought by Mrs Collier was that he remove himself from any further action in the proceeding due to “perceived judicial bias” towards her. His Honour noted that the apprehension of bias principle requires two steps: first, an identification of what is said might lead the judge who is challenged to decide the case other than on its own legal and factual merits, and second, an articulation of the logical connection between the matter and the feared or asserted deviation from the course of deciding the case on its merits. That is, the party seeking recusal must identify the issues which will need to be determined substantively in the case, the conduct which give rise to the apprehension of bias and the logical connection between the conduct and the issues. The general principle to be applied is whether a fair-minded lay observer might reasonably apprehend that a judge might not bring an impartial and unprejudiced mind to the resolution of the questions which the particular judge being challenged is required to decide: J[18]-[20].

87    At J[21], the primary judge identified various kinds of bias including disqualification for interest (pecuniary or otherwise), by conduct including published statements, by association or where extraneous information or knowledge of some prejudicial but inadmissible fact or circumstance might give rise to an apprehension of bias. At J[22], the primary judge noted that the extent to which the judge is required to give reasons is discretionary but in short, he did not consider that a fair-minded lay observer would reasonably apprehend from the correspondence comprising MFI-1, Mrs Collier's affidavit and the transcript of the only directions hearing at which Mrs Collier appeared by video link, that his Honour might not bring an impartial and unprejudiced mind to the resolution of the issues in the case which he is required to decide. His Honour noted (at J[23]-[24]) that he first heard of this matter when it was docketed to him by the Registry and the matter has not proceeded in any way other than for procedural orders and to prepare for the hearing of the TIO's application in a case, Mrs Collier's application in a case and to prepare for the hearing of the substantive case and nothing had occurred which could indicate in any way an apprehension of bias. The primary judge took into account the material in MFI-1 and he did not regard that as giving rise to a relevant apprehension of bias. His Honour regarded the application for his recusal as wholly lacking merit and he accordingly refused to do so.

88    In relation to the other orders sought by Mrs Collier, the primary judge found that:

(1)    Order 1, seeking to vacate the directions hearing on 17 March 2017, was otiose because the directions hearing has already occurred: J[25];

(2)    Orders 2 and 3 sought to strike out short minutes of order of Telstra and the TIO as incompetent and an abuse of the Court’s process. Those short minutes were not identified. The short point, his Honour said, was that he regarded orders made by him as appropriate and any other short minutes are not such as need to be struck out or could be termed and regarded as “incompetent” or an “an abuse of the Court's process”: J[26];

(3)    Order 5 sought an order that the proceedings be “remitted back” to the FCA. His Honour considered that the power to transfer to the FCA is found in r 8.02 of the Federal Circuit Court Rules and/or s 39 of the Federal Circuit Court of Australia Act 1999 (Cth). The primary judge refused to make such an order because (1) that would be in defiance of Flick J's order made on 16 November 2016 and his Honour was not aware of anything that had changed since that date which would render it appropriate for him to transfer the matter back to the FCA; (2) in his Honour's view, none of the factors to which the Court must have regard when considering whether to transfer a matter from the FCC to the FCA apply as the case is unlikely to involve questions of general importance and it is not likely to be heard and determined at less cost and convenience or any earlier than in the FCC; and (3) having regard to the wishes of the parties, although Mrs Collier sought to have the matter transferred to the FCA, neither of the respondents supported transferring the matter: J[27]-[29];

(4)    Order 6 sought for the mediation to be put over until a date that Mrs Collier can file documentation against the TIO. However, the order (which I take to be order one made on 24 February 2017) appointed mediation to occur on 21 March 2017. The primary judge noted that that date has passed and the filing of documentation against the TIO was “hardly likely to advance the prospects of a successful mediation” and the “present state of play” is that neither of the respondents is prepared to attend a mediation: J[30]; and

(5)    In relation to the proposed Orders 7 to 10, in his Honour's view they should not be set out verbatim because they make either incorrect or improper and scandalous allegations about the legal practitioners appearing in the proceeding which should not be recorded in the public judgment unless absolutely necessary. In his Honour's view the Court had no jurisdiction to make any of the orders sought and there is not a “skerrick of evidence” before the Court to support the allegations made in the proposed orders and in Mrs Collier's affidavit in support: J[31].

Accordingly, his Honour refused to make any of those proposed orders.

89    Guided by the judgments of Buchanan J in Kennedy v Secretary, Department of Industry (No 2) [2015] FCA 884 and Wigney J in Truong Giang Corporation v Quach [2016] FCA 50, the primary judge found that the fact that Mrs Collier is a self-represented litigant ought not to protect her from an order for costs in a situation where there would not be any doubt at all that a party who had been legally represented and had brought the application in a case would certainly have had costs ordered against them. His Honour accordingly ordered that Mrs Collier pay the costs of her failed application: J[35].

GROUNDS OF THE APPLICATION FOR LEAVE

90    There are 16 grounds of the amended application for leave to appeal filed on 4 September 2017. Mrs Collier says that “Actual and Judicial Bias” was shown towards her by the primary judge by (as written):

(1)    “not allowing a timetable for the Applicant to put into a Statement of Claim/Summons, what was in her Originating Application of the 4th. October 2016 in this Court, under NSD 1761/2016”;

(2)    going “against a Medical Certificate of the Applicants, on the 21-22 November 2016”;

(3)    “not abiding by his Order of the 24th.February 2017, for Mediation to take place”;

(4)    “rubber stamping” the TIO's “abuse of the Court's process”;

(5)    permitting “both Respondents to breach on numerous occasions, the Crimes Act 1914 section 474.17 1 (a) & (b) against the Applicant”;

(6)    “either he or his Associate and. Deputy Associate, on numerous occasions, the Crimes Act 1914 section 474.17 1 (a) & (b) against the Applicant”;

(7)    going “against a Medical Certificate of the Applicants, on the 17th.-20th.March 2017";

(8)    permitting “the divulging of Private & Confidential matters against the Applicant”;

(9)    permitting “both Respondents to breach on numerous occasions, the Crimes Act 1914”;

(10)    fabricating “a Court Proceeding on the 17th.March 2017, thereby allowing both Respondents to participate ex-parte of the Applicant, also making orders of their choosing, he conducted a knowingly “Kangaroo Court” at the taxpayer's expense”;

(11)    trying “to force the Applicant to adhere to the Orders of the 17th. and the 20th March 2017, which he knowingly made Ex-parte, against the existence of a Medical Certificate dated the 17th.March 2017 and advised in writing, of its existence on the 16th.March 2017”;

Mrs Collier's other grounds are:

(12)    “The Court has punished the Applicant for the incorrect advice given to her by Deputy Registrar [Segal], an employee of the FCA Sydney Registry”;

(13)    “Despite the advising of the cancellation of the Mediation, at approximately 8.00AM on Wednesday the 15th. March 2017, with a date the 17th. March court appearance scheduled on the 15th., being advised by the Applicant that she was unable to attend. [The primary judge] did not advise the Registrar, that the Mediation was cancelled and pursued the harassment of both the Applicant and the Family Court of Australia/FCA Dubbo Registry, fully aware, that the Applicant, was to be in Sydney that day for medical appointments”;

(14)    “Since the 20th. March 2017 and the cancellation of the Orders of the 17th. March 2017, [the primary judge] has tried to force the Appellant”;

(15)    The primary judge “showed Actual and Judicial Bias towards the Applicant, whereby, on the 17th.February 2017 he did not make Orders for the Applicant to file and serve a Statement of Claim in the proceedings”; and

(16)    The primary judge “showed Actual and Perceived Bias towards the Applicant, whereby he gave extra credit to the Second Respondent, who is funded substantially by the First Respondent, therefore has to support them”.

91    Although there are 17 grounds stated in the draft notice of appeal, they are, with limited exceptions, virtually word for word the same as the grounds of the application for leave. The third ground in the draft notice of appeal is an allegation that the primary judge showed “Actual and Judicial Bias towards the Applicant whereby he ignored the Applicant's Medical Certificate, of the 18th. November 2016-14th February 2017”, which I take to be the same as the second ground as the application for leave to appeal. The 14th ground in the draft notice of appeal alleges that the primary judge showed “Actual and Judicial Bias towards the Applicant, whereby he ignored the Applicant's Medical Certificate, on the 17th. March 2017”, which I take to raise the same ground as the seventh ground in the application for leave to appeal. The 14th and 16th grounds of the application for leave to appeal are also omitted from the draft notice of appeal.

CONSIDERATION OF GROUNDS AND SUBMISSIONS

92    Before addressing the grounds of Mrs Collier’s application for leave, it is important to note that Mrs Collier has not submitted that the primary judge adopted the wrong test in relation to what she has termed “perceived judicial bias”: see J[19]-[20]. The primary judge’s enunciation of the test of apprehended bias accurately reflects the test adopted by the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]-[8]. Instead, based on materials in her affidavit sworn in September 2017, Mrs Collier has sought to establish that the primary judge was actually biased. That is a different claim and does not disclose error by the primary judge in the decision his Honour made on 28 March 2017 in relation to proposed Order 4, albeit that if Mrs Collier made out the claim that the primary judge was actually biased that would be a basis to grant leave to appeal and to allow the appeal. For the reasons given below, I do not accept that any of the grounds of Mrs Collier's application for leave and in the draft notice of appeal provide a basis to doubt the correctness of the primary judge's decision in his identification and application of the test for apprehended bias, nor do I accept that they disclose actual bias by the primary judge.

93    Second, although none of the grounds of the application for leave or the draft notice of appeal are directed to the primary judge's decision to refuse to adjourn the proceedings on 28 March 2017, it is my view that the primary judge's decision not to adjourn the proceedings was open to him to make for the reasons that he gave. Mrs Collier's affidavit sworn in September 2017 sought to adduce evidence of the truth of the matters set out in her email sent at 5.36 pm on 27 March 2017 (see [76] above). Contrary to Mrs Collier's interpretation of J[3] in her submissions, there is nothing in the primary judge's reasons that indicate that he did not accept that she had been delayed. Rather, in the exercise of his discretion, he took into account that Mrs Collier had been on notice of the need for her to attend the Court in Sydney on 28 March 2017 to prosecute the application in a case that she had made and that the transcript of proceedings before Flick J would indicate that offers had been made to her which appeared to address her issues with the cost of the provision of a telecommunications service. Whether or not the primary judge's assessment that Mrs Collier approached the matter with insufficient seriousness because she did not ensure that she was in attendance was correct in fact, it was a finding open to be made by his Honour in light of Mrs Collier’s correspondence and the fact that she was not in attendance and appeared not to have accepted reasonable offers of settlement. Whether or not his Honour made some error in the amounts which were said to have been offered to her (as submitted by Mrs Collier) does not change that conclusion.

94    It was plain from Mrs Collier’s oral submissions that she is an intelligent woman. However, having regard to her conduct of the litigation thus far and the nature of many of Mrs Collier’s communications referred to in the “Background” set out above and in her affidavit sworn in September 2017, there may be a basis for a declaration that she is a vexatious litigant. No application to make an order to that effect is before me, so it would be inappropriate to express a concluded view or to make such an order.

95    As can be seen from the “Background” above, the tenor of many of Mrs Collier's communications with the primary judge's chambers and various registry staff was unacceptably uncivil and based on perceptions which were in many cases not available on any rational basis, even if it is accepted that Mrs Collier was under stress due to her medical conditions. It is plain from that material that Registry staff attempted to facilitate Mrs Collier's access to the Court but they are not in a position to give her legal advice and the fact that some things told to Mrs Collier were either misunderstood or events did not occur in a manner foreshadowed does not indicate unprofessional conduct on their behalf. The fact that Mrs Collier is not legally represented does not justify the nature and extent of her communications with Registry staff or the primary judge’s chambers or other members of the judiciary.

96    Mrs Collier’s unwillingness to comply with the primary judge’s directions against ex parte communications with the primary judge’s chambers led to many of the misunderstandings and unnecessarily protracted decision-making about which she complains. Ex-parte communications of the kind made by Mrs Collier are inimical to the due administration of justice. It is generally necessary that communications with the Court be available to all parties so that all parties are afforded procedural fairness and matters in a high volume jurisdiction can be dealt with efficiently. The sharing of Mrs Collier’s ex parte communications with the respondents does not constitute an invasion of her privacy or breach of confidence.

97    Mrs Collier takes offence and draws conclusions from other people’s conduct that a reasonable person would not in the same circumstances. Her resulting immoderate characterisations of the conduct of others as asserting that she was lying, as harassing and intimidating her, and as untruthful, dishonest or biased are unjustified on the materials set out in the “Background” above. Such claims should only be made in circumstances in which they are based on clear evidence, and nothing that I have seen justifies the scandalous claims that Mrs Collier has made against the primary judge, members of Registry of the FCA and FCC and members of the legal profession.

Grounds 1, 12 and 15

98    Mrs Collier’s submissions in relation to the first ground are to the effect that the transfer of the proceedings by order of Flick J made on 16 November 2016 does not comply with s 32AB of the Federal Court of Australia Act. The basis of this complaint is that the pecuniary penalty which can be awarded under the Competition and Consumer Act by the FCA for breach of the Australian Consumer Law (then $1.1 million for a corporation) is greater than that which can be awarded by the FCC. Mrs Collier submitted that the primary judge exhibited actual bias, being “well aware of this discrepancy”, and contended that his Honour “accepted what he knew to be deliberate, intentional lies” a response made by Telstra’s in-house solicitor to his Honour’s question concerning whether Flick J had given reasons for his decision to transfer the proceedings to the FCC: see the email referred to at [75] above. Mrs Collier says that the primary judge was unable to point to any document to confirm that this response was correct. It was not necessary for his Honour to do so. The suggestion that Ms Massage lied is scurrilous. The fact that Mrs Collier disagrees that it is correct that the matter was appropriate to be dealt with by the FCC does not indicate that Ms Massage lied.

99    The matter of whether s 32AB of the Federal Court of Australia Act was complied with is not raised by the express terms of grounds one and fifteen. However, it was dealt with in submissions. There are a number of bases on which Mrs Collier’s submissions should be rejected.

100    Section 32AB of the Federal Court of Australia Act provides as follows:

32AB Discretionary transfer of civil proceedings to the Federal Circuit Court

(1)    If a proceeding is pending in the Court, the Court may, by order, transfer the proceeding from the Court to the Federal Circuit Court.

(2)    The Court may transfer a proceeding under subsection (1):

(a)    on the application of a party to the proceeding; or

(b)    on its own initiative.

(3)    The Rules of Court may make provision in relation to transfers of proceedings to the Federal Circuit Court under subsection (1).

(4)    In particular, the Rules of Court may set out factors that are to be taken into account by the Court in deciding whether to transfer a proceeding to the Federal Circuit Court under subsection (1).

(5)    Before Rules of Court are made for the purposes of subsection (3) or (4), the Court must consult the Federal Circuit Court.

(6)    In deciding whether to transfer a proceeding to the Federal Circuit Court under subsection (1), the Court must have regard to:

(a)    any Rules of Court made for the purposes of subsection (4); and

(b)    whether proceedings in respect of an associated matter are pending in the Federal Circuit Court; and

(c)    whether the resources of the Federal Circuit Court are sufficient to hear and determine the proceeding; and

d)    the interests of the administration of justice.

(7)    If an order is made under subsection (1), the Court may make such orders as it considers necessary pending the disposal of the proceeding by the Federal Circuit Court.

(8)    An appeal does not lie from a decision of the Court in relation to the transfer of a proceeding under subsection (1).

(8A)    The Federal Circuit Court has jurisdiction in a matter that:

(a)    is the subject of a proceeding transferred to the court under this section; and

(b)    is a matter in which the court does not have jurisdiction apart from this subsection.

To avoid doubt, the court's jurisdiction under this subsection is not subject to limits set by another provision.

(9)    The reference in subsection (1) to a proceeding pending in the Court includes a reference to a proceeding that was instituted in contravention of section 32AA.

101    Rules 27.11 and 27.12(2) Federal Court Rules 2011 (Cth) provide for the transfer of proceedings to the FCC and the factors which must be taken into account (being those set out in s 32AB(6) of the Federal Court of Australia Act).

102    Mrs Collier says that Flick J did not comply with s 32AB(4)-(7) but the only conceivable non-compliance would be with s 32AB(6)(c) and (d), since Rules which have been made refer back to s 32AB(6) and there is no evidence of an associated pending matter. Justice Flick did not publish reasons. There is therefore no evidence for Mrs Collier's assertion that Flick J did not take into account the matters set out in s 32AB(6); the fact that the outcome was not the one Mrs Collier contended for is not indicative of a failure by his Honour to comply with the requirements of s 32AB(6). Having regard to the domestic nature of the telecommunications service about which Mrs Collier complains, there is no reason to think that the resources of the FCC would be insufficient to deal with it or that the interests of the administration of justice would preclude the transfer - it appears to be a matter which is wholly appropriate to be dealt with by the FCC. In any event, no appeal lies from Flick J's decision: see s 32AB(8). The plain purpose of that provision is to promote finality in the determination of in which Court the matter will proceed. As no appeal lies from that decision, it is unnecessary for me to address submissions made by Mrs Collier concerning Flick J’s failure to give reasons.

103    Section 32AB(8A) expressly provides that the FCC's jurisdiction extends to matters transferred to it by the FCA even if the FCC does not have jurisdiction apart from that section. That general proposition is qualified by s 138A of the Competition and Consumer Act which is an express, later provision which confers jurisdiction on the FCC as follows:

138A Conferring jurisdiction on the Federal Circuit Court

(1)    Subject to this section, jurisdiction is conferred on the Federal Circuit Court in relation to any matter arising under this Part or the Australian Consumer Law in respect of which a civil proceeding is instituted by a person other than the Commonwealth Minister.

(2)    If proceedings under Part 3-5, or section 236, of the Australian Consumer Law are instituted in, or transferred to, the Federal Circuit Court, the Federal Circuit Court does not have jurisdiction to award an amount for loss or damage that exceeds:

(a)    $750,000; or

(b)    if another amount is specified in the regulations-that other amount.

Note:    For transfers from the Federal Court to the Federal Circuit Court: see section 32AB of the Federal Court of Australia Act 1976.

104    Part 3-5 of the Australian Consumer Law deals with liability of manufacturers for goods with safety defects and s 236 relates to actions for damages for breach of Chapters 2 and 3 of the Australian Consumer Law. It provides as follows:

236 Actions for damages

(1)    If:

(a)    a person (the claimant) suffers loss or damage because of the conduct of another person; and

(b)    the conduct contravened a provision of Chapter 2 or 3;

the claimant may recover the amount of the loss or damage by action against that other person, or against any person involved in the contravention.

(2)    An action under subsection (1) may be commenced at any time within 6 years after the day on which the cause of action that relates to the conduct accrued.

105    Mrs Collier's originating application and her supporting affidavit do not particularise the amount of damages which Mrs Collier claims. Her originating application seeks an order for payment of a pecuniary penalty to the Commonwealth and exemplary damages under the Australian Consumer Law. Section 138A of the Competition and Consumer Act does not limit the jurisdiction of the FCC with respect to the making of pecuniary penalty orders although such a claim should properly be brought by a “regulator” so that Mrs Collier's standing to bring such a claim in either Court is doubtful (a matter which it is not necessary for me to decide on this application): see s 228 of the Australian Consumer Law. Exemplary or punitive damages are not available under the Australian Consumer Law: see Miller RV, Miller's Australian Competition and Consumer Law Annotated (40th ed, Thomson Reuters, 2018) at [236.460] and the cases there cited.

106    Mrs Collier's supporting affidavit sworn on 4 October 2016 claims damages for conduct which is alleged to have contravened provisions of Chapters 2 and 3 of the Australian Consumer Law. Under s 138A of the Competition and Consumer Act, the damages which Mrs Collier might be awarded by the FCC could not exceed $750,000. Having regard to the foregoing, and the domestic telecommunications service in respect of which the claims are made, that is likely to provide more than ample scope for an appropriate damages award. This limitation on the FCC's jurisdiction to award damages would not suggest that any injustice is done to Mrs Collier by the transfer of the proceedings to the FCC nor is there any apparent basis on which the transfer would prejudice the due administration of justice. Indeed, the reasons for the primary judge's refusal to transfer the matter back to the FCA given at J[27]-[29] appear to be well founded.

107    In relation to the express terms of grounds one, twelve and fifteen, Mrs Collier says that, on 8 November 2016, Registrar Segal “instructed her” that to commence proceedings in the FCA she would need to file an originating application, genuine steps statement and affidavit and that she would “most likely have to amend it to a Statement of Claim, once the proceedings commenced”. She notes that under r 8.21 of the Federal Court Rules, a party is permitted to amend, at least once, their pleadings. She says that she should be given the opportunity to provide a statement of claim and by, ground fifteen, I understand her to say that the primary judge showed bias by refusing to do so on 24 (not 17) February 2016.

108    These claims do not support a finding of bias by the primary judge or that the information provided by Registrar Segal was wrong had the matter progressed in the FCA. The question of whether or not a matter should proceed by way of a statement of claim or in some other manner is a matter of case management. In this case, by the orders made on 17 March 2017, the primary judge gave Mrs Collier an opportunity to expand on her claims by way of a document to be filed by 31 March 2017 (see [62] above). This is one mechanism by which the claims made in the originating application may be clarified. It is likely to be easier for an unrepresented litigant to execute than a more formal pleading, which is designed to perform a similar function in a more technical way.

109    Finally, there is nothing in the material addressed in the “Background” which suggests that there is merit to Mrs Collier's assertion that she was “punished” for relying on any information provided by Registrar Segal. It is plainly wrong.

Ground 2

110    Mrs Collier submitted that there was ample time between her sending the medical certificate dated 18 November 2016 by email to Registrar Segal at 1.59 pm on that day and the allocation of the first return date for the proceeding in the FCC on 30 January 2017 for the medical certificate to be brought to the primary judge's attention and that it is indicative of actual bias by the primary judge that that date was set. That submission is misconceived at many levels and cannot be accepted.

111    Mrs Collier made her submission by reference to Registrar Segal's email of 23 November 2016 at 10.44 am in which he advised Mrs Collier that “The date in the Federal Circuit Court is fixed by the Judge of that Court without knowledge of any appeal.” This reflects the FCC's practice of seeking from Judges dates at which they will be available to conduct directions hearings in relation to matters filed in the Court. In the knowledge of those dates, the FCC's Registry then assigns return dates to matters.

112    Understandably, Mrs Collier first understood Registrar Segal's email to mean that the primary judge assigned the return date of her matter, an open interpretation of the email. Mrs Collier raised the fact of her medical certificate with the primary judge's associate soon after 11 am on 23 November 2016 (see [10] above). By 12.30 pm on the same day, the associate sent an email to her and the respondents, advising that that the return date of 30 January 2017 had been fixed without the primary judge’s knowledge and that, having regard to the medical certificate (which indicated that Mrs Collier was “unfit to deal with Court proceedings until February 2017”) the primary judge was minded to fix a first return date of 17 February 2017. It is plain that when the medical certificate was drawn to his Honour's attention, the primary judge acted with reference to it properly and promptly (see [11] above).

113    At 12.45 pm on the same day, by email sent to the associate (without copying in the respondents) Mrs Collier said that that date was “inconvenient for the Applicant as a prior arrangement is made for that date”: see [11] above. As indicated above, that was an inadequate response. In subsequent emails, Mrs Collier has suggested that the primary judge’s failure to simply accept that position indicated that his Honour thought she was a liar. That is not a reasonable inference to draw: the primary judge required better information than Mrs Collier provided. The FCC is a very busy, high volume Court: Mrs Collier's proceeding was not the only one which the primary judge had to manage. All litigants are expected to assist the Court by making themselves available to prosecute their matters at the assigned time unless there is a good reason why the time should be changed. Mrs Collier bore the onus of persuading the primary judge that her reason was a good one.

114    It is true that at 11.52 am on 24 November 2016, Mrs Collier advised the primary judge's associate (but not the respondents) that she was required to appear in the Supreme Court of New South Wales on 17 February 2017 (see [17] above). While the return date of 24 February 2017 was not assigned until 1 December 2016, the responsibility for the delay in achieving that outcome lies wholly at Mrs Collier's feet because she refused to comply with the primary judge's direction that correspondence with his chambers must be copied to the respondents. Mrs Collier was advised at 7.58 am on 24 November 2016 that if her correspondence was not copied to other parties it would not be drawn to his Honour's attention: see [13] above.

115    Mrs Collier appears to claim that the primary judge (and other parties) “went against” the medical certificate by communicating with her by email in the period before 14 February 2017. In my view, the open and preferable interpretation of the certificate was that Mrs Collier should not appear in Court having regard to neck and knee pain until the beginning of February 2017, not that she was incapable of dealing with email correspondence concerning the setting of the first return date in that Court for proceedings brought by her. The email correspondence received by Mrs Collier concerning the establishment of the first return date and in response to communications initiated by her was not harassment of her, however unwelcome it might have been to her. The fact that the primary judge's associate made her correspondence available to the other parties involves no breach of her confidence or privacy for reasons previously given. In my view, there is no reason why a reasonable person, charged with the knowledge of the decision to be made and the course of correspondence, might conclude that the primary judge might not bring an impartial mind to the decisions he was required to make nor that his Honour was actually biased against Mrs Collier. As noted by the primary judge the matter had dealt with procedural issues only. Neither that, nor the correspondence referred to in “Background” supports Mrs Collier’s claim that the primary judge was actually biased.

Grounds 3, 7, 10, 11, 13 and 14

116    These grounds have no substance.

117    For the reasons given at J[30], it was open to the primary judge to conclude, on 28 March 2017 in relation to Order 6 sought in Mrs Collier's application in a case, that there was no point in requiring the parties to go to mediation in light of Mrs Collier’s email to the primary judge's associate at 5.07 pm on 14 March 2017 (see [48] above) and the position put by the respondents at the directions hearing on 17 March 2017 (see [64] above). The fact that the outcome is not what Mrs Collier sought is not, either of itself or having regard to the course of correspondence, indicative of apprehended or actual bias of the primary judge. The direction to Mrs Collier and Telstra to attend mediation on 21 March 2017 was made by consent on 24 February 2017 - it is not an order by which the primary judge himself had to “abide”.

118    No basis for an apprehension of bias or actual bias on the part of the primary judge is established by the timing of any advice to Registrar Morgan that the mediation had been cancelled or by reason of primary judge’s decision to list and conduct a directions hearing at 9.30 am on 17 March 2017.

119    Given the nature of Mrs Collier’s communications with respect to mediation on 14 and 15 March 2017, including the apparently contradictory statements that she would not attend mediation but that she would be available to do so by video link, it was appropriate for the primary judge to convene a directions hearing on 17 March 2017 to establish the position of the parties and how the mediation might proceed in light of Mrs Collier's objections to the position paper filed by the TIO, her failure to accept Registrar Morgan's suggestion that her response could be made at the mediation and her (misplaced) conviction that that indicated that Registrar Morgan was on the TIO's side: see [44]-[50] above.

120    On 27 February 2018, Mrs Collier had told the Court that she was moving medical appointments from 17 March 2017 to 21 March 2017 so that she could conveniently attend them in the morning of 21 March 2017 and the mediation in the afternoon: see [43] above. Accordingly, the decision by the primary judge on the morning of 15 March 2017 to list a directions hearing at 9.30 am on 17 March 2017 was not made in any knowledge that Mrs Collier had a medical appointment or other engagement on that day. The parties were advised of his Honour's decision at 8.40 am by email from the primary judge's associate (see [50] above).

121    In her response, sent only to the primary judge's associate at 8.55 am on 15 March 2017 (see [50] above), Mrs Collier stated that she would not be available to attend a directions hearing at 9.30 am on 17 March 2017 because she would be away from Wellington attending medical appointments. Mrs Collier did not explain the nature of the medical appointments or that they would be in Sydney nor did she say whether particular urgency attached to them. Nor did the email sent by Mrs Collier at 9.11 am (see [54] above).

122    Settling the question of whether and how the mediation scheduled for 21 March 2017 should proceed was important, not least, because it involved the use of a scarce resource, the services of a Registrar as mediator. That could most effectively be done by a hearing attended by the parties. In the interests of the administration of justice, settling those issues deserved priority in the absence of a more fulsome explanation from Mrs Collier concerning why she could not make other arrangements with respect to the medical appointments she was to attend on 17 March 2017. In these circumstances, it was open to the primary judge to proceed in the absence of Mrs Collier. The material before the Court does not indicate that his Honour “fabricated” anything or acted in any way which could establish bias or a reasonable apprehension of bias by reason of the listing and conduct of the directions hearing on 17 March 2017. The suggestion that his Honour knew that Mrs Collier would be in Sydney is not supported by her email correspondence. Even if his Honour had known that, in the absence of any explanation that such appointments had some urgency attached to them, it was entirely open to the primary judge to decide not to defer the hearing since it is the litigant's obligation to assist in the efficient despatch of proceedings they have brought. A claim that such conduct by the primary judge is harassment has no prospect of success and Mrs Collier's claim is completely inappropriate. Further, ensuring that facilities were available in Dubbo for Mrs Collier to use should Mrs Collier elect to do so appears to have been designed to assist her if she did rearrange her appointments so as to give appropriate priority to the directions hearing. No bias or reasonable apprehension of bias is disclosed by communications on 16 March 2017 which indicated that the Client Service Officer in Dubbo need not respond to Mrs Colliers demands to be able to file documents there, given that that Registry does not deal with general civil matters and its sole purpose was to provide a video link.

123    Nor does the material set out in “Background” support a contention that the primary judge had “go[ne] against” the medical certificate dated 17 March 2017 which was filed in the FCC's Registry at 10.03 am on that day, after the directions hearing had been held at 9.30 am. Having regard to the primary judge's associate's email sent at 10.48 am on Monday, 20 March 2017 (see [68] above), none of the medical certificate, Mrs Collier's application in a case, nor a letter she e-lodged on 16 March 2017 was before the primary judge at the directions hearing at 9:30 am and accordingly his Honour's failure to deal with those documents at that hearing cannot, on any rational basis, indicate actual bias or give rise to an apprehension that the primary judge was biased against Mrs Collier. The primary judge's acceptance that the mediation should not proceed having regard to the attitude of all parties and his decision to make timetabling orders for preparation and hearing of the TIO's application in a case and the substantive application were utterly normal steps designed to progress the applications in the matter of which his Honour was then aware.

124    The listing of the application in a case for 24 March 2017 appears to have been made without reference to the primary judge. It is notable that when his Honour became aware of the medical certificate and Mrs Collier's application in a case shortly before 8 am on Monday, 20 March 2017, his Honour acted promptly to change the date of the hearing to 28 March 2017 at 2 pm, outside the timeframe of the medical certificate: see [64]-[68] above. Having regard to the application to recuse himself on the basis of apprehended bias, it was appropriate for the primary judge to address that application as soon as Mrs Collier's health would allow.

125    Last, Mrs Collier asserts that the primary judge tried to force Mrs Collier to comply with the timetabling orders for the TIO's application in a case and the substantive application made on 17 March 2017, which she says were “cancelled” on 20 March 2017. While the primary judge listed the hearing of Mrs Collier's application in a case for 28 March 2017, the orders made on 17 March 2017 have not, in fact, been cancelled. Compliance with them by both parties has been in abeyance pending determination of the leave application. However, until Mrs Collier made the application for leave to appeal, it would have been appropriate for the primary judge to continue to case manage the proceedings. Any such conduct by the primary judge is not indicative of either actual or apprehended bias.

Ground 4

126    I take this ground to refer to the leave being given to the TIO to file its application in a case on 2 February 2017 (see [35] above). There is nothing unusual or inappropriate in a respondent seeking to strike out a proceeding which it believes is wrongly brought against it. It was appropriate for this matter to be filed at an early stage of the proceedings, its listing for mention on the first return date of Mrs Collier's substantive application was normal case management and the application itself has not yet been determined. The leave granted by the primary judge was not “rubber stamping”, nor was it indicative of bias in any way.

Grounds 5, 6 and 9

127    I accept the respondents' submissions that there is no merit to these grounds or Mrs Collier's submissions that the primary judge exhibited bias by “permitting” the respondents to breach “the Crimes Act 1914”, or more accurately s 474.17 of the Criminal Code (Cth), which provides that a person commits an offence if the person uses a carriage service in a way (whether by method of use or content of communication or both) that a reasonable persons would regard as being, in all of the circumstances, menacing, harassing or offensive.

128    If Mrs Collier is referring to communications made by Mr Berg on 28 December 2016, foreshadowing the proposed application and requesting to know whether she had filed an appeal against Flick J's decision, then in my view she would have no prospect of success in convincing an appeal court that a reasonable person would regard those communications or their content as being, in all of the circumstances, menacing, harassing or offensive. It was entirely appropriate for the TIO to foreshadow its proposed strike out application, to advise Mrs Collier of its grounds for the application and to request her to take action which might avoid unnecessary cost. For reasons previously given, I also do not accept that those communications were contrary to an open and preferable interpretation of the medical certificate dated 18 November 2016.

129    While Mrs Collier has also taken great offence to Mr Berg's failure to serve a notice of appearance before 16 November 2016, that occurred before the primary judge's involvement in these proceedings and there was no remedy that the primary judge could apply in relation to it.

130    Mrs Collier has made similar claims in relation to communications by Ms Massage. While Mrs Collier may not agree with the content of some of those communications, nothing has been drawn to my attention which would, in all of the circumstances, in the view of reasonable persons constitute harassment, menaces or an offensive use of a carriage service.

131    As to Mrs Collier's claim that the primary judge showed bias by breach of that provision himself or through his associate, however unwelcome the associate's emails were to Mrs Collier, she has no prospect of succeeding in an argument that a reasonable person is likely to form the view that any of the communications referred to above could answer the description of menacing, harassing or offensive.

132    For completeness, I find no error in the way the primary judge approached this issue in relation to orders proposed by Mrs Collier in her application in a case.

Ground 8

133    As indicated above, Mrs Collier had no reasonable expectation that her communications with the primary judge's associate or the FCC would be kept private and confidential. Mrs Collier did not apply to have suppressed any information which she provided. Suppression orders are rare because of the high value that the legislature has put on open justice and procedural fairness requires that parties be given an opportunity to comment on communications made with a court by other parties to the proceedings.

Ground 16

134    Mrs Collier has not explained what she means when she said that the primary judge exhibited bias by giving “extra credit” to the TIO. From correspondence in “Background” above, it may relate to the filing of the TIO’s application in a case. If so, the claim is not well founded. It appears to be an ongoing theme of Mrs Collier's submissions that Telstra's position will be preferred because it is a large public company and the TIO is subservient to Telstra because it funds it. This appears to be a fear of Mrs Colliers rather than a perception based on any evidence which is currently before the Court.

CONCLUSION

135    The grounds of Mrs Collier's application for leave and the grounds set out in her notice of appeal are not made out. Mrs Collier has not established that the orders made on 28 March 2017 for the reasons given by his Honour are attended by sufficient doubt to warrant consideration on appeal. She has not demonstrated actual bias by the primary judge. I will order that leave to appeal be refused and Mrs Collier's application be dismissed with costs.

Associate:

Dated:    18 October 2018