HER HONOUR: These are proceedings for defamation commenced by statement of claim filed 21 April 2016 by Mrs Marion Collier against the Country Women's Association of New South Wales. Together with the statement of claim filed that date, Mrs Collier filed an affidavit sworn by her, also on 21 April 2016.
In accordance with the practice note that governs proceedings in this list, SC CL 4, the proceedings came before me for first listing on 3 June 2016. There is a transcript of the proceedings on that occasion, the correctness of which is disputed by Mrs Collier. I have revisited the relevant part of the transcript during argument this morning and it concurs with my recollection of what was said on that date. Ms Chrysanthou, who appears for the defendant, has informed the Court today that the transcript is also consistent with her recollection of what occurred on that date, and with the recollection of her instructing solicitor.
According to the transcript, on that occasion (being the appropriate occasion for the defendant to take any objection to the form of the pleading filed by the plaintiff, as provided in cl 13 of the Practice Note), Ms Chrysanthou submitted that, apart from the cause of action in defamation, which the defendant understood (upon confirmation by Mrs Collier during the hearing as to the publication sued on), the pleading did not permit the defendant to understand Mrs Collier's claims.
Following those submissions, according to the transcript, I had the following exchange with Ms Collier (T5.39-6.8):
HER HONOUR: Now, to the extent that you seek to prosecute any additional cause of action apart from that cause of action for defamation the pleading isn't clear and you will need ‑ it is not an answer to say "it is all in my affidavit, it will come out during the case" because the defendants need to be put on notice as to what the claim against them is right from the outset. It is a question of notice and fair process so if you want to pursue any other causes of action I think‑‑
PLAINTIFF: Well, that is the main one because basically to remove me then from the CWA and say that I don't have the rights under the constitution to know what the things are supposed to be that have been done is against both our State constitution and the Federal because you are supposed to know what case you are pleading which is basically what you have just pointed out.
HER HONOUR: Well, I think if you are wanting to pursue a challenge to the removal that is going to have to be pleaded more clearly and I would suggest you see a lawyer about that because that is not an uncomplicated legal question.
Further down, on p 6 of the transcript, Ms Chrysanthou said, "Perhaps Mrs Collier should be given an opportunity to amend." I indicated my agreement but was interrupted by Mrs Collier saying, "Well, I am quite prepared with the defamation part to leave it as it is." I said:
"The defamation part is fine and what you are being told is that if you also want to prosecute a cause of action in respect of the decision to remove you as secretary and if you want relief in relation to that" -
Following a further interruption, I continued - "Well, you will need to amend your pleading and I would need to set a time frame on that."
The exchange continued, concluding as follows: I said, "So you are indicating that you just want to prosecute the cause of action at the moment?" The previous answer in that exchange indicates that I was referring to the cause of action for defamation. The plaintiff responded, "At the moment, yes."
As indicated by the exchanges I have set out, the defendant's complaint in respect of the causes of action hinted at in the material filed by Mrs Collier was that, apart from the cause of action for defamation, any other cause of action sought to be prosecuted was not pleaded in accordance with the Rules, nor in a manner that would enable a lucid understanding of the issues for the trial.
As stated to Mrs Collier at the time, it was not enough for her to point to her lengthy affidavit, sworn 21 April 2016, which consists of thirteen pages in the body of the affidavit and a further 103 pages of annexures. The relevant principles were explained by Bryson J in Northam v Favelle Favco Holdings Pty Ltd (Supreme Court (NSW), Bryson J, 7 March 1995, unrep), a case in which, a very long time ago, I appeared as junior counsel for the successful applicant to have a pleading struck out. His Honour said:
It is not fair to require a defendant to flesh out general expressions or indirect allusions by piecing together information in other documents such as affidavits or experts' reports. He might get it wrong, and the greater the complexities are, the more probable it is that he will understand what is alleged in some different way to what the plaintiffs will rely on. Procedural justice can be upset just as much by opportunistic advocacy exploiting a choice among several possibilities as by an ambush from complete concealment. In the world of practicalities a defendant is unlikely to receive much protection when evidence is tendered which is an available meaning of a pleading if he has not attacked the pleading at an interlocutory stage.
A pleading is to contain and contain only a statement in summary form of the material facts on which the party relies but not the evidence by which those facts are to be proved; see Pt15 R7(1). It is also to contain the necessary particulars of any claim; see Pt16 R1(1); including particulars of any fraud, misrepresentation, condition of mind including fraudulent intention, and of any negligence: see Pt16 R2, 3 and 4. A pleading should be brief and should state the effect of documents or spoken word referred to, and should plead specifically matter which may take the defendant by surprise. See Pt15 R8, 9 and 13. Of course the requirement for particularity extends to all causes of action including causes of action in contract. The more complex the circumstances and legal principles, the more important it is to allege the material facts fully with particularity…
In the present case, the content of Mrs Collier's affidavit of 21 April 2016 and the content of the statement of claim do not provide the defendant with the required notice of the issues for the trial and, in my view, will have a tendency, if allowed to stand, to cause prejudice, embarrassment or delay.
The proceedings were re-listed today for a number of reasons. In advance of the hearing, each party provided a form of minute of order setting out the orders sought.
The first order sought by Mrs Collier was an order that I remove myself from any further participation in the proceedings owing to my perceived judicial bias. Having regard to the nature of that application, I considered it appropriate to determine it first. However, when I asked Mrs Collier at the outset of the proceedings if she was proceeding with that application, she indicated that it was withdrawn.
Argument then moved to the question of her application to amend. Mrs Collier has propounded a proposed amended statement of claim which does not distil the legal claims sought to be pursued by the original statement of claim and the affidavit of 21 April 2016. Rather, the device that has been adopted is that Mrs Collier has now incorporated, in almost exact terms (apart from minor administrative changes and the correction of a typographical error), the complete content of the original affidavit now as an exhibit to the proposed amended statement of claim.
Plainly, that mechanism of amendment does not address the concerns raised by the defendant at the first listing.
During argument, I reminded Mrs Collier of what I had said at the first listing (in the passages set out above) about the need to distil her causes of action into a pleading. After an indication from Ms Chrysanthou that she would not oppose this course, I informed Mrs Collier that I would be prepared to allow her a further period of time within which she may propound a further proposed amended pleading which responds to my remarks at the first listing.
Mrs Collier rejected that suggestion, asserting that she should be entitled to file the amended statement of claim in the form propounded and that she would wish to have a determination of her application today, with the intention that she would go to the Court of Appeal.
In my view, the proposed amended statement of claim is not in a form which the court should allow to be filed, for the reasons I have stated.
Accordingly, the application to file the amended statement of claim is rejected. In the circumstances, there is no occasion for determining any of the other issues that have been foreshadowed for argument today.
The plaintiff having been unsuccessful in her application to file the proposed amended statement of claim, I order that the plaintiff pay the defendant's costs of that application. As to any other costs of the re-listing today, I make no order as to costs with the intention that the costs ordered are confined to the costs of defending the application to amend the pleading.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 26 September 2016