Collier v Country Women's Association of New South Wales

Court of Appeal (NSW)|2017-02-17|Before: Ward JA, Payne JA, McCallum J, Bathurst CJ, Beazley JA, McColl JA

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

WARD JA: By summons filed 6 October 2016, Mrs Collier seeks leave to appeal from a decision of McCallum J in the Defamation List of the Common Law Division, in which her Honour refused leave for Mrs Collier to file a proposed amended statement of claim and ordered that Mrs Collier pay the defendant's costs of that application (Collier v Country Women's Association of New South Wales [2016] NSWSC 1361).
Leave is necessary because the decision in question is an interlocutory one. It is also a decision made in the exercise of her Honour's discretion. For Mrs Collier to succeed on her appeal it would be necessary for her to demonstrate that the primary judge erred in the House v The King sense ((1936) 55 CLR 499 at 504-505) so as to warrant appellate intervention. Moreover, in determining whether to grant leave to appeal it should be noted that in The Age Company Ltd v Liu [2013] NSWCA 26, Bathurst CJ (at [13]), with the agreement of Beazley JA (as her Honour then was) and McColl JA, said that "[g]enerally speaking, it is only appropriate to grant leave in matters that involve issues of principle, questions of public importance or in circumstances where it is reasonably clear that an injustice has occurred by reason of error in the judgment, going beyond what is merely arguable". (See also Clarke v State of New South Wales [2015] NSWCA 27; Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164.)

Background

The background to the present application is that proceedings were commenced by Mrs Collier against the Country Women's Association of New South Wales (the Association) in the defamation list of the Common Law Division by statement of claim filed 21 April 2016. On the first page of the statement of claim, the relief claimed was identified as "unspecified damages for non-economic loss" as well as costs and/or disbursements.
Under the heading "Type of Claim" on the first page of the statement of claim appears the following: 1. DEFAMATION ACT 2005; 2. CONSTITUTION OF THE COUNTRY WOMEN'S ASSOCIATION OF NEW SOUTH WALES REGULATION & RULES; 3. CIVIL LIABILITY ACT 2002 - PART 2, DIVISION 3 4. UNLAWFUL REMOVAL FROM EXECUTIVE POSITION - Branch Secretary. 5. UNLAWFUL EXPELLING OF MEMBER OF THE ASSOCIATION.
The genesis of the present complaint arises out of the issue raised by the Association, when the matter was first listed before the primary judge, as to whether Mrs Collier was intending to make any claims other than her claim in defamation. This was because of the reference on the first page of the pleading to the matters set out at [2]-[5] (see [4] above) in circumstances where the pleading itself appeared only to relate to the defamation claim.
The defamation claim, as pleaded, arises out of the publication to executives and delegates of the Association of certain communications between the Association and Mrs Collier, including a letter of 1 April 2016 "advising of Expelling of the Plaintiff". Mrs Collier alleges that there were a number of defamatory imputations contained in the letter (there apparently referring to the letter of 13 April 2016 which forwarded copies of the said communications), which imputations are refuted by her (see [6]-[33] of the pleading).
The statement of claim also refers to: 1. a letter dated 9 September 2016 alleged to have been signed, against the Rules and Regulations, by the State President of the Association, informing Mrs Collier as to a special meeting on 3 August 2015 and asking "the Branch, Group and State, to investigate and resolve the Plaintiff's concerns/complaints"; and 2. a letter of 25 November 2016 from the Community Justice Department of New South Wales to Mrs Collier explaining the willingness of the State President of the Association to meet with Mrs Collier after she had emailed the State President as to what her concerns/complaints were ([33]).
Mrs Collier apparently contends that those communications contain defamatory imputations.
The statement of claim then alleges that Mrs Collier has suffered non-economic loss in respect of, first, pain and suffering and, second, "loss of amenities of life (enjoyment)" ([35]). The first of those heads of damage was particularised by reference to "unnecessary stress and breathing/lung problems by having constant worries in relation to, the conflict with the Defendant, initially through the Defendant's illegal removal of the Plaintiff, as Branch Secretary and through the Defendant, consistently upsetting the Plaintiff over a period of thirteen (13) months duration". The second was particularised by reference to suffering allegedly caused as a result of the Association expelling Mrs Collier's membership and her not being able to participate in any Association activities or to enjoy the organisational and representational activities within the community, which is said to have impacted on Mrs Collier's self-esteem and standing within the community of Wellington and surrounding areas.
While there were references in the statement of claim to the unlawful expulsion of Mrs Collier from the Association, as pleaded the claims were limited to claims in defamation.
The transcript of the hearing on 3 June 2016 records that the primary judge expressed the opinion that the claims made at [2]-[5] on the first page of the pleading (i.e., the claims other than the defamation claim) were not adequately pleaded (T 2.49).
When asked what was the cause of action she was seeking to pursue in relation to a breach of rules and regulations, Mrs Collier indicated that this related to the allegedly illegal removal of her from her position (as secretary) (T 4.39). AT T 5.47, Mrs Collier said: Well, that [in context "that" apparently being a reference to the defamation claim] 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 pointed out".
The primary judge informed Mrs Collier that if she wanted to pursue a challenge to the removal that would have to be pleaded more clearly (suggesting that Mrs Collier see a lawyer about that). When Counsel for the Association suggested that Mrs Collier be given an opportunity to amend (with which the primary judge seemed disposed to agree), Mrs Collier stated that she was quite prepared with the defamation part "to leave it as it is". The primary judge again informed Mrs Collier that if she wanted to prosecute a cause of action in respect of the decision to remove her as secretary then she would need to amend her pleading and indicated that a time frame would need to be set for that. However, Mrs Collier's position at that stage was that she wished only to prosecute the defamation cause of action "at the moment" (T 7.27).
Orders were made for the filing of a defence and any reply and the matter was stood over for its second listing on 12 August 2016, the primary judge having noted the parties' agreement as to the matter complained of for the purposes of the statement of claim (see annexure A to the 3 June short minutes of order).
At the second listing of the matter there was debate about discovery and interrogatories and the primary judge made an order for the parties to attend a Court appointed mediation on or before 14 October 2016.
The matter was relisted on 16 September 2016. On that occasion, Mrs Collier made (but then withdrew) an application that the primary judge recuse herself for apprehended bias, complaining as to the completeness or correctness of the transcript of the first listing hearing. The order for mediation was vacated by consent. Mrs Collier sought leave to amend her statement of claim, in order to append to it (as part of the pleadings) a lengthy affidavit she had sworn in support of her claims. That application was refused and it is the refusal of that application that is the subject of the present application.
Before turning to the proposed grounds of appeal, it is relevant to note that the Association did not oppose Mrs Collier having an opportunity to amend the statement of claim to add causes of action other than defamation; rather, what was opposed was to the form of the proposed amended statement of claim (see the exchange at T 7.44-50; T 9.38-10.10). Counsel for the Association made clear that if Mrs Collier filed an amended pleading which complied with the rules as to pleadings there would be no opposition to leave being granted for her to do so (T 11.22).
Relevantly, there was the following exchange between the primary judge and Mrs Collier: HER HONOUR: I am prepared to grant you a period of time within which to act on what I said in the transcript [of 3 June 2016] at pp 5 to 6 that I just read out to you. If you want that opportunity, I will make a direction granting you leave to serve a further proposed amended statement of claim which distils your causes of action in a way that the defendant can understand. PLAINTIFF: I have the statement of claim here now. It is exactly the same as the original. HER HONOUR: That is what is wrong with it, Mrs Collier. PLAINTIFF: Your Honour, no, the statement of claim is quite fine. If necessary we will go to the appeal court on it. (T 13.16-28; WB 106)
At T 13.49, there was the following exchange: HER HONOUR: Can I repeat the question: Do you want time to serve a further amended statement of claim or do you want me to rule now on the one that is before me today. PLAINTIFF: I want you to rule upon the one before you today.
The primary judge then gave ex tempore reasons for her decision to refuse leave for the filing of the proposed amended statement of claim. The primary judge there referred (at [10]) to what had been said by Bryson J in Northam v Favelle Favco Holdings Pty Ltd (Supreme Court (NSW) 7 March 1995 unrep) as to what a pleading is to contain and as to the requirement for particularity of pleading extending to all causes of action; and referred to his Honour's explanation as to the unfairness to a defendant if the defendant is required "to flesh out general expressions or indirect allusions by piecing together information in other documents such as affidavits or experts' reports".
The primary judge said (at [13]): … Mrs Collier has propounded a proposed amended statement of claim which does not distil the legal claims sought to be pursued by the original 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.
The primary judge was of the view, undoubtedly correctly, that that proposed amendment did not address the concerns that had been raised by the Association when the matter was first listed on 3 June 2016 ([14]). Accordingly, in view of Mrs Collier's rejection of the suggestion that she have a further period of time in which to propound a further proposed amended pleading, the primary judge rejected Mrs Collier's application to file the amended statement of claim in the form propounded. In circumstances where Mrs Collier had indicated her intention to appeal that ruling, the primary judge said there was no occasion for determining any of the other issues that had been foreshadowed for argument. Her Honour ordered that Mrs Collier pay the Association's costs of the amendment application but made clear that the costs so ordered were confined to the costs of defending that application. No order was made as to any other costs of the re-listing on 16 September 2016.

Proposed grounds of appeal

The summons seeking leave to appeal relates to the decision of the primary judge refusing leave to amend the statement of claim and ordering the costs of that application against Mrs Collier. Mrs Collier's draft notice of appeal, however, extends beyond an appeal from that decision and identifies the subject matter of her appeal as being: …the part of the decision below in relation to. A. Her Honour McCullum [sic] J's, refusal to grant the Plaintiff/Appellant Leave to file and serve, an Amended Statement of Claim. B. Her Honour McCullum [sic] J's, refusal to provide an Audio of transcript of the 3rd June 2016 proceedings. C. Her Honour McCallum J's, refusal to have the Respondent, brought before the Court, for Contempt of Court, for changing Order 1 of the sealed Court Orders of the 12th August 2016. D. Her Honour McCallum J's, refusal to cite the Respondent, responsible for the cancellation of the Mediation Order of the 12th August 2016. E. Her Honour McCallum J's, refusal to have Mr Daren Curry, the Respondent's Legal Representative brought before the Court, for Contempt of Court, for changing Order 1 of the sealed Court Orders, of the 12th August 2016. F. Her Honour McCallum J's, refusal to hear, that on the 18th August 2016 and thereafter, the Respondent, exerted undue pressure to force the Appellant to comply with the Order of the 12th August 2016, which they falsified. G. Her Honour McCallum J's, refusal to hear, that on/and after the 18th August 2016, Mr Daren Curry, the Respondent's Solicitor, exerted undue pressure on the Appellant, to comply with this falsified Court Order of the 12th August 2016. H. Her Honour McCallum J's, refusal to hear an Order, to Set Aside, or review Her Honour's Orders & "Court Notes", of the 3rd June 2016. I. Her Honour McCallum J's refusal to hear, an Order, to Set Aside, the Orders of Her Honour of the 12th August 2016. J. Awarding Costs to the Defendant/Respondent, for the 16th September 2016, for a court appearance arranged on the 24th August 2016 by Prothonotary Rebel Kenna, in writing, which was produced to Her Honour. K. Although not on the face of the record, Her Honour, stated what was said supposedly on previous occasions, to wit the 3rd June 2016.
None of the matters referred to in B-I or K is dealt with in the decision the subject of the proposed appeal. Nor were they the subject of oral submissions.
The grounds of appeal as stated in the draft notice of appeal are as follows: 1. The Appellant's Affidavit of the 21st April 2016, forms part of the Statement of Claim and was used in its entirety for the production of the Statement of Claim, complying with UNIFORM CIVIL PROCEDURE RULES 2005 15.19; 2. The Respondent, in writing on the 27th April 216, confirmed, receipt of both the Statement of Claim and large Affidavit on the 22nd April 2016, the date of service of both; 3. At no time, in compliance with Practice Note 4 SC CL, has either the Court or Respondent, disapproved of the Statement of Claim, for the purpose of Defamation. 4. McCallum J admitted not reading the relevant material in the proceedings. 5. The Orders of the 12th August 2016, contrary in transcript, enforced the Appellant to supply, what had been argued in the court and could not be supplied. 6. The Defendant's legal representative, Mr Daren Curry of Mills Oakley forwarded by e-mail transmission to the Plaintiff, on the 18th August 2016, a falsely worded Order 1 of the 12th August 2016 applying unequal force, onto the Plaintiff, to comply with this illegal order. 7. The Defendant's Legal Representative, was acting on the authority of the Respondent in the actions of point 6 above. 8. The Respondent, has filed a Defence and 2 Interrogatories, to the Applicant because they did not get the answer they required, but claim, that for the unchanged content of the Affidavit, to be annexed to the unclaimed content of the Statement of Claim, would place the Respondent in an unfair advantage and they would not know what to fight at the hearing. 9. Whilst, stating she had not read all the Affidavit on the 16th September 2016, Her Honour McCallum J on the 12th August, abused her authority, by asserting her power over the Appellant to give a YES or NO answer to an Interrogatory. 10. Her Honour McCallum J, on the 16th September 2016, freely, accepted that the Appellant had not complied with the second attempt by the Respondent's, in the interrogatories on the Appellant. 11. Her Honour McCallum J, hasn't abided by Practice Note SC CL 4, nor has Her Honour, enforced the Respondent's compliance, rather, has, through herself or Mrs Nicole Sinclair her Associate, accused the Appellant, in writing and transcript, of not doing so. 12. Her Honour McCallum J, on the 12th August 2016, abused her position, by making up falsities to abuse the Appellant and to state what she knew to be incorrect and detrimental to her proceedings outcome, in transcript.
Most of the proposed grounds of appeal have no relevance to the decision to reject Mrs Collier's amendment application and to impose costs in relation to that unsuccessful application. Ground 1 appears to be an assertion that the affidavit forms part of the statement of claim, which is an incorrect proposition. Ground 2 does no more than assert confirmed receipt by the Association of the statement of claim and affidavit. Ground 3 appears in terms to be confined to the defamation aspects of the claim.
In Mrs Collier's summary of argument, she states that she has not attempted to amend her statement of claim to include any claim other than for defamation (see [2(c)]). In the hearing today of the application for leave to appeal Mrs Collier confirmed that she is not seeking, by the proposed annexure of her affidavit to the pleading, to raise causes of action of the kind identified at [2]-[5] on the first page of her pleading. It appears that Mrs Collier has left that material on the first page of the statement of claim so that it cannot be suggested that she has done what has been criticised in other cases. Mrs Collier was at pains to emphasise that the proposed amendments to the original statement of claim (other than, of course, by incorporation of the affidavit) were to correct typographical or other errors.
Mrs Collier further asserts that no prejudice, embarrassment or delay could occur at the trial "by the allowing of the large Affidavit to be Annexed to the Statement of Claim, as the causes for the Defamation by the Respondent on the Applicant" (see [2(vi)]), this being put on the basis that the Association has been more aware of the issues than her and has had no problems in the filing of the defence, interrogatories or discovery. Mrs Collier submits that it is she who will be prejudiced if her affidavit cannot be annexed to the statement of claim and filed as an Amended Statement of Claim.

Determination

Before dealing with the application for leave to appeal, I should note that there was also listed before the Court today a notice of motion filed on 9 December 2016 by Mrs Collier in which Mrs Collier, in essence, sought orders as to the settlement of the index to the books to be filed for the purpose of this leave application and for the hearing today to be a "Leave and Appeal hearing" (by which I understand her to mean a concurrent hearing of the leave application and the appeal in the event that leave were to be granted). Mrs Collier's notice of motion also seeks that a determination be made as to the hearing of the Appeal and what it encompasses. In relation to that notice of motion, Mrs Collier handed up a medical certificate (a copy of which Mrs Collier emphasised had previously been provided to the Registrar) in which it was stated that Mrs Collier was unfit to deal with court proceedings until February 2017.
The subject matter of the notice of motion is to some extent now redundant in the sense that the notice of motion was stood over to this February (as Mrs Collier had sought) and Mrs Collier accepts that all the material which she wished to have included in the white folders has been included and she has been able to draw this Court's attention to any relevant material in those folders in support of her application for leave to appeal.
As to the listing of the matter for a leave only hearing rather than a concurrent hearing, that was a decision within the discretion of the President of the Court of Appeal. I see no basis on which to interfere with that decision.
The notice of motion has, in effect, been overtaken by events and it is not necessary to deal with it further. It should be dismissed with no order as to costs.
Finally, before addressing the question of leave to appeal, I note that Mrs Collier complained that the listing of the matter today had occasioned unfairness to her because she had understood that the notice of motion would be dealt with in the morning and the application for leave to appeal in the afternoon; that she had only had 48 hours to deal with this and had only recently received a full copy of the judgment to which the primary judge had referred in her reasons (that being the judgment in Northam). As to those matters, even on the assumption that Mrs Collier has only had 48 hours to prepare for the argument of this application and understood it would take place this afternoon rather than earlier in the day, I cannot see that any prejudice has been occasioned to her because on any view of the matter the primary judge was correct to refuse leave for the proposed amended statement of claim (as set out below).
The requirement for particularity of pleading causes of action is not met by the annexation of a lengthy affidavit to a statement of claim. The confusion to which this would be apt to give rise is well illustrated in the present case. Mrs Collier, in her summary of argument filed in this Court, has disavowed any attempt to amend her pleading to raise any claim other than her claim in defamation (a claim with which the Association has taken no pleading issue), yet has sought to incorporate into her statement of claim material contained in her lengthy affidavit that encompasses matters such as the convening of the special general meeting to confirm the resolution of the State Executive Committee of the Association to expel Mrs Collier from the Association.
Mrs Collier has made clear today that she is not seeking, by the proposed amendment, to raise claims of the kind listed at [2]-[5] of the first page of her pleading and that she is relying on this material solely in relation to her defamation claim. That should be noted for the purposes of the proceedings going forward. Even so, there is no error discernible in the exercise by the primary judge of her discretion to reject Mrs Collier's application to amend her statement of claim in the form in which she sought to do so.
To have permitted Mrs Collier to amend the statement of claim by incorporating her very lengthy affidavit could only have been productive of confusion. The Uniform Civil Procedure Rules make clear that pleadings are to contain material facts (r 14.7) and necessary particulars (r 15.1). The proposed amended statement of claim did not comply with either of those basic pleading rules. Further, Mrs Collier's reliance upon UCPR r 15.19 involves a fundamental misunderstanding of the particulars required by UCPR r 15.1 in a defamation proceeding. There is no warrant for a party to seek to incorporate in a pleading a 116 page affidavit (with annexures) which ranges far beyond particulars contemplated by the rule, under the guise of complying with the requirements of UCPR r 15.19.
The primary judge was prepared to permit Mrs Collier a further opportunity to propound an amended statement of claim in which any causes of action she wished to pursue (other than the defamation action) could be pleaded in a form compliant with the rules. Mrs Collier rejected that opportunity.
No issue of principle or question of public importance is raised in the present case. Nor has any error in the House v The King sense been identified. There has been no error of principle or material misapprehension of facts demonstrated; it has not been shown that the primary judge took extraneous or irrelevant matters into account or failed to take into account any relevant consideration; nor is the result unreasonable or plainly unjust so as to suggest an error of that kind.
Any appeal, were leave to be granted, from the primary judge's decision in those circumstances to reject the proposed amended pleading would be bound to fail. Nor is there any discernible error in the costs order made by her Honour. The general rule is that costs follow the event and the costs order was clearly restricted to the unsuccessful application to amend.
The proposed grounds of appeal that raise complaints not relating to the decision the subject of Mrs Collier's appeal do not arise for consideration. Suffice it to note, however, that a careful review of the transcript of the three occasions when the matter was before the primary judge shows that, far from exerting undue pressure on Mrs Collier (which seems to be part of what is complained of in the draft notice of appeal at G) or abusing her authority or position (proposed grounds 9 and 12), the primary judge was careful to explain procedural matters to Mrs Collier and to ensure she understood what was in issue on the relevant occasions. It should also be noted that the allegations comprised in proposed ground 12 are serious allegations to make and of a kind that should not have been made in circumstances where there is nothing in the material before this Court that would support the making of such allegations.
Mrs Collier in her oral submissions submitted that the primary judge had incorrectly referred in her judgment to what had been said on 3 June 2016 and pointed to a letter from the Court Services reporting branch confirming that no changes or additions had been made to the transcript. The transcript is, however, accurately stated in her Honour's reasons and there can be no complaint in relation to this.
Mrs Collier's summons seeking leave to appeal should be dismissed with costs.
PAYNE JA: I agree with Ward JA.
WARD JA: The orders of the Court are: 1. Notice of motion dated 9 December 2016 is dismissed with no order as to costs. 2. The applicant's summons seeking leave to appeal dated 6 October 2016 is dismissed. 3. The applicant is to pay the costs of the respondent of the summons seeking leave to appeal as agreed or assessed.

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: 21 February 2017

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Cited By (10)