Collier v Country Women's Association of New South Wales

Court of Appeal (NSW)|2018-07-10|Before: Beazley P, White JA, Gleeson JA

Solicitors: Mills Oakley (Respondent) File Number(s): 2017/360202; 2016/297965 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2018] NSWCA 36; [2017] NSWCA 22 Date of Decision: 9 March 2018; 21 February 2017 Before: Gleeson JA; Ward & Payne JJA File Number(s): 2017/36202; 2016/297965

[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.]

Disposition of the Four Motions

When the motions were called on for hearing, Mrs Collier appeared in person. The CWA appeared by counsel. The Court suggested to Mrs Collier that it may be appropriate, as a matter of logic, for certain prayers in the Review Motion to be dealt with before embarking upon the Competence and Security Motion. However, Mrs Collier made clear that, except for one matter, she did not wish to rely on any aspects of the relief sought in the Review Motion in connection with the Competence and Security Motion. That matter was irrelevant to the Competence and Security Motion. The Court therefore heard argument from counsel for the CWA and from Mrs Collier in relation to the prayers for relief sought by the CWA in the Competence and Security Motion.

The Competence and Security Motion

Despite the valiant efforts made by the Registrar to persuade Mrs Collier to keep her options open in relation to the question of the competence of the Notice of Appeal, Mrs Collier steadfastly declined to file an affidavit, as directed by Gleeson JA, setting out material facts to show that the restriction in s 101(2)(r) of the Supreme Court Act does not apply to the Notice of Appeal. Having regard to the findings made by Adamson J, albeit that those findings are the subject of the Notice of Appeal, there is nothing before this Court to suggest that there is any prospect that, even if an appeal were upheld, Mrs Collier would be likely to recover damages in an amount in excess of $100,000.
Mrs Collier sought to rely on s 101(3) of the Supreme Court Act, which relevantly provides that s 101(2) does not apply to an order for the committal or arrest of any person. Mrs Collier contended that s 101(3) was enlivened because she had asked Adamson J to make an order of committal against two individuals and the Commonwealth Bank of Australia for breaches of s 251 of the Crimes Act 1900 (NSW) (inducing acceptance of false document). No order for committal or arrest was made. Section 101(3) does not apply.
In the circumstances, Mrs Collier has no right of appeal except with the leave of the Court. She has expressly declined to seek that leave. It follows that the Notice of Appeal should be dismissed on the basis that the appeal is incompetent and is not authorised by s 101 of the Supreme Court Act.
The dismissal of the Notice of Appeal has the consequence that there is no utility in dealing with the Reopening Motion, the Review Motion, the alternate relief sought in the Competence and Security Motion or prayer 10 of the December Motion. However, since questions of costs in relation to those applications may arise, it is desirable to say something about them.
In the Competence and Security Motion, the CWA sought, in the alternative, an order that Mrs Collier give security for its costs of the Re-opening Motion and of the appeal. The evidence of Mr Papaianni demonstrates that there are good grounds for concluding that Mrs Collier is impecunious, such that she would not be able to meet an order for costs against her. Indeed, that does not appear to be in issue so far as Mrs Collier is concerned. However, impecuniosity is not, of itself, a basis for ordering security for costs of an appeal against an individual. Under UCPR r 51.50, the Court may order security only in special circumstances, in which event the Court may order that, if an appellant fails to comply with such an order, the appeal be dismissed.
Mrs Collier has a history of filing applications in proceedings against the CWA without reasonable prospects of success and of conducting herself in relation to such applications in a manner that inflates legal costs. For example, the application to set aside the orders of 17 February 2017 was not filed until 24 October 2017. No explanation for the delay was given. An inference that might be drawn is that it was prompted by the service on Mrs Collier of particulars of the costs claimed by the CWA coupled with the order that the Equity Proceedings be heard with the Defamation Proceedings. In any event, the Re-opening Motion has no possible prospects of success and is totally misconceived.
In the Notice of Appeal, Mrs Collier seeks to agitate all legal and factual issues raised at first instance in both the Defamation Proceedings and the Equity Proceedings. She declined to seek leave to appeal or to comply with the direction given by Gleeson JA to file an affidavit setting out material facts to show that the restriction in s 101(2)(r) of the Supreme Court Act does not apply to the Notice of Appeal.
The Notice of Appeal is of inordinate length and is, for the most part, incomprehensible. It includes multiple claims of actual bias on the part of Adamson J. The complaints appear to be based on the fact that contentions advanced by Mrs Collier were rejected.
In the Defamation Proceedings, Adamson J accepted that the imputations sued upon by Mrs Collier were substantially true and that the CWA had established defences of qualified privilege both under the general law and under statute. There is nothing in the grounds of appeal or in the submissions filed by Mrs Collier in support of the Notice of Appeal to suggest any basis for interfering with the conclusions reached by Adamson J in that regard.
In the circumstances, if the Notice of Appeal were not dismissed as incompetent, it would be appropriate to order Mrs Collier to provide security for costs of the appeal. CWA has already incurred costs in excess of $200,000 in the litigation with Mrs Collier. The affidavit of Mr Papaianni of 4 December 2017 estimates the cost of the appeal at $35,200. While security for costs is not normally required to be for an amount equal to the total costs likely to be ordered against an unsuccessful party, the circumstances of the present case are such that it would have been reasonable to order Mrs Collier to provide security for costs of the appeal in that sum in a form acceptable to the Registrar.
For the reasons outlined above, the Competence and Security Motion has considerable substance and merit. It is certainly not within UCPR r 13.4, which deals with frivolous and vexatious proceedings. The remaining prayer for relief of the December Motion (paragraph 10) should be dismissed with costs.

The Re-opening Motion

The Re-opening Motion is completely without foundation and misconceived. It has no utility whatsoever, following the final disposition of the Defamation Proceedings. Whether or not the refusal of leave to amend would be a ground of appeal, no such ground is raised in the Notice of Appeal. Clearly, the Re-opening Motion must be dismissed with costs. If it were not dismissed, it would have been appropriate to order Mrs Collier to provide security for CWA's costs of the Re-opening Motion, which were estimated in the sum of $4,896.

The Review Motion

Mrs Collier sought to support the Review Motion with some 40 pages of typed submissions. The submissions make allegations of "defamatory, bullying, harassing and intimidating" conduct on the part of a solicitor for the CWA. The submissions also make allegations of "inaccuracies" in the reasons of Gleeson JA. Complaints are made about the rejection of the Appeal Affidavit of 24 November 2017. Complaints are also made about the failure of the Registry, the Registrar of the Court of Appeal and the Chief Justice "to look into this matter", as there was, apparently, some delay in emailing the reasons of Adamson J. The submissions also complain about the fact that Gleeson JA dealt with the various motions rather than the Referrals Judge, notwithstanding that Mrs Collier said expressly that she had no objection to Gleeson JA dealing with the motions. Mrs Collier then complains about Gleeson JA's refusal to recuse himself and makes allegations of actual bias. The allegations of bias appear to be based on conclusions reached by his Honour adverse to the contentions advanced by Mrs Collier. There is no substance whatsoever in the complaints and allegations made by Mrs Collier. The submissions then make various assertions in relation to the orders made by Gleeson JA in dealing with the December Motion and the February Motion.
Having regard to the conclusion reached above concerning the incompetence of the Notice of Appeal, it is unnecessary to canvass the assertions made by Mrs Collier in any detail. The Review Motion is completely without substance and no basis has been demonstrated for interfering with the orders made by Gleeson JA on 6 March 2018 and 9 March 2018. The Review Motion should therefore be dismissed with costs.

Conclusion

The orders that should be made are as follows:
The Notice of Appeal, filed on 28 November 2017, be dismissed.
The appellant pay the respondent's costs of the Notice of Appeal.
The respondent's motion of 5 December 2017 be otherwise dismissed.
The appellant pay the respondent's costs of the motion of 5 December 2017.
The appellant's motion of 12 December 2017 be dismissed to the extent that it has not already been dismissed.
The appellant pay the respondent's costs of the motion of 12 December 2017.
The appellant's motion of 16 March 2018 be dismissed.
The appellant pay the respondent's costs of the motion of 16 March 2018.
The Notice of Motion filed on 24 October 2017 in proceedings 2016/297965 be dismissed to the extent that it has not already been dismissed.
The applicant on the motion of 24 October 2017 pay the costs of the respondent to that motion.

Endnotes

Proceedings 2016/122571.
Collier v Country Women's Association of New South Wales [2016] NSWSC 1361
[2016] NSWSC 1361 at [10].
Proceedings 2016/297965.
See Collier v Country Women's Association of New South Wales [2017] NSWCA 22.
[2017] NSWCA 22 at [34].
[2017] NSWCA 22 at [36].
Proceedings 2017/72463.
See Collier v CWA (No 4) [2017] NSWSC 1411.
See Collier v Country Women's Association of NSW [2017] NSWSC 1573
See [2017] NSWSC 1573 at [352]-[355].
See Collier v Country Women's Association of New South Wales (No 2) [2017] NSWSC 1729.
See Collier v Country Women's Association of New South Wales [2017] NSWCA 303
Proceedings 2017/360202.
Collier v Country Women's Association of New South Wales [2018] NSWCA 36.

Amendments 20 August 2018 - [8], line 2, change 21 February 2018 to 17 February 2017 [32], lines 7 and 8, change "costs an appeal against individual" to "costs of an appeal against an individual" [38], line 3, change "vexations" to "vexatious" 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: 20 August 2018

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