Collier v Country Women’s Association of New South Wales (No 4) [2017] NSWSC 1411

Supreme Court New South Wales

Medium Neutral Citation: Collier v Country Women's Association of New South Wales (No 4) [2017] NSWSC 1411 Hearing dates: 13 October 2017 Decision date: 17 October 2017 Jurisdiction: Common Law Before: McCallum J Decision: Pursuant to r 28.5 UCPR, that proceedings 2017/72463 be tried at the same time as proceedings 2016/122571 and that evidence in one be evidence in the other; that the matters referred to in order 1 be listed for hearing from 6 November 2017 to 10 November 2017; that the parties be entitled to rely on affidavits served in proceedings 2016/72463 in proceedings 2016/122571. Catchwords: CIVIL PROCEDURE – application to have two proceedings tried at the same time – proceedings involving same parties and some common questions – desirability of avoiding multiplicity of proceedings Legislation Cited: Civil Procedure Act 2005 (NSW), s 58 Uniform Civil Procedure Rules 2005 (NSW), r 28.5 Cases Cited: Cameron v McBain [1948] VLR 245 Category: Procedural and other rulings Parties: Marion Collier (plaintiff) Country Women's Association of New South Wales (defendant) Representation: Counsel: Plaintiff self-represented S Chrysanthou (defendant)

Solicitors: Mills Oakley (defendant) File Number(s): 2016/122571 Publication restriction: None

Judgment 1. HER HONOUR: Mrs Marion Collier has commenced two sets of proceedings in the Supreme Court against the Country Women's Association of New South Wales (CWA). One is an action for defamation commenced in the Common Law Division. The other is an action commenced in the Equity Division in which the cause of action is unspecified but which seeks, broadly, to contest aspects of the CWA's governance, including its decision to remove Mrs Collier from the position of secretary at the Wellington branch. 2. By notice of motion filed 9 October 2017, the CWA seeks to have the two proceedings tried at the same time, with evidence in each proceeding being evidence in the other. The application is opposed by Mrs Collier. For the following reasons I have concluded that the orders sought by the CWA should be made. 3. The application is brought pursuant to r 28.5 of the Uniform Civil Procedure Rules 2005 (NSW), which provides: 28.5 Consolidation etc of proceedings If several proceedings are pending in the court and it appears to the court: (a) that they involve a common question, or (b) that the rights to relief claimed in them are in respect of, or arise out of, the same transaction or series of transactions, or (c) that for some other reason it is desirable to make an order under this rule, the court may order those proceedings to be consolidated, or to be tried at the same time or one immediately after another, or may order any of them to be stayed until after the determination of any other of them. 1. The CWA relies on each of the three limbs of the rule. 2. The defamation action was commenced first in time. The circumstances in which those proceedings were commenced may be summarised as follows. As indicated above, Mrs Collier was a member of the CWA at the Wellington branch. By letter dated 11 March 2016, the CWA wrote to Mrs Collier to give notice that a complaint in relation to her had been made to the State Executive Committee. The letter provided examples of the complaint and invited her to make any submission by 4pm on 29 March 2016, failing which it was said the State Executive Committee would proceed to determine the complaint on the basis of the information before it. By letter dated 17 March 2016, the CWA provided further particulars of the complaint and confirmed the deadline of 29 March 2016 for receipt of any submissions from Mrs Collier. 3. On 1 April 2016 at an Extraordinary Meeting of the State Executive Committee a resolution was passed recommending that Mrs Collier be expelled from the CWA. By letter dated 5 April 2016 Mrs Collier appealed against that decision. In that circumstance, it appears the CWA was required to convene a Special General Meeting in relation to the complaint. 4. By letter dated 13 April 2016, the CWA gave notice of the Special General Meeting to 545 delegates of the CWA. That letter and its enclosures form the matter complained of in the defamation action. The enclosures were the notice of meeting for a Special General Meeting, the State President's letters to Mrs Collier of 11 March 2016 and 17 March 2016 referred to above, an extract of the minutes of the State Executive Committee meeting on 1 April 2016 at which it was resolved to recommend that Mrs Collier be expelled from the CWA, the State President's letter to Mrs Collier dated 1 April 2016 advising her of that decision and Mrs Collier's letter of 5 April 2016 giving notice of her appeal against the decision. 5. The defamation action was commenced by statement of claim filed 21 April 2016. On the coversheet Mrs Collier, who represents herself, identified the "type of claim" as follows. Defamation Act 2005. Constitution of the Country Women's Association of New South Wales Regulations and Rules. Civil Liability Act 2012 – part 2 division 2. Unlawful removal from executive position – Branch Secretary. Unlawful expelling of member of the Association. 1. However, the only discernible cause of action pleaded in the body of the document was the claim in defamation. At the first listing Ms Chrysanthou, who appears for the CWA, raised that issue, following which there was the following exchange: CHRYSANTHOU: Perhaps Mrs Collier should be given an opportunity to amend. HER HONOUR: Yes, yes, so what I think I will do is‑‑ PLAINTIFF: Well, I am quite prepared with the defamation part to leave it as it is. HER HONOUR: 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‑‑ PLAINTIFF: That can be looked at later on. HER HONOUR: Well, you will need to amend your pleading and I would need to set a time frame on that. PLAINTIFF: No, but what I meant was I can look at that later on in a separate pleading I suppose, couldn't I? HER HONOUR: I can't give you legal advice. PLAINTIFF: No, no, but I mean I can do the defamation without doing that? HER HONOUR: Yes, you can. PLAINTIFF: And the other paperwork relates to the defamation anyway. HER HONOUR: So you are indicating that you just want to prosecute the cause of action at the moment? PLAINTIFF: At the moment, yes. HER HONOUR: Okay. Well, in that event I will note that the plaintiff has indicated that for the time being she wishes only to prosecute the cause of action for defamation and I will make the orders set out in your short minutes, Ms Chrysanthou. 1. The need for Mrs Collier to amend her pleading if she wished to pursue the apparent complaint about unlawful expulsion was raised again by Ms Chrysanthou on 16 September 2016 (in the context of an application to make a different amendment), following which there was the following exchange: HER HONOUR: I am prepared to grant you a period of time within which to act on what I said in the transcript 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, Ms Collier. PLAINTIFF: Your Honour, no, the statement of claim is quite fine. If necessary we will go to the appeal court on it. The point is that we are now five, six months into the case and so far I have had to put up with, you know, what did I hear from Mr Chrysanthou, we filed our documents on time as if I haven't filed any documents on time. HER HONOUR: I think you are reading more into what those words mean than was intended. Can you please not interrupt me because in these proceedings it is clear enough that from what you have been putting to me and also the content of the transcript that this is going to be important and if someone interrupts someone else it makes it very hard for the court reporter to get an accurate transcript. If you are telling me you don't want another hearing and you want to go to the appeal court, I will rule now on the current amended statement of claim. PLAINTIFF: What I am saying is that there is nothing different from the original statement of claim. The defendant has filed a defence. The defendant has issued interlocutories onto me and yet now suddenly they are claiming originally what the cause of action is. 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 on the one before you today. HER HONOUR: Then you will go to the appeal court? PLAINTIFF: Yes, your Honour. HER HONOUR: I will just give reasons for that ruling. You can take a seat, Ms Collier. 1. At no stage did Mrs Collier seek leave to amend her pleadings in these proceedings so as to plead a claim for unlawful expulsion. 2. On 18 March 2017, Mrs Collier filed a summons in the Equity Division. On 5 April 2017, the Equity Registrar ordered that the matter proceed on pleadings and directed Mrs Collier to file and serve a statement of claim by 26 April 2017 (later extended to 10 May 2017). 3. The statement of claim was filed on 12 May 2017, which happened also to be the date on which I directed the parties in the defamation proceedings to approach the list clerk to obtain a hearing date. On 23 May 2017, the list clerk fixed the defamation proceedings for hearing on 6 November 2017 with an estimate of 5 days. The orders now sought by the CWA would see the Equity Division proceedings tried at the same time. 4. The orders sought by the CWA further contemplate that the evidence in each proceeding would be evidence in the other. In the Equity Division proceedings, in accordance with the usual practice in that Division, the parties have been directed to serve affidavits which would stand as the evidence in chief at the hearing. Affidavits are not ordinarily directed to be served in proceedings for defamation. However, the CWA proposes that, if an order is made for the proceedings to be tried at the same time, the parties would be entitled but not obliged to rely on the affidavits served in the equity proceedings as their evidence in chief in the defamation proceedings. 5. Rule 28.5 confers a discretion in the exercise of which the Court must seek to act in accordance with the dictates of justice having regard to mandatory considerations identified in s 58(2) of the Civil Procedure Act 2005 (NSW). 6. It is appropriate within that legislative framework to have regard to the desirability of avoiding multiplicity of actions and the saving of time and expense but the interests of the parties should not be prejudiced by the making of an order: Cameron v McBain [1948] VLR 245 at 247 (Herring CJ): 7. In the present case, the two proceedings involve the same parties. They involve at least one common question, namely, whether the plaintiff so conducted herself as a member of the CWA as to warrant being expelled from the CWA: see UCPR r 28.5(a). That issue arises in the defamation proceedings because the CWA has pleaded a contextual imputation in those terms (see par 10 of the defence filed 8 July 2016). It arises in the Equity Division proceedings because, in par 15(b) of the statement of claim, Mrs Collier asserts that she was "without just cause or reason dismissed from the defendant without any cause being given when requested and in breach of the time frame of the defendant for such". 8. There is substantial overlap between the matters pleaded in response to that sub-paragraph and the particulars provided in support of the contextual truth defence in the defamation proceedings. It is clear enough in the circumstances that the relief claimed by Mrs Collier in each proceeding arises, at least in part, out of the same series of events: see UCPR r 28.5(b). 9. Further, in my view, it is desirable to make the order for other reasons: see UCPR r 28.5(c). First, the evidence reveals that both the CWA and Mrs Collier seek to have the same five witnesses attend both hearings. The CWA has served affidavits from five witnesses in the Equity Division proceedings and seeks to rely on the evidence of those witnesses in the defamation proceedings. After receiving four of those five affidavits, Mrs Colllier wrote to the solicitor for the CWA in the following terms: I do trust, that at the of [sic] both the hearing of the hearing defamation case, on the 6th to 10th November 2017 and the equity matter, which is not yet put down for hearing, you will make available for cross examination, those people relied upon in the affidavits and those who have provided information but either named or not named in the said affidavits. 1. Four of the five witnesses to be called by the CWA are, unsurprisingly, women from the country. Mrs Collier also lives in the country and has often sought to avoid the inconvenience of travel by attending procedural hearings by telephone. It will be more convenient for all witnesses and for Mrs Collier to attend the Court for a single hearing in respect of both proceedings rather than attending twice at separate hearing sessions. 2. Secondly, having regard to the commonality in the issues in the proceedings, it would be preferable to have the issues in both proceedings determined by the same tribunal of fact. 3. As best I understood Mrs Collier's position from her lengthy oral submissions, she raises four principal points in opposition to the orders sought. 4. First, Mrs Collier submitted that the application has been brought too late and too close to the hearing fixed for the defamation proceedings. The CWA's notice of motion was filed on 9 October 2017, four weeks before the hearing date for the defamation action. It may be accepted that it could have been brought earlier. 5. Ms Chrysanthou stated that, when the Equity Division proceedings first came before the Court on 5 April 2017, "the Court was informed on that occasion that this issue was likely to arise, that the defendant would be seeking to have the matters heard together". Ms Chrysanthou said that was raised again before the Equity Registrar on 21 June 2017. 6. Mrs Collier stated that what Ms Chrysanthou had said on that issue was a deliberate lie. Mrs Collier said: Mr Adrian Papaianni appeared. He asked to have the two matters consolidated because he said your Honour said they should be consolidated and I said that was not the case and it was refused. 1. JusticeLink contains no record of any order refusing a consolidation application by the defendant. In any event, I accept that the timing of the application is a relevant consideration, the principal concern being to consider being whether Mrs Collier's interests are likely to be prejudiced by the making of the orders sought. I am not persuaded that they are. 2. The proposal to have the affidavits that have been served in the Equity Division proceedings stand as the evidence in chief in both proceedings actually places Mrs Collier in a better position than that ordinarily occupied by a plaintiff in proceedings for defamation, where the usual procedure is for evidence to be given orally. Contrary to Mrs Collier's apprehension at the hearing of this application, she will of course be given the opportunity to cross-examine the deponent of any affidavit read at the hearing. The defendant's provision of that evidence in affidavit form in advance of the hearing should make it easier, not harder, for Mrs Collier to prepare for the hearing. 3. Further, hearing the two proceedings together will have the result that Mrs Collier will obtain an earlier hearing date than might otherwise have been fixed for the Equity Division proceedings. All of the evidence in those proceedings has now been served, save for any evidence Mrs Collier may wish to rely upon by way of reply. Ms Chrysanthou indicated that the defendant would not seek to have that evidence put on in affidavit form prior to the trial if that imposes any difficulty on Mrs Collier. 4. A second reason relied upon by Mrs Collier in opposing the orders sought was the contention that the two proceedings do not arise out of the same facts. A careful review of the pleadings in both proceedings has persuaded me that there is sufficient commonality between the facts and issues that will arise in the two proceedings to produce a real efficiency in trying the two proceedings at the same time. 5. Thirdly, Mrs Collier placed some emphasis on what she understood to have been the historical position, namely, that the separation of the two actions was in some way sought or directed by the defendant or the Court. As revealed in the exchanges set out above, that reflects a misconception as to what occurred at the outset of the defamation proceedings. At no stage was Mrs Collier discouraged from including any cause of action based on her expulsion from the Country Women's Association in her pleadings in the defamation action; on the contrary. 6. Separately, Mrs Collier submitted, in substance, that the affidavits served in the Equity Division proceedings disclose that "they haven't called the right people". The defendant is of course entitled to call such evidence as it sees fit; any question of admissibility of the affidavit evidence can be addressed at trial. I do not think that is a factor relevant to the present application. 7. For those reasons, I make the orders sought in pars 1 to 3 of the defendant's notice of motion, as follows: 1. Pursuant to r 28.5 of the Uniform Civil Procedure Rules 2005 (NSW), that proceedings 2017/72463 be tried at the same time as proceedings 2016/122571 and that evidence in one be evidence in the other. 2. That the matters referred to in order 1 above be listed for hearing from 6 November 2017 to 10 November 2017. 3. That the parties be entitled to rely on affidavits served in proceedings 2017/72463 in proceedings 2016/122571.