Collier v Country Women’s Association of New South Wales (No 4)

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.

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.

The application is brought pursuant to r 28.5 of the Uniform Civil Procedure Rules 2005 (NSW), which provides:

The CWA relies on each of the three limbs of the rule.

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.

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.

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.

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.

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:

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:

At no stage did Mrs Collier seek leave to amend her pleadings in these proceedings so as to plead a claim for unlawful expulsion.

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).

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.

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.

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).

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):

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”.

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).

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:

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.

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.

As best I understood Mrs Collier’s position from her lengthy oral submissions, she raises four principal points in opposition to the orders sought.

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.

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.

Mrs Collier stated that what Ms Chrysanthou had said on that issue was a deliberate lie. Mrs Collier said:

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.

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.

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.

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.

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.

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.

For those reasons, I make the orders sought in pars 1 to 3 of the defendant’s notice of motion, as follows: