Collier v Country Women’s Association of New South Wales

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):

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:

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:

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.