Collier v Country Women's Association of New South Wales (No 3)

[2017] NSWSC 604

Supreme Court

New South Wales

Medium Neutral Citation:	Collier v Country Women’s Association of New South Wales (No 3) [2017] NSWSC 604
Hearing dates:	12 May 2017
Decision date:	12 May 2017
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Parties directed to approach the list clerk to obtain a hearing date (judge alone) with an estimate of five days; proceedings stood over to 14 July for mention to ascertain whether hearing date obtained; application for payment of the plaintiff’s expenses refused.
Catchwords:	CIVIL PROCEDURE – late service of documents – where documents served by email one business day after due date – whether serving party should be reprimanded
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 4.6
Category:	Procedural and other rulings
Parties:	Marion Louise 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

Judgment

1. HER HONOUR: These are proceedings for defamation commenced by Mrs Marion Collier against the Country Women’s Association of New South Wales. The proceedings are listed today for completion of the steps contemplated by the Defamation List Practice Note SC CL 4 for the second listing.

2. The Court’s previous orders required the defendant to serve verified answers to interrogatories administered by Mrs Collier by 5 May 2017. The defendant was late in serving the verified answers. The defendant asserts that it sent the answers by email one business day after the due date. That is, by email dated 8 May 2017.

3. Mrs Collier today raises two complaints in respect of the defendant’s answers. The first is that she says she did not, in fact, receive the email dated 8 May 2017. Ms Chrysanthou has tendered a copy of the sent email, on the face of which it is unclear why it might not have been received by Mrs Collier.

4. Separately, Mrs Collier says that, by notice filed and served last year, she changed her address for service. stating that she would no longer receive service of documents at the email address and nominating a postal address for service of documents in the future. The defendant says that, whilst its recent inquiries have revealed that such a notice was filed, it was not served on the defendant.

5. Rule 4.6 of the Uniform Civil Procedure Rules 2005 (NSW) provides that “a person may change his or her address for service by filing a notice of the change showing the new address for service and serving the notice on all other active parties”. Mrs Collier was unable today to provide proof of service of the notice on the defendant.

6. Mrs Collier seeks an order, in the circumstances I have outlined, that the defendant be reprimanded for its breach of an order of the Court. I am not persuaded that that is appropriate. It is, of course, the obligation of every party to proceedings to comply with the orders of the Court.

7. I am satisfied that the answers to the interrogatories were sent by email on Monday and that, in the circumstances, that was the appropriate mode of service, the defendant not having been served with the notice of change of address. I accept Ms Chrysanthou’s statement to the Court that the defendants were not aware of the putative change of address.

8. Upon being informed that service by email was no longer acceptable to Mrs Collier, the defendant reacted appropriately, sending the answers by post on Wednesday. Nothing in the defendant’s conduct as revealed by the information put before the Court today warrants the defendant’s being reprimanded.

9. The only other matter to be dealt with today, as contemplated by the Practice Note, is to refer the proceedings to the list clerk to obtain a hearing date. The parties agree on an estimate for the time of the hearing of five days. I am satisfied that that is appropriate, noting that the proceedings are to be tried by judge alone.

10. The difficulty arises as to the means by which the parties can communicate with a view to obtaining a hearing date. The defendant will communicate with the list clerk by mail. It is not clear to me from Mrs Collier’s responses, however, whether she is content for the list clerk to communicate with her by email to obtain a hearing date. Plainly, if she insists upon communication by post, that will slow the process for obtaining a hearing date. That is a matter for Mrs Collier.

11. I refer the proceedings to the list clerk to obtain a hearing date with an estimate of five days. I stand the proceedings over to 14 July for mention to ascertain whether a hearing date has been obtained.

12. Mrs Collier also sought her costs of her appearance today. It was indicated to Mrs Collier on the last occasion, as noted on the record of proceedings for 7 April 2017, that she could appear by telephone today should she wish to do so, in which case she should notify the Court shortly before the adjourned date.

13. Mrs Collier is unrepresented and is not entitled to an award of legal costs, but could be appropriately awarded expenses in an appropriate case. She submitted it was not possible for her to appear by telephone today, having regard to the nature of the application she wished to make and the need to provide material, including a copy of an email exchange with my Associate. That material could easily have been put before me with Mrs Collier attending by telephone.

14. I am not persuaded it was necessary for her to travel to Sydney specifically for the purposes of these proceedings today.

15. The application for payment of her expenses is refused.

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