Collier v Country Women's Association of NSW

[2017] NSWSC 1573

Supreme Court

New South Wales

Medium Neutral Citation:

Collier v Country Women’s Association of NSW [2017] NSWSC 1573

Hearing dates:

6, 7, 8, 9, 10 November 2017

Decision date:

17 November 2017

Before:

Adamson J

Decision:

In proceedings 2016/122571:

 

(1) Order judgment for the defendant.

 

(2) Reserve costs.

 

(3) Direct that any application for costs, together with any evidence in support, be delivered to my Associate in writing within 7 days hereof, that any response be delivered to my Associate within a further 7 days, and that any reply be delivered to my Associate within a further 5 days.

 

In proceedings 2017/72463:

 

(1) Dismiss the summons.

 

(2) Reserve costs.

 (3) Direct that any application for costs, together with any evidence in support, be delivered to my Associate in writing within 7 days hereof, that any response be delivered to my Associate within a further 7 days, and that any reply be delivered to my Associate within a further 5 days.

Catchwords:

DEFAMATION – judge-alone trial – publication of material relating to plaintiff’s appeal against her expulsion from the Country Women’s Association (NSW) – matter complained of published only to delegates entitled to vote on whether to confirm decision of State Executive to expel the plaintiff - whether imputations carried – defences of statutory and common law qualified privilege – contextual truth – contextual imputation that the plaintiff had so conducted herself as to warrant expulsion from the CWA proved true – justification – HELD – defence of common law and statutory qualified privilege made out – truth of all imputations established

 

DAMAGES – difficulty of framing hypothesis on which damages to be assessed having regard to findings on defences – obligation of trial judge to determine all issues does not extend to all hypothetical issues – no requirement where would require arid hypothetical exercise – facts found to permit assessment if required

  INCORPORATED ASSOCIATIONS – whether issues justiciable – jurisdiction to grant declaratory relief may permit determination – factual basis for declarations not made out – application for equitable relief refused

Legislation Cited:

Country Women’s Association of New South Wales Incorporation Act 1931 (NSW)(Private Act)
Defamation Act 2005 (NSW), ss 25, 26, 30, 34, 35
Supreme Court Act 1970 (NSW), ss 75, 75A
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Australian Broadcasting Corporation v McBride (2001) 53 NSWLR 430; [2001] NSWCA 322
Bashford v Information Australia (Newsletters) Pty Limited (2004) 218 CLR 366; [2004] HCA 5
Cameron v Hogan (1934) 51 CLR 358
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; [1993] HCA 31
Dansar Pty Ltd v Byron Shire Council [2013] NSWSC 17; (2013) 196 LGERA 39
Dansar Pty Ltd v Byron Shire Council (2014) 89 NSWLR 1; [2014] NSWCA 364
Fairfax Media Publications Pty Ltd v Zeccola (2015) 91 NSWLR 341; [2015] NSWCA 329
Greek Herald Pty Ltd v Nikolopoulos (2001) 54 NSWLR 165; [2002] NSWCA 41
In the matter of Pioneer Energy Holdings Pty Ltd [2013] NSWSC 425
Khan v O’Dea [1985] Hong Kong L.R. 237 (H.C.)
Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632; [1979] HCA 3
Pamplin v Express Newspapers Ltd [1988] 1 WLR 116
Re NSW Bar Association [2014] NSWSC 1695; (2014) 315 ALR 146
Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500; [1982] HCA 4
Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57
Rose v Boxing NSW Inc [2007] NSWSC 20
Toogood v Spyring (1834) 149 ER 1044
Wolfenden v International Theme Park Pty Ltd [2008] NSWCA 78

Texts Cited:

Brown on Defamation (Canada, United Kingdom, Australia, New Zealand, United States) (formerly The Law of Defamation in Canada)(2nd ed 1994, Carswell)
NSW Government Gazette No 56, 26 May 2017, at 1782

Category:

Principal judgment

Parties:

Marion Louise Collier (Plaintiff)
Country Women’s Association of New South Wales (Defendant)

Representation:

Counsel:
Plaintiff in person
S Chrysanthou/ B Dean (Defendant)

  Solicitors:
Mills Oakley (Defendant)

File Number(s):

2016/122571; 2017/72463

Judgment

Introduction

1. The plaintiff, Marion Collier, claims damages for defamation against the defendant, the Country Women’s Association of New South Wales (CWA, the defendant, or CWA (NSW)) (the Defamation proceedings). The matter complained of was a letter dated 13 April 2016 which was sent to 545 members or executives of the CWA (the April Letter). The defendant admits publication to the 545 recipients and that the imputations are defamatory but otherwise relies on the defences of justification (s 25 of the Defamation Act 2005 (NSW) (the Act)); contextual truth (s 26 of the Act); statutory qualified privilege (s 30 of the Act); and common law qualified privilege. The plaintiff alleges in her reply to the defences of common law and statutory qualified privilege that the publication of the April Letter was not reasonable and was actuated by malice.

2. The plaintiff also seeks orders against the CWA, including an order that her removal from the position of Secretary of the Wellington Branch of the CWA was illegal (the Equity proceedings). The defendant denies the allegations, contends that the resolutions sought to be impugned were passed in accordance with the CWA’s rules and regulations and that the plaintiff’s claim discloses no cause of action.

3. The Defamation proceeding and the Equity proceeding were ordered to be heard together because of the overlap in the evidence relevant to each.

4. The issues in each proceeding are distinct. However, as the narrative is potentially germane to both, I propose to set out my findings before turning to the causes of action or relief claimed. The breadth of the contextual imputation alleged by the defendant (“The plaintiff had so conducted herself as a member of the CWA as to warrant her being expelled from the CWA”) requires a detailed narrative to be set out in the reasons. Significant passages from relevant documents are extracted since it would be difficult, in the case of some documents (particularly those created by the plaintiff) to reflect either their contents or their tone by paraphrasing them.

Facts

5. The CWA is a not-for-profit organisation, which was incorporated pursuant to the Country Women’s Association of New South Wales Incorporation Act 1931 (Private Act) (NSW) (the CWA Act). The CWA is regulated by the Constitution of the Country Women’s Association of New South Wales Regulation and Rules (the CWA Constitution). The CWA in New South Wales is comprised of 30 regional groups which are divided into 400 local branches. The Wellington branch, of which the plaintiff was a member at relevant times, was within the Macquarie Group.

6. The CWA’s aims include bringing all women and families together and forming a network of support; providing a forum for the voice of all women in New South Wales; and the improvement of conditions for all women and families, especially in country areas, including by lobbying for legislative changes, helping the local community and creating a network of support for members (CWA Constitution, reg 5).

The CWA Constitution

7. The CWA Constitution relevantly provides:

“15. DISCIPLINING OF MEMBERS

(1) A complaint may be made to the Executive Committee by any person that a member of the Association:

(a) has persistently refused or neglected to comply with a provision or

provisions of the rules and regulations, or

(b) has persistently and wilfully acted in a manner prejudicial to the

interests of the Association.

(2) On receiving such a complaint, the Executive Committee:

(a) must cause notice of the complaint to be served on the member

concerned, and

(b) must give the member at least 14 days from the time the notice is served within which to make submissions to the Executive Committee in connection with the complaint, and

(c) must take into consideration any submissions made by the member in connection with the complaint.

(3) The Executive Committee may, by resolution, expel the member from the

Association or suspend the member from membership of the Association if,

after considering the complaint and any submissions made in connection with the complaint, it is satisfied that the facts alleged m the complaint have been proved.

(4) If the Executive Committee expels or suspends a member, the secretary

must, within 7 days after the action is taken, cause written notice to be given

to the member of the action taken, of the reasons given by the Executive

Committee for having taken that action and of the member's right of appeal

under sub-regulation (6).

(5) The expulsion or suspension does not take effect

(a) until the expiration of the period within which the member is entitled to appeal against the resolution concerned, or

(b) if within that period the member exercises the right of appeal, unless and until the Association confirms the resolution under sub-regulation

(6)(v), whichever is the later.

(6)    (i) A member may appeal to the Association in general meeting against a resolution of the Executive Committee made under this regulation within 7 days after notice of the resolution is served on the member, by lodging with the Secretary a notice to that effect.

(ii) The notice may, but need not, be accompanied by a statement of the grounds on which the member intends to rely for the purposes of the appeal.

(iii) On receipt of a notice from a member under paragraph (l), the secretary must notify the Executive Committee which is to convene a general meeting of the Association to be held within 28 days after the date on which the Secretary received the notice.

(iv) At a general meeting of the Association convened under paragraph (iii)

(a) no business other than the question of the appeal is to be transacted,

and

(b) the Executive Committee and the member must be given the opportunity to state their respective cases orally or in writing, or both,

and

(c) the members present are to vote by secret ballot on the question of whether the resolution should be confirmed or revoked

(v) If at the general meeting the Association passes a special resolution in favour of the confirmation of the resolution, the resolution is confirmed.

. . .

80. All Branches shall manage their own affairs within the aims and subject to

the Constitution of the Association.

81. Any member of a Branch having a grievance or who desires to settle a

difficulty after having stated same at a Branch meeting may put the matter before the Council of her group. Should the Group Council fail to arrive at a decision the member may ask the Group Council to bring the matter before the Executive Committee, whose decision shall be final.

. . .

86. No Branch shall approach a Government Department excepting with the consent and approval of the Executive Committee. A personal approach to a Government Department when approved by the Executive Committee, shall be made only by the President of the Association or her deputy or such other person as is authorised by the Executive Committee, all of whom shall be accompanied by another member of the Executive Committee or other person approved by it. . .”

. . .

BRANCH SECRETARY

107. The Secretary shall -

(a) Enter all Minutes of meetings in a book kept for the purpose and enter in the Minutes the amounts of bills passed for payment at Branch meetings.

(b) Keep a Petty Cash Book.

(c) Receive the correspondence and read it to the meeting and reply as directed.

(d) Preserve all relevant papers and documents.

(e) Keep a complete list of members' names and addresses and forward a copy annually to Head Office.

(f) Prepare the annual report of the Branch for the Annual Meeting and forward a report to the Group Secretary.

(g) Perform all duties pertaining to her office as her President shall

from time to time direct.”

The CWA’s Grievance Handling Procedure

8. Shortly after Mrs Tanya Cameron’s election to the position of State President of CWA (NSW) in May 2013 (a position which she held for two years), the CWA finalised the document which made provision for its Grievance Handling Procedure.

The plaintiff’s initial involvement with the CWA

9. The plaintiff became a member of the CWA in about October 2010. In about July 2011 she transferred from the Gulgong branch, which was in the Castlereagh Group, to the Wellington branch, which was in the Macquarie Group. She held the position of social secretary of the Macquarie Group from October 2011 to October 2013. As such, it was her responsibility to organise or co-ordinate the accommodation for members of the Wellington branch for the annual conferences which were held in May each year.

The Blacktown conference in May 2012

10. Every year the CWA held a conference. In 2012 the conference was held in Blacktown. Arrangements were made for representatives of the CWA attending the conference to stay at the Travelodge Blacktown from 5 to 11 May 2012. Ruth Cargill, who later became State Vice President and State Honorary Treasurer, became aware at about this time that many members of the Macquarie Group were concerned about the way the plaintiff spoke to staff at the Travelodge Blacktown. As far as Ms Cargill could recall, the plaintiff was not informed of the members’ concern because, as she understood it, they were “trying to protect” the plaintiff.

The Moree conference in May 2013

11. The CWA State conference was held in Moree in May 2013. Representatives of the CWA stayed at the Spa Village Travel Inn in Moree from 3 to 10 May 2013. The plaintiff put to Ms Cargill that there could not have been complaints about her behaviour with respect to the Travelodge Blacktown if she was permitted to do the bookings for the following year. Ms Cargill responded as follows:

“[W]hen people weren't happy with what you had done in Blacktown they gave you the benefit of the doubt that it was a one-off, that it was a one-off in not dealing very well and not making CWA look very good to outside organisations, in that sense the Travelodge.

. . . From memory there were then complaints about not - I actually don't remember and partly why it's not in the affidavit whether it was the way you spoke to the people organising it from Castlereagh Country Group and or the people organising the place that we were staying and or there was also issues with the way you spoke to the Phillip Group person who was organising our . . . dinner.

So there were all of those things, and I don't remember so I couldn't swear in an affidavit which it was, but there were people concerned about the way you were presenting CWA and Macquarie Group to other people we were dealing with.”

The grant to the CWA’s Wellington branch

12. The federal government made a grant of $4,105 to the CWA’s Wellington branch in 2013. The grant became an issue in the proceedings because the plaintiff, when she became secretary of the branch in October 2014 (see below), raised several issues regarding the probity of the branch’s conduct with respect to the grant. Accordingly, it is necessary to set out the evidence relating to the grant.

13. By email dated 28 July 2013 the then Department of Families, Housing, Community Services and Indigenous Affairs (FoHCSIA), which became the Department of Social Services, offered a grant to the Wellington branch of the CWA under a program known as Volunteer Grants 2013.

14. The terms of the funding included a term that the grantee allow the Department’s representatives the right to inspect the branch’s records relating to the grant for a period of up to 5 years from the completion date (cl 6). Clause 7 provided for circumstances in which the funding would have to be repaid, including if the amount of the grant was not spent at the completion date; the grantee was unable to spend the whole grant in accordance with the agreement; or that an amount was spent other than in accordance with the agreement. Clause 7.2 provided that if the grantee was obliged to repay an amount under cl 7.1, it must be repaid within 20 business days after a notice in writing had been given by the Department. There is no suggestion that the Wellington branch was ever given a notice under cl 7.2 to repay any money from the grant which had not been spent.

15. On 12 August 2013 an article appeared in the Wellington Times with the headline, “Change of time for CWA”. The following appeared in the article:

“The Wellington CWA has held daytime meetings for more than 90 years, but they are now considering a change following a surge in local interest among women who cannot make it during the day.

‘If we are to survive, we need to change with the times,’ Wellington president Pat Bell said.

‘Because a lot of women are working these days.’

. . .

The meeting will be held at 6.30pm tonight at the CWA Hall to gauge interest in 6pm meetings.

. . .”

16. The plaintiff was concerned when she read the article because she understood that something of that gravity needed to be raised at group, rather than branch, level. According to the plaintiff she raised the article with Kathie Carolan, who had been the President of the Macquarie Group from October 2012 and held the position until October 2015. I accept the defendant’s submission that, in approaching Mrs Carolan before she had raised the matter with a Wellington branch meeting, the plaintiff breached reg 81 of the CWA Constitution (set out above).

17. In 2013 Ms Beverley Cameron was the secretary of the Wellington branch. On 2 September 2013, the plaintiff telephoned Mrs Carolan and complained about how long it was taking Ms Beverley Cameron to prepare the minutes of the branch meetings. Mrs Carolan explained to the plaintiff that there was no hard-and-fast rule about when the minutes of a branch meeting needed to be completed, as long as they were distributed before the following branch meeting.

18. The plaintiff was not able to attend the annual general meeting (AGM) of the Wellington branch on 25 October 2013 and gave her apologies. Although she expressed a willingness to continue as social secretary for another term she was not re-elected.

The CWA conference in Griffith in 2013

19. A CWA conference was held in August 2013 in Griffith, for which accommodation at the Kidman Wayside Inn was booked in advance for those attending. On 13 May 2013 the plaintiff emailed Debra Pinkerton, a member of the Phillip Group, in the following terms:

“Macquarie Group would like to accept 10 rooms and can you have our rooms separate from Phillip Group at the Motel and put in my name of Marion Collier with the contact e-mail and telephone number of 02 68454530?

I was also wondering if any of those 25 rooms are still free, please let me have first option as I will not know until our next council meeting as to the number of ladies that are interested in going to Griffith.

Thank you”

20. Mrs Pinkerton responded on the same day and told her that she would be able to advise about spare rooms once the Phillip Group have had their next meeting. It appears that Mrs Pinkerton did not update the plaintiff as foreshadowed. On 12 October 2013 the plaintiff forwarded these emails to Patricia Boyer, who was then a member of the CWA Phillip Group.

21. On 16 October 2013, the plaintiff sent an email to Mrs Boyer, which was copied to Mrs Carolan, in the following terms:

“Rang the Kidman this morning and am told by Sabrina the Manager that they have not heard anything from anyone. This was after a Laura told me that the only person that could do anything with the Kidman was Debra Pinkerton.

I find this very unhelpful especially since Debra never followed up on what she was supposed to do and when I telephoned Shirley your Secretary and she was going to have Debra sought things out and get onto me I hear nothing for 6 weeks or more and then when I get onto you, I find out they went to India to the Conference and then onto Europe and will not be back until November.

Debra might be Shirley's daughter but it is Shirley's responsibility as the Secretary for your group to ensure when an offer is made to the Macquarie Group President at the group dinner of arranging the Motel for both groups, that she should not ignore and treat the Macquarie group like fools and leave them in the dark. It is me as Social Secretary and my President that have to answer to the ladies from Macquarie not Shirley or her daughter who should have nothing to do with it.

May I also point out to you that the booking was made prior to the last day of conference at Moree, obviously Debra needs to be informed that we are not permitted to do this, but the Kidman can confirm it was first tentatively booked by Debra even prior to the group dinner, so was booked without even asking

Macquarie. How will the ladies from this group trust either our President or me from what [sic] mistake was not done by us but by Debra, who fair enough if she was assisting her mother, she should have ensured she was more careful and stuck to the rules, it is her mother's name she is doing it in and therefore her mother that looks bad, not her.

I do hope you are able to straighten this mess out, I do not appreciate being told that I cannot do anything because on[ly] Debra can do it. I trust this will be given your earliest attention.”

22. It was put to the plaintiff in cross-examination that the email she had sent to Mrs Boyer (extracted above) was a rude email which was critical of Mrs Pinkerton and her mother, Shirley. The plaintiff rejected the proposition and said:

“I'm saying it's not a criticism if, in fact, it has occurred.”

23. The plaintiff rejected the proposition that her email to Mrs Boyer was defamatory and explained that defamation meant that you cannot say something against someone’s character that was unfounded unless it is true. The plaintiff did not accept that her email was either rude, derogatory or critical. She also rejected the possibility that Mrs Pinkerton had simply forgotten to get back to her after the next meeting of the Phillip Group, as foreshadowed in her email of 13 May 2013.

24. Mrs Boyer responded by email later on 16 October 2013 confirming that a reservation had been made. On 17 October 2013, Mrs Carolan emailed the plaintiff in the following terms:

“Hi Marion,

Have just realised that the email I received was a cc to me on an email you sent to Patricia. Please never send an email in that tone to another group without it being passed by me. I asked you to make enquiries on our behalf to

see where we were at, NOT to accuse to ladies of Phillip Group of not treating us right. That is not how things are done in CWA.

I will ring their President and apologise for your email and please pass anything you write to them through me in future.”

25. The plaintiff accepted that Mrs Carolan was reprimanding her in that email but contended that the reprimand was “illegal”.

26. On 18 October 2013 Mrs Carolan emailed Mrs Boyer, and copied the email to Mrs Pinkerton, in the following terms:

“After speaking with you yesterday-17/10/13, I felt I had to re-iterate my most humble apology to Phillip Group members for the email my social secretary sent you re: our accommodation at Griffith. That email was sent without my knowledge and there is no way I would have approved that strong language and accusations of a fellow member.

I have spoken to Marion and have a better understanding of her frustration, but that was no excuse for the tone of her email. I believe we as members of the association do not treat other members in that way.

I thank you for your very generous nature to understand and forgive us for this faux par [sic].”

The plaintiff’s election to the position of secretary of the Wellington branch

27. At the AGM of the Wellington branch on 11 October 2014, Ms Beverley Cameron was elected to the positions of branch president and treasurer and the plaintiff was elected to the position of branch secretary. The term of these positions was to have been for 12 months. On her appointment the plaintiff was provided with relevant branch documents in a suitcase.

28. The CWA Procedures Manual contained a detailed description of the duties of a branch secretary. Regulation 107 of the CWA Constitution (set out above) also made provision for the position. For present purposes it is sufficient to note that the branch secretary reports to the branch president and is responsible for keeping the branch president informed of all matters of branch business, preparing an agenda for branch meetings, dealing with incoming and outgoing correspondence and preparing minutes of each meeting. The plaintiff had not previously been required to prepare agendas for, or minutes of, meetings. Shortly after her election to the position of branch secretary the plaintiff familiarised herself with the CWA Constitution (and in particular reg 107) and the Procedures Manual. She understood that, as branch secretary, she was to receive all correspondence on behalf of the branch, but that the president had to approve of all outgoing correspondence. She agreed that she understood that she was not to correspond with third parties without the president’s approval.

29. On 15 October 2014 Ms Beverley Cameron and the plaintiff provided their signatures to the Commonwealth Bank on a form entitled “Authority for Business Accounts” for the CWA’s Wellington branch.

30. I accept the evidence of Marjorie Blatch that the plaintiff rang her in November 2014 and asked her for guidance on the duties of a branch secretary and, in particular, how the minutes should be recorded. Mrs Blatch was then the Macquarie Group secretary, a position which she held from October 2013 to October 2015. Mrs Blatch told the plaintiff:

"Marion, it is the role of the branch secretary to review incoming correspondence to the branch, prepare meeting agendas for the branch meetings. Following meetings the branch secretary is responsible to record the minutes, send a copy of them to the president for approval and then ensuring that they are adopted by motion at the next branch meeting. Minutes should be recorded accurately and objectively."

31. Branch meetings of the Wellington branch were held monthly on the second Wednesday of the month.

The branch meeting on 11 November 2014

32. The first agenda prepared by the plaintiff in her position as branch secretary was prepared for the branch meeting which was scheduled for Wednesday 12 November 2014. The date was changed to Tuesday 11 November 2014 because there was a wake on Wednesday 12 November 2014. The plaintiff’s agenda was distributed to those present at the meeting, who included Anne Jones, who was then the Mayor of Wellington and also member of the Wellington branch.

33. The agenda which the plaintiff prepared for the November 2014 meeting contained the following item with respect to the federal grant referred to above:

“Any Other Items for General Business

1.   The Treasurer is asked to produce the receipt/s of items brought with the $4,005.00 grant money for, [sic] “fittings” earlier this year to the members. No reference to the loan has been received in the handover papers to the Secretary----- items said to be brought [sic] are not on site i.e. a laminator, however, there are;--

2 Gazebo, --- why do we need 1 let alone 2? 1 paper cutter.

1 Brother printer plus spare cartridges. 1 Public address system.

2 boxes of reams of Reflex paper. 2 Ottomans”

34. The plaintiff accepted that during the meeting she noted in handwriting on her copy of the agenda next to that item, “disgussed [sic, discussed] and sorted out”.

35. Mrs Jones recalled that, during the course of the meeting on 11 November 2014, the plaintiff spoke over other people, including Ms Beverley Cameron who, as branch president, was chairing the meeting.

36. Following the meeting, the plaintiff prepared the minutes by amending and adding to the agenda which she had prepared for the meeting. The plaintiff included in the minutes for the November 2014 meeting under “General Business” the following:

“It was brought up that we had a $4,500 loan which purchased some fittings not necessarily agreed to by the members and there is no suitable documentation with regards to this. Mrs Jones pointed out that all cheque butts should be kept, as all the things brought should have been by cheque and that this information has to be kept for 7 years for, in this case the State Government to check what we brought [sic], which is;---

2 Gazebos, 2 ottomans, 1 Printer + extra cartridges + 2 Boxes of Reflex paper, some crockery and a Wireless Sound System., 1 guillotine.”

37. Ms Chrysanthou, who appeared with Mr Dean on behalf of the defendant, asked the plaintiff in cross-examination to identify any issue relating to the grant, to which the plaintiff’s response was:

“Because as when I - I think I started the balance sheet before and I was told that - by your Honour that she only needed the basic points - was the fact that when I got the role of secretary I had to chase around to try and locate things, and as the secretary's role says, I was supposed to hold all the paperwork and correspondence and - and whatnot. And nobody had any documentation. I had been given different figures as to the amount. I went back to the old minutes and it was a State Government grant. And I had to run around because the members' officers were - we were changing, Wellington was becoming part of Dubbo and it was supposed to fall - Orange didn't want to know about it. Then Dubbo told me that they weren't interested in us until - and this was this same Darren - until such time as we were in their electorate. And so I rang back and got a lovely [sic] at Andrew Gee's office who said, ‘Well, I'll chase it up for you,’ and she rang back and told me it was a Federal Government grant. So because I had so many questions asked and there were, you know, that nobody could answer, I said, ‘Look, I'm bringing it up in general business because if anyone gets into trouble it's me, not you’ - to Bev Cameron, who was the secretary, or the secretary before you - even though I had nothing to do with it. I'm the holder of the position now, so it's me that'll be asked questions.”

38. The minutes of the meeting of 11 November 2014 also contained the following item under “General Business”:

“Mrs Marion Collier is meeting with Mr Michael Tolhurst, General Manager of Wellington Council with regards to the flower beds on the road, as we, the Museum and the Catholic Church were not informed of them being constructed.”

Concerns raised about the content of agendas and minutes prepared by the plaintiff

39. In about November 2014 Ms Beverley Cameron rang Mrs Blatch to ask for advice about the contents of the agenda and minutes which the plaintiff had prepared for the November 2014 meeting. She was concerned that the plaintiff had included “personal and inappropriate comments” in these documents. Mrs Blatch advised her to speak to the plaintiff about it and then take it up with Mrs Carolan. At about this time Patricia Bell, a member of the Wellington branch, telephoned Mrs Blatch and told her of her concern that the plaintiff was interrupting and speaking over the top of people in the Wellington branch meetings. Mrs Blatch suggested that she speak to Ms Beverley Cameron or Mrs Carolan about it.

The cleaning of the CWA hall in January 2015

40. In December 2014 it appears that Steve King, who had been the cleaner for the CWA hall in Wellington, had resigned as of 31 December 2014. Helen Norris, a Vice President of the Wellington branch, had apparently asked him to clean for the month of January 2015. Mrs Norris did not inform the executive of the Wellington branch what she had done. Separately, the plaintiff, with the concurrence of Ms Beverley Cameron and Joan Snelson, another member of the executive of the Wellington branch, had arranged for Robert Collier (the plaintiff’s ex-husband with whom she continued to cohabit), to clean the hall. Mrs Norris, who was at the time indisposed with shingles, was unaware of the separate arrangement made by the plaintiff.

41. On 30 January 2015 the plaintiff wrote to Mrs Norris in the following terms:

“I do not appreciate being undermined as Secretary of Wellington CWA branch. I have been informed that you gave permission for Steve King to clean for the month of January, when he had resigned as of the 31st December 2014.

I just hope the branch does not mind paying the $112, which it now has cost us. Also, we are just lucky that he did not have an accident, as he would not have been covered.

You as a VP [Vice President], does not constitute the executive of the branch.”

42. When Ms Chrysanthou put to the plaintiff that the further engagement of Mr King had nothing to do with undermining her, she responded:

“Well, she undermined me in the respect that I was the secretary of the branch. I had received his resignation letter, I had to speak to the others and say, ‘What are we going to do, or do we call the members back,’ which I did in November. ‘Do we call them back to work out what to do?’ and it was agreed that, well, if Mr Collier wants to do the cleaning until February that's fine, and then we'll do it when we have our normal branch meeting. And suddenly we've got somebody - we don't know who, running around the building with toilet rolls that didn't belong, with garbage bins put out that weren't put out, with all sorts of things being done, and basically nobody had said anything and I was supposed to be responsible as secretary for what was going on and didn't have the Earth [sic].”

43. The plaintiff sought to explain in her evidence why she took such exception to Mrs Norris arranging for Mr King to continue to clean after he had resigned. Her reasons appear from the following evidence she gave in cross-examination:

“Mrs Norris out‑stepped her position, and she had no authority to tell Mr King that he could go back and clean the hall without speaking, because the executives, as usual, had permission in the recess break, from November to February, to make decisions that were vital to the running of the organisation, and if she was going to give him permission, by right, she had to have at least two other executives to agree with her.”

44. The plaintiff rejected the proposition that her reaction to Mr King being asked by Mrs Norris to clean the hall in January 2015 was “over the top”, although she accepted that Mrs Norris, as a member of the executive, had the same voting powers as she did. The following exchange occurred in her cross-examination:

“Q. You responded inappropriately to what was really quite a trivial matter.

A. Well, no, I didn't, because if Mr King had an accident in the hall and became a quadriplegic, then the Country Women's Association, Wellington branch, would have lost anything and everything we had in the bank, and the building would have probably been sold by the association, as they own it, to pay for the compensation that he was entitled to.”

45. When it was put to the plaintiff that Mr Collier was not a “proper employee” either, she sought to distinguish Mr Collier’s situation from Mr King’s on the basis that Mr Collier was only doing “minor cleaning” and was not going up ladders or doing lawns.

The branch meeting on 11 February 2015

The agenda for the meeting on 11 February 2015

46. Due to the Christmas break, the next meeting of the Wellington branch of the CWA took place on Wednesday 11 February 2015. The agenda included the following items:

“CORRESPONDENCE IN:

. . .

15. Copy of the lease from Michael Holmes Solicitor --- Multi-Purpose requested a copy of same, before they contacted us.

…

32. Darren rang from Troy Grant's office and again lied, said the money for the garden beds was from Bungarra??? [sic, Cobbora], for the beautification of the CBD, the CWA building, is not in the CBD area.

. . .

CORRESPONDENCE OUT:

. . .

3. Meeting with Mr. Michael Tolhurst, then General Manger [sic, Manager] of Wellington Council, on Thursday, the 13th November 2014, to garden beds on then 4 corners — He said, RMS gave a grant, to make the corners safer for children crossing to get to their buses, outside the Church of England

4. Telephoned RMS, they knew nothing of this.

5. Contacted Troy Grants office, re the lies told about the RMS. Also failure of Andrew Gee to notify all residents of the upcoming changing, electoral boundaries.

6. Contacted Paul Toole's office, on both my own and the deception over the flower beds, as well as, the out servicing of council, so was unable to have a discussion with any person from, the building department on Monday, as there was no-one, as well as no reply for a requested meeting.

. . .

GENERAL BUSINESS:

1. Steve King has resigned and pressured us to employ someone, at present, Bob Collier [the plaintiff’s husband] is doing such. What do we want?

. . .

5. On arrival at the Hail yesterday afternoon, Marion [the plaintiff] observed the hall, left untidy and unclean by the bridge Group, she has asked them in the past to clean up after themselves and it is no good pushing a Hall agreement to be signed, as they are only paying $10 per hour, with a second toilet, there is no need for any less than $15 per hour to be charged. She would like to submit a letter outlining the faults found and that, the Hall will be inspected after their use from now on and a charge of $30 will be charged for having to put the Hall in the condition they found it.

. . .

17. Mrs. Marion Collier is to meet with Mr Michael Tolhurst, -- with regards to ‘no communication’ before the in [sic] installation of ridiculous garden beds, @at 2.00PM on Thursday 13th November 2014--- we have lost 2 car spaces and it has made driving hazards [sic] on all 4 corners.”

[Emphasis added to indicate the matters particularly relied on by the defendant as being inappropriate inclusions.]

Item 15 (the leases): Correspondence In

47. The plaintiff gave evidence that she was asked by Mrs Carolan, then President of the Macquarie Group, to locate a copy of the leases and told by Mrs Carolan that if she did not find the leases and put them in the front of the minute book she would be either “put out of [her] job” or expelled from the CWA. I do not accept the plaintiff’s evidence, which was denied by Mrs Carolan. I am satisfied that the plaintiff alone initiated a search for the leases. The plaintiff contacted the CWA’s solicitor to locate a copy of the leases, without the authority of the branch president.

Item 32 (the garden beds): Correspondence In

48. In cross-examination the plaintiff explained that she was concerned that the garden beds which had been constructed outside the hall were impeding access to the footpath and had caused the loss of two parking spaces. She spoke with the General Manager of the local council, as well as the Roads and Maritime Services. Eventually she was directed to speak to Troy Grant, who was the State member for Dubbo. She was put on to a person in Mr Grant’s office and left her phone number. Some time later, a man called Darren, whom she understood to be Mr Grant’s executive assistant, rang her back and told her that the money for the garden beds had been donated by a mining concern for the beautification of the central business district.

49. When the plaintiff was cross-examined about item 32 in the agenda in which she had alleged that Darren had lied, she responded:

“Well, he did, because he rang me up and said he’d checked.”

50. Ms Chrysanthou put to the plaintiff that it was a very serious thing to accuse someone of lying. The plaintiff gave a number of responses, some of which were non-responsive ones as follows:

“I think it was a very serious thing that he had a couple of members that were nearly run over when we lost two parking spots and these flower beds stuck out and people had a swing and could very nearly - and they did very nearly collect a couple of people at different times.

. . .

Well, given that these - as far as I know, these minutes have not even being ratified.

. . .

[When the plaintiff was reminded that the document was an agenda] Well, the agenda isn't an official document.

. . .

Not when it [the agenda] was supposed to be within the members within the branch who - it shouldn't have gone any further. You know, it could have been said - it was a sheer decency that they were getting it in writing on the day. I didn't have to do - there was no rule I have to pass out an agenda to anybody.”

51. The following exchange in the plaintiff’s cross-examination is one of many examples of her tendency to justify and aggravate derogatory remarks:

“Q. So you think it's no big deal that you've accused this man of being a repeated liar in this document?

A. Well, I wasn't just accusing him. I mean, I lived in the area. I knew what people knew of him.”

52. The plaintiff tendered a letter addressed to her from the Wellington Council dated 19 February 2015 which said:

“Council wishes to confirm the following:

1. Subsequent to safety concerns from St Mary's Catholic school about the road crossing on the corner of Warne and Percy Street, a report was directed to the Wellington Traffic Committee. The committee is made up of representative from Council, Roads and Maritime Services (RMS), Orana Police and a member of the public representing the local member of parliament.

During this process a decision was made to investigate the site at which time the RMS designed and granted Wellington Council funds to make the corner safer.

2. The garden beds along Percy Street were designed and funded by the Wellington Council as part of the Wellington street scape beautification program.

3. Wellington Central Business District Beautification project is being funded by the Cobbora Transition fund of $1,607,255, of this money only $58,021 has been spent on project management and it is expected the works to start in the early part of this year.”

53. I infer from this letter that the plaintiff made enquiries of the Wellington Council about these matters. She did so without consultation with the executive of the Wellington branch.

Items 3-6: Correspondence Out

54. In cross-examination the plaintiff did not accept that she was also suggesting that Mr Tolhurst, the General Manager of Wellington Council, had also lied to her.

55. The plaintiff did not accept that the matters of a critical or personal nature ought not to have been included in the agenda, as appears from the following exchange:

“Q. I want to suggest to you, Ms Collier, that the allegation that you've made throughout this page of the agenda about lies and deception were highly inappropriate things to put in this meeting agenda.

A. No, they weren't, because the agenda is not an official document. The agenda was for solely for the member's knowledge and I suppose I could have sat there until now and have gone into full detail of what went on, but I had to try and abbreviate it as best I could, and was basically letting my members know without anyone saying, ‘Well, look, you didn't tell us the full story.’”

Item 1 (Steve King): General business

56. The plaintiff did not accept in cross-examination that it was inappropriate for her to use the word “pressuring” in the agenda for this item or that it implied criticism of Mr King.

Item 5 (the state of the hall): General business

57. The plaintiff was cross-examined about what she had included in the agenda about the state of the CWA hall in Wellington. She asserted that the reference to the bridge group was a mistake and it should have been a reference to the Assembly of God, which also used the hall. She alleged that item 5 was in fact dealing with two separate things. She refused to accept that the paragraph meant what it said and was being critical of a group using the hall.

The minutes of the meeting on 11 February 2015

58. The meeting of the Wellington branch on 11 February 2015 was chaired by Mrs Beverley Cameron. It is common ground that, at some stage in the meeting, Mrs Beverley Cameron left the meeting in a state of emotional upset. When it was put to the plaintiff that what had caused Ms Beverley Cameron to leave the meeting was the plaintiff’s own conduct in interrupting and talking over other people, she denied that she had ever interrupted anyone or spoken over anyone at the meeting. The plaintiff accepted that Ms Beverley Cameron was emotional when she left the meeting but did not accept that the plaintiff herself was the cause.

59. Following the meeting on 11 February 2015 the plaintiff, as branch secretary, prepared minutes, which totalled 6 pages. The minutes included the following:

“The President then asked, minutes of the previous meeting, are then any corrections? Pat Bell, said the grant, which material is attached to the minutes of the previous meeting, was for $4050, not the $4,500 as stated. [The information from the Federal not State Government, is for $4105 and for items never purchased, which is provided with reports].

. . .

The President then commenced reading the Incoming Correspondence, items 1-35, 34-35 handed to the Secretary prior to the commencement of the meeting. Item 6, a letter sent to the President, requesting a 2nd Toilet. [[P]resident hasn't provided to the Secretary for filing].

. . .

Whilst the President, read the Incoming Correspondence, Debbie Wynne, interjected when it was stated without inverted commas, when Mr. Michael Tolhurst of Wellington Council, did not say Anglican Church, rather the Church of England.

. . .

TREASURER'S REPORT:

Debbie Wynne stood up and informed the room, I have placed documents on your tables Bank reconciliation is available, isn't that brilliant? [The first time the Secretary was aware of such, the 5 pages are marked Treasurer's report and included in the Minutes book].

. . .

REPORTS:

November Group Council Meeting: The Secretary was to give this, the President overlooked it.

. . .

INERNATIONAL [sic]:

Mrs Helen Norris gratefully presented the Branch, with an Italian flag, courtesy of her sone [sic] and daughter-in-law, which was accepted by Mrs Bell and Ms. Cameron, a photograph was taken. Mrs Norris had also given Ms. Cameron a traditional Italian dress, which the President said she had put in the International cupboard on Monday, it was not shown.

. . .

General Business:

The President pointed out, that Steve King had resigned in December and sent a bill for continuing to clean in January, she would not discuss the fact that the bill had been paid, along with a receipt for $12 for toilet rolls, when we have many in storage.

After informing that Mr. King wanted us to employ someone, that he suggested and that Bob Collier was at present looking after the Hall at no cost, the President asked what we wanted to do? Immediately, she suggested, that Debbie Wynne, who she said does Home Care work and can only get part time work, could do with the money.

. . .

After the Secretary was left to run the meeting on her own for approximately 10 minutes, on the return of the President, without any explanation, she told the Secretary, that she was not doing her job and was not abiding by CWA rules.”

[Emphasis added to indicate particular matters relied on by the defendant as inappropriate for inclusion in the minutes.]

60. The plaintiff included in brackets matters pertaining to the grant information about a matter which did not occur at the meeting and which reflected her subsequent investigation. The plaintiff did not accept in cross-examination that she was criticising Mrs Bell, for getting the grant figure incorrect; Ms Beverley Cameron, for not providing the letter concerning the second toilet to the plaintiff for filing, for not getting the traditional dress out of the cupboard, for allowing extra funds to be used for toilet rolls, for suggesting that Debbie Wynne, a member of the Wellington branch, ought get the job of cleaning the hall and for leaving the meeting; and Mrs Wynne, for interjecting and raising the matter about the reference to the Anglican Church and not providing the treasurer’s report to her earlier. The plaintiff demonstrated no insight into the effect on others of the words she used in the minutes.

61. The treasurer’s report, which was tabled at the meeting of 11 February 2015, contained the following passages:

“Due to an error in addition I found the petty cash balance is $110.00. There are 2 options available here for this error.

1.   The meeting can move a motion to increase the imprest amount of Petty Cash from $100.00 to $110.00

OR

2.   Money taken from the Petty cash and placed back into the bank account.

. . .

A reconciliation of both Wellington Bridge Club and AOG (Assembly of God) need to be completed to verify their payments. At a quick glance at the time of the completion of this report, AOG is behind by $150.00 and there is no payment for January.

. . . “

62. The minutes which the plaintiff had prepared following the meeting of 11 February 2015 recorded acceptance (subject to the matters referred to above) of the minutes of the meeting of 11 November 2014. The plaintiff contended that if any member had had an issue with the minutes not being a true record of what had transpired at the meeting, the member would have raised the issue at the meeting on 11 February 2014. She submitted that if she had, as alleged, interrupted or spoken over people at the meeting of 11 November 2014, someone would have raised it on 11 February 2015 and asked that it be noted in the minutes for 11 November 2015. I reject this submission, which overlooks the nature of minutes and what is to be included in them. Minutes are not intended to be a transcript of what is said at a meeting. They are to be a record of resolutions made on matters appearing on the agenda. I do not infer from the absence of any mention to the plaintiff’s speaking over or interrupting others who were present at the meeting that it did not occur. Indeed, as referred to above, I accept the evidence of Mrs Jones that that the plaintiff did speak over people and interrupt them at the meeting of 11 November 2014.

63. The minutes which the plaintiff had prepared following the meeting of 11 February 2015 were rewritten by Ms Cargill, who by that time was State Vice President of CWA (NSW), before the meeting of 11 March 2015 to remove personal comments which were regarded as inappropriate (see further below).

Subsequent to the meeting on 11 February 2015

Communications between the plaintiff and Mrs Carolan following the meeting

64. At 16.43pm on 11 February 2015 the plaintiff emailed Mrs Carolan, in the following terms:

“I wish to make a formal complaint about the way I am being treated by my President. I am being undermined by her and believe the rule book has been thrown out the window.”

65. The plaintiff followed up her email with a further email to Mrs Carolan sent on 12 February 2015 at 8.13am (which attached the treasurer’s report) which began as follows:

“This document [a reference to the treasurer’s report, extracted above] was thrown on my table yesterday, as the meeting was commencing, along with the paperwork from your facts day.

I take strong offence of the implication that I have defrauded the CWA, which is at best scandalous.”

66. The plaintiff referred to the balance of the petty cash book in the following paragraphs and concluded the email with a suggestion that the group treasurer needs “to look at this”.

67. At about 8.30am on 12 February 2015, the plaintiff telephoned Mrs Carolan and said:

"Kathie, I would like some advice on exactly what is involved in the branch secretary's duties. I feel like I'm being bullied at my Wellington branch, and if it doesn't stop, I'm going to resign."

68. Mrs Carolan responded:

"Marion, as the branch secretary for Wellington, it is your responsibility to review all incoming correspondence, prepare the agenda for the branch meetings, to take notes at the branch meeting and prepare minutes. Those minutes should be distributed to the president prior to the next branch meeting for any corrections. Subject to that, the minutes should then be adopted at the following branch meeting."

69. At 10.24am on 12 February 2015, following this conversation, Mrs Carolan emailed the plaintiff and informed her that she (Mrs Carolan) had asked for the Macquarie group treasurer (who was then Barbara Barrett) to be in attendance on 11 March 2015, which was the next scheduled meeting of the Wellington branch.

70. Later that day, in the afternoon, Mrs Carolan received two further phone calls from the plaintiff in which she complained that she had been accused of defrauding the CWA because there was a discrepancy in reimbursement of petty cash of 13c.

71. In cross-examination the plaintiff confirmed that she considered that she had been accused of fraud because of the $10 discrepancy in petty cash. It appears that because she was a co-signatory to the CWA’s bank account with the Commonwealth Bank, the plaintiff considered that any reference to a discrepancy in the petty cash book implicated her in an allegation of fraud. The plaintiff refused to accept that an error in calculation was not tantamount to an allegation of fraud. She denied that her allegation that she had been falsely accused of fraud was derogatory and defamatory of those whom she had accused. The plaintiff did not accept that she was in breach of regs 80 (the requirement for a branch to manage its own business) and 81 (the prohibition on putting the matter before the Group Council unless the same has been stated to a branch meeting) in communicating with Mrs Carolan about this matter.

Communications between the plaintiff and Mrs Wynne following the February 2015 meeting

72. At 9.23am on 12 February 2015, Mrs Wynne wrote to the plaintiff in the following terms:

“Could you please send me more info on the mental health thing.”

73. The reference to “mental health thing” was a reference to a matter that had arisen at the meeting on 11 February 2015 at which those present were informed that there was to be an evening on mental health awareness at the Wellington Soldiers Club on Friday 20 February 2015 which was to be conducted by the Western Local Area Health District and hosted by the Lions Club. The plaintiff took great exception to the content and tone of Mrs Wynne’s email. When it was put to her in cross-examination that it was a “perfectly pleasant email”, she said:

“A. No, I don't class it as a perfectly pleasant email, given that I was secretary and she was just a member.”

74. The plaintiff explained her objections to Mrs Wynne’s email as follows: “It wasn't her [Mrs Wynne’s] place to be sending an email just in effect demanding the information.” The plaintiff also said, “It wasn't her place. She was asking - she wanted all the information on it, as if, you know - how would I put it? She was waiting [for] the information. I felt that it was very rude given that the day before she had given an inaccurate treasurer's report balance as the treasurer, and she wasn't the treasurer.”

75. The plaintiff responded to Mrs Wynne’s email at 11.20 am on 12 February 2015 in the following terms:

“It is at the Soldiers Club on the 20th, the Lions are catering, starting at 7.00PM, I have not been provided with anything further of relevance, I believe I said all that yesterday. If you wish to go, let me know and I have to advice [sic] them by the 17th, as to how many are going for catering purposes.

What is the Facebook and e-mail, you asked Bev to mention, that we [Wellington CWA Branch] now have?”

[Emphasis added to indicate matter particularly relied on by defendant.]

76. The reference in the email to Facebook was a reference to the plaintiff’s understanding that Mrs Wynne had set up a Facebook page for the Wellington branch. When the plaintiff had not received a response from Mrs Wynne by 12.09pm on 12 February 2015 (less than an hour after she sent the email extracted above) she wrote a further email to Ms Wynne which said, in part:

“Would you still please answer the question I asked? What is this about a branch Facebook and e-mail?”

77. At 12.33pm on 12 February 2015 Mrs Wynne wrote to the plaintiff in part as follows:

“I wanted to pass the information onto Peter Fotikis from the Anglican Church. Peter does a lot of work with mental health and hasn’t seen the info yet.”

78. At 13.12pm on 12 February 2015 Mrs Wynne wrote another email to the plaintiff in the following terms:

“Will do when I get home. Out volunteer [sic] with bloom field [a mental hospital in Orange] at the moment.”

79. The plaintiff explained her reaction to this email from Mrs Wynne in the following terms:

“Well, I thought it was a bit strange, because we're talking about a woman, the day before, who needed the money to be the cleaner, because she couldn't get proper work, and she is travelling 106 kilometres each way to volunteer [to the Bloomfield Mental Hospital in Orange]. It sounded a bit unusual . . . what I . . . thought was, the amount of money it costs for petrol, to travel 212 long kilometres”

80. The following day, Friday 13 February 2015, at 10.28am, the plaintiff again wrote to Mrs Wynne. She said in part:

“Yesterday, you contacted me as your branch Secretary, about information of an upcoming event in Wellington [the mental health evening on 20 February 2015].

You were provided with the same information given to the branch meeting and discussed.

. . .

I in the original reply, stated: “What is the Facebook and e-mail, you asked Bev to mention, that we [Wellington CWA Branch] now have?”

You replied, also that you were unable to reply with that information, as you were away from home, until last night.

Since that was 24 hours ago, could you please answer the question asked of you?

As Secretary of Wellington CWA, I am responsible for all Branch correspondence, therefore, I should be fully aware of what transcribes, such as with Facebook, e-mail, or the like, in the name of the branch.

I do hope you can address this in a swift manner, prior to our March meeting.”

[Emphasis in original.]

81. At 14.53pm on 13 February 2015 Mrs Wynne emailed the plaintiff in the following terms:

“I will discuss the email & Facebook with you when our branch president is available to do so.

As for other matter I will also discuss this with branch president present.”

82. The plaintiff confirmed in her cross-examination that she considered this email from Mrs Wynne to be “bullying”. It became one of the subjects of her complaint to Mrs Carolan referred to below. The plaintiff’s explanation for considering it to be bullying appears from the following exchange in cross-examination:

“Q. . . . How is this email bullying?

A. Because she knew enough to go and open a new Facebook and she was told at the Gilgandra meeting by the group president that the only email she could open was one for treasury and she had no rights to open a Facebook page.”

83. The plaintiff also confirmed that she thought “the whole intention of that [email] was to bully and she was . . . bullying a member of the executive” and that there was “nothing polite about it [Mrs Wynne’s email]”.

84. It was plain from her cross-examination that the plaintiff had no idea how offensive her emails were or how officious her insistence on the urgency of a response might appear to the recipients.

Communications between Ms Beverley Cameron and Mrs Tanya Cameron on 13 February 2015

85. On about 13 February 2015 Ms Beverley Cameron rang Mrs Tanya Cameron, who was still the State President of CWA (NSW), and told her that she was having a problem with the plaintiff. She told her that the plaintiff was making defamatory and untrue comments in the meeting minutes about local members and even politicians. She also told Mrs Tanya Cameron that the plaintiff was “constantly talking over the top of other members and interrupting”. Mrs Tanya Cameron reminded her of the Grievance Handling Procedure and advised her to try to talk to the plaintiff directly about the issues. Mrs Tanya Cameron also said that if that approach did not work, she should approach Mrs Carolan in her capacity as the Macquarie Group President.

Communications by the plaintiff to instrumentalities regarding the grant to the CWA

86. On 13 February 2015 the plaintiff rang the office of the local State Member of Parliament and was told that the grant to the Wellington branch would have been a federal grant. She then rang the local Federal Member of Parliament to ask about the grant and was given the phone number for the Department of Social Services. She rang the Department and left her details. A man named Keith rang her from the Department to answer her questions about the grant. When it was put to the plaintiff that she was not authorised to make any of those phone calls, she insisted that she was and explained that, “at the time, my president wasn’t acting like my president”. The plaintiff’s response was typical of many responses which indicated that she did not consider herself to be bound by the rules that applied to other members of the CWA.

86. At 2.22pm on 13 February 2015 the plaintiff sent an email to “Keith” in the following terms:

“I am Secretary of the Wellington CWA, I have taken over in the last couple of months.

We apparently received a FaHCSIA grant on 23rd or about 23rd September 2013.

At the time, the Secretary's e-mail was [PROVIDED] and the President was

[PROVIDED].

I was originally led to believe that it was a State Government grant, from our minutes book and that it was for $4,500. Now the claim is that it was for $4,050, whilst the same numbers, it makes a difference in the different order, also it was Federal and not State.

I trust you are able to assist us, our postal address is CWA Wellington, P.O. Box 190, Wellington 2820. My telephone number is 02 68453622, you have my e-mail. It was for fittings, not fixtures.

I look forward to hearing from you.”

88. It appears that the matter was referred to the Collector of Public Monies within the Department of Social Services, which led to the Collector of Public Monies responding to the plaintiff by email sent at 7.30am on 15 February 2015. This email confirmed that a grant of $4,105 was made to the CWA on 23 September 2013 to purchase various named items and that the amount was paid into the bank account of the Wellington branch.

89. In her affidavit sworn 27 February 2017, the plaintiff referred to the email communication of 15 February 2015 and said that it proved that Mrs Bell, Ms Beverley Cameron and Fiona Shepherd, a member of the Wellington branch, committed a criminal act by receiving the grant. The plaintiff did not refer, in that affidavit, to the subsequent communications (which are referred to below) she had received from the Department of Social Services which confirmed that the grant had been appropriately dealt with and that no wrongdoing associated with the grant had been detected.

90. The plaintiff did not accept that her conduct in contacting the Department of Social Services was a breach of reg 86 of the CWA Constitution which prohibits a member approaching a Government Department without the consent and approval of the Executive Committee.

Further communications from the plaintiff to Mrs Carolan

91. On Friday 13 February 2015 Mrs Carolan told the plaintiff that she was not to go to the Commonwealth Bank on behalf of the CWA. On 14 February 2015 at 4.08 pm the plaintiff emailed Mrs Carolan. Her email began:

“Thought I had best send this onto you. Bob [Mr Collier] went down to clean the hall and checked documents on the floor, they were 3 receipts, 2 with the 5th December 2014 and 1 undated.”

92. Mr Collier gave evidence that he found three receipts in the CWA hall at Wellington and he photocopied them and gave them to the plaintiff.

93. In her email to Mrs Carolan referred to above, the plaintiff mentioned the receipts, which were apparently for rent paid by the Bridge Club and the Assembly of God, both of which hired the hall which the CWA owned in Wellington. She continued:

“I now know why in the minutes I was ‘Gagged from any further contact with the Bridge Club, if they ring you, put them onto me and tell them your-president has refused to let you talk to them.

. . .

On Tuesday, the Secretary of the Bridge Club, Sue Owens 68452564, rang and left a 101 message she then rang Bev, the plug had been left in the was[h] basin in the sink for the toilet. Bev told me it was the Assembly of God, as she had not been in the Hall for well over a week. Bob had been cleaning and there was neither water or plug in the basin on Monday when he was there.

Also in the minutes when Helen Norris presents the Italian Flag to Wellington, from her son and daughter-in-law, who live in Italy, Bev says: "I won’t get the traditional dress out of the International cupboard, I put it in there on my way home from your place on MONDAY afternoon."

I class all this, as bullying by my president and Debbie Wynne, given the e-mail received by her yesterday.

As I am also a signatory on the cheques, do you want me to get a copy of all bank statements since I became a signatory?”

[Emphasis added to indicate the particular passages relied on by the defendant as inappropriate.]

94. When the plaintiff was asked in cross-examination why she had not simply given the receipts, which had been photocopied for her by Mr Collier, to the branch treasurer, she responded that Ms Beverley Cameron was not speaking to her. The gist of the email was put to the plaintiff in the following exchange in cross-examination:

“Q. So you're trying to imply there, aren't you, with your lengthy email about the receipts and about the rents and other matters that the reason you weren't allowed to talk to the bridge club is because your president had engaged in some sort of impropriety and was trying to cover it up. Isn't that what you're trying to imply there?

A. Quite honestly, yes, she was.”

95. When it was put to the plaintiff that she was making serious allegations in the email about Ms Cameron and accusing her of lying her response was, “I’m not making allegations. I’m stating the fact.”

96. A few minutes later, at 4.30pm on 14 February 2015, Mrs Carolan emailed the plaintiff in the following terms:

“Thank you for the email,

DON'T GET THE STATEMENTS YOU ARE NOT TREASURER.

I have told you this will all be dealt with at the alloted [sic] meeting on 11th March. Please read your rules as I have asked you twice now as Group President to not contact anyone and follow through on things outside you[r] job as secretary.

I will not be responding to any further emails or phone calls til said meeting. You will get your chance to voice your concerns the same as any other member at the meeting.”

97. The plaintiff accepted in cross-examination that she understood from this email that she was not to go to the bank.

The plaintiff’s communications with Donna Wilkins (the CEO of the CWA)

98. On 15 February 2015 at 3.54pm the plaintiff sent an email to Donna Wilkins, who was the Chief Executive Officer (CEO) of CWA (NSW) until April 2016. She attached to the email her emails to Mrs Carolan as well as her emails to Mrs Wynne. The plaintiff’s email to Mrs Wilkins said, in part, as follows:

“. . . I believe that a lost [sic, lot] is going on in Wellington Branch, it is also obvious, that Mrs Carolan does not want the Group to deal with it, particularly until after the Macquarie Group Council meeting on the 2nd March 2015, that is despite my asking for such.

It was my President who disrupted the meeting on Wednesday afternoon at Wellington [on 11 February 2015], she walked out of the room, being away for about 10 minutes or more and not asking either Vice President to take the meeting.

I am being prevented from executing my position as Branch Secretary, which as well you know, I have full responsibility for all communications within the branch.

I am also providing via this e-mail, e-mail communication with a member of Wellington, who did not become a financial member until November 2014, but who presented "MY TREASURER'S Report on Wednesday (incomplete and full of inaccuracies).

It is obvious from that Communication, that this women and indeed Group is preventing me from executing my role as Branch Secretary.

. . .

After telling her some things, including that I would contact Pat, as she should not be going behind Pat's back, also, "Bev was no clean potato. . .

At the AGM, which was held on Saturday 11th October 2014, immediately prior to our monthly meeting, which is back to its 2nd Wednesday of the month, a lady by the name of Debbie Wynne arrived. It appears, she attends craft with our President and relieved the Home-Care employee, for 1/2 hour just before that at a member's home. The President wanted Debbie to be our Treasurer, as we were all told, that she was a qualified Accountant, Mrs Yeo informed her, that she had to be a financial member for 6 months and she at that stage was not even a member, financial or otherwise.

I invited this woman to lunch with us, she declined, I rang her the next day and welcomed her to the CWA, I rang her to remind her of the November meeting and because she left early, I rang to see everything was alright. I rang and invited her to our Christmas Lunch on 15th December, although she accepted, she did not attend without an [sic] notice. I rang her to remind her of our February meeting, had to leave a message on her voice-mail. I have done everything in my power to treat her with curtsey [sic] and respectfully. There is no need for the e-mail treatment that I have received, which was sent to both the Group President and Group-Secretary.

At the Branch meeting on Wednesday, I was told by my President in the meeting: "You are banned from any further communication with the Bridge Club [rent the Hall on Tuesday mornings and Thursday evenings]. If Sue Owens [Secretary] rings you, tell her your President has gagged you and put her onto me.

. . .

The other people who rent our Hall, the Assembly of God, use the Hall on Sundays and pay $50 a week rent. The supposed Treasury Report again is incorrect, in that I received a telephone call last Monday afternoon from a lady, who informed me. She had taken over the books for the Church and they had changed their bank account from Dubbo to a Wellington Bank, 2 of their Direct Debits, for 28th November and 5th December, had not gone through and they wanted to arrange payment.

I took her details for the President, as I informed her was also the Treasurer, so that she could check the bank statements before ringing her back and without keeping her on hold. I was informed that all had been straightened out, obviously from the inference of the Church's dishonesty, according to the Treasury Report, the Treasurer has not taken any notice of anything said to her.

Following the last e-mail received from my Group President, it seems it is going to either be swept under the carpet or I am going to wear the blame for what I have not done.

. . .

As for the knowingly illegal claim in the meeting, where the President stated: "This next point, Marion and I disagree on it, she went out and got herself a quote on a 2nd Toilet." She then got up from the table and on her way out the front door said: "I don't want anything more to do with this, we will lose our insurance cover even if we put a door in the wall to use the Show Society toilet.

. . .

The appropriate action would have been to ask, not to assume I am a crook, as it was the President that was the person who did the addition and was wrong.

. . .

I truly believe that given the Debbie Wynne e-mails and the e-mail last night from my Group President, I am being prevented from performing my duties, of Wellington CWA Branch Secretary.

. . .”

[Emphasis added to indicate the passages particularly relied on by the defendant as inappropriate.]

99. The plaintiff did not accept that Mrs Carolan was dealing with her concerns by responding to her emails and phone calls and said, “She had not done a thing. . . She might have palavered, but she did not do anything to sort the matter out.” The plaintiff accepted that she had not been authorised by her branch president to communicate with Mrs Wilkins and explained that she felt nonetheless justified in sending the email:

“. . . because of the fact that the president was under investigation and I felt I was being poorly treated, and ignored, and got the distinct impression that everything was being done to suit them.”

100. In cross-examination the plaintiff insisted that the treasurer’s report implied that the Assembly of God was dishonest because of the mention that it was behind in its rent. The plaintiff did not accept that she was in breach of reg 81 in making a complaint to Mrs Wilkins before raising the matter at branch level.

101. On 16 February 2015 at 8.24am the plaintiff sent a further email to Mrs Wilkins in which she referred to the grant. She said, in part:

“What occurs now, it looks to me, like Wellington has defrauded the Federal Government, as I was of the opinion, as discussed in November when Anne Jones OAM, who is helping Treasury, for what the President/ Treasurer gives her. Well anyway she said that if they require information on what was purchased they can question for up to 7 years.”

[Emphasis added.]

102. In cross-examination the plaintiff accepted that she had made a serious statement (that the branch had committed a criminal offence) and insisted, “my branch did engage in a criminal offence”. Once again, the plaintiff’s answer reflected her view that she was justified in making the statement because she considered herself to have proof, as appears in the following exchange concerning the allegation of fraud:

“Q. Mrs Collier, you are making disgraceful allegations about other members of the Country Women's Association.

A. No, I'm not, because I've got the proof.”

The plaintiff’s communication with Jackie Camiller

103. On 16 February 2015 the plaintiff sent an email to Jackie Camiller, who appears to have worked at the head office of CWA (NSW), raising concerns about two leases, for which the CWA was lessor. She told Mrs Camiller that she had forwarded the paperwork to “Donna” (presumably Mrs Wilkins) to be passed to the State President. In her evidence the plaintiff alleged that the leases were “against the CWA Constitution” and raised issues about their execution. The latter were taken up with her in the following exchange:

“Q. So why did you care if the leases weren't executed properly?

A. Because I don't believe in criminal behaviour, and that's exactly what it was, plus the fact they were commercial leases, it's a not‑for‑profit organisation, it was illegally signed, it was illegally dated, and they are not supposed to be living off profits.”

Q. Mrs Collier, a lease that's not completed properly is not a criminal act.

A. It is if it's signed by the wrong people, and one person signs it as a landlord, when, in fact, Mrs Bell wasn't the landlord. The landlord is the state office of the CWA.”

104. There were two leases in evidence which were the subject of the plaintiff’s investigation. The first was expressed to be between “Country Women’s Association of New South Wales (Wellington Branch)” and Wellington Multi-Service Centre Inc for a term of two years commencing on 1 January 2014 and ending on 31 December 2016. It was dated 29 January 2014 and signed by Mrs Bell, who was then president of the Wellington branch and witnessed by Joanne Doherty. The second was expressed to be between “Country Women’s Association of New South Wales (Wellington Branch)” and Wellington Show Society Inc for a term of three years commencing on 1 July 2013 and ending on 30 June 2016. It was dated 9 August 2013 and signed by Mrs Bell, who was then president of the Wellington branch and witnessed by Ms Beverley Cameron.

105. The plaintiff appeared to believe that a lease which bears a date after the commencement date is invalid, or otherwise irregular and that, accordingly, the reference to the Wellington branch in the description of the lessor was erroneous. The first point is incorrect as a matter of law. It is not unusual for a lease to bear a date after the date of its commencement. The second matter was also of no consequence. Although CWA (NSW) was the legal owner of the land, the Wellington branch was its custodian, as was explained by Mrs Tanya Cameron in her evidence. Its inclusion in the description of the lessor did not affect the identity of the owner of the land, which was CWA (NSW). The plaintiff also alleged that the execution of the leases breached s 6 of the Country Women’s Association of New South Wales Incorporation Act, which makes provision for the management of general business of the CWA as a corporation. This allegation has not been made out.

Concerns raised with Mrs Blatch about the plaintiff

106. On about 15 February 2015 Mrs Wynne called Mrs Blatch to complain about the plaintiff’s behaviour in branch meetings, and in particular that she interrupted people and spoke over the top of them. Mrs Blatch assured her that she would speak to the President (Mrs Carolan). In the days leading up to 18 February 2015 Mrs Blatch had a number of conversations with Mrs Carolan about the plaintiff. In one of these conversations, Mrs Carolan told Mrs Blatch that she would speak to the State President, Mrs Tanya Cameron, to work out what to do.

The referral of the plaintiff by Mrs Carolan to Ms Cargill

107. At 8.32am on 16 February 2015 Mrs Carolan sent an email to Ms Cargill and Barbara O’Brien (a representative from the Macquarie Group) about the Wellington branch. She informed Ms Cargill that she had arranged a “conflict resolution meeting” for 11 March 2015 and that she would look over the books prior to the meeting. Mrs Carolan asked if she could speak with Ms Cargill and Mrs O’Brien to discuss whether could come to the meeting to help her to control the plaintiff. Mrs Carolan also asked Ms Cargill if she would chair the meeting as a State Vice President.

The plaintiff’s pre-occupation with seniority

108. At 8.25am on 17 February 2015, the plaintiff sent an email to Ms Beverley Cameron in which she said, in part:

“As I am also in charge of the keys to the building, could you please explain to me, why you said you found Helen in the building and got her keys back off her. However, she rang me yesterday, giving her version of the Steve King actions for January 2015, she told me she still has a set of keys, as she is the senior VP and will be in charge in your absence.

Actually, she was wrongly written down as the first person for the position of VP for 2015, Joan Snelson had already been a VP before her and also Joan has been President of the branch twice, which Helen has not. Although Helen has been Secretary, Joan has been Treasurer and if I am not mistaken, also Secretary at one stage, I think that makes her senior, given that she has also held a position at State, which Helen has not done.”

109. When she put the scenario set out in the email about access to keys to Ms Cargill in cross-examination, the following exchange occurred:

“Q. So the point I'm saying to you is, if Ms Snelson has been vice president at Wellington since I went to Wellington in 2011, and Mrs Norris had only been since, I think, 2013, then who would be the senior VP in the group?

A. There is no such thing as a senior VP.

Q. Well, I mean, who would be classed as‑‑

A. There is no such thing as a senior VP.

Q. Okay. So if Ms - so therefore, Mrs Norris sending me an email in January 2015, saying she's the senior VP, is not correct?

A. No, because there is no such thing as a senior VP.”

The Facts Day on 18 February 2015

110. On about 17 February 2015 Mrs Carolan left a message for Mrs Tanya Cameron, saying that she wanted to discuss issues relating to the plaintiff as she had received a number of complaints from members of the Wellington branch concerning the plaintiff.

Communications between Mrs Tanya Cameron and Mrs Carolan

111. On 18 February 2015 the Macquarie Group held a Facts Day at Wongarbon. The Wongarbon branch was part of the Macquarie Group. The plaintiff referred to the occasion in her evidence as “the illegal Facts Day” as she contended that only the State Executive of the CWA could hold a Facts Day. There is nothing in the evidence to support this contention which was put to Mrs Tanya Cameron in cross-examination and rejected.

112. In the period leading up to the Facts Day Mrs Carolan became concerned about how to deal with the plaintiff as she understood that the plaintiff was known to be disruptive. She phoned Mrs Tanya Cameron and left a message asking her to ring back to discuss how the CWA should deal with the plaintiff.

113. When Mrs Carolan opened the Facts Day she told the assembled company that she had to leave her telephone on because she was expecting a call from Mrs Tanya Cameron. Mrs Tanya Cameron telephoned Mrs Carolan in the course of the Facts Day, which led Mrs Carolan to leave the Wongarbon Hall to take the call. Mrs Carolan told her that she needed help to work out what to do about the plaintiff as some of the local members had complained about the way she had recorded the minutes, that she constantly interrupted people during meetings and that she was making allegations about the Wellington branch. Mrs Tanya Cameron advised Mrs Carolan to speak to the plaintiff directly, to allow her to have a support person present and to explain to the plaintiff that she had to cease her duties as branch secretary while the complaints were being investigated. Mrs Tanya Cameron also referred to Mrs Carolan’s obligation, as Group President, to follow the Grievance Handling Procedure and reg 15 of the CWA Constitution.

328. In both the agenda and the minutes for the meeting on 11 February 2015, the plaintiff included matters critical of Mr Grant, the State Member of Parliament for the area. She also insinuated that Mr Tolhurst had lied to her at the meeting on 13 November 2014 when he told her that it was the Roads and Maritime Services which had provided the money for the garden beds.

Imputation o. (modified)

331. As referred to above, the sting of pleaded imputation o. is that that the plaintiff resisted and derailed attempts to assist her with issues she had raised and then refused to accept the findings of the investigations. The truth of this imputation has been amply proved by the evidence of Ms Cargill, who was appointed to investigate the Wellington branch following the complaints which the plaintiff had made against Mrs Carolan and Mrs Blatch. The meticulous work which Ms Cargill carried out established that, although there had been some minor errors in some respects, there was nothing which materially affected the finances of the branch. Further, Ms Cargill investigated the grant of $4,105 to ascertain how each dollar that had been spent was spent and what sum from the grant money remained. Although no acquittal was required by the Department of Social Services, the Wellington branch returned the unused part of the grant and send photographs of the items bought to the Department to establish that the monies had been spent as accounted for. Notwithstanding the thorough investigation and the subsequent acquittal, the plaintiff continued to assert that there was wrongdoing, including fraud, associated with the grant.

Imputation p.

332. As referred to above, the substance of imputation p. is limited by the context and is accordingly confined to the plaintiff’s refusal to accept findings of investigations that arose from her complaints. The defendant has established the truth of this imputation by various instances referred to in the narrative above, including the evidence referred to with respect to imputation o. where the plaintiff refused to accept that there was no impropriety associated with the grant, about which she had made a complaint.

333. The plaintiff’s complaint about the reckoning of petty cash is another example. Even after Ms Cargill had accounted for all aspects of the plaintiff’s complaint about Mrs Carolan’s handling of issues relating to petty cash, she refused to resile from making similar allegations in further correspondence.

Imputation q.

334. Imputation q. is that the plaintiff failed to abide by a resolution of the August 2015 Group Council, of the Macquarie Group of the defendant, causing the independent mediation to be derailed by the plaintiff. The evidence establishes that after Ms Saunders had spoken to the plaintiff about the proposed mediation on the basis that the conversation would be kept confidential, she learned that the plaintiff had divulged the contents of the conversation to others, thereby derailing the mediation process which had been initiated to deal with the issues she had raised. This led Ms Saunders to advise the CWA that mediation would be fruitless.

335. The plaintiff sought to justify her actions by alleging that Ms Saunders was, by reason of her contract to provide workshop services to the CWA, not independent as required by the resolution made on 3 August 2015. I do not regard the contract between Natalie Bramble Management and the CWA as having the consequence that Ms Saunders was not independent of the CWA since she was neither a member nor an employee of the CWA. Further, the time spent in providing annual workshops was relatively small and she could not, accordingly, be said to have been financially dependent on work from the CWA to any material degree. It is of significance that the plaintiff did not refuse to speak with Ms Saunders on the ground that she was not independent. Rather the plaintiff took up about an hour of Ms Saunders’ time and then divulged the contents of the conversation to third parties, thereby derailing the mediation. I am satisfied that the defendant has proved the truth of this imputation.

Contextual truth (s 26 of the Act)

336. Section 26 of the Act provides:

“Defence of contextual truth

It is a defence to the publication of defamatory matter if the defendant proves that:

(a)   the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true, and

(b)   the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.”

337. In the present case, the defence of contextual truth does not arise as I have found that the defence of justification has been made out in respect of all the imputations alleged by the plaintiff which I have found to be carried and defamatory. It is therefore not possible to undertake a comparison between those of the plaintiff’s imputations which have not been found to be true (since there is none) and the contextual imputation alleged by the defendant. However, I am in a position to make some relevant findings concerning the defence.

338. By reason of the wording of s 26(a) of the Act, the contextual imputation must differ in substance from the plaintiff’s imputations. A general imputation can qualify as a contextual imputation where the imputations pleaded by the plaintiff are specific: Fairfax Media Publications Pty Ltd v Zeccola (2015) 91 NSWLR 341; [2015] NSWCA 329 at [83] (McColl JA, Macfarlan JA and Sackville AJA agreeing).

339. The CWA pleaded the following contextual imputation:

“The plaintiff had so conducted herself as a member of the CWA as to warrant her being expelled from the CWA.”

340. The grounds for complaint (which could lead to expulsion) were provided for in reg 15(1). The point of the April Letter was to canvas the plaintiff’s conduct as a whole which warranted her expulsion. I accept the defendant’s submission that the contextual imputation, as a general allegation about the plaintiff’s conduct as a whole, arises “in addition to” the specific imputations pleaded by the plaintiff. The contextual imputation is plainly defamatory.

341. The narrative set out above and the consideration of the defence of justification are sufficient to explain why I am satisfied that the defendant has proved the truth of the contextual imputation alleged. By the time of her expulsion in May 2016, the plaintiff’s continued membership was very deleterious to the CWA. The morale and goodwill of its members was jeopardised by the plaintiff’s conduct. The plaintiff’s continued membership was also inconsistent with the aims and methods of the CWA. The evidence established that the plaintiff’s conduct disturbed those who encountered her and made members of the executives of the Wellington branch fearful of taking responsibility lest they be sued by her. Mrs Wynne’s reluctance to sign the accounts of the Wellington branch for the year ended 30 September 2015 was an example of this. The trouble the plaintiff caused by her aggressive and inappropriate conduct and her propensity to allege criminal conduct without foundation, took up the time, energy and goodwill of others within the CWA, who expended considerable time (for which they were not paid) in trying to address her complaints and rectify alleged irregularities.

342. The CWA’s Constitution provided that any woman living in New South Wales or the Australian Capital Territory could become a full member of CWA (NSW). The evidence indicated that, but for the plaintiff’s conduct, the CWA was an inclusive organisation to which women of different ages, background and experience, particularly those living in rural areas, were attracted. Its members appeared to interact in a generally courteous manner.

Assessment of damages

343. Section 34 of the Act provides:

“In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the applicant and the amount of damages awarded.”

344. The three purposes of the award of damages for defamation are consolation for hurt feelings; recompense for damage to reputation; and vindication of the plaintiff’s reputation: Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60-61 (Mason CJ, Deane, Dawson and Gaudron JJ); [1993] HCA 31. Section 35 of the Act provides for a cap of $250,000 for non-economic loss. The maximum damages amount has been increased, from 1 July 2017, to the sum of $389,500 (declaration published in the NSW Government Gazette No 56, 26 May 2017, at 1782).

345. The defendant is entitled to rely in mitigation of damages on any evidence that was primarily directed to the plea of justification, even if, in some respects, the plea of justification fails: Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 at 120A-E per Neill LJ. Matters relied upon in mitigation must fall within the same “sector” of the plaintiff’s reputation as the imputations found to have been defamatory: Australian Broadcasting Corporation v McBride (2001) 53 NSWLR 430; [2001] NSWCA 322 at [16]-[30] (Ipp AJA, Beazley JA agreeing).

346. In the present case, I have found that the defendant has proved the defence of justification in respect of all of the plaintiff’s imputations and has also proved the truth of its contextual imputation. It follows that damages can be assessed, if at all, only on a hypothetical basis. I have encountered such significant difficulty in formulating the appropriate hypothesis on which to assess the damages that I am not persuaded that I am required to do so in the present case.

347. If I were to assess damages on the hypothetical basis that the defendant has not proved the truth of any of the plaintiff’s imputations but has proved the truth of the contextual imputation, there would an unreality about the hypothesis since the contextual imputation (which is general) covers the field in which the plaintiff’s specific imputations are to be found. If, on the other hand, I were to assess damages on the basis that none of the imputations (whether the plaintiff’s or the defendant’s) had been established to be true, it would be nigh impossible to reconcile this hypothesis with the principle referred to above that the evidence led with respect to the truth of imputations that can be taken into account in mitigation of damages.

348. The requirement that a trial judge determine all issues, even hypothetical ones, is not absolute. The question was considered by McCallum J in Dansar Pty Ltd v Byron Shire Council [2013] NSWSC 17; (2013) 196 LGERA 39; (the question did not arise on the appeal, (2014) 89 NSWLR 1; [2014] NSWCA 364, which was dismissed). Her Honour said at [98]:

“[I]n some instances, the determination of issues of fact rendered hypothetical by the judge’s conclusion as to another issue will prove to be a barren undertaking, the pursuit of which will be inimical to the overriding purpose of the Civil Procedure Act 2005. In Kelman v Mutton; Howard Haulage Pty Ltd v Mutton [2007] NSWSC 13 at [66], Sully J saw ‘no sense’ in a trial judge’s proceeding to quantify the apportionment of liability between cross-claimant and cross-defendant after rejecting the premise of the cross-claim. To do so would require the judge to nominate hypothetical circumstances that justified the apportionment reached, contrary to the earlier finding.”

349. Although the defendant’s submissions did not specifically address this conundrum, the defendant urged me to assess damages not only on the basis of my obligation as trial judge to decide all issues, including hypothetical ones, but also because it submitted that the assessment of damages had utility in the event of an appeal since if the damages were assessed at less than $100,000, leave would be required.

350. In light of the issues I have raised and the arbitrariness of adopting any of the assumptions identified above, I decline to assess damages. I consider, however, that the findings of fact I have made above and the further findings set out below, are sufficient such that, if damages are ever required to be assessed, the assessment can be made under s 75A of the Supreme Court Act 1970 (NSW) without any further evidence being adduced.

351. I consider the relevant “sector”, being that part of the plaintiff’s reputation capable of being harmed by the matter complained of, to be her reputation as a citizen of New South Wales.

352. The plaintiff’s conduct within the local community of Wellington, its surrounding area and to persons within the wider area of New South Wales, as established by the evidence, showed her to be belligerent, rude and overbearing. She caused significant upset to many women at branch, group and State level by making unjustified allegations of serious misconduct or criminal conduct. From the time her conduct towards the Travelodge at Blacktown was observed with dismay in May 2012, it became known by members of the CWA, including those outside the Macquarie group, that she was both difficult and discourteous. Those impressions can only have been reinforced by her subsequent conduct. The evidence revealed that the plaintiff’s conduct, the reason for it and the distress and anxiety it caused, were the subject of much discussion both at branch, group and State level. In these circumstances, the April Letter can have had little impact on the view of the plaintiff held by those who were already acquainted with her and familiar with her way of dealing with others. The plaintiff did not call any evidence of her reputation in the community other than her own evidence, which, for reasons given above, I do not accept.

353. As for the submission that the plaintiff’s relationship with Mr Collier ultimately came to an end as a result of the matter complained of, I am not satisfied that this was the case. The plaintiff and Mr Collier were divorced decades ago and yet have continued to have an association of sorts. There may be several causes for their separation in March 2017. As referred to above, their recent co-operation extended to Mr Collier’s familiarising himself with the documents associated with these proceedings and staying at her residence in Wellington to look after the property and the dogs while she was in Sydney conducting the litigation. For reasons given above, I did not find Mr Collier to be a particularly credible witness. I am not satisfied that the publication of the matter complained of caused any permanent or substantial rift in their relationship.

354. I am not satisfied that the publication of the matter complained of caused any substantial hurt to the plaintiff’s feelings in that she appears to have an unshakeable belief in both the righteousness of her own conduct and the ineptitude or wrongdoing of others. This belief does not appear to have been affected at all by the publication of the matter complained of. While her expulsion from the CWA, of itself, may have caused her distress, this is to be distinguished from the publication of the matter complained of.

355. In these circumstances I am not prepared to conclude that an award of more than nominal damages would have been justified although, for the reasons given above, I am unable to formulate a realistic assumption as to what imputations ought be taken into account in that assessment.

The Equity proceedings

The relief claimed

356. In her summons filed on 8 March 2017 the plaintiff claimed the following:

“1. An Order of the Court, that the removal of the Plaintiff from the position of Branch Secretary at Wellington was illegal on the 18th. February 2015.

2. An Order of the Court that the election of Officer's [sic] at Wellington Branch on the 11th. March 2015 was illegal.

3. An Order of the Court, that the Resolution passed on the 3rd. August 2015, for Mediation, was cancelled as a result of the Defendant's illegal actions.

4. An Order of the Court for a Forensic Audit into the Wellington Branch Accounts for the past 7 years to be conducted.

5. Any breaches of any Statutes by the Defendant be brought to the attention of the Director of Public Prosecutions and/ or Tribunals.

6. An Order of the Court for any pecuniary award, to be granted to the Plaintiff, as a Consequence of the Defendant's breach of any Statutes or Legislation.”

357. On 12 May 2017 the plaintiff filed a statement of claim in the Equity proceedings in which she restated her claims for relief in the summons (without amendment) and set out the allegations on which she relied for her claims for relief.

General principles

358. The principal objection to this Court entertaining the plaintiff’s claims for relief is that courts will not generally intervene in the affairs of voluntary associations, unincorporated or incorporated: Re NSW Bar Association [2014] NSWSC 1695; (2014) 315 ALR 146 at [24] (Brereton J). The principle is well-established: Cameron v Hogan (1934) 51 CLR 358. This general principle is subject to the exception that a court may intervene where the plaintiff establishes either interference with his or her property rights or interests or breach of contract: Re NSW Bar Association at [24]. Mere reputational impact, which is what is alleged here, is not sufficient to attract the court’s intervention: Re NSW Bar Association at [66].

359. Although the court may have jurisdiction to address a procedural irregularity which has occasioned prejudice to the plaintiff as a matter of due process, this applies only to relevant resolutions of the CWA and not to its conduct generally: In the matter of Pioneer Energy Holdings Pty Ltd [2013] NSWSC 425 at [12] and [15] per Black J and Campbell v Crawford (1985) 12 FCR 317 at 341-342 (Wilcox J). However, although prayers 1, 2 and 3 of the summons, are not expressed in terms of an application for declaratory relief, they could be read as a claim for such relief. This Court’s wide power to grant declaratory relief pursuant to s 75 of the Supreme Court Act enables me to consider whether the plaintiff has established that the relief claimed ought be granted: see, for example, Rose v Boxing NSW Inc [2007] NSWSC 20 at [55]-[60] (Brereton J). In these circumstances, I propose to address the plaintiff’s claims for relief in turn.

Prayer 1 of the summons: the alleged illegality of the removal of the plaintiff from her position as secretary of the Wellington branch on 18 February 2015

360. The plaintiff submitted that she was illegally removed from her position as secretary of the Wellington branch on 18 February 2015. The difficulty with that submission is that the evidence established that on 18 February 2015 the plaintiff was not removed from her position but was asked to cease and desist from her duties until the next branch meeting on 11 March 2015 so that all issues with the branch including the plaintiff’s complaints could be discussed. Accordingly, the plaintiff’s claim for declaratory relief in prayer 1 of the summons has not been made out since its factual premise has been proved to be incorrect.

Prayer 2 of the summons: the alleged illegality of the election of office bearers at the Wellington branch on 11 March 2015

361. The plaintiff submitted that the election of office bearers at the Wellington branch on 11 March 2015 was illegal. The evidence does not reveal any proper basis for this submission. The evidence established that at the Wellington branch meeting on 11 March 2015, the members passed a resolution by majority (the plaintiff’s vote being the only one against the motion) that the positions of all office bearers be vacated, following which elections for new office bearers were held. Reg 80 of the CWA Constitution provides that all branches shall manage their own affairs within the aims and subject to the CWA Constitution. The plaintiff has raised no arguable basis on which it could be concluded that the resolution to vacate the positions of all office bearers was not properly passed. Accordingly, no factual basis has been established for her claim for declaratory relief in prayer 2 of the summons.

Prayer 3: the allegation that the defendant unlawfully cancelled the mediation the subject of the resolution passed on 3 August 2015

362. The plaintiff submitted that the defendant unlawfully cancelled the resolution for mediation which had been passed on 3 August 2015. The relevant resolutions passed on 3 August 2015 are set out above. A mediator, Ms Saunders, was appointed by Mrs Shanks pursuant to the resolution. The mediation process commenced. The mediator advised, after having spoken with the plaintiff and others, that mediation would be futile, having regard to the plaintiff’s attitude. In those circumstances it was decided that the mediation not be proceeded with. Mediation is a process which requires co-operation and confidentiality. Where these elements are absent, mediation is inevitably unsuccessful. The passage of the resolutions on 3 August 2015 did not require the defendant to participate in a solemn farce of a mediation in circumstances where the mediator it had appointed had advised that it would be futile. The plaintiff has failed to make out any factual basis to support her claim for declaratory relief in prayer 3 of the summons.

Prayer 4: the plaintiff’s claim for a “forensic audit” to be conducted of the accounts of the Wellington branch

363. No juridical basis for the plaintiff’s claim for a forensic audit of the accounts of the Wellington branch has been identified. The evidence established that the accounts for the financial year ended 30 September 2015 were signed by Ms Cargill, who was then the Honorary Secretary of CWA (NSW). They were also audited by Crowe Horwath, chartered accountants, who reported, as referred to above, that they “found no issues of serious concern”. Even if I were persuaded that I had the power to order the accounts to be audited (and I am not), I do not discern any proper basis on which the order ought be made in the present case.

Prayer 5: the plaintiff’s claim that the court refer matters to the Director of Public Prosecutions or relevant tribunals

364. The plaintiff requests that the court refer the alleged illegality to the relevant authorities. Courts have a discretion to refer apparent illegality to the relevant authorities, including the Director of Public Prosecutions. The evidence does not establish any illegality, much less any that would warrant such referral. Accordingly, the plaintiff’s request (which does not amount to a claim for relief) is declined.

Prayer 6: the plaintiff’s claim for a pecuniary award as a consequence of the defendant’s alleged breach of statute

365. The plaintiff has not pleaded any legal, equitable or factual basis for this claim for relief. There is no relevant justiciable relationship between the plaintiff and the CWA such as would justify any pecuniary award. Moreover, as referred to above, no illegality or other breach of statute has been established.

366. For the reasons set out above the plaintiff’s claim in the Equity proceedings will be dismissed.

Costs

367. In the ordinary course, costs would follow the event. As the defendant has been wholly successful, the plaintiff would ordinarily be ordered to pay the defendant’s costs of the proceedings. However, the defendant has asked for costs to be reserved.

Orders

368. For the reasons set out above I make the following orders:

In proceedings 2016/122571:

1. Order judgment for the defendant.

2. Reserve costs.

3. Direct that any application for costs, together with any evidence in support, be delivered to my Associate in writing within 7 days hereof, that any response be delivered to my Associate within a further 7 days, and that any reply be delivered to my Associate within a further 5 days.

In proceedings 2017/72463:

(1)   Dismiss the summons.

(2)   Reserve costs.

(3)   Direct that any application for costs, together with any evidence in support, be delivered to my Associate in writing within 7 days hereof, that any response be delivered to my Associate within a further 7 days, and that any reply be delivered to my Associate within a further 5 days.

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Decision last updated: 20 November 2017