New South Wales Supreme Court CITATION : Richard Green v Jennifer Schneller [1999] NSWSC 5 CURRENT JURISDICTION : Common Law Division FILE NUMBER(S) : 20386/94 HEARING DATE(S) : 22/12/98 JUDGMENT DATE : 12 January 1999 PARTIES : Jennifer Schneller (defendant/applicant) V Amalgamated Television Services Pty Ltd (respondent) and Richard Green (plaintiff) JUDGMENT OF : Simpson J Mr Rollinson (defendant/applicant) COUNSEL : Mr Blackburn (respondent) Mr Campbell (plaintiff) Dennis & Co. (defendant/applicant) SOLICITORS : Mallesons Stephen Jaques (respondent) Patrick Grimes & Co. (plaintiff) CATCHWORDS : DECISION : Defendant's Notice of Motion to join cross defendant dismissed - 8 - THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION SIMPSON J 12 January 1999 20386/94 Richard GREEN v Jennifer SCHNELLER Reasons for Judgment 1 By notice of motion filed on 9 September 1998 the defendant seeks leave to file a cross-claim naming Amalgamated Television Services Pty Limited ("Amalgamated Television") as cross-defendant in defamation proceedings fixed to commence on 1 February 1999 for a jury hearing estimated to occupy two weeks. 2 Except insofar as the contrary appears I shall, for the purposes of this interlocutory judgment only, assume the truth of various facts alleged by the parties to the proceedings. That assumption should not be taken to represent concluded findings of any fact or facts that may be in issue in the principal proceedings. The facts as stated are drawn from affidavit and oral evidence adduced in support of the notice of motion, and from previous interlocutory judgments to which I was referred. 3 On 21 June 1994 the plaintiff filed a statement of claim in this Court claiming damages from the defendant for defamatory statements he alleged were published by her in an interview televised on the Channel 7 network, which is owned and operated by Amalgamated Television. In the interview the defendant asserted that the plaintiff, a neighbour, had deposited bags of sewage in her letterbox and had then thrown them in her face in the presence of her young daughter. The allegations appear to have arisen out of a dispute that followed building work at the defendant's house, which caused disruption to the sewerage pipes in her property. 4 On 1 August 1994 the defendant filed a defence and cross claim, naming the plaintiff as cross-defendant, pleading various causes of action. In paragraphs 1 and 2 she alleged that the plaintiff had assaulted her by throwing a bag of sewage upon her, as a result of which she suffered severe personal injury, loss and damage; in paragraphs 3 and 4 she alleged that the plaintiff had assaulted her two year old daughter by throwing over her face and body a plastic bag of dirt, sewage and excrement, as a result of which she, (the defendant cross-claimant) suffered nervous shock. In paragraphs 5 to 8 she alleged that the plaintiff had, in 1988, 1989, 1991, 1992 and 1993, in various ways trespassed upon her property causing her humiliation, mental anguish, stress and other loss and damage; in paragraph 9 she alleged that the plaintiff had, in August 1992, defamed her by describing her as "a snotty nosed bitch". She sought damages, aggravated and punitive damages, and interest. 5 On the same day the plaintiff filed a Reply, and, subsequently, on 6 September 1994, a defence to the cross-claim. He denied the defendant's allegations and challenged her entitlement to make the claim contained in paragraphs 3 and 4 of the cross-claim (the alleged assault upon her daughter). 6 By notice of motion filed on 19 February 1996 the defendant applied for leave to amend the cross-claim by adding her daughter as a second cross-claimant, and by adding Amalgamated Television as a second cross-defendant. A draft of the proposed amended cross-claim was annexed to the notice of motion. 7 The notice of motion was determined by Finnane AJ on 22 August 1997. He made various orders: he struck out paragraphs 1, 2 and 3 of the cross-claim (these were the claims that the plaintiff assaulted the defendant, and her claim for nervous shock resulting from the alleged assault upon her daughter). He also refused leave to the defendant to join the proceedings brought by her daughter in the principal proceedings. He did, however, grant leave to the defendant to amend her cross-claim to commence proceedings against Amalgamated Television provided she did so within twenty-eight days of the date of judgment (22 August 1997). 8 In order to explain the decision of Finnane AJ it is necessary to recount a little more of the history. The facts here stated are drawn from the judgment of Finnane AJ of 22 August 1997. The alleged events the subject of the defendant's assertions on the television interview took place on 22 April 1993. Following this, on 27 April, the defendant sought in the Local Court an order under s 562 of the Crimes Act 1900 restraining the plaintiff from assaulting, attempting to assault, intimidate, harass, threaten, molest or otherwise interfere with her, and an order restraining his entry or attempted entry to her property, or attempting to contact the defendant or her family except in writing. The plaintiff sought similar orders against the defendant. The hearing the two claims commenced on 8 March 1994. Both the plaintiff and the defendant gave evidence about the events in question. 9 As summarised by Finnane AJ, the magistrate made findings substantially disbelieving the defendant's allegations and reflecting adversely upon her credibility. Finnane AJ therefore concluded that the findings of the magistrate constituted an issue estoppel in relation to the claims made by the defendant in paragraphs 1,2 and 3 of the cross-claim. 10 His Honour then refused leave to the defendant to amend her existing cross-claim in terms of the draft amended cross-claim annexed to the notice of motion. [In doing so, he appears mistakenly to have believed that the defendant's application for leave to amend included an application to add the cross-claim by adding the claim that the plaintiff had defamed her. As these paragraphs appeared in the cross-claim as originally filed (paragraph 9), such leave was not necessary. This, at present, appears to be neither here nor there.] 11 An application by the defendant for leave to appeal to the Court of Appeal was dismissed on 10 November 1997. 12 The defendant did not avail herself of the leave granted to her to add Amalgamated Television as a cross-defendant within the time specified. 13 By a further notice of motion filed 16 December 1997 the defendant sought leave to file a differently amended cross-claim. This proposed amended cross-claim contained allegations of assault in terms that varied only slightly from those previously pleaded, and of nervous shock as a result of the alleged assault on the defendant's daughter. Further, the proposed amended cross-claim contained a claim against Amalgamated Television claiming indemnity or contribution pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act, 1946. 14 On 18 March 1998 Levine J refused leave so to amend the cross-claim. His Honour observed that the only reason given by the defendant for failing to avail herself of the leave granted by Finnane AJ was that it was considered convenient to keep the proposed cross-claim against Amalgamated Television in the same document as the cross-claim she proposed to bring against the plaintiff. He considered this a quite unsatisfactory explanation for failing to take advantage of the opportunity offered by Finnane AJ, and, because of what he considered to be the insufficiency of the reason advanced, declined the leave sought. 15 He added: "It will be a matter for the defendant whether or not she chooses to seek to make a fresh application to initiate a cross-claim against Channel 7, but it would have to be supported, at the very least, by some evidence as to the grounds for seeking so to do and in the event that the defendant chooses to take this course I would anticipate the desirability of notice being given to Channel 7 of any further application to be made. I would, speaking for myself, be reluctant to entertain any further application in the light of the plaintiff's opposition without notice being given to Channel 7. In the event of a notice of motion seeking leave to cross-claim against Amalgamated Television Services Pty Limited being filed, I would anticipate a direction given that a copy of all relevant process be provided to that organisation to give it an opportunity to be heard in opposition, given particularly the lapse of four years since the publication of the relevant matter complained of." (Green v Schneller, unreported, Levine J, 18 March 1998) 16 Those remarks were made on 18 March 1998. I was informed that the principal proceedings were set down for trial commencing 1 February 1999, with a two week estimate. This occurred at a call-up on 23 October 1998. 17 The defendant's current notice of motion was filed on 9 September 1998, prior to the date on which the proceedings were fixed for hearing. It was unable to be heard, for various reasons, including my commitments in the Criminal Division and the Court of Criminal Appeal. The view had apparently been taken by the defamation judge that it was desirable that this application be heard by the trial judge if possible. I would therefore not regard as a factor antipathetical to the defendant's claim any delay beyond 9 September 1998. However, there is still an extraordinary set of circumstances which the defendant must explain before I would consider it appropriate to grant leave at this late state of the proceedings to join an additional cross-defendant. In saying that I recognise the apparent strength of the defendant's claim against Amalgamated Television. For the purposes of this decision, I assume that, while the defendant participated in the televised interview in the knowledge and with the intention that it would be transmitted to a multifarious audience, nevertheless it was Amalgamated Television that provided the means for publication of the defendant's comments. The defendant therefore appears to have an arguable case for contribution by Amalgamated Television. In an affidavit filed in support of the notice of motion the defendant's solicitor, Mr Dennis, deposed that: "It was only after the refusal of leave to appeal that the availability of a cross-claim against Channel 7 became acutely important." 18 I do not regard this explanation for the failure to take advantage of the leave granted by Finnane AJ. as any more satisfactory than that offered to Levine J in March 1998. In any event leave to appeal was refused in November 1997, and Levine J. refused the subsequent application on 18 March 1998. 19 The argument put on behalf of the defendant in support of the grant of leave was, effectively, that she remains entitled, under the Law Reform (Miscellaneous Provisions) Act 1946, to seek indemnity or contribution from Amalgamated Television, and that no statute of limitations will, for some years to come, defeat that right. Accordingly, it would be more convenient for the claim against Amalgamated Television to be litigated in the same proceedings as the issues between herself and the plaintiff, rather than in separate proceedings. Her counsel acknowledged that it was unlikely that Amalgamated Television would be in a position to participate in a hearing commencing in February 1999, but urged that leave be granted and the hearing of the cross-claim be separated from the hearing of the principal proceedings. 20 I do not regard this, either, as a satisfactory approach to the difficult situation that has been created. Given the time of year (the hearing of the notice of motion could not take place until 22 December 1998) it would scarcely be fair to Amalgamated Television to expect that organisation to be ready for a contested hearing at such short notice and this was not in question. There was evidence in affidavit form from Ms Rebecca Barnett, solicitor acting for Amalgamated Television, outlining the difficulties she had experienced in obtaining information concerning the telecast. In response to this counsel for the defendant tendered a bundle of correspondence between the defendant and Amalgamated Television or its various employees commencing 5 July 1994, in which the defendant drew attention to involvement of Amalgamated Television and its potential liability. That correspondence, however, came to an end on 10 November 1994, and there was no evidence of any further correspondence or communication until after the decision of Levine J. 21 The plaintiff was represented by counsel on the application but took little real part, regarding himself as relatively uninvolved in the issue between the defendant and Amalgamated Television. This was undoubtedly because of the defendant's concession that the cross-claim, even if leave were granted, would not be heard at the same time as the principal claim. However, it seems to me that the plaintiff's interests are, at least potentially, involved in the present application. It is only necessary to consider for a moment the steps likely to occur following the decision on this notice of motion. If I were to grant leave to the defendant to join Amalgamated Television in the proceedings as a cross-defendant, virtually inevitably the next step will be an application for adjournment by Amalgamated Television in order to prepare itself for a hearing, and for all matters to be litigated in a single hearing. There is much to be said for the resolution of all these matters in that way; but not, in the present circumstances, at the almost certain expense of the plaintiff's hearing date. 22 During the course of the hearing of the notice of motion I raised the question of whether it was correct for counsel for the defendant to assert, as he did, that the defendant would retain her right to bring proceedings for indemnity and/or contribution against Amalgamated Television, even after the conclusion of the principal proceedings. The cause for my concern was the decision of the High Court in Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589. Having re-read those judgments, and having read the written submissions from both counsel that resulted from that concern, I am satisfied that that decision will not prevent the prosecution by the defendant of any claim she may wish to bring against Amalgamated Television. 23 I have concluded that the defendant has had more than ample opportunities extended to her to bring the proceedings she now wishes to bring against Amalgamated Television; it is simply too late in the day to permit a cross-claim to be brought in the present proceedings. 24 The notice of motion is dismissed. I order the defendant to pay the costs of Amalgamated Television Services Pty Limited. Last Modified: DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.