New South Wales Supreme Court CITATION : Schneller v Amalgamated Television Services P/L [2000] NSWSC 978 CURRENT JURISDICTION: Common Law Division Defamation List FILE NUMBER(S) : SC 20076/00 HEARING DATE(S) : 18/10/2000 JUDGMENT DATE : 25 October 2000 PARTIES : Jennifer Schneller (Pl) Amalgamated Television Services Pty Limited (Def) JUDGMENT OF : Kirby J COUNSEL : C Evatt/M Rollinson (Pl) W H Nicholas QC/T D Blackburn (Def) SOLICITORS : Dennis & Co (Pl) Mallesons Stephen Jaques (Def) CATCHWORDS : Contribution - Dismissal as abuse of process - Anshun estoppel Supreme Court Rules - Pt13 r5; Pt15 r26; Pt20 r2 LEGISLATION CITED : Law Reform (Miscellaneous Provisions) Act, 1946 - s5(1)(c); s5(2) Crimes Act, 1900 - s562B Supreme Court Act, 1970 - s63 Bitumen & Oil Refineries (Aust) Ltd v Commissioner for Government Transport (1954-55) 92 CLR 200 Brambles Constructions Pty Ltd v Helmers (1965-66) 39 ALJR 410 Lawrence v Nominal Defendant (C of A (NSW), 2 July 1984, unreported) Port of Melbourne Authority v Anshun P/L (In Liq) (1981) 147 CLR 589 CASES CITED : Andrew v Baradom Holdings P/L (1995) 36 NSWLR 700 Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287 Anthony Developments P/L t/as Cut-Price Rent-A-Car v G A Marsden (unreported, 25 May 1999, Kirby J) Cretazzo v Lombardi (1975) 13 SASR 4 Hughes v Western Australian Cricket Association Inc (1986) ATPR 40-748 DECISION : Ref para 59 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST KIRBY J Wednesday 25 October 2000 20076/00 - JENNIFER SCHNELLER v AMALGAMATED TELEVISION SERVICES PTY LIMITED JUDGMENT 1 HIS HONOUR: This is a Notice of Motion by Amalgamated Television Services Pty Limited ("Amalgamated Television") against Jennifer Schneller ("Mrs Schneller") (the plaintiff) in which the following orders are sought: "1. That the proceedings be dismissed, and/or the statement of claim struck out under Part 13 rule 5 or Part 15 rule 26 of the Supreme Court Rules; 2. Alternatively, that the proceedings be permanently stayed under Part 13 rule 5 and/or Part 15 rule 26 of the Supreme Court Rules; 3. Costs." The Original Statement of Claim 2 Upon an examination of the plaintiff's Statement of Claim, it was immediately apparent that there were two problems. First, the claim was one for contribution or indemnity under s5(1)(c) of the Law Reform (Miscellaneous Provisions) Act, 1946. The claim was premature. The cause of action did not arise until Mrs Schneller's liability as a tort feasor had been determined. In Bitumen & Oil Refineries (Australia) Ltd v Commissioner for Government Transport (1954-55) 92 CLR 200, the Court (Dixon CJ, McTiernan, Webb, Fullagar and Taylor JJ) said this: (at 210) "It seems to me clear that a tortfeasor cannot recover contribution until his liability is ascertained. If he had not been sued and has paid nothing and admitted nothing, he can have no cause of action for contribution, for the simple reason that he may never be called on to pay at all. The damaged plaintiff may go against the other tortfeasor only. Once the liability of the first tortfeasor has, however, been ascertained by judgment against him or by admission, then he has a cause of action for contribution against the second tortfeasor." 3 See also Windeyer J in Brambles Constructions Pty Limited v Helmers (1965-66) 39 ALJR 410 at 412. 4 When the Statement of Claim was issued (2 March 2000), the claim in defamation by Mr Richard Green against Mrs Schneller (in respect of which Mrs Schneller seeks contribution from Amalgamated Television) had been heard by Simpson J. Her Honour had reserved her judgment. It was handed down on 19 June 2000. Accordingly, at the time of issue, there was no cause of action. 5 The second problem, perhaps irrelevant in view of the first, was that the Statement of Claim did not conform to the rules. It did not set out, in a series of paragraphs, the material facts said to give rise to the right to contribution or indemnity under the Statute. 6 These defects were recognised by Mr Evatt, appearing with Mr Rollinson for Mrs Schneller. Mr Evatt foreshadowed a fresh Statement of Claim. Were it now issued, it would overcome the defect in timing. It would, moreover, set out the material facts in order to overcome the second objection. 7 Notwithstanding the foreshadowed document, Amalgamated Television insisted that the same issues concerning an abuse of process would arise in the context of that document, and would need to be determined. I thought it prudent to adjourn for a short time to enable Mr Evatt to present the Statement of Claim upon which Mrs Schneller will seek to rely. The issues arising under the Notice of Motion could then be determined in the context of the actual claim which Mrs Schneller intends to pursue. 8 The argument of Amalgamated Television turns upon the history of this litigation, and the companion action by Mr Green against Mrs Schneller. Although I have formed the view that such matters, ultimately, are irrelevant, and that Mrs Schneller has the right to commence an action for contribution against Amalgamated Television, I should, nonetheless, set out that history. The Dispute Between Mr Green and Mrs Schneller 9 Mr Richard Green and Ms Carolyn McFarlane lived in Upper Cliff Road, Northwood. Mrs Schneller was the owner of an adjacent property. In 1993, Mrs Schneller and her husband undertook renovations. The house was empty whilst the renovations were taking place. During the course of the work a sewer pipe was fractured. Sewerage waste was discharged near Mr Green's property. Mr Green complained to Mrs Schneller. She arranged for a plumber. Some weeks elapsed before the plumber undertook the work. Having mended the pipe, the plumber failed to remove the effluent. 10 Ms McFarlane, in these circumstances, shovelled the effluent into a polythene bag. She spoke to Mrs Schneller about the matter. Mr Green, meanwhile, had returned from work. He joined the conversation. Mr Green attempted, unsuccessfully, to force the polythene bag into Mrs Schneller's letterbox. Mrs Schneller asserted (and Mr Green denied) that he then threw the effluent at her, so that it sprayed upon her and her young daughter. 11 Mrs Schneller immediately went to the Local Court. She made an application for an Apprehended Violence Order against Mr Green (s562B Crimes Act, 1900). Mr Green responded in kind. He made his own application for such an order against Mrs Schneller. 12 The proceedings came to the notice of a local newspaper. A small item covering the dispute then appeared. It came to the attention of reporters from Amalgamated Television, who were working on a programme called "Real Life" (screened by Channel 7). On 8 March 1994, Ms Joan Hanson, a reporter with that programme, went to Mrs Schneller's home with a television crew. She spoke with Mrs Schneller. She also sought to speak with Mr Green. He, however, declined to be interviewed. On the following evening, 9 March 1994, Amalgamated Television (Channel 7) screened part of the interview with Mrs Schneller, including the following: " Reporter : It's a neighbourly dispute of sordid proportions. Mrs S: His actions of throwing the sewer into my face - I consider it a personal assault and a violent act against a woman. Reporter: Life should be perfect for Jennifer Schneller - she has a lovely family - a lovely view and a lovely new home - but her neighbour Richard Green is a man Jennifer is scared of. Mrs S: I hope that I'll get a restraining order preventing him from approaching me and that that will allay my fears and I hope that he will move out." Defamation Proceedings by Mr Green 13 On 21 June 1994, a Statement of Claim was issued by Mr Green against Mrs Schneller claiming damages in defamation. On 1 August 1994, a Defence and Cross Claim was filed on behalf of Mrs Schneller. The Cross Claim sought damages for assault, trespass, and defamation. 14 The claims by Mrs Schneller and Mr Green for Apprehended Violence Orders were, in the meantime, heard by the Local Court. The learned Magistrate gave judgment on 9 June 1995. His judgment was distinctly adverse to Mrs Schneller. He rejected her account of Mr Green's actions. 15 Mr Green, in these circumstances, sought leave from Levine J to amend his Defence to Mrs Schneller's Cross Claim. That leave was given. The Amended Defence raised an estoppel based upon the findings by the Local Court. 16 On 19 February 1996, Mrs Schneller filed a Notice of Motion seeking a number of orders, including that she be given leave to issue a second Cross Claim against Amalgamated Television. That Notice of Motion, and a complaint by Mrs Schneller that the judgment of the Local Court did not give rise to an estoppel, came before Finnane AJ on 22 August 1997. His Honour determined that the estoppel did arise. He also dealt with the application for leave to begin a Cross Claim against Amalgamated Television. His Honour noted that Mr Green did not oppose that application, and said this: "There is no reason that Amalgamated Television Services Pty Limited, the company which owns Channel 7, should not be joined in these proceedings as they were the broadcaster of the defamation, if there were any defamation, and I grant leave to join them by way of cross claim." 17 Finnane AJ then made an order in these terms: "I give leave to the defendant/cross claimant to amend her cross claim to commence proceedings against Amalgamated Television Services Pty Limited provided she does so within 28 days from today." 18 Mr Nicholas QC, for Amalgamated Television, attached some importance to the time limitation imposed by his Honour. It was imposed, he suggested, because his Honour recognised the importance of ensuring that the Cross Claim was commenced with despatch. 19 Mrs Schneller, however, did not take advantage of that leave. No Cross Claim against Amalgamated Television was commenced. Mrs Schneller did, however, seek leave from the Court of Appeal to appeal against the orders of Finnane AJ made as a consequence of his accepting that there was an estoppel. Leave to appeal was refused on 20 November 1997. 20 On 18 December 1997, a further Notice of Motion was filed on behalf of Mrs Schneller. It again sought leave to commence a Cross Claim. The Motion was heard by Levine J, who gave judgment on 18 March 1998. His Honour said this: "The Notice of Motion with which I am concerned seeks leave to initiate a cross-claim against Channel 7 to seek indemnity or contribution pursuant to s5(1)(c) of the Law Reform (Miscellaneous Provisions Act, 1946. The only reason given for not availing herself of the grant of leave by Finnane AJ was that it was considered convenient to keep the proposed cross-claim against Channel 7 in the same document as the sought cross-claim against the plaintiff. This, to my mind, is quite an unsatisfactory explanation for failing to exploit, in a non-contentious situation, the leave granted by his Honour." 21 Levine J, by the terms of his judgment, was plainly conscious of Mr Green's anxiety to have his action against Mrs Schneller heard. His Honour said this: "The view to which I have come is, that the plaintiff now objecting to the proposed initiation of a cross-claim against Channel 7, the application to do so must fail in the light of the insufficiency of the reason advanced for the defendant not availing herself of the order made by Finnane AJ." 22 Levine J added these words: "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 leaving 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." 23 The solicitor for Mrs Schneller then wrote to Amalgamated Television on 30 March 1998. A copy of the pleadings in the action by Mr Green against Mrs Schneller was enclosed. The letter said this: "We propose to apply to the Court for leave to bring a second Cross-Claim against your Company as the owners of Channel 7, on which the program in question, 'Real Life' on 9th March 1994, was broadcast." 24 The letter then set out the nature of the proposed Cross Claim, and sought Amalgamated Television's consent to the filing of that claim. 25 No consent was forthcoming. On 9 September 1998, Mrs Schneller again sought leave. An Affidavit in support was filed by Mr Dennis, the solicitor for Mrs Schneller. It referred to the judgment of Finnane AJ on 22 August 1997 concerning the estoppel issue, and the refusal by the Court of Appeal to give leave to appeal against that judgment. The affidavit then said this: "It was only after the refusal of leave to appeal that the availability of a Cross-Claim against Channel Seven became acutely important." 26 Amalgamated Television was served with the Notice of Motion, as directed by Levine J. It opposed the application. It relied upon an affidavit of Ms Rebecca Barnett, solicitor. The affidavit referred to prejudice arising through delay. I will deal separately below with the issue of prejudice. 27 The Motion could not be dealt with straight away. It was ultimately dealt with by Simpson J on 22 December 1998. In the meantime, on 23 October 1998, the action by Mr Green against Mrs Schneller was set down for hearing. It was to commence on 1 February 1999. Simpson J gave judgment on the Motion on 12 January 1999. Her Honour said this: "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." 28 She added: "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." 29 Simpson J also said this: "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." 30 Her Honour added: " … it is simply too late in the day to permit a cross-claim to be brought in the present proceedings." 31 Simpson J plainly contemplated that Mrs Schneller may later wish to commence contribution proceedings against Amalgamated Television, were she unsuccessful in the action by Mr Green. Her Honour explored whether, by reason of Mrs Schneller failing to obtain leave, she would be barred from seeking contribution. She concluded that she would not. Simpson J said this: "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." 32 The action by Mr Green against Mrs Schneller then proceeded before Simpson J without a jury. On 19 July 1999 her Honour reserved. Judgment in favour of Mr Green (in the sum of $20,000, plus costs) was given on 19 June 2000. The Prejudice to Amalgamated Television 33 Amalgamated Television, in its application, relied, in part, upon prejudice said to arise from Mrs Schneller's delay. For the reasons I will shortly state, I believe prejudice to Amalgamated Television is irrelevant. However, since the issue was litigated before me, and formed part of the argument of Amalgamated Television, I should state the facts (cf Lawrence v Nominal Defendant (Court of Appeal (NSW), 2 July 1984, unreported); Ritchie p.1114). 34 Amalgamated Television relied upon two affidavits, each by Ms Rebecca Barnett, solicitor (dated 11 December 1998 and 6 October 2000). Ms Barnett spoke to Ms Joan Hanson, the journalist responsible for the story. Ms Hanson recalled little more than the broad outline. She no longer had her notes. She left her notes with Channel 7 when she ceased working for Amalgamated Television in 1994. The producer, Mr Wilton, was in the same position. In-house counsel for Channel 7 had looked for the notes, and had made enquiries. They could not be found. He surmised that, having regard to the nature of the story, they had been destroyed. 35 The tape of the programme is, of course, available. It was an exhibit in the action by Mr Green against Mrs Schneller. The off-cuts of film are not available. However, that comes about, not through delay, but as a consequence of the system employed by Amalgamated Television. It was the practice in 1994 to reuse camera tapes within a matter of days. Even had Mrs Schneller acted in a timely way, such material would not have been available. 36 Unquestionably, some prejudice to Amalgamated Television arises through delay. However, in circumstances where the programme is available, I do not believe the prejudice is significant. The Right of Mrs Schneller to Seek Contribution 37 Mrs Schneller was sued by Mr Green for defamation. The publication relied upon by Mr Green was, first, the interview provided by Mrs Schneller to journalists from Amalgamated Television, where she said disparaging things about Mr Green, and, secondly, the republication of that material by Channel 7. That republication was intended by Mrs Schneller, and was the natural and probable consequence of her interview. 38 The Law Reform (Miscellaneous Provisions) Act, 1946, relevantly, is in these terms: "s5(1) Where damage is suffered by any person as a result of a tort (whether a crime or not) - (c) any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by that person in respect of the liability in respect of which the contribution is sought." 39 The contribution shall be such amount as may be found by the Court to be just and equitable, having regard to the extent of responsibility for the damage (s5(2)). The policy behind the provision was described by Barwick CJ in Brambles Constructions Pty Limited v Helmers (supra) in these terms: (at 410) "The general purpose of the provision is clear enough. It would seem that the legislature desired on the one hand to expose all tortfeasors who had caused or contributed to the same damage to suit by the injured party notwithstanding the recovery of judgment against any of them; and that each tortfeasor who came under an obligation to pay damages should have contribution from every other tortfeasor who had caused or contributed to the same damage." 40 Windeyer J, in the same judgment, said this: (at 412) "A person thus found liable may seek relief from having to bear the whole burden. He can claim that any other, who by his wrongful act had a part with him in causing the damage that the plaintiff suffered, should contribute to the compensation which it has been adjudged he must pay. A person from whom contribution can be claimed is, as I read the Act, anyone who would had he been sued have been held liable for the same damage." 41 His Honour added: (at 412) "The result is that the Statute of Limitations does not begin to run in favour of a third party tortfeasor, against whom a claim for contribution is made, until after the liability of the original tortfeasor has been ascertained; for it is only then that the right to contribution arises." 42 Here, Mrs Schneller must establish that Amalgamated Television would, if sued, have been liable. Plainly Amalgamated Television published the material. The material identified Mr Green by name. The words published by Amalgamated Television were disparaging of Mr Green. Simpson J, in the action by Mr Green against Mrs Schneller, based upon the same material, found that a number of imputations arose (they being the causes of action), and that they were defamatory. Amalgamated Television has no obvious defence. Simpson J in her judgment on 12 January 1999, described the strength of Mrs Schneller's claim for contribution (para 28 above). 43 However, it is unnecessary to go that far. Amalgamated Television, in its motion, seeks the dismissal of Mrs Schneller's claim for contribution, as an abuse of process, and, alternatively, a stay of proceedings. It relies upon Pt 13 r 5, or Pt 15 r 26. The fresh Statement of Claim (MFI 1) (unlike its predecessor) is not obviously defective. The liability of Mrs Schneller to Mr Green has now been determined. The proposed Statement of Claim asserts a cause of action. The cause of action is not statute barred. The case for contribution is certainly arguable. Leave is not required before the action may be commenced, as Amalgamated Television acknowledged. I can, therefore, see no basis for suggesting that the proposed action is an abuse of process. The Arguments of Amalgamated Television 44 Broadly, three arguments were put on behalf of Amalgamated Television, in support of the Motion. · First, in the light of the history, the action of Mrs Schneller was an abuse of process. · Secondly, by reason of the unwarranted delay of Mrs Schneller, the ability of Amalgamated Television to defend the proceedings had been prejudiced, such that a stay should be granted. · Thirdly, by application of the authorities dealing with Anshun estoppel (Port of Melbourne Authority v Anshun Pty Limited (In Liq) (1981) 147 CLR 589), or by analogy to such authorities, the action was an abuse. 45 Such arguments may be relevant were it necessary for Mrs Schneller to seek the Court's leave to commence the action for contribution against Amalgamated Television. However, as stated, no such leave is required (as Amalgamated Television acknowledged). I have difficulty, in these circumstances, in seeing how the history, or the fact of prejudice, is relevant to an assertion that there has been an abuse of process. The history, to my mind, simply demonstrates that Mrs Schneller belatedly, and somewhat ineptly (through her legal advisors) attempted to intrude a Cross Claim against Amalgamated Television into the action by Mr Green against her. Because of her delay, and the way in which the Cross Claim was pursued, the Court repeatedly refused her leave. Such orders do not, to my mind, make a later action for contribution after judgment an abuse of process. 46 My attention was drawn to Andrew v Baradom Holdings Pty Ltd (1995) 36 NSWLR 700. However, the commencement of contribution proceedings after the conclusion of the action by Mr Green against Mrs Schneller is not evidence of contumacy, or intentional defiance or disregard of Court orders. 47 The fact that there may be prejudice to a party through delay in commencing action does not make the action an abuse of process. Were a party to delay his or her action until shortly before the expiration of the limitation period, and were there prejudice to the defendant through such delay, the action would not thereby be an abuse of process. The party would, in that circumstance, simply have exercised its rights. 48 And so it is here. An abuse of process depends, rather, upon there being no triable issue, or a case so weak that it would be futile to proceed, or circumstances which demonstrate that, in truth, the plaintiff has an ulterior purpose that makes it an abuse. None of these elements is present. 49 Dealing with the third argument, Counsel drew attention to Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287, where the Court (Beaumont, Wilcox and Moore JJ) made certain comments, in the context of a Cross Claim. The Court said this: (at 297/298) "Questions of substantive degree may be involved; and in contrast to defences, many cross-claims may have little or no connection with the principal claim in the action; there may be no more than an identicality of parties. Where that is so, there may be no policy justification for forcing defendants to litigate their claims as cross-claims rather than as principal claims in separate actions in the forum of their choice. But, where, as here, a defendant's claim is intimately connected with that of the plaintiff, in the sense that each arises, substantially, out of the same matters of fact, there is every reason to require that both be litigated at the one time; thereby minimising costs and avoiding the possibility of inconsistent judgments." 50 However, the Court was there dealing with an entirely different situation. In an action by the Commonwealth Bank in the Supreme Court, Mr Bryant responded with a cross action. The matter was litigated to judgment. Mr Bryant was unsuccessful. He then began an action in the Federal Court, asserting causes of action which had not been raised in the Supreme Court. 51 I believe the Anshun estoppel cases have no relevance. There was no joinder of issue between Mrs Schneller and Amalgamated Television. Nor was there, I believe, a requirement that Mrs Schneller commence contribution proceedings against Amalgamated Television before the conclusion of Mr Green's action, whether by reason of s63 of the Supreme Court Act, 1970, or otherwise (see Anthony Developments Pty Limited t/as Cut-Price Rent-A-Car v G A Marsden (unreported, 25 May 1999, Kirby J). 52 I therefore reject the argument that the proposed contribution action is an abuse of process. Amendment or a Fresh Action 53 Mr Evatt pointed to Pt 20 r 2 which allows a party to amend a pleading once, without leave, at any time before the pleadings have closed. 54 The difficulty with that argument is that the amendment may then speak from the date the process was issued. It may not, therefore, overcome the problem that the Statement of Claim was issued before judgment against Mrs Schneller had been determined. 55 The difficulty was discussed in the course of argument. Recognising that the plaintiff could issue a fresh Statement of Claim which would overcome that objection, Amalgamated Television indicated that, were I against it on the abuse argument, as I am, it would not require the plaintiff to issue fresh process. It would be content, in that circumstance, for the existing Statement of Claim to be amended in the manner foreshadowed. No point would be taken that the Statement of Claim, as amended, was premature. Amalgamated Television reserved its rights to object to aspects of the proposed document (as a pleading) once it had been considered further. Costs 56 Amalgamated Television has succeeded in part. The original Statement of Claim was defective. It did not give rise to a cause of action because it was premature. The defendant was entitled to ask that it be struck out as an abuse of process. 57 However, as mentioned, Counsel for Mrs Schneller conceded these defects at once. The main contest before me concerned an application to dismiss the reformulated claim upon the basis that it was also an abuse of process. Amalgamated Television has lost that argument. 58 Given the broad nature of the discretion on costs (see Cretazzo v Lombardi (1975) 13 SASR 4, per Jacobs J at 16; Toohey J in Hughes v Western Australian Cricket Association Inc (1986) ATPR 40-748), I believe that justice is served by awarding Mrs Schneller 75% of her costs. Orders 59 The orders I make, therefore, are as follows: 1. I have given leave to the plaintiff (Mrs Schneller) to file in Court the Amended Statement of Claim in the form of MFI 1. 2. I dismiss the Motion by Amalgamated Television Services Pty Limited to strike out, or stay, the plaintiff's action. 3. I order that Amalgamated Television Services Pty Limited pay 75% of the costs of Mrs Schneller, including the costs of two Counsel. ********** Last Modified: 10/26/2000 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.