Green v Schneller - [2000] NSWSC 1207

CITATION: Green v Schneller [2000] NSWSC 1207

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 20386/94

HEARING DATE(S): 12 October 2000

JUDGMENT DATE: 15 December 2000

PARTIES :

Richard Green (Plaintiff)
Jennifer Schneller (Defendant)

JUDGMENT OF: Simpson J

COUNSEL : Mr R A Campbell - Plaintiff
Mr C Evatt - Defendant

SOLICITORS: Patrick Grimes & Co - Plaintiff
Dennis & Co - Defendant

CATCHWORDS: Award of costs of defamation acton - Supreme Court Act 1970, s 76- SCR P 52A r 33, deterrent effect of - whether successful plaintiff is entitled to an order for costs - diminution of quantum of costs - sufficient reasons for commencing or continuing proceedings in the court - discretion of the court -jurisdictional limit - complexity of the factual and legal issues - expectation of recoverable amount - assessment of costs on an indemnity basis - conduct of parties.

LEGISLATION CITED: Defamation Act 1974
Supreme Court Act 1970

CASES CITED: Green v Schneller [2000] NSWSC 548
Toomey v John Fairfax & Sons Limited :Ritchie: Supreme Court Procedure NSW
John Fairfax and Sons Limited v Palmer (19870 8 NSWLR 297
Rouse v Shepherd [No2] (1994) 35 NSWLR 277
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225

DECISION: See paragraph No.52

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION

SIMPSON J
15 December 2000
20386/94

Richard GREEN v Jennifer SCHNELLER

Judgment

HER HONOUR :

1    Before the court are competing notices of motion concerning the award of costs of defamation proceedings otherwise completed.
2    The plaintiff, who was successful in his claim, seeks orders that the defendant pay his costs of and incidental to the proceedings, and that the costs be assessed on an indemnity basis. The defendant, against whom an award of damages of $20,000 was made, seeks an order that the plaintiff is not entitled to an order for costs, or alternatively an order that the plaintiff is entitled only to half of the costs incurred in the proceedings. These reasons should be read in conjunction with the judgment delivered in the principal proceedings on 19 June 2000 (Green v Schneller [2000] NSWSC 548).

History

3    On 21 June 1994 the plaintiff, Richard Green, instituted proceedings in this court claiming against the defendant, Jennifer Schneller, damages for defamatory imputations he alleged had been published by her in an interview on or about 8 March 1994, and broadcast on national television the following day. The interview followed what can only be described as escalating hostility between the plaintiff and the defendant, who were neighbours in a Sydney suburb.
4 The claim proceeded to a hearing, without a jury, in February 1900. Final submissions were made in July 1999. The defendant defended the claim, raising defences under s 13 of the Defamation Act 1974 (pleading that the imputations were published in such circumstances that the plaintiff was not likely to suffer harm by their publication); justification; qualified privilege (both pursuant to statute and at common law); contextual truth; comment; and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Green v Schneller

Details

AGLC: Green v Schneller [2000] NSWSC 1207
Case: [2000] NSWSC 1207
Decision Date: 15 December 2000

CaseChat Overview and Summary

The case of Green v Schneller involved a dispute concerning the award of costs in a defamation action. The matter was heard in the Supreme Court of Australia, where the plaintiff, Green, sought an order for costs against the defendant, Schneller. The primary focus of the litigation was on the legal principles governing the awarding of costs in defamation cases, particularly under the Supreme Court Act 1970 and the Supreme Court Rules.

The court was required to determine several legal issues, including the applicability of section 76 of the Supreme Court Act, which allows for the ordering of costs against a successful plaintiff under certain conditions. The court also considered the deterrent effect of the costs award, the sufficiency of reasons for commencing or continuing the proceedings, and the discretion of the court in assessing costs. Furthermore, the court evaluated the complexity of the factual and legal issues involved in the case, the expectation of the recoverable amount, and the appropriateness of assessing costs on an indemnity basis. The conduct of both parties was also scrutinized to determine if it warranted any adjustment in the costs awarded.

The court found that the successful plaintiff was not automatically entitled to an order for costs, as the deterrent effect of such an order must be considered. It was also noted that if the court deemed the plaintiff's reasons for commencing or continuing the proceedings insufficient, it could diminish the quantum of costs awarded. The Supreme Court's discretion in assessing costs was emphasised, particularly in relation to the complexity of the issues and the conduct of the parties. The court concluded that an indemnity assessment was appropriate given the circumstances, and ordered that the costs be assessed accordingly.

The final orders of the court included a detailed assessment of costs, taking into account the various factors discussed. The court exercised its discretion to reduce the costs awarded to the plaintiff based on the sufficiency of reasons for the proceedings, the complexity of the issues, and the conduct of the parties. The court also determined that the deterrent effect of the costs award was a significant consideration in its assessment.

Orders