Green v Schneller

[2000] NSWSC 548

Reported Decision: [2000] Aust Torts Reports 81-568

New South Wales

Supreme Court

CITATION:	Green v Schneller [2000] NSWSC 548
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 20386/94
HEARING DATE(S):	1/2/99,2/2/99,3/2/994/2/99,5/2/99,8/2/99, 9/2/99,10/2/99,11/2/99,12/2/99/16/4/99,19/7/99
JUDGMENT DATE:	19 June 2000
PARTIES :	Richard GREEN - Plaintiff Jennifer SCHNELLER - Defendant
JUDGMENT OF:	Simpson J at 1

COUNSEL :	Mr J Cummins, QC with Mr R A Campbell - Plaintiff Mr C Evatt with Mr M Rollinson - Defendant
SOLICITORS:	Patrick Grimes & Co - Plaintiff Dennis & Co - Defendant
CATCHWORDS:	Defamation - public interest - fair protected report - truth - qualified privilege - contextual truth - comment - damages.
LEGISLATION CITED:	Supreme Court Act 1970 Crimes Act 1900 Defamation Act 1974
CASES CITED:	Schneller v Green [1999] NSWSC 5 Radio 2UE Sydney Pty Ltd v Parker (1992) 2 NSWLR 448 South Hetton Coal Company, Limited v North-Eastern News Association, Limited, [1984] 1 QB 133 London Artists Limited v Littler [1969] 2 QB 375 Allsopp v Incorporated Newsagencies Co. Pty. Ltd.(1975) FLR 238 Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 Chappell v TCN Channel 9 Pty Ltd (1988) 14 NSWLR 153 Morosi v Mirror Newspapers Ltd [1977] 1 NSWLR 749 Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 at 711 Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 Kemsley v Foot [1952] AC 345 Uren v John Fairfax and Sons Pty Ltd (1966) 117 CLR 118 at 150 John Fairfax and Sons Ltd v Kelly (1987) 8 NSWLR 131 at 142 Cassell & Co Ltd v Broome (1972) AC 1027 Carson v John Fairfax and Sons Ltd (1993)178 CLR 44 at 71 Dingle v Associated Newspapers [1964]AC 317 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519
DECISION:	Verdict for the plaintiff in the sum of $20,000. The defendant is to pay the plaintiffs costs of the proceedings.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION

SIMPSON J

19 June 2000

20386/94

Richard GREEN v Jennifer SCHNELLER

Judgment

HER HONOUR :

1 The plaintiff, Richard Green, brings these proceedings against the defendant, Jennifer Schneller, claiming to have been defamed in statements made by her on or about 8 March 1995 and broadcast by television Channel 9 the following day, 9 March 1995 on a programme called “Real Life”. The trial was fixed to commence, with a two week estimate, before a jury of four on 1 February 1999. On that day a jury was empanelled, but because a number of preliminary matters had to be argued and resolved, was released for what remained of the day. On the second day, following receipt by me of communications from two members of the jury, and at the request of the parties, the jury was discharged, and the parties agreed, pursuant to s 89(2) of the Supreme Court Act 1970, to proceed to trial of all issues without a jury.

2    Before moving to the specific issues that fall for determination it is convenient to set out, so far as possible in chronological order, something of the complicated and rather unsavoury background to these proceedings. In the interests of clarity I will refer to the parties by their names in preference to identifying them by reference to their roles in the litigation. The proceedings arise out of nothing more nor less than a neighbourhood dispute which came to a head over construction work being carried out during 1995 on Ms Schneller’s property. The disputes escalated out of all proportion, culminating in the present claim.

Background

3    Mr Green and his family and Ms Schneller and hers were the owners and occupiers of adjoining properties at, respectively, 40A and 42 Upper Cliff Road, Northwood. Mr Green purchased his property in 1988 or 1989. Ms Schneller and her husband and children were already resident next door at No 40. Initially, relations between them were neighbourly, if not harmonious, but quickly deteriorated and a number of disputes between the households eventuated. Regrettably, it was considered necessary to ventilate much of the detail of these disputes during the hearing of Mr Green’s claim.

4    In 1993 Ms Schneller undertook extensive renovations to her house - in fact, it seems, demolition of the existing house and construction of a new one. During the course of the work the Schneller family temporarily vacated the property. A sewer pipe began to leak, discharging waste at a point very near Mr Green’s property. He brought this to Ms Schneller’s attention and asked her to take urgent action to have the pipe repaired. Two weeks later repairs were effected but the plumber who undertook the work did not remove the discharged effluent. On the afternoon of 22 April 1993 Mr Green’s partner, Ms Carolyn McFarlane, shovelled the offending material into a polythene bag and shortly after doing so had a conversation with Ms Schneller in which Ms McFarlane asked Ms Schneller to attend to removal of her own nightsoil, and said that she had a good mind to drop the bag into Ms Schneller’s letterbox. Even as recounted by Ms McFarlane, it is obvious that her approach to Ms Schneller was neither cordial nor conciliatory. There are conflicting versions of Ms Schneller’s response, but it, too, was far from conciliatory.

5    Mr Green had arrived home in time to hear part of the exchange. He went upstairs in his own house, put on a pair of rubber gloves, obtained the plastic bag from Ms McFarlane, and took it to the front of Ms Schneller’s house, where he tried unsuccessfully to force it into the letterbox. Ms Schneller photographed him as he did so.

6    What happened next is a matter of considerable controversy between the parties. For reasons that will appear below (para 33), it is neither necessary, nor indeed open to me, to make findings of fact on all of the disputed matters, or the allegations in relation to which the parties are in dispute. Put briefly, Mr Green asserts that he emptied the bag onto the ground near Ms Schneller’s feet. Ms Schneller maintains that her two year old daughter, Simone, was with her, and that Mr Green threw the bag and its contents in such a fashion as to cause its muddy contents to strike both herself and her daughter in the face. Mr Green denies that Simone was present.

7 Following this incident, both Ms Schneller and Mr Green commenced proceedings in the Local Court under s 562B of Crimes Act 1900, each seeking orders restraining apprehended violence or harassment on the part of the other. These claims came on for hearing before Mr M Beveridge in the Local Court at the Downing Centre commencing on 8 March 1995, and continued over no less than six non-consecutive hearing days. Somehow the proceedings came to the attention of the producers of the television programme, apparently regularly broadcast on Channel 7, called “Real Life”. On the evening of 8 March a television crew visited Ms Schneller at her home and she participated in an interview with a reporter named Joan Hanson. On the following evening, 9 March, the programme went to air. It was introduced by a person called Stan Grant. Ms Schneller can clearly be seen and heard and there is no dispute that the words attributed to her in the programme were in fact spoken by her. Ms Schneller contends, however, that the tape recording of her answers to questions was cut, edited and re-arranged in such a way as to distort what she intended to, and what she did in fact, convey. The significance of this is limited, because Mr Green has elected not to sue the owner or operator or licensee of Channel 7 and a very late application made by Ms Schneller to cross claim against that operator was rejected by me (Schneller v Green [1999] NSWSC 5, unreported, 12 January 1999).

8    A video tape of the programme was in evidence. The programme appears to have been made up of a number of short segments, interspersed liberally with breaks for advertisements. The programme opened with a trailer for the interview with Ms Schneller in which she is shown as saying:

“I think his actions were unreasonable. I wouldn’t say he’s an unreasonable man.”

9    This was followed by five or six minutes of telecast on unrelated matters, including advertisements, and the interview with Ms Schneller was then telecast. The transcript of the recording, which was agreed, reads as follows:

“Stan Grant: …………turned foul! An exclusive Sydney suburb has become a mini battle zone over a leaking sewer and has lead [sic] to claims of abuse, threats and harassment of one family against another. Joan Hanson reports:

Reporter: Sydney’s leafy North Shore - most people would give their eye-teeth to live here but not if this man is your neighbour. He’s been accused of throwing raw sewage at this woman.

Mrs S. I still fear from him because he suddenly snaps into some violent action.

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.

Reporter: The Schnellers and the Greens used to enjoy the best of neighbourly relations - they often shared dinners and barbeques[sic] together until the Schnellers decided to rebuild the family home. Now, construction work at the best of time can test the patience of the most loyal neighbour but a leaking sewer was the last straw.

Mrs S There had been agitation over our building the new house, however towards the end of construction we had exchanged cordial letters and telephone conversations regarding the replacement of our sewer which had subsequently happened and I had no reason to believe thin gs had gone sour.

Reporter: The sewer had been leaking for 2 weeks before the plumber finally arrived. So within 10 metres of his property you had a leaking sewer.

Mrs S Yes

Reporter: Enough to upset him that much?

Mrs S Well I don’t think so. I don’t think he knew about it until the water board came here.

Reporter: And on the day it was fixed, a sewage overflow caused an all out blue.


Mrs S Mr Green then went to the bottom garden - collected some plastic bags - walked up through his house and I parallelled him up through my yard and came out my front door with my camera and my daughter at the same time as he was putting the plastic bag into my letter box. I took a photo of him then.

[Clicking sound of camera]

I took two photos - shortly after the second photo he fumbled and suddenly in my face was all this muck - I could smell the odour of presumably sewage overflow cleared from bushland with soil - wet smelly soil - there was at least one tampon I saw on the pavement and some other solids that I did not closely identify.


Reporter Can you understand why a neighbour would get upset about leaking sewage?

Mrs S No - It was on my property - it was some distance from their house - sewage is actually quite good ….. compost in some countries - it was ….

Reporter: Well obviously they had health concerns?

Mrs S I don’t know.

Reporter You say you could smell…..so you did threaten her to (holding ……
telephone) Richard Green refused to be party to our story but his wife did tell us they endured the stench for 2 weeks.

Mrs S He should have approached me and alerted me to the problem that he was having as a result of my sewer leaking.

Reporter: Discussed it with you like an adult

Mrs S Yes

Reporter: It’s easy to see how petty grievances can explode when it comes to neighbours and, according to Wendy Folkes of the Community Justice Centre, violence is a common reaction to provocation.

Ms Folkes Occasionally we even have people come to us to say this is getting too much for me and I’m afraid that I will be so violent, that I might kill someone.

Reporter: Wendy recommends mediation through the Community Justice Centre where a third party can instil some common sense. In the Schneller/Green case that didn’t work. Now it’s before the Court.

Mrs S I believe he’s a person who seeks to have power over others

Reporter How do adults get to this point?

Mrs S Well, I consider myself the passive party. Maybe you should ask Mr Green.

Reporter Jennifer is applying for an apprehended violence order to keep the Greens at bay. The Greens in return have done the same. Distant neighbours living right next door to each other.

Mrs S It’s easier to live next door to somebody who you don’t have to talk to than to live in fear of another sudden violent approach.

Stan Grant: Love thy Neighbour, uh: Joan Hanson with that report.”

10    This is the publication on which Mr Green sues. Initially he claimed that it conveyed the following imputations defamatory of him:

“(a) the Plaintiff is a dangerous maniac in that the most trivial events cause him to snap and seek to inflict violence on his neighbours;
(b) the Plaintiff intentionally threw raw sewage into the Defendant’s face because she is a woman;
(c) the Plaintiff behaved childishly in failing to alert the Defendant to his trivial concern about her leaking sewage pipe;
(d) the Plaintiff is power hungry seeking to exert power over his neighbours.”

11    On the discharge of the jury at the outset of the proceedings, counsel for Ms Schneller, relying on the procedure approved in Radio 2UE Sydney Pty Ltd v Parker (1992) 2 NSWLR 448, sought to have the question whether the imputations pleaded were in fact conveyed resolved as a preliminary issue. There being no real opposition to my adopting that course, I did so, and made rulings on the morning of 3 February 1999. Formal reasons for the rulings will be published concurrently with this judgment. I held that imputation (a) overstated the impact of Ms Schneller’s broadcast words, but gave leave to Mr Green to re-formulate the imputations. I likewise held that imputation (b) was not conveyed, but gave leave to re-formulate that imputation. I held that imputations (c) and (d) were conveyed by the matter complained of. As a result of those rulings, imputations (a) and (b) were re-pleaded as follows:

“(a) The Plaintiff is a frightening person who suddenly and without cause seeks to inflict violence on his neighbours.

(b) (i) The Plaintiff intentionally threw raw sewerage(sic) into the defendant’s face.

(ii) The Plaintiff intentionally threw raw sewerage (sic) into the face of a woman and her young child.”

12    The only challenge to the imputations as re-formulated was that imputations (b) (i) and (b) (ii) do not differ in substance and therefore fall foul of SCR Pt 67 r 11(3). I then held that these imputations did differ in substance and the trial proceeded on the new imputations (a) and (b), and the original imputations(c) and (d).

13    I held that each imputation was defamatory of Mr Green. The issues which now arise for determination are:

(i) whether Ms Schneller has established any of the defences pleaded;

(ii) if any defence is otherwise established, whether it is defeated by malice or any other statutory matter of defeasance; and, if none of the defences succeed;

(iii) the quantification of damages. In addition to compensatory damages, Mr Green claims aggravated damages.

Defences

14    It is necessary now to consider the various matters raised by Ms Schneller by way of defence. It was these issues, and the question of malice, to which the bulk of the time occupied by the trial was devoted. Ms Schneller raised various defences available to her under the Defamation Act 1974 (“the Act”). She claimed (insofar as and to the extent to which it may be found that the matter complained of was published of and concerning Mr Green - a matter that was never seriously in issue) that:

(i) the matter complained of was published in such circumstances that Mr Green was not likely to suffer harm (s.13; this defence was subsequently abandoned);
(ii) each imputation was a matter of substantial truth and related to a matter of public interest (s.15);
(iii) each imputation was a matter of substantial truth and was published under qualified privilege (s.15);
(iv) imputations contextual to the imputations complained of were made in the same publication and were matters of substantial truth, and related to a matter of public interest, or were published under qualified privilege, and by reason of the substantial truth of the contextual imputations, publication of the imputations complained of did not further injure Mr Green’s reputation (s.16);
(v) the matter complained of was published under qualified privilege (s 22);
(vi) the matter complained of amounted to comment of Mrs Schneller relating to matters of public interest either (a) based upon proper material for comment; or, alternatively, (b) to some extent based upon proper material for comment, and represented an opinion which might reasonably be based thereon (s.32);
(vii) the matter complained of was a fair protected report of proceedings in the Local Court, or alternatively was to some extent such a report (s.24).

15    To these defences Mr Green has pleaded that Ms Schneller was actuated by malice, or that certain defences are defeated in accordance with specific statutory provisions.

16    Ms Schneller further pleaded her intention to show, in mitigation of damages:-

(i) that the imputations were substantially true;
(ii) the circumstances in which Mr Green established that the matter complained of was published;
(ii) Mr Green’s bad reputation as a neighbour.

17    I return now to the individual defences raised. In doing so it will be necessary to refer in some detail to the evidence and to resolve some of the many disputed questions of fact.

Public Interest

18    Three of the defences upon which Ms Schneller relies - those mentioned in paragraphs 14 (ii), (iv) and (vi) - depend upon one common element. That is the requirement that the imputation(s) must relate to a matter of public interest. If Ms Schneller is to succeed in any of these defences it is necessary that she establish that the imputation(s) related to a matter of public interest.

19    There is no precise line that divides matters that fall within the domain of public interest from those that do not. To a very large extent, whether an imputation relates to a matter of public interest or not is determined by value judgment, by the individual perception of the tribunal charged with the task of making the decision, and current mores and attitudes. Although the concept of public interest has existed in the law for many years, and a number of decisions of various courts throw some light on the practical application of the requirement, fewer have attempted to refine or define the language of the concept. Some assistance can no doubt be gained from the factual circumstances of the cases in which a publication has been held to fall on one side or the other of the public interest line.

20    More than one hundred years ago in the United Kingdom it was held by the Court of Appeal that a publication concerning living conditions provided by a colliery to its employed miners and their families as part of their salary packages was a matter of public interest: South Hetton Coal Company, Limited v North-Eastern News Association, Limited, [1894] 1 QB 133. Factors relevant in the conclusions in that case were the number of individuals, and the extent of the district, involved in the living conditions.

21    In 1969, also in the United Kingdom, the Court of Appeal held that the sudden and apparently coordinated resignation of four cast members of a theatrical production then playing, with a resultant threat to the production’s continued viability, was a matter of public interest: London Artists Limited v Littler [1969] 2 QB 375. Lord Denning said:

“There is no definition in the books as to what is a matter of public interest. All we are given is a list of examples, coupled with a statement that it is for the judge and not for the jury. I would not myself confine it within narrow limits. Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment. … Here the public are legitimately interested . Many people are interested in what happens in the theatre. The stars welcome publicity. They want to be put at the top of the bill. Producers wish it too. They like the house to be full. The comings and going of performers are noticed everywhere. When three top stars and a satellite all give notice to leave at the same time - thus putting a successful play in peril - it is to my mind a matter of public interest in which everyone, Press and all, are entitled to comment freely.” (p 391, emphasis in original)

22    On the other side of the ledger are cases such as Allsopp v Incorporated Newsagencies Co. Pty Ltd (1975) 26 FLR 238 and Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183. In Allsopp Blackburn J held that a publication that concerned the competence in his employment of a newspaper editor was not a matter of public interest. He drew an analogy between a newspaper editor and any other person responsible for the production of a product. While it may be thought that, with a more sophisticated appreciation of the subtle but pervasive influence of the guiding hand of a media outlet, the result might be different today, the case is an illustration that the extent to which publication will be protected because it relates to matters of public interest is limited. Not every subject on which the interest of some members of the public might be whetted is a matter of public interest, within the meaning of the various sections of the Act that are here relevant.

23    A conclusion to the same effect as in Allsopp was reached in Chappell v TCN Channel 9 Pty Ltd (1988) 14 NSWLR 153 by Hunt J (as his Honour then was). There the imputation concerned a famous cricketer (who was therefore to be seen as a public figure), and his private (and allegedly immoral) life. Hunt J held that, notwithstanding the public character of the plaintiff’s life in many ways, his private life did not become a matter of public interest unless, in some way, he made it so; or unless the private behaviour in question was integral to the manner in which the plaintiff performed his public duties.

24    By far the most significant decision for present purposes is that of the High Court in Bellino. There the majority held that the concept of a subject of public interest entails the notion that the person or institution whose activities are involved has engaged in activities that either inherently, expressly or inferentially invite public criticism or discussion. It is this test that is apposite to determine whether the matters to which the imputations published by Ms Schneller relate can properly be said to be matters of public interest. It is hardly necessary to note, having regard to the test posed, that it is insufficient for Ms Schneller to establish that members of the public viewing the program might find themselves interested in her assertions about the conduct of her neighbour. A salacious interest by members of the public in a particular subject matter, of which they had no previous knowledge and which was introduced to them by the very publication in question, does not translate the subject matter of the publication into a mater of public interest for the purpose of the various relevant sections of the Act. It is necessary therefore to consider how, on behalf of Ms Schneller, it is suggested that Mr Green’s behaviour meets that test.

25    By particulars appended to the amended defence Ms Schneller has identified those matters said to establish that the imputations relate to a matter of public interest. It is fair to set these out in full. They are:

“1. The conduct and behaviour of the Plaintiff who was a prominent citizen and resident in Upper Cliff Road, Northwood.
2. The behaviour of the Plaintiff towards his neighbours and fellow citizens.
3. The Plaintiff’s harassment and criminal offences committed against the Plaintiff.
4. The committing and prevention of crime.
5. The right of citizens and residents to live in peace and not to be criminally assaulted or harassed by neighbours.
6. The rights of owners or occupiers of property to have quiet enjoyment of same free from interference and harassment by neighbours.”

26    It is perfectly plain that none of these can support Ms Schneller’s claim. There is nothing in the demonstrated conduct of Mr Green that renders him a public figure in such a way that his conduct towards and in relation to his neighbours becomes a matter of public interest. This disposes of the first three particulars. The remaining particulars obviously state matters that are matters of public interest, but it cannot be said that the imputations relate to them in any but the most peripheral way. The imputations are imputations about Mr Green’s conduct, behaviour and character. They do not relate to the commission and prevention of crime, or the rights of citizens, residents and owners or occupiers of property in their neighbourhoods.

27 In their written submissions counsel for Ms Schneller also argued that the proceedings in the Local Court, some of which were reported in a widely circulating daily newspaper, took the imputations into the realm of matters of public interest. That may give rise to a wider defence than that afforded by s 24 of the Act, which is dealt with below. I accept that proceedings in courts probably of themselves and without more fall into the category of matters of public interest. But the focus must be on whether the imputations established relate to that matter of public interest. The fact that the proceedings had commenced was, no doubt, the factor that precipitated Channel 7’s interest in the dispute between Mr Green and Ms Schneller. But neither the interview as a whole as broadcast, nor the specific imputations, could be said really to relate to the Local Court proceedings. The truth is that both the court proceedings and the imputations related to the events of 22 April 1995, and some of the imputations related to generalisations about the character and conduct of Mr Green.

28    Ms Schneller has failed to establish that the imputations related to a matter of public interest. That conclusion has the inevitable consequence that the defences of truth and public interest, contextual truth and public interest, and comment, must fail.

Fair Protected Report

29 It is convenient next to deal with the defence mentioned in paragraph 14(vii) that is, that the defence was a fair protected report of proceedings in the Local Court. This defence is afforded by s 24(2) of the Act, which simply provides that there is a defence for the publication of a fair protected report. By clause 2 of Schedule 2 a report of proceedings in public in a court is a protected report. By s 26 a defence under s 24 (2) is defeated if it is shown that the publication complained of is not made in good faith for public information or for the advancement of education.

30    Three questions therefore may arise: firstly, whether the publication is properly characterised as a report of proceedings in public of a court; if so, whether the report is fair; and, thirdly (and arising only if the first and second are answered affirmatively), whether the report is shown not to have been made in good faith for public information or the advancement of education.

31    Even a glance at the statements attributed to Ms Schneller demonstrate conclusively that they were not, and did not purport to be, anything remotely resembling a report of the proceedings in the Local Court. They were, perhaps, a re-statement of the evidence she had given, or intended to give; or a re-statement of the case she proposed to make in that court. But there is not the faintest suggestion that she envisaged that what she was doing in answering the interviewer’s questions was recounting the proceedings in the court. It is therefore unnecessary, and not feasible, to consider whether the account she gave was fair, or whether the matters required by s 26 to defeat the defence are made out. Those matters substantially coincide with the matters relevant to the question of malice which will be considered below.

Truth and Qualified Privilege

32    The next defence to consider is that mentioned in paragraph 14 (ii), that is, that each imputation was a matter of substantial truth and was published under qualified privilege. I will deal firstly with the question of substantial truth. The question of qualified privilege arises independently in relation to a separate defence and will be dealt with in its turn.

33    Although the defence of justification is pleaded to all imputations, it was conceded by counsel for Ms Schneller that she is estopped, by reason of the findings of fact of the magistrate in the Local Court proceedings, from pursuing that defence in relation to imputations (b)(i), (b)(ii), and (c). She maintains the defence in relation to imputations (a) and (d).

34    Imputation (a) is:

“the Plaintiff is a frightening person who suddenly and without cause seeks to inflict violence upon his neighbours”.

35    Imputation (d) is:

“the Plaintiff is power hungry seeking to exert power over his neighbours”.

36    It is to be observed that each imputation makes an assertion as to a characteristic or character trait attributed to Mr Green. They are not imputations about isolated events, or single instances of behaviour of the kind described. That Ms Schneller conveyed the imputations as framed emerges clearly from the opening passages quoted in paragraph 9 above, and in the closing stages of the interview. It is reinforced by subsequent statements made by her.

37    In order to establish the truth of imputation (a), therefore, Ms Schneller must do more than prove that Mr Green engaged in violence and sudden action on 22 April 1993. She must establish that this behaviour is characteristic of Mr Green. Further, it would be insufficient to establish that she was frightened of him, on whatever basis she might attempt to do so. In order to justify this imputation Ms Schneller has to establish that Mr Green has a disposition to be frightening and to seek to inflict violence. Similarly, in order to justify imputation (d), it would be insufficient to establish that Mr Green had acted in a “power hungry” manner on a single occasion; it would be necessary for her to establish that this was characteristic of him.

38    It is clear, as I have noted above, that the events of 22 April were preceded by a lengthy period of acrimony between these neighbours. Although a great deal of hearing time was taken up with examination and cross-examination of the parties in relation to the details of the seemingly endless disputes that arose between them over the months, it would be quite impossible, and it is fortunately unnecessary, to apportion blame for the poisonous relationship or to determine the merits of the positions adopted by either on the various issues. Although it will, at times, be necessary to refer to some allegations, I do not propose to attempt any such exercise. It is sufficient to note that I assume that the blame does not lie entirely with one party or the other and that each must bear some responsibility for the poor relationship.

39    Despite the extent of the evidence describing the bitter feud that eventuated between Ms Schneller and Mr Green, little, if any, attempt was really made on behalf of Ms Schneller to justify imputation (a). Such evidence as there was is insufficient to discharge the onus she bears. I shall deal briefly with the evidence that was adduced.

40    Ms Schneller gave evidence of an occasion when Mr Green referred to her as “that snotty nosed bitch”. This incident, which was conceded by Mr Green, occurred in about August 1992. Unusually for this case, there is a sufficient degree of commonality between the accounts given by the parties for the incident described by each to be recognisably the same event. It followed one of their countless disagreements, this time over the behaviour of the building contractors who was working on Ms Schneller’s home. They apparently had a tendency to use Mr Green’s driveway for parking their vehicles and for storing other items, thus obstructing his access. Complaints to Ms Schneller about the behaviour of the builders had produced no improvement. Accordingly, Mr Green, on the occasion in question, when he arrived home, found a wheelbarrow blocking his access to his driveway, and tipped it onto Ms Schneller’s property. One of the tradesmen confronted him, he saw Ms Schneller on the upper floor of her partly constructed house, and, on his evidence, told the tradesman to:

“Get that snotty nosed bitch down here to explain to you why I am upset.” (T 150)

Ms Schneller’s account was that she heard Mr Green say:

“Get that snotty nosed bitch down here so I can deal with her.”

It seems to have been of some significance to her that this was said in the hearing of the builders on the site.

41    Although this incident shows that Mr Green is capable, like most people, of giving vent to bad temper, or allowing frustration to get the better of him, it falls far short of establishing even a single instance of violence, let alone a disposition towards inflicting violence on his neighbours. And it is insufficient to establish that he is a frightening person.

42    Another matter on which Ms Schneller relied to support her attempted justification of the imputation is to be found in a letter written by Mr Green to her on 24 February 1994. This letter, of course, post dates the incident of 22 April 1992, but Ms Schneller is entitled, if it is otherwise appropriate, to rely on subsequent conduct to establish the disposition she imputed to Mr Green. The letter reads as follows:

“Dear Ms Schneller,
I write to note that yesterday evening both you and your husband were seen encouraging and assisting your young son who, from the vantage point of your balcony, was standing on the top of our new brush fence - apparently attempting to damage it.
I also note that your husband this afternoon was observed throwing pieces of brush and pieces of steel wire on to our concrete drive. I can only assume that this was maliciously cut from your side of our fence.
I know that you don’t like the fence, however any further attempts to damage it will meet with legal action. I can only assume that the purpose of putting slippery brush and sharp pieces of metal on our steep gradient drive is in the hope that they may cause an accident. Any further action of this type will also meet with legal action.”

43    Ms Schneller claimed that the letter made her feel frightened of Mr Green. I do not understand how this could rationally be the case: the only threat the letter contains, implicitly or explicitly, is a threat of legal action. It certainly fails to establish any tendency on Mr Green’s part to the sudden and unprovoked infliction of violence on his neighbours, or a tendency in any way to be frightening.

44    Counsel for Mr Green sought to make something in this regard of the absence from Ms Schneller’s evidence in the Local Court proceedings of any reference to her alleged fear of Mr Green. I did not find this submission helpful. It in no way advances resolution of the present question. There may be many reasons why she would not give such evidence, the most obvious being that she was not asked any direct question that would have elicited such a reply.

45    The only other evidence as to Mr Green’s character was given by witnesses called in his own case. The witnesses were friends, neighbours, and business associates of Mr Green. They uniformly contradicted the assertion that he is in any way a person with a tendency towards violence, sudden or otherwise, or a person of a frightening disposition or a person who is power-hungry. They described him, variously, as:

“… very intelligent, very direct and honest and a very gentle person …” (T 195, Ms Meryl Wodeszky, Ms McFarlane’s sister);
“… a very good neighbour, idyllic neighbour … in as much as he was quiet, always a gentleman …” (T 198, Ms Caroline Biggs, a neighbour);
“… very reasonable, easy going person.” (T207, Mr Steven Cooper, a business associate of Mr Green);
“…a quiet, unassuming, reserved sort of person.” (T 206, Mr Gregory Watson, a business acquaintance of Mr Green);
“… a very moral, very ethical guy …a really nice guy.” (T 210, Mr Kraig Carlstrom, a friend of Mr Green);
“… a pleasant and amenable neighbour.” (T 233, Mr Russell Mason, a neighbour).

Ms Biggs was asked directly whether, on her observation, Mr Green was the sort of person described in the imputations, or a person who was apt to behave in the way described in the imputations, and on each occasion she denied that he was.

46    In her attempt to justify imputation (d), Ms Schneller relied also upon some additional arguments. One of these was that the incident of 22 April was of itself evidence of power hunger. This I reject. A single incident is insufficient to establish a disposition of the kind asserted in the imputations. In any event, whatever else the incident discloses about Mr Green, it is not that he is power hungry, seeking to exert power over his neighbours, or even over a single neighbour. This is so, even if Ms Schneller’s account of the incident is accepted in its entirety. The incident as described was not about power, but about the build up frustrations of the ongoing disputes and in particular the unresolved question of the leaking sewer pipe. It may be seen as demonstrating bad temper, poor judgment, or lack of self control, but not power hunger. His behaviour on the day in question hardly does Mr Green credit, but that is not to the point. Nor is it to the point to attempt to determine which, if either, of the two was in this instance in the right and which in the wrong - if the disputes between the parties can be so neatly divided in terms of culpability.

47    Another matter Ms Schneller relied upon in this respect was the fact that Mr Green brought these proceedings only against her, and not against the television channel which, obviously, was responsible for by far the greatest circulation of the imputations, and accordingly, the greatest damage. It was suggested that his obviously deliberate and conscious decision to take this course was explained by his wish to exert power over his neighbour. I reject this also. Indeed, the question was ventilated from time to time during the course of the evidence and I remain of the view I then tentatively expressed - that is, that Mr Green was entitled to select which of a number of publishers he sued; his concentration on Ms Schneller could not be seen as evidence of power hunger. Mr Green was asked about his motivation in adopting the course he did, and his answer was that Ms Schneller’s actions were “a deliberate, pre-meditated defamation” and therefore more culpable; he thought Channel 7’s behaviour was socially irresponsible, but less culpable than that of Ms Schneller.

This answer, which I accept, is not indicative of a wish to exercise power.

48    Ms Schneller gave some evidence of an occasion on which, according to her, Mr Green had told her that he was wealthier than she, implying that he could use his wealth to achieve victory in what almost amounted to warfare between them. Mr Green denied having said anything to that effect. I do not find it necessary finally to resolve this disputed question of fact. I consider it likely that Mr Green did say something that could bear the interpretation that Ms Schneller gave it. But, even if he said precisely what she attributed to him, it is not indicative in the circumstances of a disposition of seeking to wield power over his neighbour, but, rather, a preparedness to use financial advantage in order to secure victory over one person who had become his foe. In saying that, I am conscious that, by reason of the requirements of SCR Pt 67 11(3) the imputations pleaded are taken to incorporate all other imputations to the same or similar effect, or not substantially different. But an imputation of preparedness to use financial advantage to quash a specific foe is substantially different from an imputation of power-hunger.

49    A final matter put on behalf of Ms Schneller was that Mr Green’s power-hungry attitude is exemplified by the length and tone of the written submissions provided in these proceedings, and relating to the conduct of Ms Schneller. These, it was submitted, “are over the top and are exaggerated”. I reject this argument also. The written submissions were plainly prepared and signed by counsel and do not reflect on Mr Green personally in the manner suggested.

50    Ms Schneller has failed to establish that any of the imputations was substantially true.

Contextual Truth

51 The next defence to be considered is the defence of contextual truth under s 16 of the Act. That section is in the following terms:

16 Truth: contextual imputations

(1) Where an imputation complained of is made by the publication of any report, article, letter, note, picture, oral utterance or other thing and another imputation is made by the same publication, the latter imputation is, for the purposes of this section, contextual to the imputation complained of.

(2) It is a defence to any imputation complained of that:

(a) the imputation relates to a matter of public interest or is published under qualified privilege;

(b) one or more imputations contextual to the imputation complained of:

(i) relate to a matter of public interest or are published under qualified privilege; and

(ii) are matters of substantial truth; and

(c) by reason that those contextual imputations are matters of substantial truth, the imputation complained of does not further injure the reputation of the plaintiff.

52    The defence of contextual truth obliges a defendant to establish a number of matters. They are:

(i) that the contextual imputations pleaded were in fact conveyed;
(ii) that the contextual imputations (or one or more of them) were substantially true;
(iii) that the contextual imputations (or one or more of them) related to a matter of public interest or were published under qualified privilege;
(iv) that, by reason of the substantial truth of the contextual imputations (or one or more of them) publication of the imputations pleaded by the plaintiff was unlikely further to damage the plaintiff’s reputation.

53    Ms Schneller pleads five contextual imputations. They are:

“(i) the Plaintiff assaulted the Defendant.
(ii) the Plaintiff so conducted himself that he caused the Defendant to become afraid and to apply for a restraining order preventing him from approaching her.
(iii) the Plaintiff acted violently against the Defendant.
(iv) the Plaintiff so conducted himself towards the Defendant that he acted immaturely and not as an adult.
(v) the Plaintiff so conducted himself with a plastic bag of sewage that some had come on the Defendant’s face.”

54    In order to consider the issues raised by this defence it is necessary to pay considerably more attention to the descriptions given respectively by the parties to the events of 22 April, both in this court and in the Local Court. It is also necessary to refer to the findings of fact made by the Magistrate in the Local Court proceedings.

55    The incident of 22 April is central to the issues raised in the present proceedings and was also central to the issues raised in the Local Court proceedings. Counsel for Ms Schneller accepted that, in some respects at least, the findings of fact of the Magistrate, Mr Beveridge, constitute an estoppel against Ms Schneller.

56    In this court Ms Schneller described the incident as follows: she said that earlier in the month she had heard that there was some problem with the sewer pipe, when an inspector from the Water Board attended. Later on the same evening Mr Green asked her if she was aware of it, and she briefly acknowledged that she was. On 21 April the plumber repaired the leaking pipe. She was aware of some ill feeling subsequently directed to her from Ms McFarlane. She became aware that Ms McFarlane was digging in the ground on the Schneller property and investigated. It was at this time that Ms McFarlane asked why she did not clean up her own nightsoil and said that she (Ms McFarlane) felt like putting it in her (Ms Schneller’s) letterbox. She said that she replied “That sounds typical”.

57    Immediately after that Ms Schneller saw Mr Green arrive home. She saw him pick up a plastic bag and the next thing she saw was Mr Green at her letterbox. Being suspicious of his intentions, she equipped herself with a camera and photographed him. She said that she was at the time accompanied by her two year old daughter Simone. As she focused her camera on Mr Green he smiled. He then threw the contents of the plastic bag in such a way that the contents left the bag and hit both herself and Simone in the face. The material contained in the bag was:

“sewage, sort of muddy, smelly muddy stuff, blobs of stuff and I could recognise a tampon …” (T 242)

58    About ten minutes later another neighbour and friend, Ms Dennis, arrived and photographed Ms Schneller and Simone. These photographs were Exhibit C. They clearly show both Ms Schneller and Simone with mud-smeared faces. It is Ms Schneller’s case that, although she believed the substance in the plastic bag was sewage, she left it on her own face and that of her daughter until Ms Dennis arrived, and then, for some longer time (on Ms Dennis’s advice) until police arrived to witness it.

59    Mr Green’s version of the event was quite different in material respects. He said that, after overhearing the initial contretemps between Ms McFarlane and Ms Schneller, he took possession of the plastic bag into which Ms McFarlane had placed the muddy material, walked up his drive and to Ms Schneller’s letterbox. He attempted to push the bag into the letterbox, but could not do so because it was too stiff. He saw Ms Schneller with a camera. He shook the contents of the plastic bag onto the ground in front of Ms Schneller, said to her “now photograph that” and walked away.

60    He denied throwing the contents of the bag into the face either of Ms Schneller or of Simone. He denied that Simone was present at the time.

61    These were essentially the competing versions that were put before Mr Beveridge in the Local Court proceedings. Mr Beveridge accepted Mr Green’s account. His findings on Ms Schneller’s credibility were extremely adverse to her and he made some stinging criticisms of the manner in she gave her evidence. As to her credit, Mr Beveridge said this:

“It is fair to say that, in twenty years at the Bar and on this Bench, Mrs Schneller is probably the most truculent witness I have ever seen, barring a few unfortunate victims of substance abuse. Partly this emerges from the transcript, with her desire to ‘put the knife’ with answers to questions she was never asked, and to his great credit Mr Evatt QC exercised his not considerable [sic] powers to confine her responses to what was germane to the case he was putting; and partly it was necessary to see her in action during cross-examination, particularly by Mr Campbell, to experience the full animus that she displayed, together with what appeared to be, with respect, the conscious use of histrionics and diversionary tactics.” (p6)

62    As to the factual matters in issue, Mr Beveridge said:

“One must also test the assertion [that the muddy material had been thrown in the faces of Ms Schneller and her daughter] by just using common sense from the photographs that I am shown. Mrs Schneller said that she was about a metre from the letterbox. She was at the top of the steps that led to it, so she would have been on a slightly lower level, I assume, than the landing. But, I am asked to believe that this sewage adhered to the middle of the front of her face. Nothing splattering in her hair, absolutely nothing on her clothes. There was another spot hit just on the front and side of her little daughter’s face, who was at her side, at her feet, at the time. Yet nothing on the daughter’s hair or clothing, no splashing, as you might expect if the soil and sewage had bounced up from being thrown down. Mr Green would have to have the aiming capabilities of a heat seeking missile, you might think, if he was going to be as precise as that in his aim. By ordinary standards it is just unbelievable. Now, a combination of all those things being borne in mind, I come back to the conflict in the story of the two parties about what happened, and it is inconceivable and certainly not supported by the evidence that Mr Green did throw the contents of the bag at Mrs Schneller, or for that matter, even in the direction of Mrs Schneller. It is certainly clear though, from the photograph and from the general evidence, that the contents of the bag, whether from midair or some other place, did go onto the landing behind the gate. This is shown clearly enough in Exhibit 3….
So one thing stands out loud and clear, Mr Green did not throw soil and sewage or anything else over Mrs Schneller, but he did hurry up to the letterbox of her home with the intention of putting a plastic bag containing what he knew to be a mixture of soil and sewage into her letterbox. He did try to put it into her letterbox, despite the watching presence and the loaded camera nearby, and when he became frustrated by the mechanism of the operation, the bag too stiff to get into the slot, he threw, or at any rate, deposited the bag and its contents inside the gate onto the ground, although it landed on the step between him and Mrs Schneller.” (p 15 -16)

63    While I am not in any way bound by the Magistrate’s conclusions on the relative credibility of the parties, I am, it is conceded on behalf of Ms Schneller, bound by his findings of fact where the factual issues in those proceedings are identical to those with which I am concerned.

64    I return to the contextual imputations pleaded. There being no dispute that the matter complained of is capable of conveying and does in fact convey each of those imputations, the essential question is whether they have been shown to be true. If any has been shown to be true, then it will become necessary to consider whether they were published under qualified privilege. For reasons given above in relation to the imputations relied on by Mr Green, the contextual imputations do not relate to a matter of public interest. Finally, it will be necessary to consider their capacity to cause harm to Mr Green’s reputation relative to the imputations on which he relies.

65    The first and fifth of the contextual imputations can be put to one side at the outset. They contradict the findings of fact made by Mr Beveridge and Ms Schneller is estopped, by reason of those findings of fact, from asserting their truth. In saying this, in relation to the first contextual imputation, I am conscious that, technically, Mr Green’s behaviour even as recounted by him might be held to amount to an assault. However, the contextual imputation cannot be looked at in a vacuum. A technical assault constituted by the threatening behaviour, culminating in the depositing of the bag of material on the steps is not the kind of assault attributed to Mr Green by Ms Schneller in the statements she made to the journalist about his conduct. The assault she there alleged was a physical assault in which she had had effluent thrown in her face. In view of Mr Beveridge’s findings of fact Ms Schneller is no longer entitled to maintain the truth of that assertion.

66    Whether the second imputation is substantially true is rather more difficult. This is in part because the imputation has a number of components. Certainly, Ms Schneller did in fact apply for a restraining order. It is not to the point that Mr Green made a similar application. And there can be little doubt that it was Mr Green’s conduct on this occasion that precipitated Ms Schneller’s application. Ms Schneller maintained that she was afraid of Mr Green and this is an assertion that is difficult to challenge. Not without some hesitation, but on balance, I am satisfied that the substantial truth of the second contextual imputation has been established. I reach this conclusion on the basis of the account given by Mr Green of the events, which was accepted by the Magistrate. I reach the same conclusion in relation to the third and fourth contextual imputations.

67    The next step, logically, is to consider whether these imputations were published under qualified privilege. For reasons that appear below, I am satisfied that they do not. The question of qualified privilege arising in relation to the defence of contextual truth is no different to the question of qualified privilege attaching to the imputations pleaded on behalf of the plaintiff. Accordingly, the discussion of qualified privilege can be deferred to a later point in these reasons. The conclusions that those contextual imputations are substantially true but were not published under qualified privilege means that, strictly, it is unnecessary to move to the final question that arises in relation to this defence, that of the relative seriousness of the imputations pleaded by the plaintiff against the true contextual imputations. However, having regard to the many issues that have arisen in this case, it is appropriate to express a view on that final question. Even if the substantially true contextual imputations were published under qualified privilege, it is only if the gravity of those imputations outweighs the gravity of the plaintiff’s pleaded imputations, such that the publication of the former does not further injure the plaintiff’s reputation, that the defence can succeed.

68    Analysis of the two sets of imputations can yield only one answer to that question. The imputations pleaded by Mr Green are significantly more serious and do greater damage to his reputation than the three contextual imputations that have been proven. One reason for this conclusion is that imputations (a) and (d) speak generally of Mr Green’s alleged behaviour and disposition, while the proven contextual imputations are specific and relate to a single instance of the kind of behaviour alleged; another reason is that the specific behaviour described in imputations (b)(i) and (b) (ii) is of greater seriousness than that described in contextual imputation (iii).

69    The defence of contextual truth fails.

Qualified Privilege

70 It is convenient next to deal with the question of qualified privilege. In addition to relying on qualified privilege as part of the defences of substantial and contextual truth, Ms Schneller relies upon the defence as provided by s 22 of the Act. Sub s (1) provides as follows:

22. (1) Where, in respect of matter published to any person:

(a) the recipient has an interest or apparent interest in having information on some subject;
(b) the matter is published to the recipient in the course of giving to him information on that subject; and
(c) the conduct of the publisher in publishing that matter is reasonable in the circumstances,
there is a defence of qualified privilege for that publication.

71    There are thus three components of the defence, each of which must be established by the defendant. The first is that the recipient of the matter complained of has an interest or apparent interest in having information or the subject of the publication. The second is that the matter is published to the recipient in the course of giving information of the subject. The third concerns the reasonableness of the publisher.

72    It may be accepted that the statutory formulation of the defence of qualified privilege was intended to broaden the nature of the interest that suffices for the defence: Morosi v Mirror Newspapers Ltd [1977] 1 NSWLR 749; Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354.

73 It may be thought that the curiosity of viewers of a salacious current affairs programme (and I do not intend to suggest that the programme Real Life meets that description; there is no evidence, other than the item in question, of the general nature of the program) might be excited by assertions of the kind made by Ms Schneller. But that is not necessarily the same thing as an interest within the meaning of s 22 (1)(a). “Interest” in that context does not extend to matters of titillation (Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 at 711); or mere curiosity (Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30.

74 Further, the “subject” on which recipients are said to have an interest has to be defined. The subject here is the conduct and behaviour of Mr Green in his neighbourhood. If that is not a matter of public interest, it is difficult to see how it can be a subject on which recipients of the television programme had an interest within the meaning of s 22. Consistently with any conclusions in relation to public interest, I am satisfied that Mr Green’s neighbourhood conduct is not a matter on which the viewers of “Real Life” had an interest or apparent interest for the purposes of s 22(1)(a). On this component of the defence alone, Ms Schneller would fail to establish the defence of qualified privilege.

75    And she also fails to establish that her conduct was reasonable. Indeed, in this court, having regard to the Magistrate’s findings of fact, Ms Schneller faced an impossible task. Once it is accepted that her assertions were false, how could her conduct in publishing the imputations be held to be reasonable? The defence of qualified privilege fails.

Comment

76 The remaining defence is of comment, as provided by s 32 of the Act.

77    The essential feature of the defence of comment is that the imputation represents the opinion of the publisher, or of a deduction made by the publisher from stated or identified facts. In either case it is necessary that the facts on which opinion is based, or from which the deduction is drawn, be accurately stated or identified: see, eg, Kemsley v Foot [1952] AC 345. This requirement exists in order to enable the recipient of the defamatory imputation to make his or her own assessment of the validity of the opinion or conclusion.

78    Analysis of the imputations pleaded by Mr Green reveals some difficulties in applying these concepts. The first part of imputation (a) - that Mr Green is a frightening person - may well be read as the expression of an opinion. The second part - that he suddenly and without cause seeks to inflict violence on his neighbours - lends itself less readily to that view. But in any event the primary asserted fact on which the opinion was based is not shown to have been accurately stated. That is, again, the assertion that Mr Green threw sewage into Ms Schneller’s face. The comment defence fails in relation to the imputation because it does not represent an opinion that could reasonably have been held based upon facts accurately stated or identified.

79    Neither imputations (b) (i) or (b) (ii) could reasonably be construed as the expression of opinion of a conclusion or deduction. Both are clear (and false) statements of fact. The comment defence can have no application to these.

80 Imputation (c) may be categorised similarly to imputation (a). The opening words - that Mr Green behaved childishly - may reasonably be construed as the expression of an opinion. The imputation contains also an assertion of fact - that Mr Green failed to alert Ms Schneller to his concerns about the leaking sewerage pipe. The inclusion of the word “trivial” is a little puzzling but as it adds nothing of substance to the imputation it is unnecessary to take time over it. The imputation as a whole is capable of being, and ought to be, read as a comment by Ms Schneller. But the comment contains the clear assertion that Mr Green had not previously alerted Ms Schneller to the problem with the sewer. This assertion, as a matter of fact, cannot be sustained. Even on her own evidence in chief, Ms Schneller said that, on the day of the visit by the Water Board inspector, which was about 8 April, Mr Green had asked her if she knew of the problem. She went on to say that on the weekend of 17 or 18 April, Ms McFarlane had raised the matter again and asked when it was to be fixed. Although the complaint by Ms McFarlane cannot be attributed directly to Mr Green, the comment by Ms Schneller is apt to convey the impression, misleadingly, that the fact of the leaking sewer pipe had not been drawn to her attention and it was this oversight on Mr Green’s part that was at the base of the subsequent drama. It is plain that the problem had been drawn to her attention, both by Ms McFarlane, and her opinion that Mr Green had behaved childishly in not taking that course cannot receive the protection afforded by s 32. It is not based on accurately stated facts. The defence of comment in relation to imputation (c) cannot therefore succeed.

81    The final imputation is, in my view, properly characterised as comment, but, again, the defence must fail for the absence of accurate identification of facts on which it was based. Ms Schneller accused Mr Green of being power hungry, but the material (in the publication) on which she explicitly or implicitly relied to support that opinion, was not accurately stated. Bearing in mind that the requirement for accurate statement of the basis for the comment exists in order to enable the recipient of the matter complained of to make his or her own evaluation of the comment, there is nothing in the words spoken by Ms Schneller, or in the questions of the reporter which she could reasonably be said to have adopted, that would permit an assessment of the opinion expressed. Indeed, those “facts” that are stated are facts on which Ms Schneller cannot rely, these being the claims that Mr Green threw the sewage in her face.

82    Accordingly the defence of comment to the fourth imputation also fails.

83    The result is that Ms Schneller has failed to make out any of the defences available to her, and it is strictly unnecessary to determine the question of malice. In case I am held to be wrong, however, in relation to any of the defences, it is appropriate to state the conclusions I would have reached had the issue arisen for determination. I propose to do so briefly.

84    The term “malice” for the purpose of defamation law is somewhat wider than in every day English. A publication is taken to have been maliciously made if made for an improper purpose, or with an intent to injure. Knowledge that the facts stated are false is a powerful indicator that the publication was made maliciously. By reason of the estoppel arising from Mr Beveridge’s findings, Ms Schneller is precluded from denying the falsity of the primary allegation made; and it is inconceivable that she was not aware of its falsity. A further indicator of malice lies in the manner and extent of the publication. Ms Schneller published the imputations in the certain knowledge, and with the obvious intention, that they would be broadcast on a national television programme. These two facts alone would be sufficient to demonstrate malice. But there is much more. The history of the acrimony between the parties was explored in detail during the hearing. Indeed, far more time was taken and attention paid to their squabbles and bickering than to any other single issue. The primary purpose for this minute investigation was to establish malice on Ms Schneller’s part.

85    As I have observed more than once, it is not my function nor my intention to attempt to apportion blame. Almost certainly there was fault on both sides. But that is immaterial to the question of malice. The question is whether as a result of the atmosphere created by these disputes, Ms Schneller used the occasion of the interview to further her cause against Mr Green. Having regard to all of the circumstance, I must find that she did. I would therefore conclude, even if she had made out any of the defences to which malice is an answer, that that defence would be defeated; and, in relation to the remaining defences, whatever the statutory language that gives rise to the defeat of the defence, the factual conclusions would have the same result.

86    There must therefore be a verdict for Mr Green. He is entitled to an award of damages.

Damages

87    Mr Green claims compensatory damages and aggravated damages. A successful plaintiff is entitled to an award of damages sufficient to compensate for the injury to his/her reputation as well as by way of consolation for hurt feelings, injured pride and humiliation. Vindication of reputation is an important element in the quantification exercise: Uren v John Fairfax and Sons Pty Ltd (1966) 117 CLR 118 at 150; John Fairfax and Sons Ltd v Kelly (1987) 8 NSWLR 131 at 142. However, damages are not intended as punishment of the defendant.

88    There was concrete and convincing evidence of injury done to Mr Green’s reputation by the broadcast. A number of people telephoned Mr Green or Ms McFarlane on the evening of the programme. One was the managing director of the aviation business that Mr Green conducts in Darwin, who wanted to know:

“What’s this all about, this upset with your neighbour, you throwing muck in her face?”

89    Another was Mr Greg Watson who subsequently gave evidence, and who was also a business associate based in Camden, who made a similar enquiry and sought an explanation. Other friends and relatives telephoned and spoke to Ms McFarlane. During the weeks and months that followed the broadcast, on social occasions in and around Northwood, the allegations made by Ms Schneller became a regular topic of conversation and in some cases, the occasion of what may have been rather provocative (and probably for Mr Green, unamusing) attempts at humour. On one occasion Mr Green was introduced to another person as the “shit thrower” (T115). Ms Julie Sutton, a councillor on the Warringah Council, had become acquainted with Mr Green following his application to install a helipad in a residence that was under construction. She saw the “Real Life” programme which she thought depicted Mr Green as “a rather furtive character slinking around”, and concluded that he was “a complete nutcase”, “an absolute nutter” (T191). In 1997 Mr Green was naturalised as an Australian citizen at a ceremony at which Ms Sutton presided, and at which, following the ceremony, Ms Sutton made a comment about his behaviour as reported by Ms Schneller.

90    Ms Phoebe Wilkinson, a cousin of Ms McFarlane, saw the programme in Melbourne and said that when she saw it, she “got a dreadful shock” (T193). She telephoned Ms Wodeszky, Ms McFarlane’s sister, and arranged for Ms Wodeszky to view the video tape that Ms Wilkinson had made. She described Ms Wodeszky’s response also was “very shocked”.

91    Ms Wodeszky herself gave evidence; she said she was “dumbfounded”. She said that although she found the allegations hard to believe, nevertheless:

“It sowed lots of seeds of doubt in my mind as to the character of this man that I had only met twice before.” (T 196)

92    Ms Biggs, on the other hand, appears not to have believed what she heard in the programme, but reported that at least twenty people over the next few days commented to her about the neighbourhood in which she lived.

93    Mr Watson, who has already been mentioned, and who was a business associate of Mr Green, said that initially the programme gave him cause for concern because of his business dealings; it does seem, however, that the adverse opinion initially formed by Mr Watson was quickly revised and that the specific damage done to Mr Green’s reputation in Mr Watson’s eyes was ephemeral at worst. It cannot, however, be assumed that Mr Green’s reputation was rehabilitated so readily in the eyes of others who must be taken to have had a similar response.

94    Another witness who gave evidence of having seen the programme, and whose opinion of Mr Green was adversely affected by it, was Mr Stephen Cooper, another person who knew Mr Green as a result of business dealings. His loss of esteem for Mr Green was also quickly repaired and no lasting damage appears to have been done to Mr Green in his eyes. However, as with Mr Watson, it is obvious that others who did not make the enquiry of Mr Green almost certainly retained the adverse opinion engendered by the programme.

95    Mr Green gave evidence of the hurt to his feelings. He specifically mentioned the encounter with Ms Sutton and spoke of his embarrassment as a result. He also spoke of stress occasioned by the supposedly humorous remarks made to him by others.

96    I am satisfied that the publication did seriously damage Mr Green’s reputation and that he must receive an award of damages that recognises the damage done, the hurt and humiliation he suffered, and has the effect of vindicating his reputation. In this respect Mr Green gave some interesting, and, in my opinion, generous, evidence. He said that his purpose in the litigation was to clear his name; that he was not trying to make money out of the litigation, but that vindication was his primary concern. He said:

“My primary motivation is to present to the world the fact that I am not the heinous individual that I have been presented broadly as being.” (T135)

He also expressed a wish to recover the costs incurred in the litigation.

97    Mr Green also makes a claim for aggravated damages. Aggravated damages may be awarded where the conduct of the defendant, at the time of and subsequent to publication, increase or aggravate the harm otherwise caused: Cassell & Co Ltd v Broome [1972] AC 1027 at 1071-2; Morosi at 805 (supra); Carson v John Fairfax and Sons Ltd (1993) 178 CLR 44 at 71.

98    There is no doubt that Ms Schneller’s conduct at the time of the publication caused damage to Mr Green. However, that was the very conduct which has resulted in the conclusions which will in turn result in an award of damages to him. No additional injury was caused to him by the manner of publication of the defamatory imputations.

99    Further, as I have observed, Mr Green’s own conduct is a relevant factor to be taken into account, and it was, while not reprehensible, certainly not exemplary. I have concluded that the damages to be awarded should not be increased by reasons of the aggravation claimed.

100    Two matters remain to be mentioned. Firstly there was evidence of publication of Ms Schneller’s allegations in media outlets other than that here in question. Ms Schneller is not entitled to mitigate the damages awarded against her by showing that Mr Green’s reputation was damaged by reason of publication(s) not the subject of the present proceedings: Dingle v Associated Newspapers [1964] AC 317; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; Chakravarti vAdvertisers Newspapers Ltd (1998) 193 CLR 519. But neither is Mr Green entitled to an increase in the award of damages by reference to those publications, even if he were able to establish that Ms Schneller was also the source of the information that gave rise to them. Further, it would be appropriate, if it were possible to isolate the damage done by the publication made on Channel 7, from the damage done by the other publications: Dingle. That disentangling exercise cannot realistically be done. But I bear in mind that the damages for which Ms Schneller is liable are to compensate for the damage done by the publication on the “Real Life” programme, and not that done by others.

101    Finally, I have considered the matters put by Ms Schneller in mitigation of damages (see para 16). I am satisfied that none of these has been sustained, and I disregard them in the assessment of damages I make.

102    That brings me to the quantification of damages. I have concluded that Mr Green’s reputation will be adequately vindicated, and his feelings assuaged, by an award of damages of $20,000. There will be a verdict for the plaintiff in the sum of $20,000. The defendant is to pay the plaintiff’s costs of the proceedings.

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Last Modified: 09/26/2000