Green v Schneller

[2000] NSWSC 550

CITATION:	Green v Schneller [2000] NSWSC 550
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 20386/94
HEARING DATE(S):	1 February 1999
JUDGMENT DATE:	19 June 2000
PARTIES :	Richard GREEN (Plaintiff) Jennifer SCHNELLER (Defendfant)
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
DECISION:	Leave granted to the plaintiff to reformulate Imputation (a); Leave granted to the plaintiff to reformulate Imputation (b) to deal with the objection.; Imputation (c) is conveyed by the matter complained of.; The words attributed to the defendant convey Imputation (d).

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION

SIMPSON J

Monday 19 June 2000

20386/94

Richard GREEN v Jennifer SCHNELLER

Interlocutory Judgment
whether imputations pleaded were conveyed

HER HONOUR :
1    The matter complained of is the content of an interview given by the defendant and broadcast on a national television program entitled “Real Life” on 9 March 1994. The transcript of the interview is not in dispute and is annexed to these reasons. The defendant has tendered in evidence an additional short passage containing remarks made by her, which were telecast at the beginning of the programme, five or six minutes prior to the commencement of the broadcast of the interview the subject of the proceedings. There is at present no evidence as to when, in relation to the interview given by the defendant, she made those additional remarks. For present purposes it is immaterial. The present question is confined to whether the matter complained of conveys the imputations pleaded by the plaintiff

2    The additional passage which must be added to the matter complained of for that purpose is as follows:

“I think he behaved unreasonably. I wouldn’t say he’s an unreasonable man.”

3    The broadcast of that statement was separated from the broadcast of the bulk of the interview by a period of five or six minutes, during which at least two commercials and a story on a different subject were broadcast.

4    The imputations pleaded by the plaintiff are:

“(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.”

5    The defendant argues that none of the imputations as framed is conveyed by the matter complained of. The test to apply is the same as that which a jury would be directed to apply - that of the ordinary reasonable viewer, not avid for scandal, not suspicious minded, and not seeking to read more into the broadcast than is reasonably conveyed. With that test in mind I turn to the imputations, and those passages contained in the interview that the plaintiff argues supports the imputations.

Imputation (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.”

6    Senior counsel for the plaintiff argues that the imputation is clearly conveyed as a consequence of the following passages in the matter complained of, either attributed directly to the defendant, or attributed to her as a result of her adoption of a proposition put to her by the interviewer:

“I still fear from him because he suddenly snaps into some violent action … his actions of throwing the sewer into my face - I consider it a personal assault and a violent act against a woman.
…

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.
…

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.
…

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.
…

He should have approached me and alerted me to the problems he was having as a result of my sewer leaking.”

7    Counsel for the defendant argues that neither the word “maniac” nor the combination of words “dangerous maniac” was used by the defendant, and neither were the words “the most trivial events”. That is true, but their absence from the actual words used by the defendant does not establish that an imputation in which such words appear might not be conveyed. However, whether an imputation formulated in terms different from the words actually used by a defendant is alleged, questions of degree might arise. The words “dangerous maniac” express a notion of considerable intensity - they are highly coloured, very expressive words, at the upper and outer end of the descriptive range.

8    Although the words attributed to the defendant do make accusations against the plaintiff of violent, reprehensible and uncouth behaviour, I do not think they go so far as to accuse him of being a “dangerous maniac”. They fall short of that. Moreover, while they do accuse him of being subject to sudden snaps of temper, and seeking to inflict violence on his neighbours, I do not think they go so far as to accuse him of that conduct as a result of “the most trivial events”. The imputation as pleaded is an exaggerated version of what the defendant said.

9    This imputation, as pleaded, is not conveyed by the matter complained of. However, as I am satisfied that something approaching it, though falling short of it, is conveyed, I propose to grant leave to the plaintiff to reformulate this imputation.

Imputation (b)

“The plaintiff intentionally threw raw sewage into the defendant’s face because she is a woman.”

10    To support this imputation the plaintiff points to the following passages in the matter complained of:

“I still fear from him because he suddenly snaps into some violent action.
…
His actions of throwing the sewer into my face - I consider it a personal assault and a violent act against a woman.”

11    On behalf of the defendant it was argued that the defendant never used the word “intentionally”, and never used the word “raw”; the latter word was used only by the interviewer and not by the defendant and that the imputation is therefore not conveyed. It is true that these precise words were not used by the defendant, but, nevertheless, the argument cannot be accepted. The whole tenor of the words spoken by the defendant conveys the imputation that the plaintiff acted intentionally in what he did; and there is no magic in the word “raw” in qualifying “sewage” - certainly there is no suggestion that the sewage was treated in any way such as to warrant a different description. These objections on behalf of the defendant fail. However, there is a third objection to this invitation made by the defendant which has more merit; that is the use of the word “because” in the last phrase of the imputation. What the defendant said was:

“I consider it a personal assault and a violent act against a woman.” (emphasis added)

12    There is, in my view, a material difference between making the assertion that what the plaintiff had done was “a personal assault” and “a violent act against a woman” and asserting that the personal assault was effected because she was a woman. The latter meaning was not conveyed.

13    The distinction is not trivial, and the imputation as a whole is not conveyed. However, again, since there is undoubtedly a defamatory imputation in the matter complained of, I propose to grant the plaintiff leave to reformulate this imputation to deal with the objection.

Imputation (c):

“The Plaintiff behaved childishly in failing to alert the Defendant to his trivial concern about her leaking sewage pipe.”

14    On behalf of the plaintiff it is claimed that this imputation is conveyed from a combination of the following passages in the matter complained of:

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

[Defendant]: He should have approached me and alerted me to the problems that he was having as a result of my sewer leaking.

[Reporter]: Discussed it with you like an adult.

[Defendant]: Yes.”

15    This passage was followed by another remark attributed to the reporter:

“It’s easy to see how petty grievances can explode when it comes to neighbours …”

16    This remark cannot be attributed to the defendant, and there is nothing in the transcript to suggest that she adopted it. It was followed by a short statement by another person unconnected with the dispute between the plaintiff and the defendant.

17    It is the use of the words “discussed it with you like an adult”, to which the defendant assented, that links the allegation of childishness with the defendant. I think this imputation is conveyed by the matter complained of.

Imputation (d):

“The plaintiff is power hungry seeking to assert power over his neighbours.”

18    In order to support this imputation the plaintiff points to the following passages in the matter complained of:

“I believe he’s a person who seeks to have power over others.
…
Well, I consider myself the passive party. Maybe you should ask Mr Green.
…
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.”

19    After consideration, I am of the view that this imputation is conveyed. What the defendant said was that the plaintiff was a person who sought to have power over others, and this is no different, really, from saying that he is a power hungry person who seeks to exert power. Taken as a whole, I am satisfied that the words attributed to the defendant do convey this imputation.

20    A second limb of the argument put in relation to this imputation is that it may not be defamatory, but this argument was only put in a half hearted fashion and I reject it. In my opinion it is defamatory to say of another person that he or she is “power hungry”, seeking to exert power over neighbours.

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Last Modified: 09/26/2000