Greinert v Brooker (No 4)

[2018] NSWSC 1904

Supreme Court

New South Wales

Medium Neutral Citation:	Greinert v Brooker (No 4) [2018] NSWSC 1904
Hearing dates:	30 November 2018
Decision date:	30 November 2018
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	I grant leave to the defendants to file an amended cross-claim in the form of the draft presented at Court on 23 November 2018; I order the defendants to pay the cross defendants’ costs of the arguments heard on 23 October 2018 and 2 November 2018; I order the defendant to pay the plaintiff’s costs of the argument on 23 November 2018; as to the first argument on 17 July 2018 the costs of that argument are to be each party’s costs in the cause; I make no order as to costs as between the plaintiff and the defendant for round 2 and 3, that is, 12 October and 2 November; I stand the proceedings over to 7 December 2018 at 9.30 am for directions. If directions are agreed before then the listing may be vacated.
Catchwords:	CIVIL PROCEDURE – application by defendants for leave to file cross-claim – where defendants had failed in several earlier applications to plead claim in proper form – complexity of issues raised
Legislation Cited:	Defamation Act (2005) NSW Civil Procedure Act (2005)
Cases Cited:	Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550
Category:	Procedural and other rulings
Parties:	Robert Alexander Greinert (plaintiff) John William Brooker (first defendant) Benjamin Morgan (second defendant) TCN Channel Nine Pty Ltd (first cross defendant) Nine Digital Pty Ltd (second cross defendant)
Representation:	Counsel: S Chrysanthou (plaintiff) R Rasmussen (defendants) M Richardson (cross defendants)   Solicitors: Ford Law (plaintiff) Kalantzis Lawyers (defendants) Mark O’Brien Legal (cross defendants)
File Number(s):	2017/108676
Publication restriction:	None

Judgment EX TEMPORE - REVISED

1. HER HONOUR: On 21 November 2018, I refused an application by the defendants in these proceedings for leave to file a cross-claim against Channel Nine. The defendants had up to that point made a number of attempts to formulate a cross-claim in proper form. In fairness to the defendants, it should be acknowledged that the issues are complex, as has been acknowledged by all parties during argument and as reflected in the several judgments I have published up until now.

2. On 23 November 2018, the defendants propounded a form of further proposed amended cross-claim which specifically addressed the matters raised in the judgment published on 21 November. After some argument, it was (more or less) accepted by the plaintiff and the proposed cross-defendants that the form of this further pleading finally addressed in a satisfactory way the issues that had been debated on a number of earlier occasions. It remained, however, to address an important consideration raised by the plaintiff as to whether leave should be refused on discretionary grounds.

3. To that end, each party provided to the Court a chronology identifying important features pointing in favour of and against granting leave to the defendants to file the pleading at this late stage.

4. Importantly, on behalf of the plaintiff, it was noted that the defendants had previously sought and obtained an order that they file and serve any cross-claim on or before 1 November 2017, more than a year ago. Ms Chrysanthou, who appears for the plaintiff, submitted that the order was not complied with and that no explanation had ever been given by the defendants for this failure. The explanation is, accordingly, an important issue in the discretionary considerations.

5. Mr Rasmussen, who appears for the defendants, noted that, contrary to Ms Chrysanthou's submission, an explanation was provided in an affidavit of his instructing solicitor, Mr Kalantzis. Ms Chrysanthou submitted that what was there set out afforded no explanation at all.

6. The substance of what Mr Kalantzis addressed in the affidavit was that the defendants were endeavouring, in the period after Mr Kalantzis came on to the record, to enjoin the Channel Nine parties, in effect, to indemnify the defendants and take over the conduct of the proceedings.

7. I accept, as submitted by Ms Chrysanthou, that there was perhaps an unhealthy degree of optimism in those attempts. However, I do not think the defendants are to be criticised for taking them. It is in accordance with both the objects of the Defamation Act (2005) NSW and the objects of the Civil Procedure Act (2005) NSW for a party to endeavour to resolve proceedings without resort to litigation.

8. The attempts were unsuccessful and there has followed an unhappy series of unsuccessful applications for leave to file a cross-claim. In the meantime, as submitted by Ms Chrysanthou, the plaintiff has suffered significant delay because of the collateral fight between the defendants and the proposed cross-defendants. Ms Chrysanthou noted that the matter was listed on 18 May 2018, at which time the plaintiff would otherwise have been entitled to seek an order that the matter be referred to the list clerk to obtain a hearing date. Over the following five months the arguments concerning the cross-claim unfolded and in those circumstances Ms Chrysanthou submitted that the defendants should not be allowed an opportunity to re-plead. She submitted that the application should be dismissed and that the existing cross-claim filed on 30 July 2018 should be struck out.

9. Ms Chrysanthou drew my attention in that context to the recent decision of Wigney J in Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550 at [25] to [30] where his Honour provided a helpful summary of familiar principles. Those include that the Court should have regard to prejudice to the other party that cannot be compensated by an award of costs, the explanation for the delay in applying for leave and the parties’ choices to date in the litigation and the consequences of those choices. Ms Chrysanthou submitted that these are important considerations in this case and, in particular, that a consequence of the defendants' choice is that the plaintiff is unlikely to obtain a hearing date until 2020.

10. It is not clear to me that that is necessarily the case. The interlocutory steps which the cross-defendant will now wish to take should be able to be undertaken with promptness. Indeed, it ought to be possible for a second listing to be held early within the new year and for the matter then to be referred to the List Clerk. In any event, having regard to the matters relied upon by the plaintiff, whilst I accept that this is a difficult matter, I have ultimately concluded that it would be unfair to the defendants to keep them out of filing a cross-claim, even having due regard to the substantial factors referred to by Ms Chrysanthou.

11. I do not accept that there is no explanation for the delay in applying for leave. Mr Rasmussen pointed out that, after the order made by consent on 13 November 2017 allowing leave for the defendants to file a cross-claim, an order was subsequently again made, by consent, for that to occur. He submitted that that in effect reset the timetable. Whether or not that is an appropriate characterisation of that event, it is relevant that the plaintiff consented to the order at that time.

12. Perhaps more importantly, I have had regard not only to the defendants' choices but to the plaintiff's choices. I accept that it is open to a plaintiff to make the choice made by the plaintiff in the present case to sue only the sources and not the television broadcaster but that, of course, has a significant consequence for the defendants.

13. A concern I have held throughout these applications is that, if the defendants are not permitted to file the cross-claim, they will be left as individuals facing the plaintiff's claim in circumstances where the so-called "swelled" damages flowing from the republication on national television of what they said to the journalist is by far the most of the whole of the damages to which the plaintiff will be entitled if he succeeds in establishing his claim. That is a significant consideration which has ultimately led me to conclude that the defendants should have leave to file the claim which is now accepted to be in proper form.

14. For those reasons, I make the following orders:

1. I grant leave to the defendants to file an amended cross-claim in the form of the draft presented at Court on 23 November 2018;

2. I order the defendants to pay the cross defendants’ costs of the arguments heard on 23 October 2018 and 2 November 2018;

3. I order the defendant to pay the plaintiff’s costs of the argument on 23 November 2018;

4. as to the first argument on 17 July 2018 the costs of that argument are to be each party’s costs in the cause;

5. I make no order as to costs as between the plaintiff and the defendants for rounds 2 and 3, that is, 12 October and 2 November;

6. I stand the proceedings over to 7 December 2018 at 9.30 am for directions. If directions are agreed before then the listing may be vacated.

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Decision last updated: 10 December 2018