Richard Green v Jennifer Schneller - [1999] NSWSC 5

CITATION: Richard Green v Jennifer Schneller [1999] NSWSC 5

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): 20386/94

HEARING DATE(S): 22/12/98

JUDGMENT DATE:
12 January 1999

PARTIES :

Jennifer Schneller (defendant/applicant) V Amalgamated Television Services Pty Ltd (respondent) and Richard Green (plaintiff)

JUDGMENT OF: Simpson J

COUNSEL : Mr Rollinson (defendant/applicant)
Mr Blackburn (respondent)
Mr Campbell (plaintiff)

SOLICITORS: Dennis & Co. (defendant/applicant)
Mallesons Stephen Jaques (respondent)
Patrick Grimes & Co. (plaintiff)

CATCHWORDS:

DECISION: Defendant's Notice of Motion to join cross defendant dismissed

- 8 -
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
SIMPSON J
12 January 1999
20386/94
Richard GREEN v Jennifer SCHNELLER

Reasons for Judgment
1 By notice of motion filed on 9 September 1998 the defendant seeks leave to file a cross-claim naming Amalgamated Television Services Pty Limited (“Amalgamated Television”) as cross-defendant in defamation proceedings fixed to commence on 1 February 1999 for a jury hearing estimated to occupy two weeks.
2 Except insofar as the contrary appears I shall, for the purposes of this interlocutory judgment only, assume the truth of various facts alleged by the parties to the proceedings. That assumption should not be taken to represent concluded findings of any fact or facts that may be in issue in the principal proceedings. The facts as stated are drawn from affidavit and oral evidence adduced in support of the notice of motion, and from previous interlocutory judgments to which I was referred.
3 On 21 June 1994 the plaintiff filed a statement of claim in this Court claiming damages from the defendant for defamatory statements he alleged were published by her in an interview televised on the Channel 7 network, which is owned and operated by Amalgamated Television. In the interview the defendant asserted that the plaintiff, a neighbour, had deposited bags of sewage in her letterbox and had then thrown them in her face in the presence of her young daughter. The allegations appear to have arisen out of a dispute that followed building work at the defendant’s house, which caused disruption to the sewerage pipes in her property.
4 On 1 August 1994 the defendant filed a defence and cross claim, naming the plaintiff as cross-defendant, pleading various causes of action. In paragraphs 1 and 2 she alleged that the plaintiff had assaulted her by throwing a bag of sewage upon her, as a result of which she suffered severe personal injury, loss and damage; in paragraphs 3 and 4 she alleged that the plaintiff had assaulted her two year old daughter by throwing over her face and body a plastic bag of dirt, sewage and excrement, as a result of which she, (the defendant cross-claimant) suffered nervous shock. In paragraphs 5 to 8 she alleged that the plaintiff had, in 1988, 1989, 1991, 1992 and 1993, in various ways trespassed upon her property causing her humiliation, mental anguish, stress and other loss and damage; in paragraph 9 she alleged that the plaintiff had, in August 1992, defamed her by describing her…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [1999] NSWSC 5
Decision Date: 12 January 1999

CaseChat Overview and Summary

Jennifer Schneller sought leave to file a cross-claim against Amalgamated Television Services Pty Limited, the owners of the television network that broadcasted an interview in which she made defamatory statements against Richard Green. The primary issue was whether Schneller was entitled to join Amalgamated Television as a cross-defendant in the defamation proceedings against Green. The secondary issue was whether the court should grant leave to bring the cross-claim against Amalgamated Television at such a late stage in the proceedings.

The court considered the extensive history of the case, including previous applications by Schneller to amend her cross-claim and join Amalgamated Television as a cross-defendant. The court noted that Schneller had been granted leave to join Amalgamated Television as a cross-defendant previously, but had failed to take advantage of that leave. The court also considered the potential unfairness to Amalgamated Television of being required to prepare for a contested hearing at short notice, as well as the potential impact on the principal proceedings against Green. Ultimately, the court concluded that Schneller had had ample opportunity to bring the cross-claim against Amalgamated Television and that it was too late in the proceedings to permit such a cross-claim. The notice of motion was dismissed, and Schneller was ordered to pay the costs of Amalgamated Television Services Pty Limited.

Orders