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Supreme Court 12 January 1999

Richard Green v Jennifer Schneller

[1999] NSWSC 5

Other
CLAIM. THIS PROPOSED AMENDED CROSS

Citation: Green v Schneller [1999] NSWSC 5
Court: Supreme Court of New South Wales, Common Law Division
Date: 12 January 1999
Judge(s): Simpson J

Background

The plaintiff commenced defamation proceedings in 1994, alleging the defendant made defamatory statements about him during a televised interview broadcast on the Channel 7 network, operated by Amalgamated Television Services Pty Limited. The defendant filed a cross-claim against the plaintiff raising causes of action including assault, trespass and defamation. Several of those cross-claims were later struck out following adverse credibility findings made against the defendant in related Local Court proceedings.

Over the course of the litigation, the defendant made a series of applications seeking to join Amalgamated Television as a cross-defendant and to claim indemnity or contribution from it. In August 1997, Finnane AJ granted leave to do so within 28 days. The defendant did not use that opportunity. A subsequent application to Levine J in March 1998 was refused, his Honour finding the reason given for missing the deadline to be wholly unsatisfactory.

By the time the present notice of motion was filed in September 1998, the principal proceedings had been listed for a two-week jury trial commencing 1 February 1999. The defendant again sought leave to file a cross-claim naming Amalgamated Television as a cross-defendant, this time acknowledging that any such cross-claim could not be heard alongside the principal proceedings.

  • Whether the defendant should be granted leave, at this late stage, to file a cross-claim joining Amalgamated Television as a cross-defendant in proceedings already fixed for trial.
  • Whether the Anshun principle (derived from the High Court's decision in Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589) would prevent the defendant from bringing a separate claim against Amalgamated Television after the principal proceedings concluded, if leave were refused.

Decision

Simpson J dismissed the notice of motion. Her Honour found that the defendant had been given ample opportunity to join Amalgamated Television through prior applications and had simply failed to act on those opportunities in time. The history of the litigation, including the leave granted and not exercised in 1997, and the unsuccessful application to Levine J in 1998, demonstrated that the defendant had exhausted her chances to pursue this step within the existing proceedings.

Her Honour also considered the likely practical consequences of granting leave at such a late stage. Even if the cross-claim were not to be heard concurrently with the principal proceedings, joining Amalgamated Television would almost inevitably prompt that company to apply for an adjournment to prepare its defence, which would in turn threaten the plaintiff's long-awaited trial date. Simpson J gave weight to the plaintiff's interest in maintaining the hearing date, even though the plaintiff had taken little active part in the motion.

On the Anshun question, Simpson J examined whether refusing leave would prevent the defendant from later bringing a standalone claim against Amalgamated Television. Having reviewed the High Court's judgments in Anshun and the written submissions of counsel, her Honour was satisfied that the Anshun principle would not bar the defendant from pursuing such a claim in separate proceedings after the conclusion of the principal case.

Orders Made

  • The defendant's notice of motion was dismissed.
  • The defendant was ordered to pay the costs of Amalgamated Television Services Pty Limited.

Key Takeaways

  • A party who fails to exercise a court-granted opportunity to amend or join a party within the specified time faces a very high bar in seeking equivalent leave at a later stage, particularly as trial approaches.
  • Granting leave to join an additional party does not occur in a vacuum. Where joinder would predictably disrupt a fixed trial date, the court will weigh the interests of other parties, including the plaintiff's entitlement to have proceedings heard promptly.
  • The Anshun principle will not automatically prevent a party from commencing fresh proceedings against a third party after the conclusion of existing litigation, where the party was not required to raise that claim in the current proceedings.
  • Procedural explanations offered for missing court-imposed deadlines must be substantively adequate. In this case, the explanation that it was "convenient" to keep proposed cross-claims in a single document was held by Levine J to be wholly insufficient, and that finding formed part of the procedural history Simpson J had regard to.
  • Repeated interlocutory applications seeking substantially the same relief, without adequate new grounds, will not be entertained indefinitely, particularly in proceedings nearing a final hearing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 562 (protection orders)
- Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(1)(c) (indemnity and contribution)

Cases:
- Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 (High Court)
- Green v Schneller, unreported, Finnane AJ, 22 August 1997
- Green v Schneller, unreported, Levine J, 18 March 1998