Schneller v Amalgamated Television Services P/L [2000] NSWSC 978

Schneller v Amalgamated Television Services P/L [2000] NSWSC 978

The original statement of claim was defective because the contribution cause of action had not arisen when it was filed and it did not plead material facts. However, after judgment against Mrs Schneller, the proposed amended claim asserted an arguable, non-statute-barred cause of action for contribution against Amalgamated Television. No leave was required to commence that action. The prior failed attempts to bring a cross-claim, the asserted prejudice through delay, and Anshun estoppel principles did not make the contribution proceedings an abuse of process or justify a stay.

Jurisdiction
Australia
Judgment Date
25 October 2000
Procedural Posture
Notice of Motion in Proceedings for Contribution or Indemnity Arising From Defamation Liability / Application to Dismiss or Strike Out the Proceedings or Statement of Claim, or Alternatively Permanently Stay the Proceedings; Plaintiff Sought to Rely on an Amended Statement of Claim
Outcome
The plaintiff was given leave to file the amended statement of claim; the defendant's motion to strike out or stay the plaintiff's action was dismissed; the defendant was ordered to pay 75% of the plaintiff's costs including the costs of two counsel.
Legal Topics
['contribution Between Tortfeasors' 'abuse of Process' 'anshun Estoppel' 'strike Out and Permanent Stay' 'amendment of Pleadings' 'delay and Prejudice']
['civil Procedure' 'torts' 'defamation'] ['contribution Between Tortfeasors' 'abuse of Process' 'anshun Estoppel' 'strike Out and Permanent Stay' 'amendment of Pleadings' 'delay and Prejudice']

Case Brief

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Procedural Posture

Notice of Motion in Proceedings for Contribution or Indemnity Arising From Defamation Liability / Application to Dismiss or Strike Out the Proceedings or Statement of Claim, or Alternatively Permanently Stay the Proceedings; Plaintiff Sought to Rely on an Amended Statement of Claim

Legal Issues

  1. 1 ["Whether the original statement of claim for contribution or indemnity under s5(1)(c) of the Law Reform (Miscellaneous Provisions) Act, 1946 was premature because Mrs Schneller's liability to Mr Green had not yet been determined when it was filed." 'Whether the original statement of claim failed to plead the material facts giving rise to a statutory right to contribution or indemnity.' 'Whether the proposed contribution action against Amalgamated Television was an abuse of process because of the history of failed attempts to bring a cross-claim in the earlier proceedings.' 'Whether delay by Mrs Schneller caused prejudice to Amalgamated Television sufficient to justify dismissal or a stay.' 'Whether Anshun estoppel, or an analogy to Anshun principles, barred the contribution proceedings.' 'Whether the plaintiff should be permitted to file an amended statement of claim rather than commence fresh proceedings.']

Ratio Decidendi

The original statement of claim was defective because the contribution cause of action had not arisen when it was filed and it did not plead material facts. However, after judgment against Mrs Schneller, the proposed amended claim asserted an arguable, non-statute-barred cause of action for contribution against Amalgamated Television. No leave was required to commence that action. The prior failed attempts to bring a cross-claim, the asserted prejudice through delay, and Anshun estoppel principles did not make the contribution proceedings an abuse of process or justify a stay.

Court Disposition

The plaintiff was given leave to file the amended statement of claim; the defendant's motion to strike out or stay the plaintiff's action was dismissed; the defendant was ordered to pay 75% of the plaintiff's costs including the costs of two counsel.

Orders

  • ['Leave given to the plaintiff, Mrs Schneller, to file in Court the Amended Statement of Claim in the form of MFI 1.' "The Motion by Amalgamated Television Services Pty Limited to strike out, or stay, the plaintiff's action was dismissed." 'Amalgamated Television Services Pty Limited was ordered to pay 75% of the...