Bowen v Stott - [2001] WASC 219

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: BOWEN -v- STOTT [2001] WASC 219

CORAM: HASLUCK J

HEARD: 6 AUGUST 2001

DELIVERED : 6 AUGUST 2001

FILE NO/S: CIV 2300 of 2000

BETWEEN: SHEENA COLE BOWEN
Plaintiff
AND
PAUL STOTT
Defendant

FILE NO/S :CIV 2301 of 2000

BETWEEN :SHEENA COLE BOWEN
Plaintiff
AND
LIN VAN COPPENHAGEN
Defendant

Catchwords:

Application to set aside default judgment - Principles to be applied - Plea of qualified privilege to defamation claim - Defendant's plea sufficient to show a real prospect of success - Default judgment set aside - Turns on own facts

Legislation:

Supreme Court Rules, O 22 r 10, O 29A

Result:

Application allowed

Category: B

Representation:

CIV 2300 of 2000

Counsel:

Plaintiff: Mr K C Staffa
Defendant: Mr M D Howard

Solicitors:

Plaintiff: Kevin Staffa
Defendant: Minter Ellison

CIV 2301 of 2000

Counsel:

Plaintiff: Mr K C Staffa
Defendant: Mr M D Howard

Solicitors:

Plaintiff: Kevin Staffa
Defendant: Minter Ellison

Case(s) referred to in judgment(s):

Austin v Mirror Newspapers (1985) 3 NSWLR 354
Howe v Lees (1910) 11 CLR 361
Parker v Transfield Pty Ltd & Anor [2000] WASCA 382
Rollond & Anor v Bank of Western Australia Ltd, unreported, SCt of WA; Library 980498, 3 September 1998

Case(s) also cited:

Alpine Bulk Transport Co Inc v Saudi Eagle Shipping Co Inc [1986] 2 Lloyds Rep 221
Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30
Bremridge v Latimer (1864) 12 WR 878
Evans v Bartlam [1937] AC 473
Henwood v Harrison (1872) LR 7 CP 606
Horrocks v Lowe [1975] AC 135
Justin v Associated Newspapers Ltd (1966) 86 WN (Pt 1) (NSW) 17
Moroney v Finlay & Ors, unreported; SCt of WA; Library No 980556; 23 September 1998
Palmer v Prince [1980] WAR 61
Reynolds v Nationwide News Pty Ltd & Ors [2001] WASC 116
Spring v Guardian Assurance [1993] 2 All ER 273
Starr v Koushappis, unreported; SCt of WA; Library No 980574; 2 October 1998
Templeton v Jones [1984] 1 NZLR 448
Toogood v Spyring (1834) 1 CM&R 181
Watt v Longsdon [1930] 1 KB 130

HASLUCK J: This is an application by the defendant in Supreme Court action CIV 2301 of 2000, to set aside an interlocutory judgment obtained by the plaintiff, Sheena Cole Bowen. It was heard in conjunction with a similar application in Supreme Court action CIV 2300 of 2000, in which the plaintiff, Sheena Cole Bowen, advances a claim in defamation against the defendant, Paul Stott. Counsel recognised that it was useful for these applications to be heard together, and for the court to draw upon the evidence and submissions placed before the court in both matters simultaneously.
The materials before me, in addition to the chamber summons and the written submissions filed on both sides, included various affidavits. The defendant, Lin Van Coppenhagen, relies upon the affidavits of himself sworn 29 March 2001 and 8 May 2001. He relies also upon the affidavits of his…

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.

Continue reading Bowen v Stott

Details

AGLC: Bowen v Stott [2001] WASC 219
Case: [2001] WASC 219
Decision Date

CaseChat Overview and Summary

In the matter of Bowen v Stott, the plaintiff, Sheena Cole Bowen, brought a defamation claim against the defendants, Paul Stott and Lin Van Coppenhagen, in the Supreme Court of Western Australia. The defendants sought to set aside the default judgments obtained by the plaintiff due to their failure to file a defence within the prescribed time. The court had to decide whether the defendants presented a credible defence demonstrating a real prospect of success, and whether there was any departure from the general rule of not setting aside a regularly entered default judgment. The court considered the defence of qualified privilege and whether it could be extinguished by the alleged malice. The court found that the defendants had a real prospect of success by relying on the defence of qualified privilege, and that the alleged malice was not sufficient to defeat the privilege. Therefore, the interlocutory judgments previously obtained were set aside.

Orders