Cock & Anor v Hughes & Ors

Case [2001] WASC 24

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   COCK & ANOR -v- HUGHES & ORS [2001] WASC 24

CORAM:   HASLUCK J

HEARD:   18 DECEMBER 2000

DELIVERED          :   5 FEBRUARY 2001

FILE NO/S:   CIV 1540 of 2000

BETWEEN:   ROBERT ENOS COCK

First Plaintiff

LLOYD PATRICK RAYNEY
Second Plaintiff

AND

ROBERT HUGHES
First Defendant

AUSTRALIAN BROADCASTING CORPORATION
Second Defendant

SWAN RADIO AND TELEVISION BROADCASTERS PTY LTD (ACN 008 689 745)
Third Defendant

Catchwords:

Defamation - Pleadings - Innuendo - Sufficiency of imputations plea - Aggravated and exemplary damages

Legislation:

Broadcasting Services Act1992, s 206

Supreme Court Rules, O 21 r 5, O 20 r 19(1)

Result:

Leave to amend refused

Representation:

Counsel:

First Plaintiff                :     Mr M L Bennett

Second Plaintiff            :     Mr M L Bennett

First Defendant             :     Mr W S Martin QC & Mr S M Davies

Second Defendant         :     Mr A C Willinge

Third Defendant           :     Mr P A Tottle

Solicitors:

First Plaintiff                :     Bennett & Co

Second Plaintiff            :     Bennett & Co

First Defendant             :     Mark Andrews & Associates

Second Defendant         :     Blake Dawson Waldron

Third Defendant           :     Tottle Christensen

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

Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135

Fullam v Newcastle Chronicle & Journal Ltd (1977) 3 All ER 32

Grappelli v Derek Block Holdings Ltd (1981) 2 All ER 272

Gumina v Williams (No 1) (1990) 3 WAR 342

Jones v Skelton [1963] 1 WLR 1362

Knupffer v London Express Newspaper Ltd [1944] AC 116

Leslie v Mirror Newspapers Ltd (1971) 125 CLR 332

Lewis v Daily Telegraph Ltd [1964] AC 234

Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663

Oracle International Pty Ltd v West Australian Newspapers Ltd, unreported; SCt of WA; Library No 970696; 11 December 1997

Ronci v Nationwide News Pty Ltd & Anor, unreported; SCt of WA; Library No 960340; 21 June 1996

Sims v Wran [1984] 1 NSWLR 317

Slatyer v The Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1

Smith v Littlemore (1996) 15 WAR 289

Speight v Gosnay (1891) 60 LJQB 231

Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1

Taylor v Jecks (1993) 10 WAR 309

Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118

Vitale & Ors v Bednall & Anor [2000] WASC 207

Webb v Bloch (1928) 41 CLR 331

Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71

Case(s) also cited:

Abbott v TCN Channel Nine Pty Ltd, unreported; SCt of NSW (Hunt J); 6 October 1987

Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158

Australian Broadcasting Commission v Comalco Ltd (1986) 12 FCR 510

Gardiner v Ray [1999] WASC 140

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188

Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 261

Pickering v Publishing and Broadcasting Pty Ltd, unreported; SCt of NSW (Levine J); Library No…

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Cock & Anor v Hughes & Ors [2001] WASC 24
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[2001] WASC 24
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CaseChat Overview and Summary

The case of Cock & Anor v Hughes & Ors involves a defamation claim brought by the plaintiffs against the defendants. The plaintiffs seek damages for defamation arising from comments made by the defendants during media interviews. The matter was before the Supreme Court, which was required to consider several legal issues, including the sufficiency of the plaintiffs' statement of claim and the defendants' contention that the statement of claim was filed out of time. The court also had to consider whether the plaintiffs' statement of claim adequately specified the defamatory imputations and whether the plaintiffs were entitled to aggravated and exemplary damages.

In addressing these issues, the court examined the principles of pleading in defamation cases, emphasising the balance between the defendants' right to know the specifics of the allegations against them and the need to avoid undue technicality in the pleading process. The court considered the argument that the plaintiffs' statement of claim was filed out of time but found that the failure to comply with procedural rules did not nullify the proceedings or any steps taken. The court also examined the sufficiency of the plaintiffs' statement of claim in detailing the defamatory imputations, concluding that the proposed statement of claim sufficiently identified the alleged defamatory material.

The court ultimately determined that the plaintiffs' statement of claim, as proposed, was adequate and that the defendants' application to strike it out on the basis of it being out of time was without merit. The court also considered the question of aggravated and exemplary damages but did not make a definitive ruling on this point, deferring it to a later stage of the proceedings.

The court's final orders were that the defendants' application to strike out the plaintiffs' statement of claim was dismissed, and the matter was to proceed with the proposed statement of claim. The issue of aggravated and exemplary damages was left open for further consideration.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In applying all these principles to the circumstances of the present case, one must keep steadily in mind that although defendants are indeed entitled to have the case being advanced against them specified with precision, the rules of pleading should not be used as a vehicle for undue technicality. Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 provides some support for the view that the degree of specificity of pleading required in a particular case is a matter of judgment, bringing into play considerations of practical justice in addition to matters of linguistic refinement. As Kirby J noted in that case at 151, the rules are not there to ensnare plaintiffs unjustly in burdensome, costly and dilatory pleading disputes where the defendant did not pause to offer the recipients of the alleged defamation the refinement of particularity which he might later wish to allege as all he meant to convey. Against this background, I must now turn to the various issues raised by the applications before me. Prior to the comparatively recent delivery of the plaintiffs' minute of proposed statement of claim, there had been some exchanges between the parties as to the question of whether the plaintiffs were obliged to plead the entirety of the exchanges constituting the Bartlett radio broadcast and the Grimshaw television broadcast. Counsel for the first defendant seemed to accept that the transcripts set out in the proposed statement of claim reflected the entirety of the exchanges, with the result that he did not press this point. Nonetheless, as this issue, against the background of extended exchanges between the parties, might be thought to have some importance in regard to an award of costs, I touch upon it for the sake of completeness. It follows from the concession made at the hearing that this is no longer a live issue, and it seems that I am entitled to proceed upon the assumption that the respective transcripts are complete. I will leave any further debate concerning this matter until the question of costs falls to be dealt with. The first defendant contended that the plaintiffs' statement of claim dated 27 June 2000, and any subsequent version of it such as the proposed statement of claim, should be struck out on the ground that it was filed out of time without leave of the Court. I have already noted that the second and third defendants did not raise any issue concerning this aspect of the matter. I noted earlier that in the course of the very lengthy exchanges between the parties concerning this matter, the first defendant put to the plaintiffs that what was required in order to rectify their supposed default was the bringing of "an application for leave to file a statement of claim in the form of the pleading that you now intend to proceed with." The plaintiffs submit that the proposed statement of claim represents a response to that invitation. Order 2 r 1 of the Supreme Court Rules provides that where there has been a failure to comply with the rules, the failure shall be treated as an irregularity and shall not nullify the proceedings, or any step taken in the proceedings. Order 2 r 2 provides that an application to set aside for irregularity any step taken shall not be made unless it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.