Cock v Hughes
[2002] WASC 108 (S)
•14 MAY 2002
COCK & ANOR -v- HUGHES & ORS [2002] WASC 108 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 108 (S) | |
| Case No: | CIV:1540/2000 | 21 MARCH & 14 MAY 2002 | |
| Coram: | HASLUCK J | 14/05/02 | |
| 30/08/02 | |||
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiffs' application for costs allowed | ||
| B | |||
| PDF Version |
| Parties: | ROBERT ENOS COCK LLOYD PATRICK RAYNEY ROBERT HUGHES AUSTRALIAN BROADCASTING CORPORATION SWAN RADIO AND TELEVISION BROADCASTERS PTY LTD (ACN 008 689 745) |
Catchwords: | Defamation Application to strike out defence Appropriate order as to costs Turns on own facts |
Legislation: | Rules of the Supreme Court, O 59 r 9, O 66 r 1(1) |
Case References: | Anderson v Nationwide News Pty Ltd [2001] VSC 335 Cock & Anor v Hughes & Ors [2002] WASC 108 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
DECISION : 30 AUGUST 2002 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
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Catchwords:
Defamation - Application to strike out defence - Appropriate order as to costs - Turns on own facts
Legislation:
Rules of the Supreme Court, O 59 r 9, O 66 r 1(1)
Result:
Plaintiffs' application for costs allowed
Category: B
Representation:
Counsel:
First Plaintiff : Mr M L Bennett
Second Plaintiff : Mr M L Bennett
First Defendant : Mr S M Davies
Second Defendant : No appearance
Third Defendant : Mr G D Cobby
Solicitors:
First Plaintiff : Bennett & Co
Second Plaintiff : Bennett & Co
First Defendant : Mark Andrews & Associates
Second Defendant : No appearance
Third Defendant : Tottle Christensen
Case(s) referred to in judgment(s):
Anderson v Nationwide News Pty Ltd [2001] VSC 335
Cock & Anor v Hughes & Ors [2002] WASC 108
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
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Case(s) also cited:
Nil
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1 HASLUCK J: The matter before me arises out of an application by the plaintiffs in a defamation claim to strike out certain paragraphs of the statements of defence of the first and third defendants. I am required to make a ruling concerning the costs of the application. It will be useful to set the matter in issue in context by looking at the issues reflected on the pleadings.
2 The first plaintiff is the Director of Public Prosecutions. The second plaintiff is a legal practitioner employed by the DPP who acted as prosecutor in a case brought against the first defendant, Mr Hughes, in the Court of Petty Sessions at Broome.
3 The plaintiffs advance a claim in defamation arising out of certain observations allegedly made by Mr Hughes on or about 10 May 2000 in the course of a radio broadcast by the ABC and on or about the same date in the course of a television broadcast by the Nine Network. The observations are said to have been made by Mr Hughes after his acquittal of charges of dangerous driving.
4 More particularly, the plaintiffs complain of remarks made by Mr Hughes in the course of each broadcast as to the way in which the case against him was handled by the prosecution. The plaintiffs say that the second and third defendants are liable to the plaintiffs as broadcasters for republishing the first defendant's remarks.
5 The plaintiffs say that the words complained of contain various imputations to the effect that in the conduct of the prosecution case the plaintiffs abused their official positions in order to advance their careers.
6 The statement of claim in this matter became the subject of applications to strike out the claim but the plaintiffs eventually filed and served a substituted statement of claim dated 18 September 2001. The three defendants then proceeded to file statements of defence. This led to the plaintiffs applying to strike out various paragraphs of the first defendant's statement of defence and of the third defendant's statement of defence. The paragraphs in question are principally concerned with pleas of fair comment and qualified privilege.
7 The first defendant said that if (which was denied) the matter complained of was defamatory of the plaintiffs, it was fair comment on a matter of public interest, namely, the prosecution brought against the defendant. The plaintiffs contended that the first defendant was obliged to state the substance of the comment and a challenge was raised to the
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- adequacy of the statement of defence in identifying the facts and matters relied upon in support of the comment.
8 It appears from the reasons provided in Cock & Anor v Hughes & Ors [2002] WASC 108 that it was thought appropriate in the circumstances of the present case for the defendant to state the substance of the comment. I considered that the substratum of fact relied upon in support of the comment was sufficiently indicated in the statement of defence although there were certain deficiencies in the pleading which led to a conclusion that paragraphs 15 to 18, 30 to 34 and 37 of the first defendant's statement of defence concerning fair comment should be struck out but with leave to replead.
9 It followed from this ruling that par 9 of the third defendant's statement of defence concerning fair comment should be struck out with leave to replead.
10 The first defendant said further in his statement of defence that if the matter complained of was held to be defamatory of the plaintiffs, the matter was published on an occasion of qualified privilege in that the matter complained of was communication on a government or political matter. Put shortly, the first defendant relied upon the line of defence reflected in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
11 I was of the view that the words complained of could arguably be described as a form of political discussion with the result that the first defendant's plea could not be characterised as untenable. However, I held also that as the pleas of qualified privilege and the further paragraphs concerning the so-called interstate defences purported to pick up and utilise the particulars employed in support of the defence of fair comment they should be struck out as embarrassing. The ruling was that paragraphs 19 and 35, and 38 to 49 concerning qualified privilege should be struck out with leave to replead.
12 It emerges, then, that the first defendant had a degree of success in fending off certain facets of the challenge to his pleading. Nonetheless, the shortcomings in the statement of defence were such that an application to strike out a number of important paragraphs was allowed but with leave to replead. As I have already indicated, as to the third defendant's statement of defence, par 9 was struck out but with leave to replead.
13 When the ruling was handed down directions were given which allowed for the parties to make written submissions concerning the
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- question of costs to the intent that a further ruling would be provided on that issue upon the basis of the written submissions. Written submissions were provided by the parties in due course. It is apparent from those submissions and from the affidavit of Jason Maclaurin sworn 7 June 2002 that the solicitors for the first defendant sought to interpret the directions as providing an opportunity to make submissions on costs concerning earlier interlocutory applications. However, it is quite clear that the directions were confined to costs in respect of the application to strike out certain paragraphs of the statements of defence and I will therefore proceed accordingly.
14 Order 66 rule 1(1) of the Rules of the Supreme Court reflects the precept that (without limiting the general discretion of the Court) the Court will generally order that the successful party to any action or matter recover his costs. The exceptions to this rule are mainly concerned with the conclusion of an action as a whole such as where a party has claimed an excessive amount with the result that costs are unreasonably incurred or where a party has introduced issues into an action upon which he has failed and has thereby increased the costs of the action.
15 The plaintiffs contended by their written submissions that the seminal issue raised by the plaintiffs in relation to the fair comment pleas was the question of the requirements described in the decision of Anderson v Nationwide News Pty Ltd [2001] VSC 335. The plaintiffs argued that this issue occupied much of the hearing and as the plaintiffs succeeded upon the central issue they should obtain the costs referable to the applications to strike out as this was a matter affecting the statements of defence filed by both the first and third defendants. Further, and in any event, the "narrative style" of the particulars provided by the first defendant in support of the defence of fair comment was found to be embarrassing.
16 The plaintiffs submitted further that the pleas of qualified privilege were found to be flawed because of a misconceived reliance upon particulars set out in support of the defence of fair comment. The only respect in which it might be said that the first defendant successfully resisted the plaintiffs' application regarding qualified privilege was the first defendant's contention concerning what was the arguable scope of a "governmental and political matter."
17 The plaintiffs submitted further that had the first defendant embraced the process of conferral allowed for by O 59 r 9, so as to offer up and make proper amendments to the statements of defence so that the issues
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- truly between the parties would be crystallised, the hearing could have been avoided. The process of conferral was not employed with the result that the plaintiff should obtain an order for costs in their favour upon the basis that costs should follow the event. It was said that in the circumstances of this case the relevant event was the striking out of significant portions of the statements of defence with the result that the plaintiffs could be said to have succeeded.
18 The first defendant submitted that the appropriate order in relation to the application was that there be no order as to costs. It was said that the substantive challenge by the plaintiffs to the qualified privilege plea failed. The plaintiffs attacked the plea on two grounds, namely, that there was no government or political matter and that the publication was not arguably reasonable. The Court upheld the first defendant's submissions in regard to both those matters.
19 The first defendant acknowledged that certain parts of the statements of defence were struck out because they were found to be embarrassing. However, the substantive challenge by the plaintiffs to the fair comment plea failed and the Court upheld the first defendant's submissions as to the viability of the plea. The only area in which the plaintiffs achieved any real success was the issue concerning the requirement for particulars of the substance of the comment in the fair comment plea.
20 In essence, the first defendant submitted that the plaintiffs failed (and the first defendant succeeded) on approximately 50 per cent of the issues in the application. In the circumstances, the first defendant submitted that the costs order that would fairly reflect the level of success as between the first defendant and the plaintiffs on the application is that there be no order as to costs.
21 Alternatively to there being no order as to costs, the only other costs order that might be appropriate would be that the plaintiffs pay 50 per cent of the first defendant's costs of the application in the cause.
22 Having given careful consideration to the respective contentions, I consider that the appropriate order is for the plaintiffs to be allowed the costs of the application. As I have already noted, the first defendant had some measure of success in fending off certain challenges to his statement of defence. However, at the end of the day the underlying reality was that the first defendant's statement of defence was found to be deficient and important paragraphs of the defence were struck out with leave to replead. Further, a central issue concerning the defence of fair comment was
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- resolved in favour of the plaintiffs. Accordingly, I consider that the plaintiffs should be regarded essentially as the successful parties and that the general rule should be applied whereby an order for costs is made in favour of the successful party. These comments apply with equal force to the position of the third defendant.
23 In summary, then, in each case an order will be made that the plaintiffs be allowed the costs of the application to strike out the defence in any event such costs to be taxed. I will also make an order that there be liberty to apply in respect of these orders.
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