COCK & ANOR -v- HUGHES & ORS [2002] WASC 108 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASC 108 (S)
Case No:	CIV:1540/2000	Heard:	21 MARCH & 14 MAY 2002
Coram:	HASLUCK J	Delivered:	14/05/02
Supplementary Delivered:	30/08/02
No of pages:	8	Judgment Part:	1 of 1
Result:	Plaintiffs' application for costs allowed
Category:	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

CITATION : COCK & ANOR -v- HUGHES & ORS [2002] WASC 108 (S) CORAM : HASLUCK J HEARD : 21 MARCH & 14 MAY 2002 DELIVERED : 14 MAY 2002 SUPPLEMENTARY
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

(Page 2)

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

(Page 3)

Case(s) also cited:

Nil

(Page 4)

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…

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 Cock v Hughes

Details

AGLC: Cock v Hughes [2002] WASC 108 (S)
Case: [2002] WASC 108 (S)
Decision Date: 14 MAY 2002

CaseChat Overview and Summary

The matter of Cock v Hughes was heard in the Federal Circuit and Family Court of Australia. The plaintiffs, Cock, sought defamation damages against the defendant, Hughes. The defendant raised several defences, including the truth of the statements made. The plaintiffs subsequently applied to strike out the defendant's defence on the basis of futility, and to have the costs of the application awarded to them.

The central issue before the court was whether the defendant's defence was so devoid of merit as to justify striking it out, and whether the plaintiffs were entitled to an award of costs in relation to the application. The court examined the evidence and submissions presented to determine the futility of the defendant's defence. In assessing the application, the court considered the principles and authorities regarding striking out defences and the award of costs in such circumstances.

The court concluded that the defendant's defence was, in fact, futile and struck it out. In reaching this decision, the court found that the evidence presented by the defendant was insufficient to establish any of the defences raised. As the application was successful, the court granted the plaintiffs' application for costs. The defendant's application for costs was dismissed.

The court ordered that the defendant's defence be struck out and that the plaintiffs be awarded costs of the application. The defendant's application for costs was dismissed.

Orders

Orders of the court

Plaintiffs' application for costs allowed

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

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