Hogan v Ellery

Case [2009] QDC 154


DISTRICT COURT OF QUEENSLAND

CITATION:

Hogan v Ellery [2009] QDC 154

PARTIES:

LUKE PATRICK HOGAN

Plaintiff

AND

MILES CHRISTOPHER ELLERY

Defendant

FILE NO/S:

BD1796/08

DIVISION:

PROCEEDING:

Applications

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

12 June 2009

DELIVERED AT:

Brisbane

HEARING DATE:

25 March 2009

JUDGE:

McGill DCJ

ORDER:

Each application is dismissed.

CATCHWORDS:

DISCOVERY AND INTERROGATORIES – Interrogatories - who may be interrogated – interrogation before action – possible defamation – whether sufficient basis for leave to interrogate – leave refused

DISCOVERY AND INTERROGATORIES - Interrogatories – after judgment for damages to be assessed – whether relevant to assessment of damages – leave refused

PRACTICE – Interrogatories - who may be interrogated – interrogation before action – possible defamation – whether sufficient basis for leave to interrogate – leave refused

PRACTICE – Interrogatories – after judgment for damages to be assessed – whether relevant to assessment of damages – leave refused

UCPR r 229(1)

Defamation Act 2005 s 34, 36.

Airservices Australia v Transfield Pty Ltd (1999) 92 FCR 200 – considered.
Anderson v Gregory [2008] QDC 135 – distinguished.
Andrews v John Fairfax and Sons Ltd [1980] 2 NSWLR 225 – applied.
Braham v Huntingfield [1913] 2 KB 193 – cited.
Clarkson v DPP [1990] VR 745 – considered.
Re: Cojuangco (1986) 4 NSWLR 513 – considered.
Cross v Queensland Rugby Football Union Ltd [2001] QSC 173 – applied.
Cummings v 2KY Broadcasters Pty Ltd [1981] 1 NSWLR 246 – cited.
Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 – cited.
Erwin v Southdown Press [1976] VR 353 – cited.
Gerard Industries Pty Ltd v Wee (1986) 43 SASR 562 – considered.
Heaton v Goldney [1910] 1 KB 754 – not followed.
Hooper v Kirella Pty Ltd (1999) 96 FCR 1 – followed.
Imperial Chemical Industries plc v Echo Tasmania Pty Ltd [2007] FCA 1731 – cited.
John Fairfax and Sons Ltd vCojuangco (1988) 165 CLR 346 – applied.
Kendell v North Queensland Newspaper Co Ltd [1994] Aust Torts Rep 81-272, [1994] QCA 141 – cited.
Levis v McDonald (1997) 75 FCR 36 – considered.
McCracken v Stockdale (Victorian Supreme Court, Beach J, No. 1948/94, 27 March 1995, unreported, BC9507202) – followed.
Minister for Health and Aged Care v Harrington Associates Ltd [1999] FCA 549 – cited.
Monsanto Co v Syngenta Seeds Pty Ltd [2006] FCA 228 – cited.
Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 – applied.
Mutch v Sleeman (1928) 29 SR (NSW) 125 – cited.
Norton v Hoare (No. 2) (1913) 17 CLR 348 - cited.
Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133 – considered.
Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2007] FCA 2065 – cited.
Pacific Century Production Pty Ltd v Netafim Australia Pty Ltd [2004] QSC 63 – considered.
Re: Pyne [1997] 1 Qd R 326 – considered.
Richardson Pacific Ltd v Fielding (1990) 26 FCR 188 – considered.
Slipper v British Broadcasting Corporation [1991] 1 QB 283

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Hogan v Ellery [2009] QDC 154
Case
[2009] QDC 154
Decision Date

CaseChat Overview and Summary

The case of Hogan v Ellery involved a dispute regarding the scope and timing of the use of interrogatories in civil litigation. The parties involved were Hogan, the plaintiff, and Ellery, the defendant. The plaintiff sought to use interrogatories to gather information from the defendant, both prior to the commencement of the action and after a judgment had been entered for damages pending an assessment of those damages. The matter was heard in the Supreme Court of Victoria.

The primary legal issues before the court were whether there was a sufficient basis for the plaintiff to interrogate the defendant before the action had commenced, given the possibility of defamation, and whether the interrogatories proposed after judgment were relevant to the assessment of damages. The court had to determine whether the plaintiff had met the threshold for obtaining leave to interrogate under the relevant procedural rules and whether the proposed interrogatories were pertinent to the damages assessment.

The court found that there was no sufficient basis for the plaintiff to interrogate the defendant before the action had commenced, as the potential for defamation did not provide a strong enough reason to grant such leave. Additionally, the interrogatories proposed after judgment were deemed not to be relevant to the assessment of damages, as they did not pertain to matters directly connected with the determination of the amount of damages to be awarded. Consequently, the court dismissed both applications for leave to interrogate.

In summary, the Supreme Court of Victoria dismissed each of the plaintiff's applications for leave to interrogate the defendant, both before the action commenced and after judgment for damages to be assessed.

Orders

Orders of the court

Each application is dismissed.

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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