Harrington v Shoard - [2023] QDC 7

DISTRICT COURT OF QUEENSLAND

CITATION:

Harrington v Shoard [2023] QDC 7

PARTIES:

JOSEPH HARRINGTON

(plaintiff/respondent)

v
STEPHEN SHOARD

(defendant/applicant)

FILE NO/S:

DC No 1868 of 2021

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

2 February 2023

DELIVERED AT:

Brisbane

HEARING DATE:

2 February 2023

JUDGES:

Sheridan DCJ

ORDERS:

1.   Leave to reopen the trial and to adduce further evidence is granted.

2.   The further evidence in the form of a Titles Office search (including transfer) of a property situated at 2 Manuka Place, Logan Village is admitted as an exhibit in the trial.

3.   Leave to recall the plaintiff and his wife to be cross-examined is refused.

4.   Costs reserved.

CATCHWORDS:

EVIDENCE – ADDUCING EVIDENCE – COURSE OF EVIDENCE – RE-OPENING CASE – BY PARTY – where the plaintiff alleged the defendant defamed him by calling him a paedophile – where the trial had been heard and judgment reserved – where the defendant made an application to reopen the trial – where the defendant sought on the re-opening to adduce further evidence and to recall the plaintiff and his wife for cross-examination – whether the circumstances justify an order to re-open – whether the further evidence should be admitted – whether the terms of the order should permit the recall of the plaintiff and his wife

Bailey v Marinoff (1971) 125 CLR 529
Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22
F.Y.D. Investments Pty Ltd v Promptair Pty Ltd [2017] FCA 1097
MacKellar Mining Equipment Pty Ltd & Ors v Thornton and Ors [2019] QCA 77
Spotlight Pty Ltd v NCON Australia Ltd (2012) 46 VR 1

COUNSEL:

A. N. Nelson for the plaintiff/respondent

F. J. Walsh for the defendant/applicant

SOLICITORS:

Slade Waterhouse Lawyers for the plaintiff/respondent

Sushames Lawyers for the defendant/applicant

The defendant has made an application after the conclusion of evidence in the trial of principal proceedings in which the plaintiff seeks damages for defamation from the defendant.
Evidence in the trial was given over three consecutive days commencing on 22 February 2022. Following the grant of an application by the defendant to reopen, further evidence was led on 11 March 2022. At the conclusion of the further evidence, my decision was reserved and orders were made for the filing of written submissions. Submissions were filed by the defendant on 18 March 2022 and by the plaintiff on 22 March 2022.
Notification was given to the parties by my associate by email dated 15 December 2022 through their solicitors that judgment would be delivered on 20 December 2022.
The solicitors for the defendant responded to that notification by email dated 15 December 2022 stating that as a result of evidence recently obtained they were in the process of preparing an application to reopen.
The matter was urgently mentioned on 16 December 2022 and directions were made on that date for the filing of the formal application to re-open together with affidavits and submissions in support and for the filing of affidavits and submissions…

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 Harrington v Shoard

Details

AGLC: Harrington v Shoard [2023] QDC 7
Case: [2023] QDC 7
Decision Date: 2 February 2023

CaseChat Overview and Summary

Harrington v Shoard is a defamation case in which the plaintiff alleged that the defendant defamed him by calling him a paedophile. The trial had been heard and judgment reserved when the defendant made an application to reopen the trial. The defendant sought to adduce further evidence and recall the plaintiff and his wife for cross-examination. The legal issues before the court were whether the circumstances justified an order to re-open the trial, whether the further evidence should be admitted, and whether the terms of the order should permit the recall of the plaintiff and his wife.

The court found that the circumstances were exceptional enough to justify an order to re-open the trial. The defendant had produced a Titles Office search of the plaintiff’s residence at 2 Manuka Road, Logan Village, which confirmed that the plaintiff’s property was transferred on 28 February 2022. The defendant provided a copy of the Titles Office search on Tuesday 13 December 2022. The court found that the issue of the sale of the house was relevant to the question of whether a permanent injunction is required. The court also found that the further evidence in the form of a Titles Office search (including transfer) of a property situated at 2 Manuka Place, Logan Village is admitted as an exhibit in the trial. However, the court refused leave to recall the plaintiff and his wife to be cross-examined.

The court’s reasoning was based on the legal principles to be applied in determining whether to re-open. The court found that the circumstances must be exceptional before a court may allow a case, having been closed and judgment reserved, to be reopened. The overriding principle is that the court must consider whether, taken as a whole, the justice of the case favours the grant of leave to reopen. The court found that the circumstances were exceptional enough to justify an order to re-open the trial. The court also found that the further evidence in the form of a Titles Office search (including transfer) of a property situated at 2 Manuka Place, Logan Village is admitted as an exhibit in the trial. However, the court refused leave to recall the plaintiff and his wife to be cross-examined.

The final orders of the court were that leave to reopen the trial and to adduce further evidence was granted. The further evidence in the form of a Titles Office search (including transfer) of a property situated at 2 Manuka Place, Logan Village was admitted as an exhibit in the trial. Leave to recall the plaintiff and his wife to be cross-examined was refused. Costs were reserved.

Orders

Orders of the court

1. Leave to reopen the trial and to adduce further evidence is granted.

2. The further evidence in the form of a Titles Office search (including transfer) of a property situated at 2 Manuka Place, Logan Village is admitted as an exhibit in the trial.

3. Leave to recall the plaintiff and his wife to be cross-examined is refused.

4. Costs reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

By the application, the defendant seeks leave to adduce further evidence not led at the trial and to further cross-examine the plaintiff and his wife concerning the sale of their property at 2 Manuka Road, Logan Village. The proposed further evidence The proposed further evidence was presented in the form of an affidavit of the solicitor for the defendant, Dante Sushames. Relevantly, the affidavit attached a Titles Office search of the plaintiff’s residence at 2 Manuka Road, Logan Village, which confirmed that the plaintiff’s property was transferred on 28 February 2022. The solicitor says that the defendant provided to him a copy of the Titles Office search on Tuesday 13 December 2022. The solicitor does not say when the defendant came into possession of the document, nor does he explain why the defendant chose to obtain a copy of the Titles Office search of the plaintiff’s property. The inference from the affidavit filed by the solicitor for the plaintiff, however, is that Mr Harrington and his wife moved house in December 2022. The issue of the sale of the house was a matter investigated by counsel for the defendant in cross-examination. Initially, objection was taken by the plaintiff’s counsel as to the relevance of the questioning regarding the sale of the property. Counsel for the defendant submitted that the issue of the sale was relevant to the question of whether a permanent injunction is required. The objection was overruled. The passage of evidence of the questioning of Mr Harrington is contained at transcript 1-79 and of Mrs Harrington at transcript 2-17 and 18. A review of those passages of evidence show that both Mr and Mrs Harrington were being very evasive in any answers given and were generally unwilling to answer the questions. However, at one point Mr Harrington is asked, “Are you selling your house or not?” and Mr Harrington answered, “No[t], at the moment.” At another point, Mrs Harrington is asked, “Well, have you signed a contract at all?” and Mrs Harrington answered, “We have not.” The granting of leave to re-open is opposed by the plaintiff. The plaintiff’s counsel disputes that any answers given by the plaintiff or Mrs Harrington were untrue and further says that the evidence as to the sale of the house is collateral to the real issue in dispute, namely he says, whether the defamatory publications were made. The plaintiff’s counsel submits that the collateral facts rule applies and that the answers given by Mr and Mrs Harrington in cross-examination are final. The legal principles to be applied in determining whether to re-open are well settled. As Sofronoff P explained in MacKellar Mining Equipment Pty Ltd & Ors v Thornton and Ors:“The circumstances must be exceptional before a court may allow a case, having been closed and judgment reserved, to be reopened. The overriding principle is that the court must consider whether, taken as a whole, the justice of the case favours the grant of leave to reopen.”[1][1][2019] QCA 77 at [58].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Harrington v Shoard [2023] QDC 7
PARTIES:	JOSEPH HARRINGTON (plaintiff/respondent) v STEPHEN SHOARD (defendant/applicant)
FILE NO/S:	DC No 1868 of 2021
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	2 February 2023
DELIVERED AT:	Brisbane
HEARING DATE:	2 February 2023
JUDGES:	Sheridan DCJ
ORDERS:	1. Leave to reopen the trial and to adduce further evidence is granted. 2. The further evidence in the form of a Titles Office search (including transfer) of a property situated at 2 Manuka Place, Logan Village is admitted as an exhibit in the trial. 3. Leave to recall the plaintiff and his wife to be cross-examined is refused. 4. Costs reserved.
CATCHWORDS:	EVIDENCE – ADDUCING EVIDENCE – COURSE OF EVIDENCE – RE-OPENING CASE – BY PARTY – where the plaintiff alleged the defendant defamed him by calling him a paedophile – where the trial had been heard and judgment reserved – where the defendant made an application to reopen the trial – where the defendant sought on the re-opening to adduce further evidence and to recall the plaintiff and his wife for cross-examination – whether the circumstances justify an order to re-open – whether the further evidence should be admitted – whether the terms of the order should permit the recall of the plaintiff and his wife Bailey v Marinoff (1971) 125 CLR 529 Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 F.Y.D. Investments Pty Ltd v Promptair Pty Ltd [2017] FCA 1097 MacKellar Mining Equipment Pty Ltd & Ors v Thornton and Ors [2019] QCA 77 Spotlight Pty Ltd v NCON Australia Ltd (2012) 46 VR 1
COUNSEL:	A. N. Nelson for the plaintiff/respondent F. J. Walsh for the defendant/applicant
SOLICITORS:	Slade Waterhouse Lawyers for the plaintiff/respondent Sushames Lawyers for the defendant/applicant