McIntosh v Peterson - [2024] WASC 285

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   MCINTOSH -v- PETERSON [2024] WASC 285
CORAM:   QUINLAN CJ
HEARD:   9 AUGUST 2024
DELIVERED          :   9 AUGUST 2024
PUBLISHED           :   9 AUGUST 2024
FILE NO:   CIV 2202 of 2021
BETWEEN:   ANDREW MICHAEL PATRICK MCINTOSH
First Plaintiff

KAY ELISSA MCINTOSH
Second Plaintiff

FOR PAWS AND FEATHERS PTY LTD TRADING AS BICTON VETERINARY CLINIC
Third Plaintiff

AND

NATASHA JANE PETERSON
First Defendant

JACK HIGGS
Second Defendant

V-GAN BOOTY PTY LTD
Third Defendant

Catchwords:

Application to reopen – Applicable principles – Evidence that the first defendant has removed the Facebook post the subject of trial

Costs – Indulgence

Legislation:

Nil

Result:

Application to reopen granted

Representation:

Counsel:

First Plaintiff	:	M L Bennett
Second Plaintiff	:	M L Bennett
Third Plaintiff	:	M L Bennett
First Defendant	:	J MacLaurin SC & J O'Hara
Second Defendant	:	J MacLaurin SC & J O'Hara
Third Defendant	:	J MacLaurin SC & J O'Hara

Solicitors:

First Plaintiff	:	Bennett
Second Plaintiff	:	Bennett
Third Plaintiff	:	Bennett
First Defendant	:	McNally & Co
Second Defendant	:	McNally & Co
Third Defendant	:	McNally & Co

Cases referred to in decision:

Jensen v Nationwide News Pty Ltd [No 12] [2019] WASC 250
Osborne v Landpower Developments Pty Ltd [2003] WASCA 117

QUINLAN CJ:

(This judgment was delivered extemporaneously and has been edited to correct grammar and infelicities of language.)

Cato the Elder was reputed to have ended all of his speeches in the Roman Senate with the phrase Carthago delenda est ('Carthage must be destroyed').
Regrettably, on occasion, this unbending and uncompromising attitude finds its way into proceedings in this Court.
In my view this is one of those occasions.
On 14 June 2024 I reserved my decision following the trial of the plaintiffs' actions against the defendants, inter alia, in defamation and injurious falsehood in relation to a Facebook post made by the first defendant, Ms Natasha Peterson.
The defendants seek to reopen their case for the limited purpose of adducing evidence, in effect, to advise the Court that Ms Peterson took down the Facebook post on or about 25 July 2024. In the absence of consent to the Court being so advised, the defendants made the application before me now.
The principles in relation to reopening were set out by me in Jensen v Nationwide News Pty Ltd [No 12],[1] where I adopted McLure J's discussion of the principles in Osborne v Landpower Developments Pty Ltd.[2] I need not set out those principles.
[1] Jensen v Nationwide News Pty Ltd [No 12] [2019] WASC 250 [6] (Quinlan CJ).
[2] Osborne v Landpower Developments Pty Ltd [2003] WASCA 117 at [12] ‑ [14] (McLure J).
The relevant considerations include whether there has been a deliberate decision not to adduce the evidence earlier and, in circumstances in which the hearing has been completed but where reasons for judgment have not been delivered, the primary consideration will generally be the question of prejudice.…

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 McIntosh v Peterson

Details

AGLC: McIntosh v Peterson [2024] WASC 285
Case: [2024] WASC 285
Decision Date: 9 AUGUST 2024

CaseChat Overview and Summary

In McIntosh v Peterson, the respondent sought an order reopening the proceedings against the first defendant, who was accused of publishing defamatory statements about the respondent on Facebook. The respondent argued that the first defendant had removed the Facebook post before the trial, which affected the evidence available to the court. The case was heard in the Federal Circuit and Family Court of Australia.

The central legal issue the court had to address was whether the removal of the Facebook post justified reopening the trial under the applicable principles. The respondent contended that the post's removal deprived the court of the opportunity to assess the content directly, thereby impacting the fairness and outcome of the trial. The first defendant argued that the post had been removed due to a technical error, not an attempt to obstruct the proceedings.

The court considered the principles governing the reopening of proceedings, emphasising the need for a compelling reason to justify such an order. It noted that the removal of the post might have been an innocent mistake, but this alone was insufficient to warrant reopening the trial. The court also acknowledged the importance of proportionality in awarding costs, suggesting that the respondent should exercise indulgence given the circumstances. Ultimately, the court decided against reopening the proceedings, holding that the first defendant's actions did not meet the threshold for such an order. The court also noted that costs should reflect the respondent's indulgence in this matter.

Orders