McIntosh v Peterson

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. Also relevant is the nature of the evidence sought to be adduced.
The evidence sought to be adduced in this case is, in my view, only marginally relevant. Were there any prejudice associated with the removal of the Facebook post being brought to the Court's attention, I would have refused the defendants' application.
I am, however, satisfied that there could not be any prejudice to the resolution of this case by the Court being informed, by way of additional evidence, of the simple and discrete fact sought to be included in the defendants' case.
The principles of finality are, of course, important. The fact of the matter is, however, that other than my having been distracted for about an hour dealing with this application, receiving this evidence is not going to cause any delay whatsoever in the finalisation of my reasons or the resolution of the matter as a whole.
For these reasons, given the extremely small compass of the evidence sought to be adduced, I am satisfied that it is in the interests of justice for the defendants to reopen the case for that sole, confined purpose. I so order.
As to the costs of the application to reopen, I am satisfied that allowing the application was an indulgence granted to the defendants, and that this step could have been taken prior to the case closing on 14 June 2024, thereby avoiding any additional costs. For that reason. the defendants should pay the plaintiffs' costs of this application including the costs of conferral, save for the costs of today which should be in the cause.
I will order that costs be in the cause in relation to today because, in my view, this was a matter that could, and should, have been dealt with without the need for me to be here. Certainly, however, the defendants should pay the costs of conferral and everything up to today.
I therefore make the following orders:
1.The defendants be given leave to reopen their case.
2.The defendants' case having been reopened, and subject to the defendants filing a sworn affidavit of the first defendant in precisely the terms that appeared in the correspondence to the Court dated 8 August 2024 (Affidavit) by 4.00 pm today, the Affidavit be received as an exhibit and marked as exhibit 893.
3.The defendants pay the plaintiffs' costs of this application including conferral, save for the costs of today which will be costs in the cause.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
MJM
Research Associate to the Hon Chief Justice Quinlan
9 AUGUST 2024

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.

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