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McIntosh v Peterson [No 3]

McIntosh v Peterson [No 3]

Case [2024] WASC 446 27 November 2024

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   MCINTOSH -v- PETERSON [No 3] [2024] WASC 446
CORAM:   QUINLAN CJ
HEARD:   25 NOVEMBER 2024
DELIVERED          :   27 NOVEMBER 2024
FILE NO/S:   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:

Defamation – Costs – Whether costs should be assessed on an indemnity basis – Defamation Act 2005 (WA), s 40(2) – Defendants unreasonably failed to make a settlement offer – Whether in the interests of justice not to award indemnity costs – Conduct of party's case – Where action successful against some defendants and unsuccessful against other defendant – Special costs orders

Legislation:

Defamation Act 2005 (WA), s 40
Legal Profession Uniform Law Application Act 2022 (WA), s 141(3)

Result:

Costs orders made

Category: B

Representation:

Counsel:

First Plaintiff	:	D E Swain & M Douglas
Second Plaintiff	:	D E Swain & M Douglas
Third Plaintiff	:	D E Swain & M Douglas
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:

Calderbank v Calderbank [1975] 3 All ER 333
Cardaci v Cardaci [2023] WASCA 158
Cardaci v Filippo Primo Cardaci as executor of the estate of Marco Antonio Cardaci [No 5] [2021] WASC 331 (S)
De Kauwe v Cohen [No 4] [2022] WASC 35 (S)
Frigger v Lean [2012] WASCA 66
Jensen v Nationwide News Pty Ltd & Anor [2019] WASC 451 (S)
Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
McIntosh v Peterson [No 2] [2024] WASC 428
Medical Board of Australia v Kemp [2018] VSCA 168; (2018) 56 VR 51
Rayney v Roberts [2022] WASC 360 (S)
Reading Entertainment Australia Pty Ltd v Whitehorse Property Group Pty Ltd [2007] VSCA 309
Sino Iron Pty Ltd v Mineralogy Pty Ltd [2022] WASC 151
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 (S)
Spotless Group Ltd v Premier Building & Consulting Pty Ltd (recs apptd) [2008] VSCA 115
Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96; (2019) 54 WAR 388
Wagner v Nine Network Australia (No 2) [2019] QSC 309

Table of Contents

Introduction

Costs – the parties' positions

Plaintiffs' position on costs

Defendants' position on costs

Costs – legal principles

General discretion as to costs

Section 40 of the Defamation Act

Additional facts relating to costs

Offers made prior to trial

Offer from defendants to plaintiffs – 1 March 2022

Offer from plaintiffs to defendants – 15 March 2022

Offer from defendants to plaintiffs…

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 [No 3]

Details

AGLC: McIntosh v Peterson [No 3] [2024] WASC 446
Case: [2024] WASC 446
Decision Date: 27 NOVEMBER 2024

CaseChat Overview and Summary

In McIntosh v Peterson [No 3], the plaintiff, McIntosh, sought an indemnity costs order against the defendants, Peterson and another party, for a defamation action that had previously been the subject of two appeals. McIntosh's defamation action had been successful against one defendant, while the other defendant had successfully defended the action. McIntosh applied for indemnity costs under section 40(2) of the Defamation Act 2005 (WA). The defendants opposed the application, arguing that the court should not award indemnity costs due to their conduct during the proceedings and McIntosh's own conduct.
The court was required to determine whether it was appropriate to award indemnity costs under section 40(2) of the Defamation Act 2005 (WA), given that the defendants had unreasonably failed to make a settlement offer and McIntosh had been successful against one of the defendants. The court also had to consider whether it was in the interests of justice to not award indemnity costs, taking into account the conduct of both parties during the proceedings.
The court found that the defendants had unreasonably failed to make a settlement offer and that McIntosh's action was successful against one defendant. However, the court considered that it was not in the interests of justice to award indemnity costs due to McIntosh's own conduct, including the failure to properly plead a cause of action for aggravated damages. The court noted that the defendants had made efforts to resolve the dispute and that McIntosh had not provided a detailed breakdown of the costs claimed. The court also considered the unsuccessful claim against the other defendant and made a special costs order in favour of that defendant.
The court ordered that McIntosh recover costs from the defendants on an indemnity basis up to the sum of $100,000, but not to exceed the sum of $130,000. The court also made a special costs order in favour of the defendant against whom McIntosh's claim was unsuccessful, and ordered that McIntosh pay that defendant's costs of the proceeding.

Orders