McIntosh v Peterson [No 3]

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.