Harrington v Shoard [2023] QDC 7

District Court of Queensland|2023-02-02

Slade Waterhouse Lawyers for the plaintiff/respondent

[1] 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.
[2] 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.
[3] 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.
[4] 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.
[5] 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 in response.

[7] 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.
[8] 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.
[9] 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.
[10] 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.
[11] 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."
[12] 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.
[13] 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]

[14] The requirement for exceptional circumstances arises from the long-recognised need for finality in litigation[2] and for efficiency in the administration of justice.[3] There is no doubt there is a difference between an application brought before judgment is delivered and one brought after judgement is given.[4]
[15] In assessing the interests of justice, it is recognised that one of the situations where leave may be granted to reopen is when fresh evidence, unavailable and not reasonably discoverable before, becomes known and available.[5]
[16] It will be relevant in considering the admission of the new evidence, the significance of the proposed new evidence, any delays in seeking leave for its admission and the likely prejudice to the opposing party if the application is allowed and the likely prejudice to the applicant if the application is refused.[6]
[17] In considering the evidence here, the transfer post-dates the initial hearing. The evidence could not have been available, and it is not suggested otherwise. The plaintiff and his wife were appropriately questioned, and in view of the answers given, the defendant could not have taken that issue any further during the trial.
[18] On the basis of the further evidence, including that on information and belief, I do not accept the submission of the plaintiff's counsel that none of the answers given were untrue.
[19] On the face of it, certain answers given by Mr and Mrs Harrington appear to be untrue. The Titles Office search, and the affidavit on information and belief, strongly supports that Mr Harrington's answer, "No[t], at the moment." was not true. Further, it is unlikely that there was not on foot a contract to sell the property at the time of the cross-examination; the cross-examination being only a few days before the transfer. The effect is that Mrs Harrington's answer, "We have not.", is also unlikely to be true.
[20] There is an affidavit sworn by the solicitor for the plaintiff where the solicitor swears to having received information from Mr Harrington in relation to this issue. The affidavit is on information and belief. I am reluctant to act on that evidence as it is really being given as a substitute for the evidence that should have been given at trial. In any event, it does not change the answers given. It merely gives context to the answers. Importantly, in the affidavit of the solicitor there is no denial that there was a contract in existence at the time of the answers. In fact, the inference is to the contrary; there was a contract in existence at the relevant time.
[21] I consider that the evidence as to the sale of the plaintiff's house is relevant to the issue of the grant of a permanent injunction and that it is not a collateral issue.
[22] I consider that it is in the interests of justice that I grant leave to re-open and to adduce further evidence by way of the admission of the Titles Office search. The Titles Office search (including the transfer obtained as part of that search) will therefore be marked as a trial exhibit.

[23] The second part of the application is that the defendant be given leave to cross-examine Mr and Mrs Harrington. Such an order would additionally require an order that the plaintiff and his wife be recalled. The defendant's counsel, Mr Walsh, was not able to point to any authority in support of that application. It is one thing to allow a party to adduce further evidence, it is another for the court to require the other party to call witnesses previously excused to be further cross-examined. Absent some authority for that proposition, the application is refused.
[24] The matter need not end there. The additional evidence is, as I have said, relevant to the decision whether to grant a permanent injunction; though it does not determine that issue.
[25] Mr Harrington and his wife have now moved from their former residence. The defamatory statements were all alleged to have taken place in the locality where they lived. Nevertheless, there may be circumstances in which an injunction could still be justified. In addition, credit issues are involved. Although I will not order Mr Harrington or his wife to give further evidence, I am willing to hear an application by them that they be permitted to do so.

[2] Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529 at 539 (Gibbs J).

[3] Spotlight Pty Ltd v NCON Australia Ltd [2012] VSCA 232; (2012) 46 VR 1, [17].

[4] F.Y.D. Investments Pty Ltd v Promptair Pty Ltd [2017] FCA 1097, [34].

[5] Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22, [24]; Spotlight Pty Ltd v NCON Australia (2012) 46 1, [24]-[25].

[6] F.Y.D. Investments Pty Ltd v Promptair Pty Ltd [2017] FCA 1097, [32].

At a glance

Court

Decision date

Source

Judgment (12 paragraphs)

Parties

Cases Cited (2)