Accused of being slaves

A clash between the owners of a Perth veterinary clinic and two animal rights activists over the caging of two cockatiels has drawn criticism from Western Australia’s chief justice about the conduct of counsel for the clinic owners in an attack on the honesty and credibility of one of the activists.

Chief Justice Peter Quinlan has also given high profile Perth defamation lawyer Martin Bennett a haircut of up to $570 an hour in recovering costs for his hourly rates, saying he did not want to give an imprimatur to the sorts of rates charged in this instance by Bennett. 

Natasha (Tash) Peterson is a vegan animal rights activist in Western Australia. With all the passion of youth and being a convert to the cause, Peterson engages in made for social media provocations in support of veganism and animal rights, appearing topless or in lingerie, and splashing and smearing fake blood on targets.

A recent Western Australian Supreme Court judgment from Chief Justice Quinlan described Peterson’s strategy of employing “thirst traps”, or posting seductive or sexual material, to draw attention to her advocacy.

In September 2021, she and her partner, Jack Higgs, confronted Perth suburban vet Dr Kay McIntosh and Andrew McIntosh at their suburban practice over two cockatiels kept in a cage at the front of the surgery.

While it appears Peterson did not employ the more provocative elements of her tactical arsenal, she nevertheless asked why the Clinic engaged in animal slavery, and asked Dr McIntosh if she “eats her own patients”, implying hypocrisy in a vet eating meat. 

Peterson and Higgs continued to engage Dr McIntosh and her husband, while Higgs, at first, and then Peterson, more conspicuously, filmed the encounter.

The video was uploaded to Facebook, accusing the clinic of “advertising animal slavery” and mistreating the cockatiels by keeping them in a cage bereft of shade. 

The McIntoshes sued for defamation, trespass, injurious falsehood and civil conspiracy to cause harm by unlawful means. They were represented by Bennett and Demi Swain.

The McIntoshes succeeded in the defamation claims, with Chief Justice Quinlan awarding Dr McIntosh $150,000 in aggravated damages for a “direct and serious attack on her professional reputation and character as a veterinarian”. Mr McIntosh was awarded $110,000 and the Clinic $10,000.

While a claim for trespass saw the Clinic awarded $10,000 the claims for injurious falsehood and civil conspiracy came to naught. 

In the course of the defamation case, an unsuccessful attempt was made to sue Peterson’s company, V-Gan Booty Pty Ltd. This company was set up to operate two Only Fans sites managed by Peterson. OnlyFans offers adult content by subscription to followers of account holders.

Peterson’s accounting for her income from the OnlyFans accounts came in for an attack on her credit by Martin Bennett. 

It was put to Peterson that she had declared $70,000 in income in the 2021-22 financial year, while she had earned $385,000 from her OnlyFans accounts alone. It was suggested that the court should treat with caution the evidence of somebody who can’t be honest in a tax return. 

Peterson: tax affairs in order

In a costs decision, delivered on November 27, Chief Justice Quinlan was scathing about this line of cross-examination. He described the attack on Peterson’s credibility as “unfair and without any foundation”, saying he specifically found that all of the OnlyFans income for 2021-22 was properly declared and accounted for. 

He said: 

“The true position in relation to Ms Peterson’s declared earnings ought to have been immediately obvious to any practitioner taking a modicum of care in reading those financial records.”

However, the line of questioning was reflected in an online report in The West Australian, which reported Peterson had declared less than 20 percent of her earnings. Chief Justice Quinlan said the headline and the content of the article were completely false, and that the false picture was wholly a consequence of the misleading cross-examination of Peterson.

The day after the West Australian report, Chief Justice Quinlan raised in Peterson’s absence his concerns about the fairness of the cross-examination, having ascertained that V-Gan Booty had declared a significant amount of income in its June 30, 2022 tax return. 

He asked counsel if he withdrew the suggestion Peterson was dishonest in her tax returns, but counsel did not do so, insisting there was a missing $130,000. This claim was duly reported the following day.

Chief Justice Quinlan said there was nothing missing from the tax returns, which he said ought to have been immediately obvious to any practitioner taking a modicum of care in reading the tax returns. 

“It took me, for example, between five and 10 minutes to review and properly understand Ms Peterson’s 30 June 2022 tax return.”

His Honour said this demonstrated: 

“… the serious adverse impact of a party using the absolute privilege afforded by legal proceedings to make serious allegations of misconduct concerning a party or a witness, where those allegations are without any reasonable foundation.”

In rejecting the McIntoshes’s application for indemnity costs, Quinlan CJ had regard to this unfair and misleading line of inquiry in saying that the interests of justice did not otherwise require an order for indemnity costs.

The McIntoshes also sought a special costs order to reflect the amount of time spent in preparing the case and the rates charged by Bennett. 

The court heard that Bennett charged $1,375 an hour until April 11, 2022, and $1,100 an hour thereafter, and that preparation for the case went well beyond the 130-hour limit set out in the relevant costs determinations.

Quinlan said he was prepared to allow the taxing officer to determine if case preparation went beyond the 130-hour limit, but he was not prepared to remove the limits on counsel rates and leave it to the taxing officer.

Perth by night

His Honour said Bennett’s charges were approximately twice the rate for counsel provided for in the relevant costs determinations, and well in excess of the hourly rate for senior counsel. Having regard to the actual rates charged, he said:

“I would not wish any decision of mine to remove the limits entirely to be understood as some form of imprimatur that a bill of costs should be appropriately taxed at those rates.”

The chief justice said any discretion regarding costs needed to serve the interests of justice, which included the need to keep the costs of litigation generally within reasonable bounds. 

While parties were able to engage lawyers at whatever rates they chose, he said, the Court should not underwrite or endorse a position that party/party costs were to be assessed well in excess of the rates determined by the relevant authorities.