SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
ALDRIDGE v JOHNSTON
[2020] SASCFC 31
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Hughes)
1 May 2020
DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION
DEFAMATION - PUBLICATION - GENERALLY - AS CAUSE OF ACTION
DEFAMATION - OTHER DEFENCES
DEFAMATION - DAMAGES
DEFAMATION - DAMAGES - GENERAL DAMAGES - ASSESSMENT
DEFAMATION - PRIVILEGE
The appellant, Aldridge, operated a “pop-up farmers’ market”. In 2015 he obtained Development Plan Consent from the Salisbury Council to move it to a new site. The respondent, Johnston, the proprietor of George & Ben’s Fresh Food Market at Pooraka, appealed to the ERD Court against that decision.
Aldridge operated two Facebook pages in the names of “Farm Direct” and himself and had about 6,000 “followers”. He posted on Facebook complaining about Johnston instituting the ERD appeal. Johnston issued defamation proceedings and pleaded that the first subject post imputed “that in attempting to close all farmers markets [Johnston] is a selfish greedy man” and, “that in attempting to close all farmers markets [the respondent] is a person of contemptible character”; and that the second subject post imputed “that [the respondent] has made or encouraged, or is likely to make or encourage, threats to rape and kill”.
On 17 June 2016, the appellant (then represented by solicitors) in his defence admitted to publishing the two subject posts but denied that they gave rise to the pleaded imputations; he also denied that the second subject post imputation was of and concerning the plaintiff. On 20 March 2017, the appellant (then unrepresented) applied to amend his defence to plead further defences; to have the trial heard by jury; and to file a counterclaim. On 11 April 2017, Judge Slattery heard the application and refused it.
The trial commenced on 1 May 2017 before Judge Brebner (the Judge). On 4 May 2017, after the respondent’s counsel had completed his closing address, the appellant indicated for the first time an intention to deny authorship of the first subject post. The appellant proceeded to make an oral application to inter alia amend his defence to withdraw his admission that he published the firs subject post. The Judge refused the application.
The appellant was permitted to re-open his case and on 5 May 2017 he gave further confused and inconsistent evidence. Later during his final address, he applied to again reopen and gave further evidence of a similar nature. The trial concluded on 23 May 2017 and judgment was reserved. On 22 December 2017, the Judge called the matter on to fix a date for further submissions. On 25 January 2018, the appellant applied to again re-open his case to tender two further items of evidence. That application was refused.
The appellant appeals against the Judge’s verdict for the respondent; the quantum of damages ($100,000 including aggravated damages); and also seeks an extension of time within which to seek permission to appeal against the decision of Judge…
Continue reading Aldridge v Johnston
Sign in free to access the full text
- AGLC
- Aldridge v Johnston [2020] SASCFC 31
- Case
- [2020] SASCFC 31
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Full Court of the Supreme Court of South Australia were whether the trial judge erred in refusing Aldridge's application to reopen the evidence after judgment had been reserved, and whether Aldridge was liable for the publication of defamatory comments on his Facebook page. Aldridge sought to introduce screenshots related to alleged hacking and an activity log, arguing they supported his defence.
The Full Court, comprising Kourakis CJ, Peek and Hughes JJ, upheld the trial judge's refusal to reopen the evidence. The Court applied the principles established in cases such as *Grech v Deak-Fabrickant (No 2)* and *Spotlight Pty Ltd v NCON Australia Ltd*, which stipulate that reopening a case after judgment is reserved requires exceptional circumstances, such as the discovery of new evidence not reasonably discoverable before, inadvertent error, or a mistaken apprehension of fact or law. The Court found that Aldridge's proposed evidence did not meet this stringent threshold, noting the importance of finality in litigation and the potential for such applications to cause significant inefficiencies. Furthermore, the Court considered Aldridge's liability as a publisher, referencing the principles in *Voller*, and found that Aldridge, by operating a public Facebook page and failing to delete comments, had participated in the publication of defamatory material.
The appeal was dismissed. Aldridge was found liable for participating in the publication of the defamatory comments unless he could demonstrate he did not know, and could not reasonably have known, of the defamatory matter. The Court found that Aldridge had admitted to reading some comments and had a practice of not deleting them, which militated against such a defence.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
As an alternative, his Honour found that, at the very least, the defendants would be held to be secondary publishers by dint of their participation in the publication of the relevant comment(s).[68] [68] [2019] NSWSC 766, [229]. Consideration Aldridge will be liable for participating in the publication of comments on the posts unless he demonstrates that he did not know, and could not with the exercise of reasonable diligence have known, of the defamatory matter. Mr Velanas, Johnston’s expert witness, gave evidence that Aldridge was operating a ‘Facebook page’ as distinct from a ‘Facebook profile’, the distinction being that the former “is mostly for music bands, for brands, business, organisations and stuff like that. It’s not for individuals”. Mr Velanas gave evidence that the first subject post was “public”, meaning that anyone who had access to the internet could read the post. Mr Velanas testified that he was able to locate the post by conducting a Google search, the third result from which contained a link to the first subject post. He further testified that people can read third-party comments made on a public post by scrolling to the bottom of the post. The Aldridge Facebook page appears identical to the type of Facebook page being operated by the media companies in Voller and which Rothman J described as “public Facebook pages”. Aldridge was cross-examined extensively in relation to the first subject post and made a number of admissions which bear on the present ground. First, he accepted that he had read many scandalous comments on his posts and had chosen not to delete many of them “[b]ecause of the effect of deleting them”. His practice of not deleting comments was alluded to in evidence given in cross-examination by Mr Cook (one of the Aldridge’s witnesses):A. … But with Mark running for - as a politician one of his platforms is freedom of speech so we never deleted any posts from Mark because the way that Mark puts up posts is he is actually asking for people’s opinions, and whether he agrees with that opinion or not he always leaves it up because he thinks that everyone has got a chance of free speech. Secondly, Aldridge conceded that he had seen some of the comments in response to the first subject post, giving the following evidence under cross-examination: Q. When do you say you first read any comment on the 25 November post.A. I probably would have read some comment in passing, I wouldn’t have seen them all, I mean when you open that you only see, you know, I think a handful of six or eight comments at any one stage without opening further, so I would have seen some in the first day or two possibly if I was browsing through the post. My wife took over completely from about the Friday, I think, from memory.Q. Sorry, I’m not intending to trip you up, I just briefly lost my concentration. Did you say you looked in the first day or so after the post.A. When I put the post up and I was organising the flyer stuff immediately after, I may have opened one or two of the comments, because they come in as a – you’ve got a section that says if people have commented on anything, it’s normally 99 for me, so you sort of open it and occasionally you see a couple, so I may have looked at a couple and replied to them. And I then when I arrived home on 5 December I may have applied to a couple, but I’ve never seen them all, I mean there’s just too many.