Aldridge v Johnston

Case [2020] SASCFC 31

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…

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Aldridge v Johnston [2020] SASCFC 31
Case
[2020] SASCFC 31
Decision Date

CaseChat Overview and Summary

This case concerned an appeal from a decision of the District Court of South Australia in a defamation proceeding. The appellant, Aldridge, was the defendant in the original action brought by Johnston. The dispute centred on statements published on a Facebook page operated by Aldridge, which Johnston alleged were defamatory.

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

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The trial concluded on 23 May 2017 and judgment was reserved.The application to re-open the evidence after the trial (Grd 3.16) On 22 December 2017, six months after judgment was reserved, the Judge called the matter on to fix a date for further submissions. Those submissions were heard on 25 January 2018, at which time Aldridge made an application to again reopen his case in order to tender two further items of evidence. The matter was adjourned for submissions at a later date.[21] On that later date, 9 March 2018, the two further items of evidence were particularised as follows: First, a series of screenshots which he asserted supported his contention that a hacker (most likely one Angel Barton) had tampered with his profile and published the allegedly defamatory words (the hacking screenshots[22]) and secondly, a single screenshot which he said was a shot of an entry in the activity log of the Aldridge Facebook page which he believed to be “in the exact terms that I published it on a certain time and on a certain day” (the activity log screenshot[23]). The Judge refused Aldridge’s application to reopen.[21] The matter was listed for 1 March 2018 but the Court was informed that Aldridge could not attend due to medical reasons. On 2 March 2018 it came to light via an email forwarded to Judge Brebner’s Chambers that Aldridge had suffered a stroke. The matter was adjourned to 8 March 2018 where matters related to Aldridge’s application to reopen were discussed briefly before the matter was adjourned for substantive submissions on the following day, 9 March 2018. [22] Referred to as MFI DQ2 and MFI DQ3.[23] Referred to as MFI DQ4. Ground 3.16 complains that the Judge erred in refusing to admit the above documents into evidence. The Judge instructed himself as to the law thus:[24] 151. The principles informing the exercise of the discretion to allow the evidence to be re-opened after reservation of judgment are a more stringent extension of those governing applications made before the evidence is closed. They are conveniently summarised in Grech v Deak-Fabrickant (No 2) [2015] VSC at 389 where Daly AJ said at [21]–[22]Counsel for Paul Grech submitted that the authorities provide that a Court should only grant leave to re-open a proceeding where judgment has been reserved in exceptional cases. He referred to the decision of the Court of Appeal in Spotlight Pty Ltd v NCON Australia Ltd [2012] VSCA 232 where the Court observed: There are good reasons why the circumstances must be exceptional before a court may allow a case, having been closed and judgment reserved, to be reopened. The need for finality in litigation is one. It is no answer to this point to say that the further evidence sought to be adduced by the respondent in this case is confined to the quantum of damages. Were applications to reopen to be allowed almost as of course, such applications would be regularly made. That would add enormously to inefficiencies in the administration of justice, even if the reopened hearing was strictly confined. The discipline which ought to attend the conduct of litigation by highly competent litigators would also inevitably decline.The very strict rule that, subject to any applicable process of appeal or review, the presentation of their cases by parties to litigation must conclude with the end of the trial, has another important justification. It is that, very often, the boundaries of the reopened issues would be hard to define and as difficult to protect. The reopened hearing would then be bedevilled by arguments about whether one party or the other was seeking to take advantage of the reopening to police parts of its case which were more or less within the scope of the reopened proceeding but not clearly on one side or the other of the prescribed limits.Further, the Court referred to Kenny J’s decision in Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24] where her Honour stated that there were four recognised classes of case in which a court may grant leave to reopen, being: (i) where fresh evidence, unavailable or not reasonably discoverable before, becomes known and available; (ii) where there has been inadvertent error; (iii) where there has been a mistaken apprehension of the facts; and (iv) where there has been a mistaken apprehension of law.152. Moreover, the public interest in the timely disposition of proceedings in defamation reflected in s 37 Limitation of Actions Act 1936 militates against fragmentation of the proceedings.[24] Johnston v Aldridge [2018] SADC 68. The hacking screenshots

Decision

Reasons for decision

It was not until the endorsement on the Notice of Appeal that Aldridge formally indicated an intention to rely on this defence. This is yet another attempt to rely on a position which he failed to take at trial; the words of Cairns in Australian Civil Procedure (at [165] above) are again apposite. I add that, on the material at trial and before this Court, I cannot see any way in which the defence, if pleaded, could have been made out. I refuse the application. Conclusion I would dismiss the appeal in relation to both liability and quantum. HUGHES J: I would dismiss the appeal for the reasons given by Peek J.

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.