Aldridge v Johnston

[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 Slattery to refuse the appellants application to amend his defence to plead further defences prior to the trial.

Held, per Peek J (Kourakis CJ and Hughes J agreeing), dismissing the appeal in relation to both liability and quantum:

1.  The extension of time to seek permission to appeal against the decision of Judge Slattery is refused for the following reasons. First, the appellant’s explanation for the timing of the application was unsatisfactory, a period of roughly nine months passed between the filing of the Defence and the appellants application to amend. Secondly, the respondent had prepared their case up to the time of the application on the basis that the appellant would not be relied upon and he would suffer significant cost and inconvenience had the application been granted. Thirdly, if an appeal were allowed on this ground, it could only lead to a re-trial at which, which having regard to all of the circumstances, the appellant would have a low prospect of success; and the respondent would suffer substantial financial loss through legal expenses. Fourthly, the appellant had been well aware of his rights to appeal against the orders of Judge Slattery and had failed to do so.

2.  As to the second subject post, whilst the sixth paragraph does not specifically name the respondent, the preceding five paragraphs are squarely directed at him and nothing in paragraph six expresses a change as to whom the post is addressed; the ordinary reader would take the meaning to be that the respondent remained the subject of that paragraph.

3.  The Judge was correct in rejecting a number of asserted defences including: fair and accurate reporting of judicial proceedings and extended qualified privilege (or the ‘Lange defence’).

4.  The Judge’s reasons are sufficient in the circumstances and demonstrate that he scrutinised the evidence carefully and that his process of reasoning, findings and ultimate conclusions were sound.

5.  The appellant’s complaint that he was not afforded a fair trial should be rejected.

6.  The quantum of damages was not excessive. The Judge’s determination to make one award of damages inclusive of aggravated damages was consistent with authority and permissible.

Held, per Peek J (Hughes J agreeing):

1.  As to the first post, the word ‘greedy’ as a default position has a pejorative meaning of “an unacceptable level of self-interest” which meaning was here confirmed by the context of the whole of the subject post. It suggests that, out of nothing more than his own greed, the respondent was undertaking steps which will, or may, result in the closure of all farmers’ markets (including roadside vendors, general markets, community events and even fetes). The first and second imputations are established.

Held, per Kourakis CJ:

1.  The first post (as distinct from the published comments about it for which the appellant was responsible) is not defamatory. The description of the respondent as a ‘greedy man’ would have been understood by the reasonable person to mean only that the respondent was very eager to profit his business by enforcing planning regulations to close down his competitor, the appellant, even if in so doing he would close farmers’ markets throughout Australia. No reasonable person could think any less of a business person so eager for gain that he or she would take reasonably based legal proceedings which, if vindicated by a favourable judgment, would profit his or her business at the expense of his or her competitors.

Supreme Court Civil Rules 2006 (SA) r 281, r 288; Limitation of Actions Act 1936 (SA); Defamation Act 2005 (SA) s 27, referred to.
Conservation Council of SA Inc & Ors v Chapman & Ors (2003) 87 SASR 62; Cornwall & Ors v Rowan (2004) 90 SASR 269; Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575; Duffy v Google Inc (2015) 125 SASR 437; Google Inc v Duffy (2017) 129 SASR 304; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; Kowalski v Sim & Ors [2019] SASCFC 96; Kenny v Ritter (2009) 263 LSJS 158; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Lesses v Maras (2017) 128 SASR 292; Poniatowska v Channel Seven Sydney Pty Ltd [2019] SASCFC 111; PPG Development Pty Ltd v Capitanio (2016) 126 SASR 307; Tomasevic v Travaglini (2007) 17 VR 100, applied.
Aldridge v Johnston & Anor [2016] SASCFC 99; Ali v Nationwide News Pty Ltd [2008] NSWCA 183; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Associated Newspapers Ltd v Dingle [1964] AC 371; Bauer Media Pty Ltd v Wilson (No 2) (2018) 56 VR 674; Broome v Cassell & Co Ltd [1972] AC 1027; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; Channel Seven Adelaide Pty Ltd v Manock (2010) 273 LSJS 70; Cornes v Ten Group Pty Ltd & Ors (2011) 114 SASR 1; Duffy v Google LLC [2019] SASC 157; Fairfax Media Publications Pty Ltd v Pedavoli (2015) 91 NSWLR 485; Fox v Percy (2003) 214 CLR 118; John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131; Johnston v Aldridge [2017] SADC 70; Johnston v City of Salisbury & Anor [2016] SAERDC 1; Lower Murray Urban and Rural Water Corporation v Di Masi (2014) 43 VR 348; Oriental Press Group Ltd v Fevaworks Solutions Ltd (2013) 16 HKCFAR 366; Voller v Nationwide News Pty Ltd [2019] NSWSC 766, discussed.
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; AK v Western Australia (2008) 232 CLR 438; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; Contender 1 Ltd v LEP International Pty Ltd (1988) 82 ALR 394; Cummings v Fairfax Media Publications Pty Ltd & Ors (2011) 6 ACTLR 40; DL v The Queen (2018) 356 ALR 197; Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; Fleming v The Queen (1998) 197 CLR 250; Fowler v The Queen [2019] SASCFC 153; John Fairfax Publications Pty Ltd v Gacic (2007) 230 CLR 291; Johnston v Aldridge [2018] SADC 68; Kimber v The Press Association Ltd [1893] 1 QB 65; Le Cornu v Thomas (DEWNR) [2019] SASCFC 154; Lewis v Daily Telegraph Ltd [1964] AC 234; Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632; R v Cotton [2015] SASCFC 17; R v Keyte (2000) 78 SASR 68; R v McKenzie [2001] SASC 279; R v Sabet [2018] SASCFC 18; Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; Sands v Channel Seven Adelaide Pty Ltd (2010) 270 LSJS 340; Trkulja v Google LLC (2018) 263 CLR 149; Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"greedy"

ALDRIDGE v JOHNSTON
[2020] SASCFC 31

Full Court:  Kourakis CJ, Peek and Hughes JJ

1. KOURAKIS CJ:  I gratefully adopt the summary of the evidence in the reasons for judgment of Peek J.  I too would dismiss the appeal, and I agree with his Honour’s reasons save in respect of the conclusion that Mr Aldridge’s first post was defamatory.  I would hold that the description of Mr Johnston as a ‘greedy man’ in the first post of 25 November 2015 would have been understood by the reasonable person to mean only that Mr Johnston was very eager to profit his business by enforcing planning regulations to close down his competitor, Mr Aldridge, even if in so doing he would close farmers’ markets throughout Australia.  No reasonable person could think any less of a business person so eager for gain that he or she would take reasonably based legal proceedings which, if vindicated by a favourable judgment, would profit his or her business at the expense of his or her competitors.

2. I acknowledge that the issue might have been better framed if Mr Aldridge had pleaded the defence of fair comment.  If he had, he might have contended that the description ‘this greedy man’ was an honestly held opinion expressed on the stated fact of the legal proceedings brought by Mr Johnston, which were of some public interest.  However, that defence was not pleaded and, therefore, its elements were neither explored at trial nor considered by the trial Judge. 

3. It is unnecessary on this appeal to decide the abstract question of whether describing a person as greedy, in the absence of any context at all, is defamatory.  The relevant question is whether the first post is defamatory.  The burden of the complaint made by the post is that Mr Johnston was prosecuting legal proceedings to enforce the planning laws with the intention of closing down Mr Aldridge’s market, knowing that the legal proceedings might, or would, close down all farmers’ markets throughout Australia, for the sole purpose of maximising the profit of his fruit and vegetable business.  It is in that context that Mr Johnston, in one sentence in a long post, is described as a greedy man.  The sentence reads:

   If this greedy man wins, the precedent will affect all Farmers Markets, road side vendors, general markets, even community events and fetes.

4. Mr Aldridge’s claims about the motives for, and consequences of, Mr Johnston’s legal proceedings might be hyperbole, exaggerated or completely false, but they are not defamatory.  The bringing of legal proceedings to enforce the law, whatever the consequences might be,[1] is the right of every citizen of a nation subject to the rule of law.

   [1]    Often expressed in the form of the Latin maxim fiat justitia, ruat caelum​ (let justice be done, though the heavens fall).

5. Leaving aside gluttony, in its modern Australian usage, the connotation of the adjective ‘greedy’ is not limited to a morally reprehensible, or a socially unacceptable, pursuit of wealth.  The Macquarie Dictionary defines ‘greedy’ as ‘very eager for wealth’ and ‘avaricious’, and ‘avarice’ as an ‘insatiable greed for riches; inordinate … desire to gain and hoard wealth’.[2]  The Oxford English Dictionary defines ‘greedy’ and ‘avarice’ in similar terms.[3]

   [2]    Macquarie Dictionary (Online, 2019).

   [3]    Oxford English Dictionary (Online, 2019).

6. The definitions of greed show that there is an inherent ambiguity in its meaning; greed may not always be inordinate, excessive or immoral.

7. Greed is more likely to connote immorality, or a breach of a socially accepted norm, in family and social contexts than in the world of business.  In contemporary Australian society, it is not socially unacceptable for a person in business to be ‘eager’ for gain and wealth.  The orthodox political economy of Australia recognises and accommodates the operation of industrial, commercial, labour and financial markets driven by self‑interest.  I acknowledge that there are limits to that general proposition which might be encapsulated in the expectation that business entities must also be good corporate citizens.  The pursuit of profit at the expense of the economically or intellectually vulnerable or the environment are examples.  Nonetheless, there remains a fundamental distinction between the norms of business conduct and the expectations of behaviour in social and familial settings. 

8. The question on this appeal is whether the reasonable reader would have understood the statement, ‘this greedy man’, to mean that Mr Johnston was inordinately greedy, in the sense that he had an insatiable greed for riches, or alternatively, only that he was so intent on pursuing his business interests that he was not prepared to reach a compromise with Mr Aldridge, irrespective of the financial consequences on Mr Aldridge, and farmers’ markets more generally, should the Environment, Resources and Development Court (the ERD Court) rule in his favour.

9. It is the latter meaning that should be adopted.  As I observed, most of the post concerns the nature and possible consequences of the proceedings in the ERD Court.  Much detail is given of the definitional issues arising out of the applicable development plan.  The point is made that Mr Johnston himself might profit if he changed his business model.  An appeal is made to others to put political and economic pressure on Mr Johnston.  The meaning of the words ‘this greedy man’, in that context, is that Mr Johnston is a hard‑nosed business person intent on pursuing his self‑interest through litigation, without compromise and without a care for the consequence of others should the ERD Court decide in his favour.  That is not the same as an accusation that Mr Johnston has an insatiable or inordinate greed.  The reference in the first post may be contrasted with the running comments later made by others on that post.  The epithets, the emphasis given to the word ‘greedy’ and the associated remarks made in those comments plainly accuse Mr Johnston of having a contemptible and insatiable desire to enrich himself at the expense of others.

10. In all other respects, I agree with the reasons of Peek J.  On the question of damages, I would not make any lesser award.  Even though the first post was not defamatory, Mr Aldridge is responsible for the comments made on that post by others for the reasons given by Peek J.  Those remarks, together with the second post, justify the award of damages made by the trial Judge

11. PEEK J:  Appeal against the awarding, and quantum, of damages for defamation.

    TABLE OF CONTENTS

    Introduction................................................................................................................ [12]

    Part 1: Chronological Outline of Events............................................................ [16]

    The first of the two subject posts – overview........................................................ [35]

    The second of the two subject posts – overview................................................... [42]

    The original pleadings – the three imputations...................................................... [45]

    Part 2: Pre-Trial Application to Amend Defence (Grd 3.1).......................... [47]

    Principles pertaining to applications for an extension of time............................. [49]

    Part 3: The First Subject Post (Content)........................................................... [58]

    Was Aldridge responsible for the disputed passages?.......................................... [60]

    Aldridge’s initial position concerning publication of the first subject post....... [61]

    The application to amend the Defence during the trial (Grd 3.2)....................... [66]

    The application to re-open the evidence after the trial (Grd 3.16)...................... [81]

    Aldridge’s position on the appeal as to publication of the first subject post..... [86]

    Conclusion: The Judge’s findings were correct (Grd 3.5)................................... [89]

    Part 4: Was the First Subject Post Defamatory? (Grd 3.6)........................... [95]

    The meaning of ‘defamatory’ and ‘damage to reputation’.................................. [97]

    Are the imputations in the first subject post defamatory?.................................. [111]

    Part 5: The Second Subject Post (Identification) (Grd 3.7)........................ [121]

    Part 6: Other Grounds of Appeal on Liability............................................... [126]

    Assertion that the Judge’s reasons were inadequate (Grd 3.3).......................... [127]

    Assertion that not afforded a fair trial (Grd 3.4)................................................. [129]

    A defence of fair and accurate reporting of judicial proceedings? (Grd 3.8).. [132]

    A defence of extended qualified privilege (‘Lange’) (Grd 3.9)........................ [137]

    Secondary publication (Grd 3.10)......................................................................... [144]

    Application of defence of extended qualified privilege to secondary

    
    

    publications? (Grd 3.11)......................................................................................... [164]

    Part 7: Grounds of Appeal on Damages (Grds 3.12, 3.13 & 3.14)............. [168]

    General principles related to awards of damages in defamation matters......... [169]

    Asserted manifest excess (Grd 3.12).................................................................... [172]

    Aggravated damages (Grd 3.13)........................................................................... [176]

    The Judge’s refusal to reduce the damages by reason of the plaintiff’s

    
    

    conduct (Grd 3.14).................................................................................................. [181]

    Assertion of a finding of malice (Grd 3.15)......................................................... [182]

    Application to plead “response to attack” defence – Order sought 2.3............ [183]

    Conclusion............................................................................................................... [190]

    Introduction

12. This is an appeal from a judgment of Brebner DCJ (the Judge) in which his Honour found that the defendant/appellant, Mr Mark Aldridge (Aldridge), had defamed the plaintiff/respondent, Mr Benjamin Johnston (Johnston).

1. Aldridge also seeks an extension of time within which to seek permission to appeal against the judgment of Slattery DCJ in refusing Aldridge’s application to amend his defence to plead further defences prior to the trial.

2. The third Notice of Appeal sets out the orders sought as follows:

   2.1     Extension of to appeal the decision of Judge Slattery dated 30 June 2017 [sic].

   2.2     Permission to appeal the decision of Judge Slattery dated 30 June 2017.

   2.3     That the appellant have leave to amend his defence to plead response to attack.

   2.4     That the appeal be allowed.

   2.5     That the judgment be set aside.

   2.6     That the orders, including as to costs of the trial judge be set aside.

   2.7     That the plaintiff’s claim be dismissed.

   2.8     In the alternative, that the matter be remitted for trial.

   2.9In the further alternative, that the damages awarded be set aside and damages be assessed.

   2.10That the appellant have the cost of the appeal.

3. The Notice then sets out, over some nine further pages, some sixteen Grounds of Appeal (numbered 3.1 to 3.16), each with extensive purported “particulars”. These are sometimes repetitive and difficult to understand and I will not reproduce them. I have however taken all of them into account when considering the particular Grounds to which they relate.

   PART 1: CHRONOLOGICAL OUTLINE OF EVENTS

4. Johnston has worked in the fruit and vegetable industry in South Australia for more than twenty years since he was aged 14 and a half. In late 2009, he became the proprietor of George & Ben’s Fresh Food Market (George & Ben’s) trading at Paddy’s Market in Pooraka. In January 2014, Johnston acquired the business named Golden Fresh Fruiterers, located in the Golden Grove Village Shopping Centre. At all relevant times, Johnston was the operator of the George & Ben’s Fresh Food Market Facebook page (George & Ben’s Facebook page).

5. Aldridge has been an unsuccessful candidate at various State and Federal elections. He has been heavily involved in social media and administered the Farm Direct Facebook page as well as a separate Facebook page in his own name (the Aldridge Facebook page) on which he posted on many subjects and had 6,000 or more “followers”.

6. Aldridge had for some time been involved in the running of a pop-up farmers’ market trading as Farm Direct Community Markets at a site adjacent to Parafield Airport (the farmers’ market) but it became necessary to move its location. In early 2015, Aldridge decided to move to a site in the car park of the Old Spot Hotel Salisbury (the Old Spot Hotel premises) where he was granted temporary approval to trade by City of Salisbury Council (the Council). He then sought development approval for it to operate there on a continuing basis. On 13 May 2015, a post was published on the Farm Direct Facebook page notifying followers that the farmers’ market would be relocated to the Old Spot Hotel premises from 23 May 2015.

7. Johnston was told of this proposed relocation by one of his employees who had seen that post. On 10 June 2015, Johnston, who up to that time had had no contact with Aldridge, lodged an objection with the Council in opposition to the farmers’ market being held at the Old Spot Hotel premises.

8. On 12 June 2015 at 5.00 pm, Aldridge sent an email to Johnston’s personal email address in which he referred to the origins of his farmers’ market and to “apologise” for any potential “adverse effect” the relocation of the farmers’ market might have on Johnston’s business; and to offer to “work with you and use our extensive marketing reach to help you improve your custom”. Johnston did not respond.

9. The dispute generated some mainstream media interest. On 14 June 2015, the Adelaide Advertiser published an article in which it referred to a “fruit and vegetable war” and noted inter alia that Johnston opposed the relocation of the farmers’ market. On 17 June 2015, the Northern Messenger, a weekly newspaper, published an article in similar terms.

10. On 15 June 2015, Johnston received a further email from Aldridge which caused him distress and which he reported to police. It read as follows:[4]

    I have phoned your mobile several times, your shop number and visited your shop, and still no contact, if you are not interest in working together, I will have to let my supporters, customers and followers know this fact and that you want us closed regardless of any offer we make to work with and support you.

    Please do not hold me to account for their actions.

    Mark.

    [4]    In this passage, as in the great majority of subsequent extracts from Aldridge’s writings, I make no suggested corrections of the many typographical errors and such like.

11. Prior to the publications the subject of the trial, Aldridge made a number of posts about the plaintiff. On 15 June 2015, Aldridge published the following post on the Aldridge Facebook page in which he referred to Johnston thus:

    … [He] simply refuses to answer the phone or enter into discussions, his application is nasty and unfounded, accusing us of selling animal quality food and that our stall holders sell rubbish and are non-compliant, it feels at this stage that his application is simply to shut us down.

    His shop is called “George & Ben’s Fresh Food Market” and is in Pooraka, (1181 Main north road) I dropped in today, left my details and have tried emails and calls for days, his application does not want competition and wants all our markets shut down other than Gepps cross and the Adelaide produce market.

    His information was part reason we endured the bad media.

    His application is available to the public, council can provide a copy, his contact details are also allowed to be published … if anyone can get through to him, I am still more than happy to try and work with him.

    What this situation causes is for our application to be frozen and go before a development board, which won’t sit until late July, and then we have to wait a few weeks after that, his application will have no other affect than tying up our markets approvals and final infrastructure works.

    It is sad that development applications can be played with like a game, and that self-interest of one person can affect the lives of so many, we have co-existed for years without a single issue, and just because he can’t deal with the true pop up market, destroying ours will do.

    If he will not retract his application, we will trade on 27th, be served a notice which I will be forced to lodge a stay in the courts and then drag him into the development court. In the mean time I will lodge a civil action against him on several grounds including the defaming of our stall holders.

    This should keep us trading until the courts can dismiss his application. Development courts do not stop development applications based on issue of competition, not sure the councils should be forced or are forced to allow this to happen either.

    …

    I will do anything in my powers to stand behind our farmers and producers, as everyone knows, so will head to the courts later this week.

    Mark

12. Aldridge then made a comment himself on his own post of 15 June 2015 in which he said he hoped the plaintiff had “deep pockets”, and a further comment in which he asserted that the plaintiff was a “moron” and referred to “pure greed”.

13. On 21 July 2015, the Council’s Development Assessment Panel convened a meeting which Johnston attended and at which the farmers’ market received Development Plan Consent (DPC) subject to several conditions. On 23 July 2015, Johnston received a letter from the Council confirming that DPC had been granted. On 5 August 2015, Johnston lodged an appeal to the Environment Resources and Development Court (ERD Court) asserting that the farmers’ market should not have been granted DPC (the ERD Court action).

14. On 12 August 2015, another post was published on the Aldridge Facebook page purporting to provide an update on the dispute. It stated that “Salisbury Fruit Bowl and George and Ben,s fresh food market at Pooraka, have hired a legal team to close our community markets down, because they believe we are affecting their trade”.

15. It further stated that if the market was closed down, “all the others would also have to close”. It falsely asserted that Johnston’s business did not offer receipts and referred to the persons in the business as “greedy short sighted people” and insisted that “it is not about money, it is about greed”. The post concluded by stating that: “lets these guys know how you feel”; provided Johnston’s contact details as “Salisbury Fruit Bowl”, “George and Bens” and “TC Produce”; and published the phone number of one of Johnston’s shops. The copy of this post tendered at trial (Exhibit P9) showed that it received 39 comments, some of which spoke negatively about alleged poor quality of the fruit sold by George & Ben’s.

16. Aldridge himself also commented a number of times on this post; one such comment was: “I would think these morons would be better of spending the huge $$$ they are wasting putting money in the lawyers pockets, on improving their business …”.

17. On 2 September 2015, a post was published on the Aldridge Facebook page in which Aldridge threatened: “You have until Friday to back away from stopping supply to our wholesalers and drop court actions or it is game on”.

18. On 8 September 2015, a further post was published on the Aldridge Facebook page in which Aldridge stated that he needed “some research done on this guy … Ben (Benjamin) Johnston”. Aldridge stated that he wanted to know what other fruit and vegetable businesses Johnston was operating and requested “a photo of this man, as he refuses to speak or meet with me”. Aldridge further stated that Johnston “is trying to destroy over 70 small farms and producers, people that rely on myself and my markets to survive”.

19. This post attracted some 25 comments, some of which were again made by Aldridge himself. He stated that he needed “some one to stake out George and bens and photo who ever enters through the back I suppose and follow them if needed”; that he would “track him down and find all his businesses and return the favor of doing all in my power to close him down, old fashioned eye for an eye”; “war it is now, old school”; “I will pay that a visit very soon, when Ben is there, have people watching”; “It is people like this bastard that have dragged this country backwards [out] of pure greed, I will release the info on every business he has, and let him fight on a level playing field”; “I will bring the fight to him at his places of work, starting very soon …”. [Emphasis added]

20. Further third party comments on this post provided details of Johnston’s trading names and ABN; others referred to Johnston as a “low life” and “scumbag”; and another that said “love your work, he might shut the fuck up now”.

21. On 8 September 2015, Johnston made a post on the George & Ben’s Facebook page. He stated that “If Mark’s intention is to intimidate and bully me and my staff into submission and back down I will not”. He requested that readers “allow me my democratic right to go through this process…”.

22. On 14 October 2015 (later updated on 17 October 2015), the ABC News website published an article which was headlined “Farmers’ markets face legal challenge in Adelaide development court”.[5] The article included certain comments by Aldridge in relation to Johnston and the dispute more generally. A further article was published on 21 October 2015 in the Northern Messenger.

    [5]    Exhibit D8.

    The first of the two subject posts - overview

23. On 25 November 2015 at 1.05 pm, the first of the two subject posts was published on the Aldridge Facebook page (the first subject post). It read:

    UPDATE ON BENJAMIN JOHNSTONS LEGAL ACTION TO CLOSE FARMERS MARKETS IN AUSTRALIA.

    Ben Johnston owner of George and Bens at Pooraka and golden Fresh fruit and veg in the Golden Grove shopping centre is intent on closing Farmers markets in Australia through an action I am fighting in the ERD Court (Environment and Development court)

    All avenues to work with Ben since day one have failed due to his refusal to even talk, so it is all about closing markets to improve his sales, rather than improve his business model.

    If this greedy man wins, the precedent will affect all Farmers Markets, road side vendors, general markets, even community events and fetes.

    Farmers markets were around long before Supermarkets and Grocery stores, and even how they add hundreds of millions of dollars to the economy and help keep our smaller farmers and producers on the land.

    I will be taking a few days of to ensure I can put the best argument forward in early December and the council’s Legal team will do the same.

    The argument currently being debates, is based around the term “Shop” and “Premises” V’s Markets and Stalls, with the intent every stall becomes a shop and every premises becomes capable of becoming a shopping centre, and there for are illegal under development law.

    With that, stall holders insurances may become invalid, fundraising events, special events and the general use of open land is being debated in such a way as to affect many.

    After visiting his FB page for George and Bens, and going by media reports to me, the support for his position is backed by other players in the grocery industry; including the wholesale trade, rather than name people, go look at who likes his posts that relate to asking for support for his legal action.

    I believe once you know who is behind the action, you will better understand why, some big players names are supporting this man.

    Farm Direct operates a few markets and has more to open, subject to the outcome of this action, but there are hundreds of successful markets all over Australia that may be affected by this action, meaning thousands of jobs, farms and small businesses lively hoods are at stake.

    I am now in possession of the outline of argument if any legal minds would like to offer their support and or go over my research, because this is not just about me, it is not just about my stall holders, it is about the future of Markets and community events of every kind in Australia.

    I would like to note a few serious concerns, one is the media, who all know about this, and consider it of no community concern, the attorney general Rau, who is in charge of development legislation, has refused to respond and the lack of support from the other Australian markets that might be concerned.

    If I lose the case it will not affect me financially at all, in fact I will be better off, but thousands of good hard working Australians will lose, they will lose jobs, farms and businesses, and that is the very last thing we need in Australia right now. 

    Political mediocrity is already killing our manufacturing and our ability to even feed ourselves as a nation, so when we step up as a community to protect the little guy, through avenues like markets, it is left to us to fight battles like this, so consider spreading this post, and include your own words of support, contacting John Rau, and even letting Ben Johnston and his supporters know how you feel, by phone, email or boycotting their businesses.

    Mark Aldridge

    Founder of Farm Direct community markets

24. I have reproduced this post in the same form as it appears in the Judge’s judgment, the underlining being that of his Honour. The Judge explained his methodology thus:

    64. I will refer to this as ‘the original version’ or a ‘post in the terms alleged.’  I will refer to the words emphasised as ‘the relevant words.’  The defendant admits on the pleadings that he published a post ‘of and concerning the plaintiff’ at the relevant time.  The plaintiff pleaded that this post included the relevant words.  The defendant denied on the pleadings that the post included the relevant words save and except he admits it included the final words emphasised ‘if I lose the case … thousands of good hardworking Australians will lose, they will lose, jobs, farms businesses.’ Irrespective of the terms in which the defendant published his post, I will refer to it as the ‘first post.’ In light of the way the evidence unfolded, all this terminology is unavoidable.  In relation to the first post the claim turns on whether the plaintiff has proved that the post the defendant published at the relevant time, included the relevant words.  

    65. The plaintiff also pleaded that the relevant words carry the imputations that the plaintiff ‘in attempting to close all farmer’s markets is a selfish greedy man’ (the first imputation) and that the plaintiff ‘is a person of contemptible character’ (the second imputation).  

25. The first subject post received over 4,500 comments, primarily over the period of 25, 26 and 27 November 2015, some of which were posted by the Aldridge Facebook page. Many of the comments were disparaging of Johnston and included:

    -     Lets all hope Ben Johnston owner of George and bens at pooraka goes bust and closes its arseholes like him that is killing the aussiet farmer;

    -     Ben Johnston nothing but a selfish greedy arsehole;

    -     Another greedy fuck! All the world needs! Supermarket and shopping centre green grocers produce is generally shit! Maybe if he offered good produce at good prices people would spend money in his business and he wouldn’t need to try to destroy other peoples business’!!

    -     Can’t believe how greedy some people can be. …

    -     Boycott this greedy arsehole

    -     markets are essential for all and need to be kept, go and improve your own business and not wreck others…. lazy ass

    -     Benjamin Johnson you are the biggest wanker I have ever come across, and thanks I will never come into your store at golden grove again!!

    -     Surely no right thinking Australian court will allow one man to close down legitimate traders Get a boycott on his places When his take goes down he’ll see sense ……or will he Maybe he is deranged and needs sectioning

    -     This guy is a scum bag …

    -     Boycott this dickhead

    -     Greedy greedy greedy

    -     Greed ,greed and more greed.

    -     Bastards never give up. If it’s not one selfish greedy thing, it’s another. …

    -     What a greedy man.

    -     Everyone boycott this dicks business

    -     Your joking right??? How the fucken hell could some arseholes do this shit, hopefully you flog these pricks in court then the people who buy their products stop supporting them!

    -     No no no, greed is not good!

26. On 1 December 2015, Johnston’s solicitors emailed Aldridge the First Concerns Notice in relation to the first subject post. It identified words which gave rise to two imputations. First: “That Johnston is trying to close all farmers markets in Australia”. Second: “That Johnston is greedy and is only concerned with improved sales”. 

27. On 8 December 2015, the ERD Court action proceeded to hearing before Judge Costello and his Honour reserved judgment. 

28. On 23 December 2015, Johnston’s solicitors emailed Aldridge the Second Concerns Notice and requested that Aldridge identify persons in control of his Facebook page. The letter further particularised the claim in defamation and referred to a further imputation, “… namely the imputation that our client’s actions will affect thousands of good hard working Australians …”.

29. On 21 January 2016, Judge Costello delivered judgment in Johnston’s action.[6] In essence, his Honour found that the Council should have determined the proposed development to be a group of shops and processed the application as a non-complying form of development.[7]

    [6]    Johnston v City of Salisbury & Anor [2016] SAERDC 1.

    [7]    Aldridge’s appeal to the Full Court of this Court (Kourakis CJ, Kelly and Bampton JJ) was dismissed on 8 September 2016: Aldridge v Johnston & Anor [2016] SASCFC 99.

    The second of the two subject posts - overview

30. On 25 February 2016, the second subject post was published on the Aldridge Facebook page (to which the Judge referred as “the second post”). It read:

    Mark Aldridge

    25 February

    Ben Johnston is still trying as hard as he can to shut Farm Direct on what seems like a weekly basis.

    If that means undermining every market, event, stall and fete so be it.

    Legal letters continue to arrive at the courts, my in box, Salisbury council, the Old Spot hotel, the Plush group and I assume others.

    The latest applications are to have us shut immediately as we are affecting Johnston’s profits (yet we hear he has sold his shop?

    In any event Johnston, is or was in Pooraka, we operated from Parafield for many years, we moved further away to Salisbury heights, and another unregistered market opened on our old site, so it was a business related matter (which has nothing to do with development matters) then why not go after the new market?

    Since this started, threats to my family, stall holders and others have continued and still are a regular occurrence, no one wants to pick up the phone mist [sic most] nights to threats of rape of his wife or death threats.

    This brings up several issues, why the Parafield site can ignore the law, why can applications be made against competition (considering we are a free market) and why is Johnston apparently working with Parafield, it is closer to him.

    Facts: Farm Direct has operated for over 3 years, we applied and were approved by Salisbury council development department and the DAP, under the strictest terms, and started operating at our new site.

    Most if not all Markets are approved in the same way, in some cases without the need to jump through much red tape.

    Why are the councils sitting back doing nothing, when applications for community events in their area are being stalled.

    Why does a not for profit community event have to fight for the right to exist and the rights of other community events on community donations.

    From here: Farm Direct were fully complied as a merit application (merit means the community support such events) now we have to comply as a Non Complying development (the community does not want events like ours) when the public love our market and support local community events, fetes and Markets.

    The council should be fighting for the community they purport to represent, so should the state government, but neither are supporting the legal action.

    The courts ordered all stall are now shops, and a group of stalls is now a shopping center, which affects every public event.

    The courts ordered that the council make us re-apply for approvals as a shopping centre (non complying development).

    We prepared the application, but since we have lodged an appeal on the courts finding stalls are shops, until that appeal is heard, we are complying.

    If we fail in the courts then we can re-apply for development approvals. Johnston and his well paid legal team want us shut based not on development or safety issues, but purely on market based trade.

    This clearly shows how development law is being abused, development law is about land use, not issues of competitive nature, so where is the state government on this matter.

    Does this mean if you open a new business in this state, and start to do well, your competition can shut you using loop holes in the law, law that does not even relate to matters of a competitive nature?

    If a company closes down there is media coverage, loss of jobs, in fact if there is a hundred jobs at risk, in step parliament to help, yet a community market is under pressure to shut, that is doing well, has massive support and represents 100’s of jobs, small farms and small businesses, no media, no support, no state government support and no council support. (thousands of jobs, farms and small businesses are now at risk)

    The state government and the councils are to blame, they want the power over how we use our private land, they say they are here for the community, to ensure development of any kind is in line with community expectations. They write all these pretty agendas, like healthy eating, access to affordable fresh produce, getting the community out and about. Farm Direct does that, complies with the law, then this happens and the officials you elect, pay and support to look after you are no where to be seen.

    Rant over, wish me luck in the courts. If I lose, so do hundreds of jobs, small farms, so does the community and the door opens for other scum bags to close other community events.

    Mark Aldridge

1. The italicised words are those said to be defamatory. The second subject post received some 31 comments predominantly in the period of 25 February 2016 to 28 February 2016.

2. On 1 March 2016, Johnston’s solicitors again wrote to Aldridge (the Third Concerns Notice), in which they asserted that the second subject post contained the defamatory imputation that “Ben Johnston has, or will, make threats to rape and kill”. It is not clear whether Aldridge responded to their letter.

   The original pleadings – the three imputations

3. On 20 April 2016, Johnston filed a statement of claim pleading that the first subject post gave rise to the following imputations:

   -The first imputation (first subject post): that in attempting to close all farmers markets he is a selfish greedy man.

   -The second imputation (first subject post): that in attempting to close all farmers markets he is a person of contemptible character.

   -The third imputation (second subject post): that he has made or encouraged, or is likely to make or encourage, threats to rape and kill.

4. On 17 June 2016, Aldridge (represented by solicitors) filed his defence, and: 

   -admitted publishing the first subject post;

   -denied that the first subject post contained some of the phrases pleaded in the Statement of Claim and relied upon phrases instead appearing in the edited version of the first subject post;[8]

   -denied that the first subject post gave rise to the first and second imputations;

   -admitted publishing the second subject post;

   -admitted that the second subject post mentioned the plaintiff but denied that the entirety of the second subject post was of and concerning the plaintiff; and

   -denied that the second subject post contained the third imputation.

   [8] Considered below at paragraph [64].

   PART 2: PRE-TRIAL APPLICATION TO AMEND DEFENCE (Grd 3.1)

5. On 20 March 2017, Aldridge (then unrepresented) filed an interlocutory application seeking leave to amend his defence and to plead further defences; to have the trial heard by a jury; and to file a counterclaim. [9] On 11 April 2017, Judge Slattery heard the application and refused it. His Honour later delivered reasons on 30 June 2017.[10] On 26 April 2017 (with the trial scheduled to commence on 1 May 2017) Aldridge filed a further interlocutory application seeking an adjournment of the trial date; on 27 April 2017 Judge Slattery also refused this application.

   [9]    It has not been possible to have a jury hear a civil trial in South Australia for many years. The application to file a counterclaim is not the subject of a ground of appeal.

   [10] Johnston v Aldridge [2017] SADC 70.

6. Ground 3.1 complains only of Judge Slattery’s first decision – the orders made on 11 April 2017. The application to amend the defence was interlocutory in nature and pursuant to rule 288 of the Supreme Court Civil Rules 2006 (SCR), an appeal to this Court from an interlocutory judgment of a District Court Judge is by permission only. By SCR 289(1)(a), Aldridge was required to commence his appeal “in the ordinary way”, namely by commencing an appeal within 21 calendar days of Judge Slattery’s decision on 11 April 2017,[11] being by 2 May 2017. The first Notice of Appeal was not filed until 18 July 2018 and Aldridge therefore requires an extension of time of some 14 months.

   [11] Supreme Court Civil Rules 2006 (SA) r 281. I intimate here that the relevant date is 11 April 2017, notwithstanding the fact that Judge Slattery delivered reasons on 30 June 2017. The appropriate course would have been for Aldridge to commence an appeal by filing his notice of appeal and requesting an adjournment of the application until such date as Judge Slattery delivered reasons in relation to his decision.

   Principles pertaining to applications for an extension of time

7. On the appeal, Aldridge did not advance any reason as to why he should be granted an extension of time beyond the bare endorsement on the third Notice of Appeal of the grounds relied upon as follows:

   1.1    In the interests of justice.

   1.2    The applicant did not know of his appeal right.

   1.3    The decision was interlocutory.

8. The relevant test under SCR 117 is indeed whether the Court considers it necessary to grant the extension of about 14 months “in the interests of justice”.[12] In Kowalski v Sim & Ors, this Court recently observed that while there is a tension between the goal of finality of litigation and the goal of avoiding injustice, rights of appeal “cannot rise above the limits of the statutory grant; and the time limit within which to appeal is an integral part of that grant”.[13] The Court further stated that broader community interests are now more commonly taken into account in the context of extension of time applications than in the past and observed:[14]

   Important matters include the effect on Court resources and the competing claims by litigants in other cases awaiting hearing in the Court. Phrases such as “case flow management” or “case management” allude to some, but not we think to all, of the salient matters.

   [12] An alternative avenue might be s 48 of the Limitation of Actions Act 1936 (SA) (LOA Act) but no submissions were made in that regard and, in any event, the same test of “in the interests of justice” applies.

   [13] [2019] SASCFC 96, [58] (Kourakis CJ, Peek and Parker JJ).

   [14] [2019] SASCFC 96, [96].

9. In the present circumstances, there are a number of reasons for refusing to grant Aldridge the required extension of time. First, I refer to the principles relevant to late applications to amend pleadings as enunciated by the High Court in Aon Risk Services Australia Ltd v Australian National University (Aon Risk Services)[15] and summarised in Channel Seven Adelaide Pty Ltd v Manock (Manock).[16] Recently, in PPG Development Pty Ltd v Capitanio, Doyle J stated:[17]

   [15] (2009) 239 CLR 175, 189–192 [24]–[30] (French CJ).

   [16] (2010) 273 LSJS 70, 82–83 [46] (Bleby J).

   [17] (2016) 126 SASR 307, 319 [39]. Cited with approval in SAADAT v Commonwealth of Australia & Ors [2019] SASC 28, [32] (Stanley J), upheld on appeal to the Full Court in Commonwealth of Australia v SAADAT & Ors [2019] SASCFC 124.

   39. By way of summary, the High Court decision in Aon Risk Services, and the authorities that have applied it, have now made it plain that in exercising its discretion upon any application to amend, the Court must take into account a number of factors. The factors include:

   ·    The nature and importance of the proposed amendment, including the extent to which it raises new issues of fact or law.

   ·    The merits of the proposed amendment, at least in the sense that the proposed amendment is arguable or tenable.

   ·    The stage of the litigation at which the application to amend is made, and the likely impact upon, or disruption to, the progress of the proceedings (and in particular the trial).

   ·    The explanation for the application to amend and its timing, and the fact and extent of any undue delay in this regard.

   ·    Whether the party has had a sufficient opportunity to plead their case earlier.

   ·    The time, cost and inconvenience associated with any delay or disruption of the proceedings.

   ·    The uncertainty and strain of litigation on the parties and their witnesses as a result of any disruption or delay likely to be occasioned by the amendment.

   ·    The impact of any delay and disruption upon judicial and court resources, and the access of other litigants to those public resources.

   ·    The impact upon the public’s confidence in the just and efficient administration of justice.  [Citation omitted]

10. As to the merits of the proposed application, I note the following matters. First, I find Aldridge’s explanation for the timing of the application to be unsatisfactory. In an affidavit, he claimed that the defence filed by his legal representatives excluded, without his authorisation, “certain defences, which I had requested were included”. However, a period of roughly nine months had passed between the filing of the Defence and his application to amend. He asserted that he commenced work on his own defence “[i]n or around December” (some five months after the Defence was filed) but that his electronic equipment was seized from his home by police officers in early January 2015. He further relied on “severe health issues” which were said to be the result of alleged improper conduct of SAPOL officers as reasons for the delay. These are not sufficient reasons for bringing the application so late, he having had ample opportunity to address such issues much earlier.

11. Secondly, counsel and the solicitors representing Johnston had prepared their case up to the time of the application on the basis that Aldridge would not be relying on such proposed defences and the time, cost and inconvenience that would have been occasioned if the application had been granted would have been significant. The proposed pleadings were inadequate for a number of reasons and there were real issues concerning the additional discovery that would have been required such that the trial might well have had to be adjourned.  

12. Thirdly, if an appeal were to be allowed on this ground, this could only lead to a re-trial (and not to a substitution of a verdict in Aldridge’s favour) having regard to all of the circumstances. It is quite clear that Aldridge would have very low prospects of success at any such a re-trial conducted on all or any of the amended defences sought. At the same time, such re-trial would occasion very significant detriments for Johnston. There is the certain prospect of very substantial financial loss through the fees and expenses he would have to pay to his lawyers to conduct a re-trial (no doubt with associated numerous interlocutory proceedings) in circumstances where Aldridge himself asserts that he is impecunious and there is no realistic prospect of recovery of costs from him. There is also the considerable mental stress associated with the loss of finality and having to endure such a re-trial process.[18]

    [18] Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598, 1608 [51] (Gleeson CJ, McHugh and Gummow JJ).

13. Fourthly, although Aldridge asserts in the extract from the Notice of Appeal reproduced above that he “did not know of his appeal right”, in fact he was well aware of his rights of appeal against the orders of Judge Slattery and chose not to exercise them. They were specifically drawn to his attention by the Judge in the following dialogue:

    HIS HONOUR:  Whilst we are on the topic of the defence, Mr Aldridge, in the light of Judge Slattery’s ruling, your defence is confined to the defences that you have already pleaded and you cannot introduce new defences without leave. If you want leave to introduce new defences you would have to seek leave from me to amend your defence in order to do so. You cannot re-agitate the issues that Judge Slattery has ruled against you on. The only way you can re-agitate them would be to appeal. Do you follow that?

    MR ALDRIDGE:  I do. …

14. And later, there was the following similar dialogue:

    HIS HONOUR:  It is also, as I understand your position, that if the defendant wants to broaden the scope of technical defences or defences on which he carries the onus properly so-called, he has to do so either by appealing Judge Slattery’s ruling or, alternatively, by seeking to amend to include defences other than those on which Judge Slattery has already ruled; is that correct?

    MR DOYLE:  That is our position.

    HIS HONOUR:  Do you understand all of that, Mr Aldridge?

    MR ALDRIDGE:  Yes, I do.

    HIS HONOUR:  Very well. You’re on notice. [Emphasis added]

15. I do not consider that the correctness of Judge Slattery’s decision is attended with sufficient doubt to warrant reconsideration and nor do I consider that substantial injustice would befall the applicant if permission to appeal were refused.[19] For all of the above reasons, I decline to grant the extension of time sought. I reject Ground 3.1 of Appeal.

    [19] Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 177; Contender 1 Ltd v LEP International Pty Ltd (1988) 82 ALR 394, 397 (Wilson, Dawson, Toohey and Gaudron JJ).

    PART 3: THE FIRST SUBJECT POST (CONTENT)

16. As noted above, on 1 December 2015, Johnston’s solicitors emailed Aldridge the First Concerns Notice in relation to the first subject post. It identified words which gave rise to two imputations. First: “That Johnston is trying to close all farmers’ markets in Australia”. Second: “That Johnston is greedy and is only concerned with improved sales”. 

17. The evidence at trial established that at 3.21 pm on 2 December 2015, the first subject post was edited in two respects by someone. First, the words “is intent on closing farmers markets in Australia” in the second paragraph were deleted and were replaced by the words “has taken an action which if successful could close many Farmers markets in Australia”. Secondly, the word greedy was deleted by changing the words in the third paragraph “If this greedy man wins” to “If this man wins”. I will refer to these differences as the “disputed passages”. 

    Was Aldridge responsible for the disputed passages?

18. Who posted the first subject post originally and who later made the changes to it? Although Aldridge now agrees that it was he who published the first subject post, he asserts that he was not responsible for the disputed passages in that post. However, he has taken a number of different positions at different times concerning this matter.

    Aldridge’s initial position concerning publication of the first subject post

19. At trial in May 2017, Aldridge testified that on 28 November 2015 he had departed for Bali and that he received the First Concerns Notice at around 12.00 pm on 2 December 2015 while in Bali. He said that he returned to Australia on 5 December 2015 and on that day sent an email to Johnston’s solicitors which stated:

    The imputations you have raised are not an accurate reflection of the words I wrote and posted.

    There are times when I am away that others control my page, but when I received your email, I immediately checked the post to ensure it was not worded in a way of which could have the effect of defaming your client.

    I will note that I have copies of some rather nasty defaming posts by your client in his words, where he makes assumptions I am responsible for the words of others.

    In any event the post will be removed at a later date, but as it stands I can see nothing but truthful words that in no way defame your client, the attachment is the post as checked upon receipt of your email.

    I am unaware of who wrote or modified the copy’s you sent me.  [Emphasis added]

20. Thus it can be seen that Aldridge’s then position was that he did write and post the first subject post on 25 November 2015 at 1.05 pm but only in the form of the edited first subject post above.

21. On 6 December 2015, Aldridge sent a further email to Johnston’s solicitors in which he sought to attribute responsibility for the disputed passages in the first subject post to the persons responsible for another Facebook page which had been created about Johnston rather than some unknown ‘hacker’.  It stated:

    It appears that the Face Book page you mentioned are the ones that have taken some liberty with the wording of my original post, I have written to them by Private message asking for the page to be taken down.

    I do not know who has set up the page, but hope they can at least amend it.

    I have refrained from liking or mentioning the page, in fear that will increase its discovery, to ensure your client is not defamed, even though I am neither the author nor responsible in any way.

    Mark Aldridge [Emphasis added]

22. On 17 June 2016 (when he filed his defence), Aldridge maintained the above position. He admitted that he had published the first subject post but denied that the disputed passages had appeared in the version he posted. He pleaded that the first subject post corresponded to the form in which the edited post appeared. (On 20 March 2017, Aldridge applied to amend his defence in the terms of a purported Third Defence received on 2 March 2017 but none of the proposed amendments sought to displace his earlier admissions that he had published the first subject post in some form).

23. The trial commenced on 1 May 2017. Counsel for Johnston opened his case and called his evidence. On the issue of the publication and editing of the first subject post, Johnston led evidence from Mr Velanas, an IT professional. He testified that he conducted a search on the Google search engine and, as the third result, located a post on the Aldridge Facebook page dated 25 November 2015. He followed the search to the post itself. When he viewed the post, he clicked a downward arrow at the top right side of the post and selected “more options”. After he had selected that option, he was able to select the “edit history” option. Upon doing that, he observed that the first subject post had been edited on 2 December 2015 at 3.21 pm. In his report, tendered as Exhibit P23, he stated that “[t]he only person who is able to edit a post is the appropriate and legal owner of the Facebook account”.

    The application to amend the Defence during the trial (Grd 3.2)

24. On 4 May 2017 (the fourth day of trial), after counsel for Johnston had reached the close of his case and completed his closing address, Aldridge indicated for the first time an intention to deny authorship of the first subject post. He proceeded to make an oral application to amend his defence so as to withdraw his admission that he published the first subject post and to substitute a convoluted assertion to the effect that his post had been made at about 12.00 pm on 25 November 2015 in somewhat different terms to the first subject post.

25. This application had not been made to Judge Slattery; Aldridge claimed that this was because he was unaware that the way in which the defence was drafted denied him the argument that he did not produce the words at that particular time that were being relied on by Johnston.

26. In refusing Aldridge’s application to amend, the Judge set out the factors in Aon Risk Services and Manock and stated:[20]

    123. Balancing the relevant considerations, I rejected the application.  In particular, I took the view that the terms of the defence as it stood did not preclude the defendant from challenging the pleaded allegations that he published a post at the relevant time which included the relevant words.  This transpired to be so and the matter proceeded accordingly until the defendant sought leave to re-open his case in circumstances I will come to.

    [20] Johnston v Aldridge [2018] SADC 68.

27. In Ground 3.2 of Appeal, Aldridge asserts that the Judge erred in reaching this conclusion. In my view, he did not. Aldridge had already sought leave to amend his defence some six weeks prior to the commencement of the trial on which occasion he failed to raise these proposed amendments. As the Judge correctly observed, the pleadings did not preclude Aldridge from denying that he was the author of the disputed passages in the post since the defence pleaded that Aldridge had posted the first subject post but only in the terms of the edited post. There is nothing in that pleading which precluded him from denying that he published the particular words said to carry the defamatory imputations and, as the trial in fact proceeded, Aldridge was permitted to deny that allegation. I reject Ground 3.2 of Appeal.

    Aldridge’s later positions concerning publication of the first subject post

28. On 5 May 2017, Aldridge commenced to give evidence. He gave evidence in chief that his involvement in the Pinery bushfires left him little time to use Facebook between mid-afternoon on 25 November 2015 and 28 November 2015 when he left for Bali. He testified that he left control of his Facebook to his wife and her best friend and that he received the First Concerns Notice on 2 December 2015 while in Bali. Aldridge gave evidence which appeared to admit that, after receiving it, he took steps to edit the first subject post:

    In my reply to the concern’s notice I brought up several things that I had, several issues which is on - in my list of documents. I’m not sure whether that’s particularly pertinent at this stage to bring up. Apparently at that same time, and - this is a really hard one under oath to discuss - the post was edited on 2 December to lighten the impact, I assume on the plaintiff. I do say on oath that that wasn’t done from my point of view to - because the post was defaming more so as – it’s hard to say - as a show of good faith. It wasn’t until some time later that I came to realise that if you edit a post on social network you can no longer remove it at all from social network. It remains there for forever and cannot be taken down.  [Emphasis added]

1. In cross-examination, Aldridge was asked about the editing. He gave evidence that he did not recall doing so, but that he “must have”. He testified that this change in position was because “the evidence in front of us has led me to believe that there’s no other option than I did”.

2. However, in response to questioning from the Judge, Aldridge testified thus:

   Q.    Just a moment, you were the one who had put that post up, is that correct.

   A.    Yes.

   Q.    You read the post and you decided that some of the language that you had apparently employed in that post was inappropriate, is that correct.

   A.    I don’t know ‘inappropriate’ is the word. The word ‘greedy’ and the word ‘would’, I tend to - when I write posts I don’t tend to finalise them. I write them to extract comment from the public which is part of what I do. The words - I don’t have them in front of me, I still can’t remember them exactly - implied what I was thinking and generally what I do is I open it to debate. So I write the word ‘may’ quite often rather than ‘could’ or ‘should’.

   Q.    But you read the post that you had put up and you decided to change some of the wording, is that correct.

   A.    I don’t recall doing that your Honour, no. No, I don’t. I wasn’t well. I don’t recall making the changes and that’s why I believed that someone else must have tampered with it because when I wrote the post my mental health was fine. It was subsequent to that that I had a breakdown, maybe on the same day but – [Emphasis added]

3. Aldridge’s cross-examination (and short re–examination) concluded on Tuesday 9 May 2017. The balance of the evidence was concluded that day and the trial was adjourned for closing addresses.

4. On Thursday 18 May 2017, counsel for the plaintiff commenced and concluded his closing address. The trial was adjourned until the next day for Aldridge’s closing address. On Friday 19 May 2017, Aldridge commenced his closing address. Shortly thereafter occurred the following dialogue:

   The other particular point that has mid-stream during this, the providing of evidence, has pushed me a little bit over the line, was the wording of the first post. Now I understand that the evidence that was put forward or should I say the evidence, the defence put forward on my behalf, by lawyers, by past lawyers, states to some degree that I agree that I wrote the post of 27 November at on or about 1.05 p.m.

   HIS HONOUR:  As I read the defence and unfortunately we do need to use technical language here, it agrees that you put - your defence agrees that you put up a post on that time and I think that date without looking at the statement of claim I can’t be sure -

   MR ALDRIDGE:  I think that’s correct.

   HIS HONOUR:  But disputes that you put it up in the precise terms that the defendant alleges.

   MR ALDRIDGE:  Why I’m bringing that up is to explain that I became a bit confused by that moment and when giving evidence I felt that if I told the truth during that evidence that I didn’t believe those words were mine, but I’d be committing perjury in the court which is something I take extremely seriously. I would therefore like to just remind the court of the situation and a couple of documents that are on file, to further explain those moments or those times and not take too much time in doing that.

   But I opened an email which has been, as you are well aware from evidence, I opened an email on 2 December while I was in Bali. I was not in the best of mental health. After the evidence that was given, sat down my wife just this week or last week to work out whether I could have been in such bad mental health that I would have edited a document and completely forgotten about it. I cannot come to that conclusion. …

5. Aldridge continued his address until 2.24 pm when the trial was adjourned until Monday 22 May 2017. On that day, Aldridge continued his closing address during which the following dialogue occurred:

   MR ALDRIDGE:  In the evidence box I was asked a couple of questions, one, did I write the post on 25 November in certain words, and I had to reply ‘I must have’.

   HIS HONOUR:  Yes.

   MR ALDRIDGE:  Because I did not believe that I had and I believed at the time that if I was to say that I -

   HIS HONOUR:  Just a moment, you said ‘I must have’ in evidence.

   MR ALDRIDGE:  I had to use the terms ‘I must have’ in my view because otherwise I would be perjuring myself in the court to tell the truth.

   HIS HONOUR:  Well I can’t take what you have just said into account -

   MR ALDRIDGE:  No.

   HIS HONOUR:  - in any way, shape, or form. The only way I could take that into account is if you got back into the witness box and gave that explanation. But it boils down to this, doesn’t it, and again I’m only asking you these questions for the purposes of determining the admissibility of these documents. I can’t and won’t take any answers you might give into account either for you or against you. But as I understand it, you want to make further explanation of the evidence you gave about the authorship of that document, is that right?

   MR ALDRIDGE:  That’s correct, what I believed at the time your Honour.

   HIS HONOUR:  In other words, you want to explain to me why you told me that you ‘must have’ written it in those terms, is that correct?

   MR ALDRIDGE:  That’s correct your Honour.

   HIS HONOUR:  Alright, I follow. And from then on you want to put these documents in as supporting any - as supporting the explanation that you want to give if I allow you to give it, is that right?

   MR ALDRIDGE:  That’s correct your Honour.

   HIS HONOUR:  Well, it seems to me that if I allowed you to give evidence and it would be confined to just that one topic, whether those documents are admissible or not would depend on the evidence that you gave on that topic. So just to make sure I’ve got it absolutely straight, you want to give some additional evidence to explain your concession, again to use the most neutral word I can think of, that you must have put up that post and put it up in the terms that the plaintiff has alleged, is that correct?

   MR ALDRIDGE:  That’s exactly correct your Honour.

6. The Judge then allowed Aldridge’s application to reopen his case and Aldridge gave the following further evidence in chief:

   A.    During testimony I was under the belief that a document filed by my previous solicitors made it evident that I had written the words in the posts in front of me, and at no time up until I believed I had to say, I had to agree to that, because I believed those words in this particular post I had written. The post has been changed apparently in two places compared to the document that I believe that I published. May I go further your Honour?

   Q.    Just a moment.

   A.    On the same topic.

   Q.    Yes.

   A.    I was in Bali, I received an email of a concerns notice. It didn’t appear to be my words, completely. I went to Facebook and took a screenshot which showed the publishing date of 25 November at 1.05 p.m., which contained the words I believed I had post. I took a screenshot and sent that to the plaintiff’s lawyers explaining that something had gone wrong. Since that date, well around that same time to double-check I asked my wife if she had a screenshot, or could take one. I checked my computer, my Word document, to see what I had written that confirmed the words that I had originally written, which were different than this document. And I checked my activity log, my social networks, which also confirmed what I believed I had written. So from that moment on, when discussing things with the plaintiff’s solicitors, I believe that the document they had forwarded to me is, the imputations that arose in those documents weren’t authored by me. And I discussed with them that if they could find fault with what I had written I would reconsider my position, and at that stage I wasn’t willing to take it down, it would cause more trouble than it’s worth and I would take it down at a later date regardless.

   Q.    I follow.

   A.    That’s the extent of what I wish to say your Honour, to clarify my position.

7. His further cross-examination included the following passages:

   Q.    Weren’t you intending to convey to the court that it might be the case that although you made the edit you’d forgotten for some reason or other.

   A.    I know that - when the expert witness said that, the post had gone up and had been edited and I’ve [sic] not au fait with editing of posts. And then I was told has to have been edited, has to have been published by me because of the defence filed. I was a bit lost as to what to do. I have discussed with my wife and we’ve spent some time thinking whether I would have edited and forgotten and the problem with that is much as I may has [sic have] edited and forgotten I could still remember quite clearly what I wrote on the day I posted. So the effect of the events of 25 November that night would not have affected me when I was writing it. They happened subsequently to it.

   Q.    Are you suggesting that it was only after you came to think that the defence that had been filed left you with no option that you started to consider whether maybe you had edited the post on 2 December.

   A.    No, I was extremely confused how I could run a case and defend something that I hadn’t written when the whole time, from the beginning, I said I hadn’t written it.

   Q.    But didn’t you think shortly after you got back from Bali that maybe you had edited the post.

   A.    No, I completely believed, I went through activity logs everything, I talked to everybody. No-one saw an edit, and no-one saw the other version. The only version of the - prior to editing as we now call it - I had never seen that at all other than from being sent from the ...

   Q.    So you never entertained a doubt, at that time, on the issue of whether you may have edited the post.

   A.    No, not at the time, no.

   Q.    Well, didn’t you say to his Honour at p.341 transcript, when I asked you this ‘Q. When did you come to realisation that it appears that you did edit the post. A. Initially upon return back to Australia, probably about a week after I thought maybe I did.’  Was that your evidence to his Honour.

   A.    I may have said that because I was confused as to how someone could get into my account and how it could be changed.

   Q.    But a moment ago I asked you whether you had been in any doubt at this earlier point in time and you said you hadn’t been in any doubt.

   A.    The doubt was, how could someone hack my account. I mean, looking at the facts, it’s nearly impossible to argue what I’ve been arguing from day one because I didn’t know about the editing. So I didn’t know that a post could be there and someone could edit it and it’ll be stuck there. And the only way it could have been done is if someone hacked my account and deliberately changed wording which, to me, weren’t defamatory anyway. So it didn’t make sense, that was all. So I did question it, yes I questioned it with myself, I’ve questioned it sense [sic since].

   Q.    You accepted in your evidence, on about day 4 of the trial, that you had made the 25 November post, or that you must have made the 25 November post, because by that stage you’d realised that it was ridiculous to maintain any other position, isn’t that the case.

   A.    Not a chance.

8. In the course of his further remarks in closing address, counsel for the plaintiff said this:

   In my submission, he gave the answers that he gave because it had become inevitable that there was - based on the evidence that there was no other possible rational hypothesis other than that he made the 25 November post and he edited the 2 December - he edited the post on 2 December. And the expert evidence and the timeline makes any other conclusion, in my submission, entirely fanciful and nonsensical because what it really attributes to an unknown party is the following sequence of events.

   That Mr Aldridge came up with a form of post with which he was happy. He, at some point made that post onto his Facebook page. Someone else then hacked into his Facebook page, deleted the post, reposted a very similar post but with three or four alterations at or around the sound time that - almost instantaneously after he had made his original post.

   Then, of course, Mr Aldridge accepts that he commented on this post on the 25th, the 26th, the 27th so he commented on the post without noticing that there had been this bizarre subtle fraud perpetuated upon him, then he receives the email from the plaintiff’s solicitors in Bali and low and behold within an hour or so of the email landing on his screen, someone edits the posts back to the original form in which he had made it, for reasons which, in my respectful submission, are simply ridiculous to fathom.

   …

   So quite apart from issues of credit, there are just simply no logic in the notion. What is the motive of someone who would edit Mr Aldridge’s posts in a way that on his version of events actually happens to reflect his views but is just slightly more extreme than he expressed them, wreaking havoc on the plaintiff’s reputation, what would be the motive all to run a defamation case. So someone is seeking to either hurt Mr Aldridge by subtly altering his posts, even though he had said similarly extreme things himself in the earlier posts and comments and then altering it back. It just doesn’t fit with the logic or the experience of how humans behave and there was no suggestion to the plaintiff that he embarked on this scheme. It just defies belief that really anyone would. It’s just the most elaborate and bizarre scheme imaginable. So the inherent logic of events and the evidence shows that there was only ever two relevant activities, there was the original post and then the edit.

   The overwhelming likelihood is that Mr Aldridge made the edit because it was hot on the heels of him receiving the email from the plaintiff’s solicitors and instead of confessing the edit because he wasn’t aware that there was an edit history saved, he asserted in an email back to the plaintiff’s solicitors that he suspected that someone else was responsible, namely the people running the George and Ben’s page, boycott George and Ben’s page.

9. The Judge then gave Aldridge the opportunity to further address in response to the further address of counsel. Aldridge’s address concluded thus:

   MR ALDRIDGE:  So, looking at the evidence that was before me in those pages found between 214 and 240, it was of my belief that I had to admit to something that I could not recall doing and that certain evidence prompted me to believe that my memory was correct on those issues. So, it’s made very awkward when I was giving evidence to avoid giving evidence that I believed I hadn’t written the post, which is what I thought I had to do and that was my belief at the time and that did undermine my credibility and that was something that’s very important to me in this case. The evidence led me to believe that I had to think one thing and possibly say another and that’s why the terminology that I used in saying things like ‘I must have’ and ‘I might have’ and ‘I could have’ were not how I would have liked to have answered those questions but I’ll leave that at that.

10. The trial concluded on 23 May 2017 and judgment was reserved.

    The application to re-open the evidence after the trial (Grd 3.16)

11. 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.

12. 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

13. The Judge correctly stated that the materiality of the hacking screenshots depended upon the extent to which they made it more probable that the relevant words were published by a hacker.[25] His Honour noted the fact that the only evidence that there ever was a hacker came from Aldridge,[26] and ultimately concluded that the screenshots established no more than that Barton, and probably others, hold Aldridge in low-esteem.[27] I agree with his Honour’s conclusion that the screenshots did not tend to establish that Aldridge had been hacked.

    [25] [2018] SADC 68, [154].

    [26] [2018] SADC 68, [155].

    [27] [2018] SADC 68, [156].

    The activity log screenshot

1. Ground 3.10 complains that the Judge erred in finding the appellant liable for secondary publication.

2. In the law of defamation, it is not the creation of the defamatory matter but its publication that founds the cause of action. Publication occurs when the defamatory matter is communicated to some person other than the plaintiff.[55] A person can be held liable as a primary or a secondary publisher, with the law supplying different criteria by which such categories of publisher are identified.

   [55] Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575, 600 (Gleeson CJ, McHugh, Gummow and Hayne JJ); Patrick George, Defamation Law in Australia (LexisNexis Butterworths, 3^rd ed, 2017) 133 [7.1].

3. In Duffy v Google Inc, the trial Judge (Blue J) addressed two matters of importance to the present context. The first matter was the distinction between primary and secondary publishers, as to which his Honour stated:[56]

   170. At common law, a distinction is drawn between a primary or principal participant and a secondary or subordinate participant. A primary participant is liable for a publication regardless of whether she or he knows or ought to know of the defamatory matter within the work. A secondary participant is not liable for a publication if he or she did not know and could not with the exercise of reasonable diligence have known of the defamatory matter. [Citations omitted]

   [56] (2015) 125 SASR 437, 475.

4. His Honour continued:[57]

   237. Under the secondary publisher doctrine, a secondary participant is not liable for a publication if he or she did not know, and could not with the exercise of reasonable diligence have known, of the defamatory matter. The onus of proof lies on the secondary publisher to prove no actual or constructive knowledge of the defamatory matter.

   [57] (2015) 125 SASR 437, 501. See also the later case of Duffy v Google LLC [2019] SASC 157, [44] (Blue J).

5. On appeal to the Full Court in Google Inc v Duffy, as to this first matter, Kourakis CJ (with whom Peek J and Hinton J agreed on this issue) endorsed this approach. His Honour stated that defamation includes the requirements that (1) the defendant participates in the publication of defamatory material and (2) that the defendant “does so knowing that the work contains the defamatory material”.[58] As to this latter requirement, his Honour agreed that knowledge is presumed in the case of a primary publisher but that knowledge “may be rebutted by a secondary participant who does not know and could not reasonably have known of the presence of the material”.[59] His Honour continued:[60]

   Irrespective of whether lack of knowledge is expressed as a standalone defence or an element of the liability of a secondary participant, the defendant carries the onus of establishing that it did not know, or could not reasonably have known, that the publication contained the defamatory statement. It is more consistent with the historic irrebuttable presumption of malice to hold a secondary participant liable for all of the contents of the publication, without requiring the plaintiff to prove that the defendant knew, or ought to have known, that the work contained the defamatory words or symbols. However, the defence of innocent dissemination may be established by showing both that participation in the publication is secondary and that the participant’s ignorance of the defamatory material was not negligent.

   [58] Google Inc v Duffy (2017) 129 SASR 304, 336 [102].

   [59] Google Inc v Duffy (2017) 129 SASR 304, 336 [102].

   [60] Google Inc v Duffy (2017) 129 SASR 304, 336 [103].

6. The second matter addressed by Blue J was the test to be applied in determining whether a person is properly characterised as a secondary publisher. His Honour stated:[61]

   184. I reject Google’s contention that a defendant can only ever be a publisher if the defendant authorises or accepts responsibility for the publication. Such a test is apposite when the defamatory matter is physically attached to the defendant’s property without the defendant’s knowledge or permission, although in that case a better formulation of the test may be whether the defendant has acquiesced in the defamatory matter remaining on the defendant’s property knowing that it will be seen by others. The posited test is not apposite when the defamatory matter is disseminated by the defendant itself and is inconsistent with the innocent dissemination doctrine. The appropriate test remains whether the defendant has participated in the publication. I agree with the decisions to this effect of Morland J in Godfrey v Demon Internet Ltd, Beach J in Trkulja v Google Inc LLC (No 5), the Hong Kong Court of Final Appeal in Oriental Press Group Ltd v Fevaworks Solutions Ltd and (subject to the issue of actual v constructive knowledge) the New Zealand Court of Appeal in Murray v Wishart. [Citations omitted]

   [61] (2015) 125 SASR 437, 480–481 [184].

7. As to this second matter, Kourakis CJ in Google Inc v Duffy confirmed that “[i]t is not necessary in order to prove an intentional act of publication that [the defendant] had knowledge of or adopted, in any sense, the content of” the relevant publication. His Honour agreed that the test to be applied was as stated by Blue J.[62]

   [62] Google Inc v Duffy (2017) 129 SASR 304, 352 [156] (Kourakis CJ).

8. The recent decision in Voller v Nationwide News Pty Ltd[63] provides an example of the application of the above principles. In that case, the plaintiff commenced proceedings against three news publication entities and complained in essence of comments published in response to articles published by the three defendants on their respective Facebook pages. The Court heard evidence which tended to show that the respective Facebook pages were publishing a number of posts per day; were receiving thousands of comments in relation to those various posts which were published as early as the following day; and that it was difficult to monitor every single comment received in response to a post.

   [63] [2019] NSWSC 766.

9. Rothman J found that each defendant was a publisher.[64] His Honour referred extensively to the analysis in Google Inc v Duffy and Oriental Press Group Ltd v Fevaworks Solutions Ltd.[65] His Honour concluded that the media companies were primary publishers of the comments which appeared on the posts and stated:[66]

   209. … [T]he media companies’ use of a public Facebook page is about their own commercial interests. As already indicated, the primary purpose of the operation of the public Facebook page is to optimise readership of the newspaper (whether hardcopy or digital) or broadcast and to optimise advertising revenue. The exchange of ideas on the public Facebook page is a mechanism (or one of the mechanisms) by which that is achieved.

   210. Moreover, as the prior discussion on first principles explains, it is not the compiling of a comment that gives rise to damages in defamation; it is its publication. Where a third-party user comments on the relevant public Facebook page, that is the first time that the comment is in “comprehensible form” to the vast bulk of readers and it is from that publication that the comment is downloaded onto the computer of the person who is gaining access to the public Facebook page.

   211. Moreover, it is the comment’s presence on the public Facebook page, which allows all third-party users to gain access. If the comment were made on the commentator’s own private Facebook page, only her or his friends would view it and probably none of them would look for it or find it.

   [64] Voller v Nationwide News Pty Ltd [2019] NSWSC 766, [190].

   [65] (2013) 16 HKCFAR 366.

   [66] Voller v Nationwide News Pty Ltd [2019] NSWSC 766.

10. His Honour later continued:[67]

    223. Here, on the evidence before the Court, each defendant had the means effectively to delay the publication of the third-party comments and to monitor whether any were defamatory, before releasing them to the general readership.

    224.  Each defendant was not merely a conduit of the comment. It provided the forum for its publication and encouraged, for its own commercial purposes, the publication of comments.

    …

    227. … [T]he defendant in each of the proceedings is, in relation to the general readership, in the position where “they know or can be expected easily to find out the content of the articles being published and … are able to control that content, if necessary preventing the article’s publication” before its publication to the general readership: Oriental Press at [75]. This assumes the capacity to hide all comments on these particular postings and to monitor those comments and “un-hide” acceptable ones.

    228. In conclusion, the Court, as presently constituted, is satisfied, on the balance of probabilities, that the defendant media company in each proceeding is a first or primary publisher, in relation to the general readership of the Facebook page it operates. As a consequence of that classification, the defence of innocent dissemination would not arise. That latter aspect is not, strictly, necessary to answer the question that has been posed.

    [67] Voller v Nationwide News Pty Ltd [2019] NSWSC 766.

11. 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

12. 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.

13. 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”.

14. 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.

15. 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.

16. Thirdly, the copy of the first subject post tendered in evidence (Exhibit P13) demonstrated that there were a number of comments responding to it which were posted by the Aldridge Facebook page itself. Under cross-examination, Aldridge accepted that a number of those comments, ranging from 25 November 2015 to 27 November 2015, had been made by him personally.

17. Fourthly, Aldridge gave evidence that his wife was monitoring the influx of comments and that she informed him that they “were streaming like a video”.

18. I conclude that Aldridge did know about the existence of the comments on the first subject post (and in any event, would have known with the exercise of reasonable diligence). I am fortified in that conclusion by the fact that he added comments of his own. As Rothman J said in Voller, Aldridge “was not merely a conduit for the comment[s]”; he “provided the forum for [their] publication and encouraged” such contributions for his own commercial purposes.

19. The above is made all the more obvious by the specific words Aldridge chose in concluding the first subject post, requesting readers to spread the post and to “include your words of support … and even letting Ben Johnston and his supporters know how you feel”. He suggested that readers do so “by phone, email or boycotting their businesses”. He simply cannot reasonably claim to be ignorant of the fact that many of the readers did (or were likely to) post comments on the first subject post itself.

20. And nor can Aldridge seek to set up the large volume of comments that were generated as some sort of excuse for not managing them. He was the administrator of a public Facebook page and had encouraged a great deal of discussion; it was up to him to delete inappropriate posts, partly or in their entirety. I reject Ground 3.10 of Appeal.

    Application of defence of extended qualified privilege to secondary publications? (Grd 3.11)

21. Ground 3.11 asserts that the judge erred in failing to find that any secondary publication was subject to extended qualified privilege.

22. At trial, Aldridge did not seek to rely on the extended common law defence of qualified privilege in relation to secondary publication. Appellate Courts have long deprecated the allowing of a litigant (particularly in the civil jurisdiction) to raise a matter on appeal that he or she has failed to rely on at trial. In Australian Civil Procedure Cairns states:[69]

    18.360 Parties are normally bound by the course taken at trial. Although there are some exceptions, points of law and submissions not put forward at first instance cannot be taken for the first time on appeal. This is especially so when evidence relevant to the new point could have been given at the trial if it had been raised. Confining parties to the course they adopted at the trial is based on the policy that trials should bring litigation to finality. Points cannot be reserved for tactical reasons to promote success at an appeal: Coulton v Holcombe (1986) 162 CLR 1.

    [69] Bernard Cairns, Australian Civil Procedure (Thomson Reuters Lawbook Co, 11th ed, 2016) 776.

23. I consider that there is ample reason to refuse to allow Aldridge to rely on the defence in the present circumstances. First, he had the opportunity to be heard by both Judge Slattery and Judge Brebner on applications to amend his Defence. On neither of those occasions did Aldridge seek to rely on the extended common law defence of qualified privilege in relation to the secondary publication. Secondly, the omission to plead the extended defence was specifically drawn to his attention by counsel for Johnston in both opening and closing submissions; at paragraph 89 of his closing submissions, counsel for Johnston observed in unequivocal terms that the extended common law defence “is raised in relation to the two posts, but not the comments” (emphasis added). If Aldridge had wished to avail himself of this defence in relation to the comments, he should have ventilated that matter before the trial Judge. 

24. In any event, any attempt to rely on the extended defence in relation to the comments is fraught with problems for the reasons identified above at

    
    

    [141]–[143]; the primary communication did not attract the extended defence and therefore comments responsive to it cannot be properly characterised as part of the process of discourse about political matters. Rather, they were merely vitriolic comments and opinions about the ERD Court action and Johnston. I reject Ground 3.11 of Appeal.

    PART 7: GROUNDS OF APPEAL ON DAMAGES (Grds 3.12, 3.13 & 3.14)

25. Grounds 3.12, 3.13 and 3.14 are:

    3.12The award of damages was manifestly excessive.

    3.13The award of aggravated damages was manifestly excessive.

    3.14The learned trial judge failed to reduce the damages by virtue of the conduct of the plaintiff.

    General principles related to awards of damages in defamation matters

26. There are three purposes to be served by the awarding of damages, namely “consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant’s personal and (if relevant) business reputation and vindication of the [person’s] reputation”.[70] The amount of damages awarded is to be considered as “the demonstrative mark of that vindication”.[71] In this regard, the Court is to award an amount of damages sufficient to vindicate the plaintiff’s reputation in the relevant respect in the past, present and the future.[72]

    [70] Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, 60 (Mason CJ, Deane, Dawson and Gaudron JJ).

    [71] Associated Newspapers Ltd v Dingle [1964] AC 371, 396 (Lord Radcliffe); Cornes v Ten Group Pty Ltd & Ors (2011) 114 SASR 1, 34 [122] (Peek J).

    [72] Broome v Cassell & Co Ltd [1972] AC 1027, 1071 (Lord Hailsham); Cornes v Ten Group Pty Ltd & Ors (2011) 114 SASR 1, 34–35 [125] (Peek J).

27. Matters of importance to be borne in mind when awarding damages include “the gravity of the imputation, the prominence of the publication, the position and reputation of the plaintiff and the extent of the injury to his reputation and feelings”.[73] In Ali v Nationwide News Pty Ltd Tobias and McColl JJA stated:[74]

    76. In assessing damages the tribunal of fact is entitled to take into consideration “the mode and extent of the publication, that the defamatory statement was never retracted, that no apology was ever offered to the respondent, and that the statement had been persisted in to the end”. Such circumstances might in the opinion of that tribunal “increase the area of publication and the effect of the libel on those who had read it or who would thereafter read it, might extend its vitality and capability of causing injury to the plaintiff”: Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254 at 263 per Knox CJ, Gavan and Starke JJ. The assessment of damages involves an understanding of the nature and seriousness of the imputations and the defendants’ conduct: see Coyne v Citizen Finance Ltd [1991] HCA 10; (1991) 172 CLR 211 at 241.

    [73] John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131, 141–142 (McHugh J).

    [74] [2008] NSWCA 183, [76].

28. The process of awarding damages is discretionary and does not permit of strict guidelines or limitations on the exercise of that discretion.[75] However, it is be informed by well accepted principles.

    [75] Google Inc v Duffy (2017) 129 SASR 304, 397 [330] (Kourakis CJ).

    Asserted manifest excess (Grd 3.12)

1. In Rogers v Nationwide New Pty Ltd Hayne J discussed the ground of manifest excess in defamation damages awards thus:[76]

   62. A contention that an award of damages is manifestly excessive invokes the last of the bases for appellate review of an exercise of discretion identified in House v The King. If manifest excess is alleged, it is not said that a specific error of principle or fact can be identified. Rather, the contention that damages are manifestly excessive alleges that the result at which the primary judge arrived is evidently wrong and that, although the nature of the error made may not be discoverable, there must have been a failure to properly exercise the discretion in fixing the amount to be awarded.

   63. This method of reasoning necessarily assumes that there is a standard against which excess can be judged. Identification of that standard does not require precise specification of the range of results within which a proper exercise of discretion might be bounded. It will usually be impossible to set such bounds precisely. Nonetheless, the standard must be capable of identification with sufficient precision to say whether a particular result clearly departs from it.

   64. It is important to emphasise, however, that the task of an appellate court asked to set aside an award of damages as manifestly excessive is not simply mathematical. The appellate court does not begin by identifying the damages which it would have allowed and then, applying some margin for difference of view, observe the mathematical relationship between the award made and the figure it would have awarded. Rather, the question for the appellate court is whether the result at which the trial judge arrived bespeaks error. What must be identified is manifest excess, not just excess.

   65. When trial by jury was common and damages for defamation were assessed by a jury, it was said that damages for defamation “cannot be measured by any standard known to the law”. It was often said that the damages were “at large”. Even so, the verdict of a jury was not immune from appellate review. In Triggell v Pheeney, it was held that the determinative question on appeal was whether “the amount [was] such that no reasonable body of men could have awarded it”. The similarity between that test and the last of the bases for appellate review identified in House v The King is evident. But as Windeyer J demonstrated in Australian Iron and Steel Ltd v Greenwood, there are relevant differences between appellate review of jury verdicts and appellate review of judicial assessments of damages. It is not necessary to examine those differences.

   66. In searching for the standard against which manifest excess of an award of damages for defamation can be judged, account must be taken of three basic propositions. First, damage to reputation is not a commodity having a market value. Reputation and money are in that sense incommensurable. Secondly, comparisons between awards for defamation are difficult. Every defamation, and every award of damages for defamation, is necessarily unique. Thirdly, because the available remedy is damages, courts can and must have regard to what is allowed as damages for other kinds of non-pecuniary injury. It is necessary to say something about each of these propositions. [Citations omitted] [Original emphasis]

   [76] (2003) 216 CLR 327, 348-349. This passage was cited with approval in Plenty v Dickson (2009) 260 LSJS 298 by Gray J.

2. In Fairfax Media Publications Pty Ltd v Pedavoli, McColl JA stated:[77]

   21. A challenge to an award of damages as manifestly excessive means the appellants do not identify “a specific error of principle or fact”; rather they contend that the sum awarded “is evidently wrong”, such that the primary judge must have failed “properly to exercise [her] discretion in fixing the amount to be awarded”. The question for this court is whether the primary judge’s award “bespeaks error”.

   22. If an appellate court is convinced, not that in its own view the amount awarded is too high or too low, but that the amount awarded is so high or so low that it is outside the range of what could reasonably be regarded as appropriate to the circumstances of the case, it should intervene to prevent a miscarriage of justice.[78] [Citations omitted] [Original emphasis]

   [77] (2015) 91 NSWLR 485, 490.

   [78] Carson at 61-62 (Mason CJ, Deane, Dawson and Gaudron JJ).

3. And in Google Inc v Duffy, Kourakis CJ (with whom Peek J and Hinton J agreed on this issue) said:[79]

   330. The quantification of damages is a discretionary exercise. On appeal, this Court cannot interfere with that exercise of discretion on the ground only that it would have awarded a higher amount than the judge.

   [79] (2017) 129 SASR 304, 397 [330].

4. The Judge identified that the posts had reached a significant audience. His Honour considered that the first and second imputations were serious and that the third imputation, connoting a suggestion of potentially criminal conduct, was “plainly serious”. His Honour was entitled to take that view and reach the conclusion that he did. The amount of $100,000 awarded was not manifestly excessive and this is so irrespective of the fact that part of that amount was referable to an award of aggravated damages. I reject Ground 3.12 of Appeal.

   Aggravated damages (Grd 3.13)

5. Under Ground 3.13, the appellant does not suggest that it was not open to the Judge to make an award for aggravated damages but rather he complains that the Judge made a single award inclusive of aggravated damages. However, this is well justified by authority. In Carson v John Fairfax & Sons Ltd, Brennan J stated:[80]

   Damages may be aggravated or mitigated by the manner in which the defamatory matter was published and by the subsequent conduct of the defendant. Conduct of the defendant from the time of publication until verdict (including conduct at the trial, to which reference will presently be made) is relevant. …

   Evidence of the defendant’s conduct is therefore relevant and admissible on the issue of compensatory damages, whether or not it tends to prove malice, but only so far as that conduct exacerbates or ameliorates the consequences of the original publication or the plaintiff’s injured feelings.

   Damages by way of vindication of reputation are not added to the damages assessed under other heads. Although an award of damages operates “as a vindication of the plaintiff to the public and as consolation to him for a wrong done”, as Windeyer J. said, the dual operation of an award does not require cumulative components of damages. The same sum can operate as vindication, compensation and solatium, for “the amount of a verdict is the product of a mixture of inextricable considerations”. The amount assessed under other heads may itself be sufficient in aggregate to provide the vindication required. The extent of the overlap depends on the circumstances. But the award in total must be sufficient to satisfy the purposes for which damages for defamation are awarded: vindication of reputation, compensation for injury to reputation and solatium for injured feelings. [Citations omitted]

   [80] (1993) 178 CLR 44, 71–72.

6. In Herald & Weekly Times Ltd & Anor v Popovic,[81] the Victorian Court of Appeal (Gillard AJA with whom Winneke ACJ and Warren AJA relevantly concurred) followed Carson, stating: “The amount awarded for aggravated damages is not a discrete head of damages. The tribunal determining the compensatory damages includes the amount for aggravated damages in the sum awarded”.

   [81] (2003) 9 VR 1, 77 [385] (Gillard AJA).

7. In Lower Murray Urban and Rural Water Corporation v Di Masi, the Victorian Court of Appeal (Warren CJ, Tate and Beach JJA) followed Carson and Popovic, and stated:[82]

   116. … Consistently with authority, the judge did not break down his awards into components for pure compensatory damages and aggravated compensatory damages. Having regard to the state of the authorities, this was an appropriate course for the judge to take. [Citation omitted]

   [82] (2014) 43 VR 348, 392 [116].

8. Most recently in Bauer Media Pty Ltd v Wilson (No 2), the Court (Tate, Beach and Ashley JJA) followed the above authorities and stated:[83]

   144. Consistently with earlier authorities, the judge did not break down his award of damages for non-economic loss into amounts for pure compensatory damages and aggravated compensatory damages. …

   225. Aggravated damages are a form of compensatory damages, where the conduct of the defendant exacerbates or increases the subjective hurt of the plaintiff; they are ‘given to compensate the plaintiff when the harm done ... by a wrongful act was aggravated by the manner in which the act was done’. The award of compensatory damages, including aggravated damages, ‘is the product of a mixture of inextricable considerations’. 

   226. The language of s 35(2) does not mandate expressly, nor by necessary implication, that aggravated damages are to be awarded as a separate sum. We consider that to construe s 35(2) as assuming, or imposing a requirement, that aggravated damages will be so awarded is too large an intervention in the approach to compensatory damages to be introduced by a side-wind. … [Citations omitted]

   [83] (2018) 56 VR 674, 703, 726.

9. The Judge’s determination to make one award of damages inclusive of aggravated damages was clearly consistent with authority and permissible.

   The Judge’s refusal to reduce the damages by reason of the plaintiff’s conduct (Grd 3.14)

10. Aldridge complains of the Judge’s refusal to reduce the quantum of damages by reason of Johnston’s conduct. There is no merit in this contention. The Judge’s findings clearly indicate that he was of the view that Aldridge’s conduct had been the sole cause of the harm to Johnston. I agree. I reject Ground 3.14 of Appeal.

    Assertion of a finding of malice (Grd 3.15)

11. Ground 3.15 complains that the Judge erred in making findings of malice against the appellant. In fact, the Judge made no such express finding. The findings which his Honour made in relation to Aldridge’s conduct were directed to the question of aggravation, and those findings were well-founded on the evidence. I reject Ground 3.15 of Appeal.

    Application to plead “response to attack” defence - Order sought 2.3

12. The third Notice of Appeal seeks an order that Aldridge be given leave to amend his defence to plead “response to attack”. There is no corresponding Ground of Appeal to this effect.

13. There were numerous occasions on which Aldridge could have applied to amend his defence to rely on response to attack but failed to do so. First, when Aldridge sought to amend his defence at the interlocutory application before Judge Slattery, Aldridge made no mention of a wish to amend so as to rely on response to attack. Indeed, counsel for Johnston submitted at that hearing:

    In relation to para.14(b) there is reference there to the notion of qualified privilege but that is an inadequate pleading of a defence of qualified privilege. If it is intended to invoke a species of qualified privilege that may arise where one person is responding to the attack of another, one must first of all plead in very clear terms the circumstances of the attack and we have here only a generalised reference to posts and media statements by the applicant so there’s an inadequate factual foundation for the pleading.

14. Judge Slattery specifically referred to the absence of any such pleading thus:[84]

    45. Staying for the moment with proposed paragraph 14b and what purports to be a pleading of qualified privilege there is no suggestion, expressly or impliedly that the posts and media statements of the plaintiff in any sense attack the position of the defendant personally. If that were the case, it would be necessary for the defendant to properly plead the factual circumstances surrounding the alleged attack and there is no pleading of that nature in the proposed subparagraph. It would then be necessary to properly plead the basis for what is alleged to be the occasion of qualified privilege and to comply with s 28 of the Defamation Act. [Emphasis added]

    [84] Johnston v Aldridge [2017] SADC 70.

15. Despite that omission being explained to Aldridge in unequivocal terms, he stated in his written submissions at trial: “The defence appears to be based around qualified privilege, which the defendant hopes will extend to encompass all aspects of privilege, including a reply to an attack”. That submission recognises that his Defence did not plead that defence. At trial, counsel for Johnston stated:

    I want to take up one or two matters raised in the defendant’s proposed outline of opening because it will be our submission to your Honour that they appear to foreshadow defences that are not pleaded. What’s more, they appear to ignore the ruling that Judge Slattery made in this court on 11 April this year. The defendant applied to amend his defence to introduce a particular species of qualified privilege relating to a response to attack and Judge Slattery refused the application after a lengthy hearing and it would be my submission that the defendant appears to be proposing to ignore that ruling and it will be relevant for me to raise it because if there’s cross-examination of my witnesses that could only be relevant to those topics, I will be objecting and it might be better that I explain the basis of that before witnesses are called.

16. Aldridge was thus clearly on notice of Johnston’s intention to object to the course proposed in his written submissions. Aldridge later disavowed any reliance on response to attack during the examination-in-chief of Aldridge’s witness, Cook, in the following exchange:

    MR DOYLE: I didn’t want to interrupt the witness but I will ultimately be objecting to that being relied in the case of a response to attack. I thought I should make my position [sic clear].

    HIS HONOUR: Yes.

    MR ALDRIDGE: I don’t intend to bring up a defence to an attack, your Honour. [Emphasis added]

17. That remained the position until the end of the trial. In his judgment, the Judge specifically referred to Aldridge not pleading response to attack thus:[85]

    The plaintiff pleaded that the first post and the comments carried the imputations that he was a selfish greedy man of contemptable character and he pleads that the second post carried the further imputation that he had made, or was involved in, threats to rape or kill.  He pleads that all three imputations are defamatory.  In response the defendant pleaded that he did not publish the first post in the terms alleged, that he carried no responsibility for the comments and that the relevant passage of the second post was not of, or concerning, the plaintiff.  He also raised the defences of fair and accurate report of judicial proceedings and extended qualified privilege in relation to each post.  He does not plead response to attack. 

    [85] Johnston v Aldridge [2018] SADC 68, [2].

18. 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

19. I would dismiss the appeal in relation to both liability and quantum.

20. HUGHES J:  I would dismiss the appeal for the reasons given by Peek J.