Slater v Ecosol Pty Ltd

This matter concerned an application by Mr Slater to adduce fresh evidence on appeal against a decision of Blue J in the Supreme Court of South Australia. The original proceedings involved a defamation claim brought by Mr Slater against Ecosol Pty Ltd. Blue J had found that most of Ecosol's publications were defamatory, but that Ecosol had established a defence of common law qualified privilege, and that Mr Slater had failed to establish malice in response to that defence. Mr Slater sought to rely on a subsequent costs judgment, transcripts of evidence relating to an invoice, a record of outcome, and email correspondence concerning legal invoices, all of which he contended were relevant to his malice argument.

The primary legal issue before the court was whether the fresh evidence sought to be adduced by Mr Slater was admissible on appeal. This required consideration of the principles governing the admission of further evidence on appeal, particularly evidence that was not available at the original hearing and its relevance to the issue of malice. Mr Slater argued that this new material demonstrated that the original finding of no malice was predominantly based on the credibility of Mr Smith, and that the subsequent material cast doubt on that credibility.

The court dismissed Mr Slater's application to adduce fresh evidence. It reasoned that the proposed evidence, relating to a costs judgment and legal invoices, was not of a nature that would likely alter the outcome of the appeal. The court noted that the original judge had found Mr Smith to be an honest witness, despite some argumentative and evasive tendencies, and that the grounds for suspicion regarding the sale of the business, which Mr Slater relied upon, had been traversed in the primary judgment. The court found that the subsequent material did not provide a sufficient basis to overturn the original findings on malice, particularly in light of the evidence given by Mr Smith and other directors, who were found to have acted in Ecosol's best interests.

The court made several orders. It dismissed the application to adduce fresh evidence and the application to file a Notice of Alternative Contention. It also dismissed an application concerning distributions to shareholders, conditional upon an undertaking by Ecosol not to make any distributions until the appeal was finalised. Finally, the court dismissed the application concerning the manner in which Ecosol would conduct its response to the appeal.