Social Media Post Re-Opens Court Proceedings

The Chief Justice of the Supreme Court of WA in Jensen v Nationwide News Pty Ltd [No 12] [2019] WASC 250 considered the question of when the Court will exercise its discretion to re-open proceedings after the conclusion of a trial, especially in the context of evidence coming to light shortly after the trial. 

Chief Justice Quinlan allowed proceedings to be re-opened after the plaintiff posted a Facebook comment the day after the conclusion of closing submissions.

The Facts

Former Federal MP Dennis Jensen (Dr Jensen) brought an action against Nationwide News Pty Ltd (Nationwide News) and a journalist relating to two articles which were published in The Australian newspaper and website over two days in 2016, which were about his private life, and which Dr Jensen alleged were defamatory. The trial was heard from 8 May 2019 to 25 May 2019 in relation to defences pleaded by the defendants to a number of alleged defamatory imputations, and the assessment of the quantum of damages (if any) that may be payable to Dr Jensen in respect of those imputations.  At the conclusion of the trial, the Chief Justice reserved his decision.

On 25 May 2019, the day after closing submissions in the trial had concluded, Dr Jensen posted a public Facebook post, saying to his friend:

Have finally managed to secure work through a contact of mine from nearly 40 years ago.

(Facebook post)

The defendants applied to re-open proceedings so they could cross-examine Dr Jensen in relation to the Facebook post, submitting that the statement made by Dr Jensen was relevant to the evidence he gave at trial as to his prospects of employment following the defamatory imputations, and was therefore relevant to his claim for economic loss. 

Decision

In coming to his decision, Quinlan CJ examined the leading cases which deal with the Court’s discretion in relation to an application to re-open.  Notably, in Osborne v Landpower Developments Pty Ltd [2003] WASCA 117 [12]–[14], the following propositions were stated:

1. it is relevant to inquire why the evidence was not called at the hearing – if there was a deliberate decision not to call it, the application will usually be dismissed;
2. if that hurdle is passed, different considerations will apply depending on whether judgment has been delivered. If judgment has not been delivered, the primary consideration should be prejudice to the other side.  If judgment has been delivered, the court of appeal rules relating to fresh evidence provide a useful guide;
3. the rules relating to fresh evidence on appeal are that the appellant needs to show that there was a real possibility that the further evidence would have produced a different result if it had been admitted, and that the further evidence would not have been available at the original hearing by the exercise of reasonable diligence; and
4. a less stringent test would apply when leave to re-open is sought before reasons are delivered and orders made. Relevant factors include the materiality of the evidence and whether the interests of justice would be advanced by its admission.

Whilst the Chief Justice stated that the application raised a finely balanced matter of discretion, his Honour concluded that it was in the interests of justice to allow the defendants to reopen for the purposes of the limited cross-examination that had been identified.  He came to this conclusion because:

1. whilst there was not a significant amount of cross-examination of Dr Jensen concerning his future prospects of employment during the trial, he acknowledged there may have been more extensive cross-examination if a more certain prospect of future employment had been evident;
2. given the proximity of the Facebook post to the trial, it was reasonable that some explanation be given and subject to cross-examination;
3. a decision and reasons had not yet been given, and given the limited scope of the further evidence that was sought to be adduced, it would not cause any further delay in the preparation of reasons;
4. the application clearly related to a matter that could not have been the subject of prior knowledge by the defendants; and
5. the matter could be dealt with relatively quickly, with no further interlocutory steps required.

Whilst the Chief Justice accepted that there was a general prejudice to Dr Jensen, he noted that the prejudice was limited, and would not affect the ultimate timing of the outcome of the matter.  As such, any prejudice did not outweigh the interests of the defendants to have the opportunity to cross-examine in relation to the Facebook post.  His Honour stated that the defendants’ success on this application should be regarded as something of an indulgence to the defendants, so the defendants were ordered to pay the costs of the application to re-open.

Lavan Comment

The question of whether a proceeding can be re-opened once a trial has concluded is complex and depends on several factors, and this decision illustrates the risks associated with the use of social media, particularly in circumstances where a judgment is yet to be delivered and comments posted might affect the outcome of a trial.

If you require advice about any dispute or potential litigation, please contact Lavan’s Litigation and Dispute Resolution team.