Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Feldman v Nationwide News Pty Ltd & Ors [2020] NSWCA 200 Hearing dates: 25 August 2020 Date of orders: 25 August 2020 Decision date: 25 August 2020 Before: White JA Decision: 1. Give leave to the appellant to file a further amended notice of appeal in the form of Annexure E to the affidavit of Brigitte Simeonides of 20 August 2020, save for the addition of the words "and 4 (the SBS proceedings)" so that ground 6 finishes with a full stop after "News 1". 2. Order that the appellant pay the respondents' costs of and incidental to the notice of motion filed 21 August 2020. Catchwords: CIVIL PROCEDURE – Application for leave to further amend notice of appeal – Whether new issues raised by the proposed amendments – Whether respondents prejudiced by proposed amendments – no issue of principle Legislation Cited: Civil Procedure Act 2005 (NSW), Pt 6 Defamation Act 2005 (NSW), ss 25, 29 Evidence Act 1995 (NSW), s 135 Royal Commissions Act 1902 (Cth), s 6DD Cases Cited: Feldman v Nationwide News Pty Ltd & Ors; Feldman v Nationwide News Pty Ltd & Ors; Feldman v Nationwide News Pty Ltd & Ors; Feldman v Special Broadcasting Corporation [2020] NSWSC 26 Category: Procedural and other rulings Parties: Yosef Yitzchak Feldman (Applicant) Nationwide News Pty Ltd (First Respondent) Herald & Weekly Times Pty Ltd (Second Respondent) Special Broadcasting Service Corporation (Third Respondent) Representation: Counsel: J Cohen (Applicant) L Barnett (Respondents) Solicitors: Brigitte Simeonides & Associates (Applicant) M&K Lawyers Group Pty Ltd (Respondents) File Number(s): 2020/57569 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Choose an item. Judgment 1. WHITE JA: On 31 January 2020 Campbell J gave judgment for the defendants in four defamation proceedings brought by the appellant, Rabbi Feldman (Feldman v Nationwide News Pty Ltd & Ors; Feldman v Nationwide News Pty Ltd & Ors; Feldman v Nationwide News Pty Ltd & Ors; Feldman v Special Broadcasting Corporation [2020] NSWSC 26). Three of those proceedings were brought against Nationwide News Pty Ltd and one against Special Broadcasting Corporation ("SBS"). The News 1 proceeding concerned four publications (exhibits A-D) made between 6 and 11 February 2015. The News 2 proceeding concerned two publications (exhibits E and F) of 19 and 20 September 2015. The News 3 proceeding concerned a publication on 30 January 2016 (exhibit G). The SBS proceeding concerned a publication (exhibit H) on 6 February 2015 (Judgment [8]). 2. The defendants (respondents to the appeal) had and have common legal representation. The defendants accepted that exhibits A-D the subject of the News 1 proceeding, and exhibit H the subject of the SBS proceeding, conveyed the pleaded imputations (a) and (n) respectively, namely that the appellant was reprehensively ignorant or displayed reprehensible ignorance of the fact that it was against the law for an adult to sexually touch the genitals of a child (Judgment [10], [14], [15] and [19]). 3. The primary judge upheld the defence of fair report of proceedings of public concern (Defamation Act 2005 (NSW), s 29) in respect of the publications that were the subject of the News 1 proceeding (Judgment [196], [199], [203] and [209]) and the publication that was the subject of the SBS proceeding (Judgment [198]). 4. The primary judge also upheld the defence of justification (Defamation Act, s 25) in respect of imputation (a) (Judgment [259]) and in respect of imputation (n) (Judgment [262] and [267]). 5. The appellant's notice of appeal was filed on 6 May 2020. The grounds of appeal were: "1 His Honour erred by admitting the Royal Commission Transcript into evidence. 2 His Honour erred by allowing the defence of justification in proceedings 1, 2 & 3. 3 His Honour [erred] by rejecting the imputation in proceedings 1 on the basis the ordinary reader would understand "wrong" to mean "legally wrong" as opposed to "morally wrong" 4 His Honour erred by allowing the defence of fair protected report in the proceedings 1, 2 & 3. 5 His Honour erred by not acceding to the recusal application in the proceedings 6 His Honour erred by not finding any of the defamatory imputations were conveyed in proceedings 3, based on finding the ordinary reader would [have] understood that there was an editing error in the article, and reading the matter [as] it was intended to be read." 1. On 24 June 2020 the Registrar made orders for the filing of the appeal books, submissions and chronology. The appeal was listed for hearing on 14 September 2020. 2. On 16 July 2020 the appellant sought leave to file an amended notice of appeal in the form of Annexure A to an affidavit of the appellant's solicitor, Ms Brigitte Simeonides of 16 July 2020. That application came before me on 20 July 2020. The respondents rightly objected to some of the proposed amendments concerning the primary judge's findings with respect to the News 3 proceedings. This was because the proposed amended grounds did not accurately reflect the findings that were made. An additional concern of the respondents was that the appellant's written submissions that had been filed pursuant to the Registrar's orders did not address, except in one sentence, a proposed amended ground of appeal. Counsel for the respondents then expressed concern that the hearing date not be lost, it being the only date suitable to all counsel this year. She expressed concern that the respondents not be ambushed by oral submissions at the hearing of which they did not have notice. The grounds of appeal even as amended, were brief but not specific. They asserted error, but did not identify why the primary judge allegedly erred. The respondents were prepared to live with this on the basis that the respondents' written submissions would be expected to identify the alleged errors. 3. I gave the appellant leave to file the proposed amended notice of appeal, subject to that document being amended in specified respects, and I gave directions for the prompt service of written submissions on the new ground. 4. On 21 July 2020 the appellant filed an amended notice of appeal. The notice of appeal as filed was not in accordance with the leave given. It included the following grounds for which leave had not been given: "2 His Honour erred by allowing the defence of justification in proceedings 1, 2 & 3. and 4 (the SBS proceedings) ... 5 His Honour erred by rejecting the imputations (c)(d)(e) as being conveyed in proceedings 1 on the basis the ordinary reader would have understood 'wrong' to mean 'legally wrong' as opposed to 'morally wrong' 6 His Honour erred by allowing the defence of fair protected report in the proceedings 1,2&3and 4 (the SBS proceedings)" 1. Objection is not taken to the amendment to ground 5 which narrows or clarifies that ground. 2. Objection is taken to the amendments to grounds 2 and 6. On 27 July 2020 the respondents' solicitors objected to the form of the amended notice of appeal filed on 21 July. They observed that two new appeal grounds in respect of what was described as the "SBS proceeding" had been included and that the appellant had not sought to include those grounds in the proposed amended notice of appeal that was the subject of submissions on 20 July. No application had been made for leave to rely upon those additional grounds and no explanation for their inclusion had been proffered. 3. On 7 August 2020 the appellant's solicitor stated: "It is clear from both the grounds of appeal in the initial Notice of Appeal, and the appellant's outline of submissions in support, that the intention of the appellant was to include SBS in what was formerly grounds 2 and 4 of the initial Notice of Appeal. ... The appellant's written submissions make it clear, at paragraph 7, which contain a reference to Exhibit H (the SBS article) that grounds 2 and 4 in the initial Notice of Appeal were intended to include the SBS proceedings. The assumption the appellant made was that proceedings 1 included the SBS proceedings. In fact the trial judge referred to the proceedings as News 1 and the SBS proceedings, however in substance dealt with both of the proceedings as one proceedings given the imputation and evidence entirely overlapped. In any event, the trial judge refers to the SBS proceedings as proceedings 3. Clearly the appeal grounds, when referring to proceedings 3, are not referring to the SBS proceedings but rather the proceedings referred to by the trial judge [as] 'News 3'. Your counsel, Ms Barnett, appears to have accepted this proposition when the matter was in court before His Honour Justice White. Given this fact, it is difficult to understand how your client could have conceivably taken the position that the appellant intended to leave SBS out of appeal grounds 2 and 6." 1. I do not accept what is stated in the last paragraph quoted above. The fact that the primary judge referred to the SBS proceeding as proceeding 3 does not mean that the reference in the notice of appeal to proceeding 3 was to the SBS proceeding. It was a reference to the News 3 proceeding. This was common ground at the hearing on 20 July 2020 as also appears to be accepted in the last paragraph quoted. The statement that the trial judge referred to the SBS proceeding as proceeding 3 is an irrelevance. 2. Ms Simeonides was correct to the extent that she stated that the appellant's written submissions addressed the defence of justification by reference not only to exhibits A-D, but to exhibit H. 3. In those written submissions dated 13 July 2020 the appellant's counsel under the heading "His Honour erred by allowing the defence of justification in proceedings 1" stated "Proceedings 1, concern imputations (a) to (e) and (h) contained in exhibits A-D and H". Exhibit H was relevant only to the SBS proceeding. 4. The appellant seeks to advance the same argument of justification with respect to the publication in the SBS proceeding as he advances with respect to the publications the subject of the News 1 proceeding. It was common ground that the publications gave rise to the same imputations (a) and (n). The primary judge dealt with the issue of justification in the same way with respect to both proceedings. The appellant raises no different argument with respect to the defence of justification in the SBS proceeding than in the News 1 proceeding. 5. I do not understand the respondents to advance any particular ground of prejudice in relation to the amendment proposed in ground 2 quoted above. 6. The same is not true in respect of the appellant's submissions concerning the defence of fair report. In his written submissions of 13 July the appellant made submissions under the heading "His Honour erred by allowing the defence of fair protected report in article 1". It can be inferred, and counsel accepted, that the reference to article 1 was intended to be a reference to proceeding 1. The written submissions contained the following: "26. A common feature of all of the articles in proceedings 1 is that it is not just the mere reporting of the evidence that gives rise to the defamatory imputations. The balance of the articles, which create the context, also gives rise to the imputations. Accordingly, none of the articles in proceedings 1 were reports, let alone fair reports. This is particularly the case in Exhibit D, which also uses the word 'wrong', being the writer's own deductions. ... 34. In relation to the article at exhibit B, there was also the additional evidence that was given on 9 February 2020 at [81] by the appellant which is not included in the article. This additional evidence is also relevant to the defence of justification." 1. No written submissions were provided concerning the primary judge's upholding the defence of fair report with respect to the publication of exhibit H the subject of the SBS proceeding. 2. The respondents filed written submissions on 7 August 2020. They observed that the amended notice of appeal contained two significant amendments to the form in respect of which leave was sought and granted. The submissions for SBS stated that SBS had not addressed ground 6 concerning the offence of fair report so far as it purported to extend to the SBS proceedings, and noted that the appellant had not advanced any submissions in relation to the defence of fair report so far as it concerned exhibit H. The respondents did not address exhibit H. 3. As I understood the submissions of counsel for the appellant, it was to the effect that the omission of a ground of appeal challenging the primary judge's upholding the defence of fair report concerning the SBS article exhibit H was unintentional. Counsel suggested that that omission had not crossed his mind until preparing the re-drafted proposed amended notice of appeal following the hearing on 20 July 2020 and he was of the view that it was appropriate to include additional grounds because they would be "entirely uncontroversial". There was no proper basis for that assumption and the inclusion of the additional and wider grounds of appeal than those for which leave had been given, without seeking leave for those additional grounds, is not to be condoned. 4. Nonetheless, the question is whether that ground that is now in ground 6 can be raised. That depends upon the matters in Pt 6 of the Civil Procedure Act 2005 (NSW) concerning case management and the allowance of amendments. Unlike the raising in the SBS proceeding of a challenge to the judge's upholding a defence of justification, the challenge raised by proposed ground 6 does raise new and additional matter that would require a separate response from the respondents. The appellant's counsel accepts that a consideration of the defence of fair report involves a consideration of the particular article in respect of which the defence is raised and that submissions would need to be provided to the respondents that articulated why it is said that the primary judge erred in upholding that defence in relation to exhibit H. There is no evidence and no explanation as to why such articulation has not yet occurred. 5. The appeal is listed for hearing in less than three weeks' time. 6. The respondents point to the fact that the primary judge made a provisional assessment of damages if his Honour erred in his rejection of the appellant's claim against SBS in the sum of $10,000. That provisional assessment is not challenged by the notice of appeal. 7. It is inevitable that if the amendment to ground 6 is allowed, additional costs will be incurred by the respondents in dealing with that ground and there is no evidence before me to suggest that the appellant, if unsuccessful in the appeal, will be able to meet the costs orders that would follow. I accept the submission of counsel for the respondents, Ms Barnett, that to allow the amendment would be to require the incurring of costs that would be disproportionate to the importance and complexity of the subject matter, particularly having regard to the judge's finding as to damages. 8. I also have regard to the unsatisfactory progress of the formulation of the grounds of appeal. The appellant has been afforded various indulgences. I do not accept that justice requires this further indulgence. 9. It was not until 21 August 2020 that the appellant filed a notice of motion seeking leave to file a further amended notice of appeal. 10. There will be leave to amend the amended notice of appeal to include the additional words in ground 2, but not to include the additional words in ground 6. As I have noted, there is no objection to the amendment to ground 5. 11. The proposed further amended notice of appeal includes an additional proposed amendment to ground 1, namely: "His Honour erred by admitting the Royal Commission Transcript and video recording into evidence." 1. I was told that at the trial the respondents tendered the transcript of proceedings before the Royal Commission and that the appellant objected to the tender in reliance on s 6DD of the Royal Commissions Act 1902 (Cth). I was told that the primary judge overruled the objection and the transcript was received as an exhibit. I was also told that subsequently the respondents tendered a video recording of what I assume to be the parts of the hearing relevant to these proceedings. I was told that the appellant objected to the tender of the video recording on the ground of relevance and in reliance on s 135 of the Evidence Act 1995 (NSW). I assume the objection on the ground of relevance was that it was said that the video recording had no additional relevance to the transcript which had already been admitted. 2. I was informed today by counsel for the appellant that the amendment proposed to ground 1 of the notice of appeal to include reference to the video recording was dependent upon the appellant's succeeding in his challenge to the tender of the transcript, that is to say, was dependent upon the appellant's succeeding in his objection taken on the basis of s 6DD. On that basis, the amendment to ground 1 does not raise any new issue upon which the appellant would rely in relation to the video recording. 3. I understood from the oral submissions of counsel for the respondents that a question might arise at the hearing of the appeal as to whether, even if the transcript ought to have been rejected on the ground of s 6DD, the video recording might itself be admissible insofar as it displayed the appearance or mien of the appellant. However that might be, any such issue would involve the respondents' seeking to deploy the video recording and would be a fallback position which assumes that the appellant would be otherwise successful in his argument on ground 1 of the appeal. In those circumstances, I do not think that there would be any relevant prejudice to the respondents in permitting the amendment to ground 1. 4. For these reasons, and subject to hearing from counsel as to the precise form of the order I propose, I propose the following orders: 1. Give leave to the appellant to file a further amended notice of appeal in the form of Annexure E to the affidavit of Brigitte Simeonides of 20 August 2020, save for the addition of the words "and 4 (the SBS proceedings)" so that ground 6 finishes with a full stop after "News 1". 1. I will hear the parties on costs. [Counsel addressed on the form of order 1 and on costs.] 1. I make the order in the form I proposed. 2. The appellant submits that the costs of the notice of motion should be costs in the cause. The respondents seek an order that the appellant pay their costs of the notice of motion. 3. The appellant is seeking a further indulgence. The costs of the notice of motion and the correspondence which preceded it would have been unnecessary had proper attention been given at the proper time to the form of the notice of appeal. 4. Notwithstanding that the appellant has had a degree of success in the application, I am satisfied that justice requires that he pay the respondents' costs of and incidental to the notice of motion. I use that formulation to ensure that the costs of the correspondence which preceded the notice of motion are covered by the orders. 5. I further order: (2) Order that the appellant pay the respondents' costs of and incidental to the notice of motion filed 21 August 2020. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 August 2020