Supreme Court New South Wales Medium Neutral Citation: Feldman v Spinak [2016] NSWSC 1083 Hearing dates: 22 July 2016 Decision date: 29 July 2016 Before: McCallum J Decision: Plaintiff granted leave to file a pleading in accordance with this judgment within 14 days; proceedings as against the second defendant dismissed; plaintiff to pay the second defendant's costs. Catchwords: DEFAMATION - Legislation Cited: Uniform Civil Procedure Rules; r 19.1 Civil Procedure Act 2005; s65 (2) Cases Cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175 Dennis v Australian Broadcasting Corporation (2008) NSWCA 37 Linnell v Channel Seven Sydney Pty Ltd [2014] NSWSC 20 Category: Procedural and other rulings Parties: Yosef Yitzchak Feldman (plaintiff) Jeremy Spinak (first defendant) Vic Alhadeff (second defendant) Representation: Counsel: Plaintiff self-represented C Amato (defendants) Solicitors: Marsh & Maher (defendants) File Number(s): 2016/00040453 Judgment 1. HER HONOUR: These are proceedings for defamation commenced by Rabbi Yosef Yitzchak Feldman. The defendants are Mr Jeremy Spinak, the current President of the New South Wales Jewish Board of Deputies and Mr Vic Alhadeff, the current CEO of that organisation. 2. The proceedings were commenced by statement of claim filed on 8 February 2016. That pleading was struck out on 13 May 2016. There is a contest as to whether that occurred by consent. Leave was then sought to file an amended statement of claim but no form of pleading had been served on the defendants. I refused the leave sought, considering it more appropriate in the circumstances for argument to proceed by reference to a known form of pleading. Accordingly, I made orders instead for the plaintiff to serve his proposed amended pleading. 3. Since that date, Rabbi Feldman has propounded a series of proposed amendments purportedly responding to various objections taken by the defendants, the latest of which is the fourth proposed amended statement of claim. Leave is required to file that pleading, since more than 28 days have passed since the original statement of claim was filed: see r 19.1 of the Uniform Civil Procedure Rules 2005 (NSW). This judgment determines whether leave should be granted. 4. The proceedings arise out of statements allegedly published by the defendants in response to evidence given by Rabbi Feldman to the Royal Commission for Institutional Responses to Child Sexual Abuse. The evidence was widely reported and discussed in the media. Rabbi Feldman has commenced many separate proceedings for defamation in respect of material published at around that time. In some he is represented by counsel and in others he represents himself. 5. In the present proceedings Rabbi Feldman has mostly represented himself. The statement of claim struck out on 13 May bore the hallmarks of having been prepared by him, adopting parts of pleadings that have been settled by counsel in other proceedings. 6. The principal vice of the statement of claim was that it failed to identify the publications sued on or to attach copies, as required under the rules. As noted by Ms Amato, who appears for the defendants, it was not a case in which the defendants could work out for themselves what was sued on with any confidence, nor should they have been expected to do so. 7. When the proceedings first came before the Court on 18 March 2016, Ms Amato informed the Court that Rabbi Feldman had been notified of a raft of objections to the form of the statement of claim, importantly including the failure to identify or annex the matters complained of. As already noted, that was more than a technical omission. 8. The proceedings were stood over to 13 May 2016 to allow Rabbi Feldman an opportunity to address the deficiencies. An exchange of correspondence did not resolve the defendant's objections. 9. The proceedings came back before the Court on 13 May 2016. The deficiencies not having been addressed, the statement of claim was struck out. A short ex tempore judgment I published that day records that Rabbi Feldman acknowledged that the pleading required amendment. However, as already noted, he does not accept that he consented to an order striking out the pleading (the defendants contend he did). The resolution of that contest does not matter for present purposes. The pleading was plainly liable to be struck out. Even had it not been, leave would still be required to amend at this stage. 10. The first proposed amended statement of claim served on 20 May 2016 removed all previous references to the second defendant, Mr Alhadeff. Further iterations were served in which the pleading of publication was materially the same. The omission of any pleading against Mr Alhadeff was noted in correspondence and the plaintiff was invited to discontinue the proceedings against him. By way of compromise, Mr Alhadeff offered to consent to the discontinuance "on the basis of no order as to costs" but that offer was not accepted by Rabbi Feldman. 11. By email dated 29 June 2016, Rabbi Feldman wrote: "To make sure that Vic doesn't feel that he can get out of this and leave his friend Jay Spinak in the lurch, I have amended the statement of claim to include him in the first publication, as I know and have evidence that he is the spokesperson and no statements would have been made or disseminated without his authorisation. In my case, specifically the statement is largely made up of his earlier tweets." 1. A fourth proposed amended statement of claim was served with that email, adding Mr Alhadeff back into the claim, in materially the same terms as in the first proposed amendment but with the addition of the words "and second defendant" in each relevant paragraph. As had been observed in respect of the initial statement of claim, that form of pleading still included no particulars, by reason of which Mr Alhadeff was said to be liable as a publisher for the words expressly attributed to Mr Spinak in the matter complained of. 2. The defendants object to the proposed amended pleading in its current form, on three grounds: first, by reason of the inclusion of Mr Alhadeff; secondly, on the grounds that a new matter complained of is statute-barred; and thirdly, on the grounds of a capacity objection to a particular imputation. 3. The circumstances relating to the reintroduction of a claim against Mr Alhadeff are described above. The objection to allowing his inclusion in a further iteration of the pleading is three-fold. First, it is submitted that the pleading seeks to reintroduce an allegation previously abandoned, a course implicitly disapproved by the Court of Appeal in Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 at [23]. 4. To that submission might be added the observation that the current version of the pleading wholly fails to particularise how Mr Alhadeff might be held liable as a publisher. The assertions made in the email of 29 June 2016 were the very kind of information sought in a number of letters by the defendants but not provided by Rabbi Feldman. 5. Secondly, the defendants submit that the plaintiff's explanation for the amendment (contained in the email set out above) is entirely unsatisfactory. Ms Amato submitted, indeed, that the email demonstrates a want of good faith: cf Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175 at [103]. 6. Thirdly, it was observed that the injustice that would be suffered by Mr Alhadeff is considerable in circumstances where the only other cause of action pleaded against him in the proposed amendment is statute-barred. It is appropriate to turn to that issue. 7. The cause of action said to be statute-barred is pleaded at paragraphs 18-20 of the proposed amendment and concern an oral publication said to have been made by Mr Alhadeff to the ABC on 11 February 2015. If that publication was included in the initial statement of claim, it would not be statute-barred since, as already observed, that document was filed on 8 February 2016. However, there is a factual contest between the parties as to whether the oral publication was included in the initial statement of claim. Rabbi Feldman contends that it is plainly referred to at paragraph 6 of the pleading, which states: "The second defendant made further publications on his Twitter account 9, 10 and 11 February 2015. In these Twitter postings the defendant also posts links to other sites, including the ABC Radio and news site, wherein the defendant makes further statements." 1. It is simply impossible to be satisfied with any confidence that the reference to "links to…the ABC Radio" is a reference to the publication now sought to be sued on in paragraphs 18 to 20 of the fourth proposed amended statement of claim (which appears by reference to the attachments to that pleading to be a specific interview given by Mr Alhadeff on ABC Radio). The recitation of the dates alone suggests otherwise. 2. I am not satisfied that the proposed new publication was included in the initial statement of claim. Even if it was intended to be referred to (which is by no means clear), what is now pleaded is a wholly different publication. In those circumstances, as submitted by Ms Amato, the proposed amendment to include a cause of action on that ground would appear to be hopeless, by reason of the limitation period having expired. 3. The relevant principles were considered by Beech-Jones J in Linnell v Channel Seven Sydney Pty Ltd [2014] NSWSC 20. The principle is a simple one; unless the new cause of action arises from the same or substantially the same facts as those giving rise to existing causes of action, any amendment would not have effect from the date of filing of the original statement of claim, as contemplated by s 65(2) of the Civil Procedure Act 2005 (NSW) and would, accordingly, have no prospects of success. 4. Justice Beech-Jones explained, accepting established authority, that in the context of a cause of action for defamation, "the fact of a different publication to a different person tells, apparently decisively, against any favourable conclusion for the plaintiff" on that issue: at [24]. 5. For those reasons, I am persuaded that the proposed new matter complained of should not be the subject of a grant of leave at this stage. That informs the determination of the first issue, whether it is appropriate to allow Rabbi Feldman to add the second defendant back in (in pleadings served but not filed), or at least to keep him in the action commenced in February. 6. For the reasons I hope will be clear from what I have already said, I do not think the claim against Mr Alhadeff enjoys sufficient prospects of success to allow that to occur. 7. The final objection relates to an imputation pleaded in respect of the matter complained of in the surviving cause of action against Jeremy Spinak. He submits that the imputation is not reasonably capable of arising and should not be allowed in an amended pleading for that reason. The imputation is "that the plaintiff, as a director of a school and a Rabbi by profession and occupation, was a person responsible for reporting failures in dealing with incidents of child abuse and protecting children in care." 8. Ms Amato submitted that the matter complained of does not focus on any responsibility of the plaintiff for the actual incidents of child abuse referred to but, rather, is critical of the comments he made in his evidence to the Royal Commission. 9. In my view, having regard to the well-established authorities in this field, that must be regarded as an argument which could appropriately be put to a jury but which should not result in the imputation being disallowed, subject to one qualification. I accept, as submitted by Ms Amato, that there is no reference in the matter complained of to the plaintiff's being a director of a school. The matter does refers to him as Rabbi Feldman, but the words "as a director of a school" should not be allowed to be included in the imputation. It is otherwise, in my view, reasonably capable of being carried. 10. Those were the only objections to the proposed amended pleading. In all the circumstances, Rabbi Feldman should have leave to amend. However, the leave should not extend to the form of pleading which was referred to as the fourth proposed amended statement of claim in argument. 11. A further version of the pleading will have to be propounded which removes all references to the second defendant and removes him as a defendant, which, accordingly, will necessarily remove the reference to the statute-barred cause of action, but which, with the amendment to the imputation indicated above, otherwise may be in the form served. Orders 1. I grant leave to the plaintiff to file an amended pleading in accordance with this judgment within 14 days. 2. The proceedings as against the second defendant are dismissed. 3. I order that the plaintiff pay the second defendant's costs. ********** 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: 09 August 2016