Supreme Court New South Wales Medium Neutral Citation: Feldman v Nationwide News Pty Ltd; Feldman v Nationwide News Pty Ltd; Feldman v Nationwide News Pty Ltd; Feldman v Special Broadcasting Service Corporation [2018] NSWSC 607 Hearing dates: 9 March 2018 Decision date: 09 March 2018 Jurisdiction: Common Law Before: McCallum J Decision: In the News 1 proceedings, plaintiff granted leave to amend in the terms proposed; in the News 3 proceedings, plaintiff granted leave to amend as proposed, save as to proposed imputation 5. Catchwords: DEFAMATION – imputations – whether plaintiff should have leave to amend to add new imputations – no question of principle Legislation Cited: Defamation Act 2005 (NSW) Cases Cited: Chel Pty Ltd No 2 v Fairfax [2015] NSWCA 379 Category: Procedural and other rulings Parties: Proceedings 2016/38344: Yosef Yitzhak Feldman (plaintiff) Nationwide News Pty Ltd (1st defendant) Herald & Weekly Times Pty Ltd (2nd defendant) Nick Hansen (3rd defendant) Proceedings 2016/277467 Yosef Yitzhak Feldman (plaintiff) Nationwide News Pty Ltd (1st defendant) Katherine Towers (2nd defendant) Proceedings 2017/244766 Yosef Yitzhak Feldman (plaintiff) Nationwide News Pty Ltd (1st defendant) Pia Akerman (2nd defendant) Proceedings 2016/38360 Yosef Yitzhak Feldman (plaintiff) Special Broadcasting Service Corporation (1st defendant) Representation: Counsel: J Cohen (plaintiff in each proceeding) A Spies (defendants in each proceeding) Solicitors: Macpherson Kelley (defendants in Nationwide News proceedings) Special Broadcasting Service Corporation (defendant in SBS proceedings) File Number(s): 2016/383442016/2774672017/2447662016/38360 Publication restriction: None Judgment 1. HER HONOUR: Before the Court are four sets of proceedings for defamation, each commenced by Rabbi Yosef Yitzhak Feldman. The Court has previously ordered that three of the proceedings be joined. 2. There are several interlocutory applications before the Court this afternoon. One is an application to have the fourth proceeding joined for hearing with the other three joined proceedings. The resolution of that issue turns, in part, on the determination of two applications by the plaintiff to amend the pleadings. 3. It is convenient to address those applications first. One is made in one of the existing three joined proceedings (referred to in argument as the News 1 Proceedings). The plaintiff seeks to amend his imputations so as to plead an imputation in the following terms: "The plaintiff was reprehensibly ignorant of the fact that it is morally wrong for an adult to sexually touch the genitals of a child;" 1. and in the alternative; "The plaintiff did not regard it as morally wrong for an adult to sexually touch the genitals of a child." 1. The primary imputation is objected to, first, on the basis that it is not reasonably capable of being conveyed by the article. The article was published in The Herald Sun under the headline, "Rabbi Out of Touch; Jewish leader ignorant on child abuse." It opened with the following words: "A high profile Jewish leader says he did not know it was wrong for adults to touch the genitalia of children." 1. The article proceeds with a more particular discussion of the evidence given by Rabbi Feldman at the Royal Commission into Institutional Responses to Child Sexual Abuse, which is plainly focussed specifically on the Rabbi's admitted lack of familiarity with child abuse laws. On that basis, the defendants submit that the article is incapable of conveying the meaning that the plaintiff did not know it was morally wrong (as opposed to legally wrong) for an adult to touch children's genitalia. 2. Whilst that is an argument which could be left with some force at trial to the tribunal of fact, I do not think it can be concluded that the imputation is not reasonably capable of arising as a matter of law. The test to be applied in such an application is a high one, as has recently been reiterated by the Court of Appeal in a number of decisions often cited in this list. 3. The opening paragraph would not necessarily be seen as being wholly qualified by the discussion that follows. In my view it would be open to contend that the ordinary reasonable reader would understand the article as conveying that the real ignorance referred to was based on morals rather than in law. 4. Secondly, it was submitted on behalf of the defendants that the alternative imputation is not a true alternative. In particular, it was submitted that the alternative imputation only bears a defamatory meaning if the plaintiff had a responsibility to have regard to what was morally wrong and that, if he did not, it would follow inexorably that his ignorance was reprehensible, whereas if he was not a person under any obligation to know what was morally wrong, the imputation would not be defamatory. 5. I do not understand the imputations in that way. 6. The first seems to me to be referring to reprehensible ignorance on the part of a person under some duty to be familiar with community accepted standards as to conduct between adults and children of a sexual nature. 7. The second seems to strike at a different point, which is a person's individual morality. In my view the imputations do differ in substance and may properly stand as alternatives. 8. The second amendment application relates to the fourth proceedings proposed to be joined with the other three. One of the proposed new imputations is not objected to, namely imputation (iii). Imputations (i), (ii) and (iv) are objected to on the grounds of both form and capacity. 9. The first is: "The plaintiff was significantly involved in the cover-up of multiple acts of pedophilia." 1. The second and fourth imputations are: "that the plaintiff was significantly involved in endangering children by allowing perpetrators of child sex abuse to be associated with the Chabad Organisation": and "that the plaintiff was significantly involved in endangering children by covering up multiple acts of paedophilia". 1. The defendants submitted, in short, that the article is not reasonably capable of attributing the plaintiff with "significant" involvement in covering up acts of paedophilia, or with having done so in respect of "multiple" acts. The difficulty for the defendants in respect of those imputations derives from what appears to be an editing slip-up, which has seen two of the paragraphs in the article apparently placed in the reverse order to that which would have been a logical presentation. The article begins with a discussion of evidence of "victims" being discouraged from reporting abuse because of the way Halachic (Jewish Law) principles were applied. It is reported that Rabbi Groner, who led the Melbourne Jewish community, had ignored multiple reported acts of paedophilia. The article proceeds to report on the commission saying, "Criticism of those who spoke out was forceful" and that "there was a marked absence of supportive leadership for survivors of child sexual abuse." 2. The next paragraph reads: "It noted that neither he nor his father, Rabbi Pinchus Feldman, had taken steps to inform anyone that a rabbinical student accused of molesting was thinking of leaving the country, saying they didn't believe that an obligation existed to inform police." 1. That paragraph appears to have been intended to come after the next, which reads: "The commission singled out a formally senior figure at Yeshiva Bondi, Rabbi Yosef Feldman, who resigned from his role as a director on Yeshiva's board of management following his testimony." 1. The article concludes with a reference to the Executive Council of Jewry and the New South Wales Jewry Board of Deputies saying they would continue to seek changes to address "a systematic failure". In the result, the article is confusing in that it appears to confuse the son of Rabbi Feldman (the plaintiff) with Rabbi Groner, who is said to have ignored multiple acts of abuse by paedophiles. 2. Other aspects of the article include a measure of loose language which would be capable of giving rise to loose thinking because of the disordered presentation of the article. 3. In the result, in my view it would be open to the ordinary reasonable reader to understand the article to attach to Rabbi Feldman discreditable conduct of the kind described in respect of Rabbi Groner, notwithstanding the specificity of the description of the Rabbi's relationship to Rabbi Feldman. 4. On that basis I would think it necessary to leave those imputations to the tribunal of fact. 5. A separate objection has been taken that the imputation is bad in form in that it is ambiguous by reason of the inclusion of the word "significantly" or, more particularly, the phrase "significantly involved." It was submitted that the imputation is unclear in that respect and does not allow the defendants to know the case they are called upon to meet. 6. The difficulty with that submission is that the article itself carries the generalised insinuation without specificity. 7. In my view, it is a case in which the plaintiff has done the best he can to distil the sting of what is attributed to him, having regard to the loose language of the matter complained of. 8. For those reasons I would propose to allow imputations (i), (ii) and (iv). 9. The fifth imputation is objected to on the basis that it is bad in form. That imputation is: "In relation to the systemic failure of the leadership of ultra-orthodox Jewish communities to appropriately respond to complaints of child sexual abuse, the Royal Commission singled out the conduct of the plaintiff as being more egregious than any other person investigated by the Royal Commission into institutional Responses to Child Sexual Abuse (concerning the ultra-orthodox Jewish community in Melbourne and Sydney)." 1. The vice of the imputation is that it fails to attribute any act or condition to the plaintiff. Rather, it attributes an act, or conduct, to the Commission. Some inferences might be drawn as to why the Commission singled out the plaintiff, but that is not good enough in this context. The defendant is entitled to know what particular act or conduct is alleged to have been attributed to the plaintiff so as to be able to know the case to be met. 2. It was indicated during argument that what was intended was something along the lines of an imputation that the plaintiff had so conducted himself as to warrant being singled out by the Royal Commission as the most egregious example of the systematic failure of the leadership of the Ultra Orthodox Church to appropriately respond to complaints of child sexual abuse. That is not the imputation that has been propounded and the defendants should have an opportunity to respond to an imputation in those terms, rather than meeting the argument on the run. 3. For those reasons the orders I propose in respect of the amendment applications are: As to the News 1 proceedings, that the plaintiff have leave to amend in the terms proposed. As to the News 3 proceedings, that the plaintiff have leave to amend as proposed, save as to proposed imputation (v). 4. Two further matters were brought forward for determination today. The first relates to the manner of trial. The plaintiff elected for trial by jury but has since changed his mind. The defendant consents to an order pursuant to s 21 (1) of the Defamation Act 2005 (NSW) that the proceedings are not to be tried by jury. 5. The principles as to dispensing with a jury once an election for trial with a jury has been made were summarised in helpful detail in the defendants' written submissions provided in advance of argument. It is enough to note that whilst there may be disagreement in the authorities as to the extent of the court's discretionary power to dispense with a jury in defamation proceedings once an election has been made, it is at least established that there is authority to make an order of the kind now sought by consent where a party changes its mind. 6. Further, it has been stated by the Court of Appeal that the attitude of the other party in such circumstances will be "an influential factor as to the course that that court takes": Chel Pty Ltd No 2 v Fairfax [2015] NSWCA 379 at [26]. In circumstances where the defendants consent, in my view it is appropriate to make the order sought. 7. Finally, as indicated at the outset of this judgment, there is a question of joinder of the fourth proceeding to the other three. Having now determined the plaintiff's amendment application, and on the basis of the plaintiff's earlier indication that the joinder was not opposed provided his amendments could be brought forward for consideration by the court, I consider it appropriate to join the fourth proceeding with the other three. 8. I make orders 1, 2 and 3 in the short minutes of order in addition to the ruling on the imputations. 9. [FURTHER DISCUSSION AS TO COSTS] 10. HER HONOUR: I have this afternoon determined a number of applications brought forward by both parties in these proceedings, as recorded in my ex tempore reasons just published. 11. The defendants' joinder application was opposed only on a qualified basis, which was resolved in the resolution of two amendment applications, following which the joinder was made, in effect, by consent in light of the resolution of those applications. 12. An order was made by consent that the proceedings are not to be tried with a jury, the defendant initially having elected for a trial by jury; the plaintiff having applied for an order that they not be tried by jury and the defendants having consented to that order. 13. As to the two amendment applications by the plaintiff, the plaintiff was substantially successful. 14. In the circumstances, the defendants seek their costs of the joinder application on an indemnity basis, contending that the application was unreasonably opposed by the plaintiff. Separately, they seek their costs of a strike out application which was not pressed. That application related to part of the reply and was based on the plaintiff's failure to provide adequate particulars. The defendants accept that particulars since provided by the plaintiff meet their concerns and accordingly withdrew that aspect of the argument today. 15. The amendment would ordinarily carry an order that the plaintiff pay the costs thrown away but the simplicity of that rule is complicated in the present case by the fact that it was opposed on grounds on which the defendants lost. 16. I am not persuaded that the plaintiff's conduct in opposing the joinder application was unreasonable. It is true that notice of the plaintiff's position was given late and changed over time but, ultimately, the joinder of four proceedings, which prima facie the plaintiff is entitled to have heard separately, involves pragmatic considerations with which I am persuaded the plaintiff has engaged appropriately, in accordance with his obligations under the Civil Procedure Act 2005 (NSW). 17. Ultimately, doing the best I can, the impression I have is that each party has enjoyed a measure of success and a measure of failure in the applications determined this afternoon. In my view, the fairest order is that each party bear his or its or her own costs of all of the applications heard and determined this afternoon. I so order. ********** Amendments 07 May 2018 - incorrect spelling of authority on coversheet 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: 07 May 2018