Supreme Court New South Wales Medium Neutral Citation: Yosef Yitzchak Feldman v Nationwide News Pty Limited & Ors (No 4) [2018] NSWSC 682 Hearing dates: 8; 9; 10; 11; May 2018 Date of orders: 10 May 2018 Decision date: 16 May 2018 Jurisdiction: Common Law Before: Campbell J Decision: I am not satisfied that the plaintiff has demonstrated that I should disqualify myself from hearing the case Catchwords: DEFAMATION – Practice and procedure - application for judge to recuse himself - grounded on apprehended bias - raised voice to Counsel - refusal of an application made by defendants to require the plaintiff to make admissions regarding expressions - alleged heated exchange in relation to whether a document had been admitted into evidence before or after lunch - ordinary by-stander test - Ebner v Official Trustee in Bankruptcy - apology at first available opportunity - failure to demonstrate judge should disqualify himself Legislation Cited: Civil Procedure Act 2005 (NSW) s 70; Royal Commissions Act 1902 (Cth) s 6DD Cases Cited: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Texts Cited: Nil Category: Procedural and other rulings Parties: Yosef Yitzhak Feldman (Plaintiff) Nationwide News Pty Ltd (First Defendant) Special Broadcasting Service Corporation (Second Defendant) Representation: Counsel: Mr J Cohen (Plaintiff) Mr A T S Dawson SC with Ms L Barnett (Defendant) Solicitors: Jacobs Legal (Plaintiff) File Number(s): 2016/00038344; 2016/00038360; 2016/00277467;2016/00277467; 2017/00244766 JUDGMENT 1. Last Thursday, 10 May 2018 which was day 3 of the Trial, I refused Mr Cohen of learned counsel's application that I disqualify myself from hearing the matter (162.15T). These are my reasons for that decision. 2. The ground of the application was apprehended bias which was based upon aspects of my conduct as trial judge. Three matters were relied on. First, when dealing with an application for an amendment of the Statement of Claim in one of the four defamation matters being heard together, I raised my voice at Counsel "[i]n such a manner that would give rise to the ordinary bystander or the average person that there is an apprehension of bias" (sic) (144.20T). Secondly, when I refused an application made by the defendants to require the plaintiff to make admissions about the meaning of Hebrew and Yiddish expressions contained in emails of which he was the author which had been opposed by Mr Cohen, I said to Mr Dawson SC and Ms Barnett, who appear for the defendants "… you better get yourself a translator" (91.35T) in a manner suggesting some partiality to the defendants (144.45T). Thirdly Mr Cohen argued "there was what I considered some heated exchange in relation to whether a document had been admitted into evidence before or after lunch (yesterday), and I must stay, in my respectful submissions there was enough to cause … the ordinary bystander some concern" (145.5T). 3. When I asked Counsel, "what does the reasonable bystander apprehend that I am going to do with those matters when it comes to deciding some critical facts in the case?" (145.35T). Counsel responded (145.40T): That's a good question. Those particular instances, in the matters that I've put forward to the Court, I can't think of a way that they actually specifically relate to a decision, but I may not be fully appraised of the test, your Honour." I drew Counsel's attention to Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 ("Ebner") and offered Counsel "some time to go and look at Ebner" which he accepted (147.45T) adding, "[h]aving considered the issues, I might have made an application to an amendment to another statement of claim that could have a critical effect" (148.1T). 1. I stood the application down until 2:00 pm and continued with the hearing (148.50 – 149.3T). Immediately following the luncheon adjournment Mr Cohen informed me that he did not "intend to make any more submissions on your Honour recusing yourself" (160.15T). Counsel for the defendant submitted that the matters put forward had not engaged the Ebner test and that there was no "proper basis" for me to disqualify myself (162.5T). Applicable principles 1. As I understand the law, the applicable principles remain those expressed in Ebner, and no other authorities were drawn to my attention. In Ebner Gleeson CJ, McHugh, Gummow, and Hayne JJ said (at 344 [6]): "Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge … the governing principle is that, … a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial." Their Honours added (at 345 [8]): "The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge … to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. … Only then can the reasonableness of the asserted apprehension of bias be assessed." 1. At 350 [33], their Honours made clear that the test enunciated is one of general application: "That is the test to be applied in the present appeals, and it reflects the general principle which is to be applied to problems of apprehended bias, whether arising from interest, conduct, association, extraneous information, or some other circumstance." (Emphasis added). As these passages make clear, the fact that Counsel was unable to articulate a logical connection between the matters of my conduct complained of and "the feared deviation from the course of deciding the case on its merits" is of itself fatal to the application. Lest I am wrong about that I will deal with the grounds raised. Ground 1: a raised voice 1. On the morning of 9 May 2018, I made a ruling that the transcript of evidence given by the plaintiff before the Royal Commission into Institutional Responses to Child Sexual Abuse was admissible in evidence over Mr Cohen's objection made under s 6DD of the Royal Commissions Act 1902 (Cth). Following my ruling, Mr Cohen said, "what I mentioned earlier at the start of the hearing was I intended to make an application to amend the pleadings. I now wish to make that application, I can in due course explain why your Honour's decision is relevant to that" (52.50 – 53.5T). I deferred the hearing of the application as there was a lay witness coming to give evidence. 2. I returned to the application to amend before the luncheon adjournment that day (81.45T ff). Initially, Mr Cohen handed up a proposed Fourth Amended Statement of Claim in the first set of proceedings. Learned Counsel then said "I have given your Honour the wrong document, my apologies" (82.25T). The draft was handed back. Counsel proceeded orally to make the amendment on the Third Amended Statement of Claim in that matter. There then ensued a discussion about a proposed amendment to paragraph 6 of that form of the pleading which, after hearing from Mr Dawson, lead me to say (85.40T): "I will give you leave to amend the further amended statement of claim in [the first proceedings] to include that alternative to the particulars appearing at [paragraph] 6 (a), but you have to re‑engross the document and bring it into court so it can be filed in court". 1. I then asked "[w]hat's the second thing you want to do?" (85.45T) Counsel responded that he was "…doing it for all four articles". I interpolate at that point in time, I misunderstood Counsel. I thought he was referring to all four sets of proceedings. However, there followed a discussion about paragraph 12 of the Third Amended Statement of Claim in the first proceedings. During further argument, Mr Dawson said (86.35 – 87.25T): "What worried me about what my friend said was whether he's suggesting he is actually making application to put those [averments] into the other three claims in this proceeding. I just don't know." HIS HONOUR: That's what I thought he said. DAWSON: That's what I thought he said, and he hasn't told me anything else. COHEN: Sorry, it's just in relation to proceedings 1. HIS HONOUR: When you said you wanted to carry it through‑‑ COHEN: I meant through that statement of claim. HIS HONOUR: I've got to say, Mr Cohen, that ‑ well, this process would be much clearer to me if there had been an engrossed proposed amended pleading which highlighted the new things that you wish to propound, and, generally speaking, that's what's done. … it would be clearer to me if the usual practice was observed, that is to say that the amendments were brought forward so that, (a) there could be no confusion on the part of the defendants about what it is you wish to do, and, secondly, there would be no confusion on my part as to what I'm being asked to accede to but let me ask you this question, having made that observation: what's the second thing you want to do, have I got that yet? COHEN: There was not a second thing I wanted to do. HIS HONOUR: Wasn't there? COHEN: I've explained everything. They were the amendments. They were the amendments, and as my friend has pointed out, indeed, one of them was already in that form on the SBS pleadings, so there can't be any suggest of prejudice … but I accept that your Honour would benefit greatly from having a document in front of you and then we could move on quite efficiently." There was then a discussion about when it could be done. Counsel indicated "first thing tomorrow morning" (87.35T). I directed that at 2 o'clock Counsel make a short statement reading his proposed amendments onto the record. I made this direction so that the defendant would know the plaintiff's case in its final form as we proceeded with the defendant's evidence. 1. Mr Dawson next initiated a discussion about obtaining admissions from the plaintiff (who had not given oral evidence in his case in chief) about the meaning of the Hebrew and Yiddish expressions used by him in an email exchange, printed-outs of which were in the defendants' tender bundle. He handed up a schedule, which was not quite complete, containing a translation of most of those terms. 2. It is necessary to set out at some length extracts from the transcript of what followed. Mr Dawson applied for a direction that I require the plaintiff to make admissions about the meaning of the outstanding expressions: see s 70 of the Civil Procedure Act 2005 (NSW). Mr Dawson had erroneously referred to s 60. The schedule was later admitted as Ex 24. The following exchanges occurred between me and Mr Cohen (89.15 – 91.35T): "HIS HONOUR: Before I give any direction in that regard, when are you going to have a chance to look at these, Mr Cohen, or to ask your client to look at them; when is the earliest you can do that? COHEN: I can do that now, but just on that note ‑ I can't do it now, I'm told. On that note, I'm not aware of any basis a direction can be made for the plaintiff to translate‑‑ HIS HONOUR: A direction can be made if things aren't really in dispute, just to get admissions about things. COHEN: That's done way of asserting‑‑ HIS HONOUR: I'm not suggesting that this is obviously a case where that power is exercisable. There are powers to require parties under the Act ‑ and I don't think it's s 60, but whatever power it is‑‑ COHEN: I'm certainly not aware of any basis that could get the plaintiff to give translations of words. It's my friend that's ‑ the way my learned friend conducts their case is a matter for them. If they want to get a NAATI translator, that's a matter for them. They could have organised that at some other stage. I mean, it's common law proceedings, these ‑ I withdraw that. I just don't understand my friend's submissions, that's the bottom line. It's a matter for them how they conduct their case and there is not a power to compel the plaintiff to translate these things. HIS HONOUR: Yes. When can you bring forward a document which you say represents the case you want me to consider? I mean a statement of claim in its final form? COHEN: I should be able to do that by 2 o'clock, your Honour. HIS HONOUR: I don't understand an expression which commences with "I should" as being definite in any temporal sense. COHEN: I couldn't say definitely, I am confident I could do it by 2 o'clock. HIS HONOUR: By when? COHEN: 2 o'clock, I am confident. I mean there might be some unforeseen circumstance to prevent that. HIS HONOUR: I think before we go any further in this case, you need to bring forward your pleading, just a draft of it, and when I say a draft I mean a document which is final subject only to re‑engrossment before we go any further in this case. Do you understand? COHEN: I understand, yes. HIS HONOUR: I think that I have given every option to the parties ‑ I withdraw that. Mr Cohen, I have given you every leeway as I see things form sitting here in relation to adjournments, calling witnesses and other things you've asked me for, and you know, as I expressed this morning, I am concerned that rather than smoothing the case's passage, it has just made it more difficult to make any progress. COHEN: With respect, your Honour, I don't ‑ with the greatest of respect, I have given leeway, it's something that cuts both ways. I was quite happy to accommodate the matter not go on Monday and Tuesday because I understand that my learned friend has a matter in the Court of Appeal, so I shouldn't be in a sense put pressure on me. With the greatest of respect, your Honour, I don't' think there has been slowness in this matter. The critical issue in my view was the fact in relation to the transcript (of the Royal Commission) and I had to then make a decision what position to take after that and I fairly put your Honour on notice, I put my friend on notice and the fact when your Honour sees it in the piece of paper you asserted there is not a great ‑ what I've said in open court and on the paper, is not going to trouble too many people so with the greatest of respect, your Honour, I certainly showed leeway in this case. I could have said no, we want to go on Monday and Tuesday. That's not the way I do things and I think it cuts both ways, with the greatest of respect, your Honour and I certainly don't' intend to slow things down. HIS HONOUR: I am not saying you intend to slow things down, but the effect of me cooperating with you and giving you this indulgence as you have asked for, has been to slow things down and instead of having a case proceeding smoothly, we are in a bit of a muddle where you haven't quite formulated your case in circumstances where you have closed your case even though you have said you've got other ideas and then when we talk about the ideas, you don't have them reduced to writing in a way that I can follow so I can tell what it is that you are asking me to do so I can make a judgment, not you, Mr Cohen. COHEN: I accept that, your Honour. HIS HONOUR: Please don't interrupt me when I am speaking to you so that I can make a judgment about whether what you want to do makes any material change to the case as it's previously been presented. In that regard, of course, I will be influenced by what the other side say because both parties are entitled to have a say about it. At the same time, it has been what you have said this morning with respect, that has been confusing. I can be self‑deprecating about that if I wish, but I am not going to be on this occasion because the fact of the matter is you have presented what you want to do in a very confusing and confused fashion. I am not going any further with the case until you have got an engrossed document, do you understand? COHEN: Yes, I accept that, your Honour. HIS HONOUR: You have got to 3 o'clock to have a final document and if these amendments are proposed to be carried through the other three sets of proceedings well you will have to have a document in respect of each of them, do you follow me? COHEN: Your Honour, with the greatest‑‑ HIS HONOUR: Pardon me. Do you follow me, Mr Cohen? COHEN: I am having some difficulties because I didn't mention anything about amending‑‑ HIS HONOUR: I want your assurance that there's no amendment to any other proceeding. Because part of the confusion that you have generated in this case has been that I'm unsure now whether there's any slippage from News 1 into News 2 and 3 or, for that matter, into SBS. So do it properly, all right? COHEN: I accept that, your Honour. HIS HONOUR: You've got until 3 o'clock. COHEN: Sorry, can I just clarify, does that mean when your Honour says I have to 3 o'clock, does that mean we're adjourning to 3 o'clock? HIS HONOUR: Yes, it does. To give you the opportunity to do it. Mr Dawson, you better get a translator. I'll hand that (the schedule) down. I will adjourn until 3 o'clock." 1. I acknowledge I had become irritated from the point where I said, "when can you bring forward a document which you say represents the case you want me to consider?" My tone became firm, emphatic and insistent. And the volume of my speech would have grown noticeably louder to the listener. It is fair to say I raised my voice at Counsel. And the source of my irritation was, having sought an indulgence by way of leave to make a late amendment, Mr Cohen had become defiantly unco-operative when Mr Dawson was looking for co-operation as to the meaning of expressions used by the plaintiff in circumstances where he had not been called to give evidence in his own case. 2. I acknowledge that a judge should always act with moderation, curtesy and restraint, but that shortfalls from that standard do occur from time to time due to human frailty, at least in my own case. 3. I reflected upon how I had spoken to Counsel during the ensuing adjournment. Upon resumption, I said the following: "HIS HONOUR: Mr Cohen before you say anything, I am sorry that there's only a few people in the courtroom, but I want to apologise to you for raising my voice to you this morning. The idea that I wanted to communicate would have been much better conveyed if I'd spoken to you in a normal conversational tone. I am sorry. COHEN: I apologise to your Honour if I did something to cause you to raise your voice. I apologise. HIS HONOUR: That's quite all right, Mr Cohen. Have you got your document? COHEN: Yes." After Mr Cohen took me through the document, the following exchange occurred (93.25 - 93.30T): "HIS HONOUR: There's no application in relation to any other pleading in News 2 or 3? COHEN: No, that's right, your Honour, thank you." News 2 and 3 are two of the three other proceedings being heard concurrently arising out of the same matters. The fourth proceeding is brought against the Special Broadcasting Service (SBS). 1. The defendant raised no opposition to me granting the amendment, provided it was able to rely upon the transcript of evidence before the Royal Commission in relation to its justification defence. Until then its use had been limited to the fair report defence. I did not understand Mr Cohen to oppose that course (95.25 – 96.15T). Ground 2: the translation of the glossary of Hebrew and Yiddish expression 1. The passage of the transcript where I refused the defendant's application to require the plaintiff to admit the meaning of the outstanding Hebrew and Yiddish expressions is set out above. I am at a complete loss to understand how anyone could understand my refusal of Mr Dawson's application in the light of Mr Cohen's opposition, let alone a fair-minded lay observer, displayed partiality to the defendant; that the words might have been uttered in the same mode of speech as I have described above, in my judgment, can make no difference. Frankly, I find it impossible to conceive that a fair minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the questions I have to decide simply because I rejected an application made by Mr Cohen's opponent in what might justly be taken to be a cranky tone. If anything it demonstrates the opposite. Ground 3: "the heated exchange" 1. This ground relates to the argument concerning the admissibility of documents that were eventually admitted as Ex "N". These were print-outs of additional emails between the plaintiff and a journalist tendered to contextualise other print-outs of e-mails tendered by the defendant snd admitted as Exs DTB 33 and 34. During this argument, Mr Cohen submitted that Exs DTB 33 and 34 should be "taken out of evidence, notwithstanding the objection wasn't taken yesterday but I will get to that in a moment" (138.5T). When Mr Cohen got to "that", he said (139.50 – 140.10T): "COHEN: Your Honour, I am blunt, I will be very blunt. I was actually quite shaken up yesterday and I made some errors and I have to say with the greatest of respect, with the greatest of respect ‑ and it is not something I would say very often, in fact I haven't said it before ‑ but in some ways, with the greatest of respect, I would say that your conduct had something to do with that, your Honour. HIS HONOUR: I beg your pardon? COHEN: In some ways, your Honour, your Honour raised your voice at me yesterday and I found that, with the greatest of respect, inappropriate. HIS HONOUR: But I apologised for that at the first available opportunity. COHEN: I know and I accepted your apology, but I am just simply explaining the concept of fairness and I don't intend to take a further issue with that." 1. After this exchange, I made an error about the timing of the admission of the defendant's exhibits. I erroneously thought they had been tendered before I had raised my voice at Counsel. I was corrected by Mr Dawson and I accepted I was wrong in my recollection. But I do not accept that the discussion with Mr Cohen was heated. I did not raise my voice, and if I was at all terse, it may have been because I was concentrating on the ramifications of the submission. In particular whether there was a need to review the admission of all of what had been tendered when counsel was "shaken up". 2. I am not of the view that even a robust exchange between counsel and judge about the admissibility of evidence would give rise to any question in the mind of a fair-minded lay observer about the partiality of the judge so far as the determination of the case on its merits was concerned. Consideration 1. I accept that when I spoke to Mr Cohen during the passage I have set out fully at [11] above, which occurred before the luncheon adjourment on 9 May 2018, as I said to Mr Cohen on 10 May 2018 (146.25T), I was intemperate, raised my voice and got cranky with counsel because I had been irritated by the fact that he was not properly armed to demonstrate the amendment he was seeking leave to make. And because he was defiant about the defendant's application notwithstanding that he was also seeking an indulgence. However, I was justified insisting upon a document in final form containing all of the amendments counsel wished to make. I should have insisted upon that requirement in a calm and measured way rather than in a raised voice. Of course, this is why I apologised to counsel at the first available opportunity. 2. The exchange occupied a matter of minutes only in a hearing which was then in its second day and which has continued over another three days. A fair-minded lay observer present during the whole hearing knowing those circumstances and who heard the apology given at the first available opportunity would have no concern that a professional judge would not do his or her duty to decide the case impartially because of the expression of a few minutes of irritation with counsel. 3. The only matter of potential, practical unfairness that Mr Cohen was able to point to, that is to say, the logical connection between the matter complained of and the feared deviation from the course of deciding the case on its merit is that he "might have made an application to an amendment to another statement of claim that could have a critical effect" (148.1 – 148.5T). This submission was made notwithstanding the complete disavowal of such an intention twice during the discussions set out above. 4. As it transpired a further application to amend pleadings was made later on 10 May 2018 (167.45T ff) involving the Further Amended Statement of Claim filed on 24 March 2018 in the third News proceedings. In the end that amendment was not pressed, the parties being in agreement as to the meaning of the imputation pleaded (176.35 – 177.15T). 5. I am not satisfied that the plaintiff has demonstrated that I should disqualify myself from hearing the case. ********** Amendments 21 May 2018 - Legislation Cited: Royal Commissions Act 1982 changed to Royal Commissions Act 1902; Paragraph 7: Royal Commissions Act 1982 changed to Royal Commissions Act 1902. 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: 21 May 2018