Feldman v Polaris Media Pty Ltd as trustee of The Polaris Media Trust trading as The Australian Jewish News (No 2) [2018] NSWSC 1035

Supreme Court New South Wales

Medium Neutral Citation: Feldman v Polaris Media Pty Ltd as trustee of The Polaris Media Trust trading as The Australian Jewish News (No 2) [2018] NSWSC 1035 Hearing dates: 10, 11, 12, 13, 14 July 2017 Decision date: 23 July 2018 Jurisdiction: Common Law Before: McCallum J Decision: Judgment for the defendants Catchwords: DEFAMATION – defences – defence of honest opinion – publication of articles concerning evidence given by a rabbi to the Royal Commission into Institutional Responses to Child Sexual Abuse – articles attributing rabbi with reprehensible ignorance of the fact that to touch a child for sexual gratification on the genitals was a crime – whether conveyed as opinion or fact – whether any opinion was based on proper material – defence of justification – consideration of effect of rabbi's evidence to the Royal Commission – defence of contextual truth – where defence required to be determined only in case of appeal – whether necessary to determine the truth of serious contextual imputations – appropriateness of determining defence on alternative assumptions – defence of fair report – consideration of principle that report does not have to be a complete account of the proceedings of public concern – whether report must nonetheless be a complete account of the evidence on the topic reported – defence of statutory qualified privilege – publication of articles concerning hearings before the Royal Commission – consideration of requirement that the conduct of the defendants in publishing the information was reasonable in the circumstances

JUDGMENTS – where defendants pleaded multiple defences – success on two defences obviating the need to determine remaining defences – consideration of requirement that the judge should ordinarily determine all factual questions in the proceedings Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A Crimes Act 1900 (NSW), ss 61M, 61N Defamation Act 2005 (NSW), ss 25, 26, 29, 30, 31 Uniform Civil Procedure Rules 2005 (NSW), r 15.28(2)(a) Cases Cited: Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228 Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 Bickel v John Fairfax & Sons Ltd (1981) 2 NSWLR 474 Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 1091 Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; [1998] HCA 37 Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60 Cheikho v Nationwide News Pty Ltd (No 5) [2016] NSWSC 29 Cush v Dillon (2011) 243 CLR 298; [2011] HCA 30 Eades v Director of Public Prosecutions (NSW) (2010) 77 NSWLR 173; [2010] NSWCA 241 Fairfax Digital Australia & New Zealand Pty Ltd v Kazal [2018] NSWCA 77 Greek Herald Pty Ltd v Nikolopoulos (2001) 54 NSWLR 165; [2002] NSWCA 41 Gulic v Boral Transport Ltd [2016] NSWCA 269 Hanrahan v Ainsworth (1990) 22 NSWLR 73 O'Brien v Australian Broadcasting Corporation [2016] NSWSC 1289 O'Brien v Australian Broadcasting Corporation [2017] NSWCA 338 Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 Sleiman Investments Pty Ltd as trustee for the Sleiman Family Trust v Deputy Commissioner [2017] NSWCA 81 Category: Principal judgment Parties: Yosef Yitzchak Feldman (Plaintiff) Polaris Media Pty Ltd as trustee of The Polaris Media Trust trading as The Australian Jewish News (First Defendant) Joshua Levi (Second Defendant) Representation: Counsel: J Cohen (Plaintiff) S T Chrysanthou with N G Olson (Defendants)