Feldman v Alhadeff

Court of Appeal (NSW)|2017-02-06|Before: Macfarlan JA, McCallum J, MacFarlan JA

Solicitors: Self-represented Applicant Marsh & Maher (Respondent) File Number(s): CA 2016/256299 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: Feldman v Spinak [2016] NSWSC 1083 Date of Decision: 29 July 2016 Before: McCallum J File Number(s): SC 2016/00040453

[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.]

The Board of Deputies' statement

In respect of the Board of Deputies' statement, her Honour noted that the first, second and third proposed amended statements of claim which were served omitted any pleading against Mr Alhadeff, resulting in Mr Alhadeff inviting Rabbi Feldman to discontinue proceedings against him "on the basis of no order as to costs". Her Honour then observed that the fourth proposed amended statement of claim, which reinstated the claim against Mr Alhadeff, "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" ([12]). By implication her Honour accepted that this and the fact that the pleading sought to reintroduce an allegation previously abandoned, a course said by Mr Alhadeff to have been implicitly disapproved by the Court of Appeal in Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 (see [20]-[33]), warranted refusal of leave to amend. Her Honour reiterated that the current version of the pleading "wholly fails to particularise how Mr Alhadeff might be held liable as a publisher" ([15]) when the statement itself expressly said that it had been made by Mr Spinak. A complaint as to the omission of such particulars from the original pleading had been made to Rabbi Feldman and had led, at least in part, to that pleading being struck out.
Her Honour did not err in concluding that in the context of the present case, where the allegedly defamatory statement purported to be that of Mr Spinak and not Mr Alhadeff, the particulars sought by the respondent were necessary for the proper conduct of the case (see Sims v Wran [1984] 1 NSWLR 317 at 321-2 per Hunt J as to the importance and nature of particulars in defamation, as in other, matters).

The ABC Interview

As to the interview with Mr Alhadeff broadcast on the ABC on 11 February 2015 (see [5] above), her Honour found that leave to amend should be refused because a period in excess of 12 months had elapsed since the original statement of claim was filed, and the cause of action was therefore statute barred (Limitation Act 1969 (NSW) s 14B). Rabbi Feldman did not suggest that this was a case in which an extension of the limitation period might have been granted under s 56A of the Limitation Act. As a result, consideration needed to be, and was, given by her Honour to s 65(2) of the Civil Procedure Act 2005 (NSW) which permits a plaintiff, with the leave of the court to amend an originating process so as: "(c) To add or substitute a new cause of action, together with a claim for relief on the new cause of action, being a new cause of action that, in the court's opinion, arises from the same (or substantially the same) facts as those giving rise to an existing cause of action and claim for relief set out in the originating process" (s 65(2)).
If that condition is satisfied, the amendment takes effect from the date on which the proceedings were commenced (s 65(3)). In the present case, that date is within the limitation period.
Rabbi Feldman relied upon paragraph 6 of the initial statement of claim (see [2] above) as pleading a cause of action that arose from the same (or substantially the same) facts as those giving rise to the cause of action related to Mr Alhadeff's interview with the ABC pleaded in the fourth proposed statement of claim. Her Honour was not satisfied that this was the case and in my view there was no error in her Honour so concluding.
The original statement of claim related to statements published by the NSW Jewish Board of Deputies "on its website and Facebook page" on 10 February 2015. In light of the context in which it appeared, the reference in paragraph 6 of the statement of claim to Mr Alhadeff making "further publications on his Twitter account" was a reference to further publications of the same statements, namely those published by the Board of Deputies. The paragraph then alleged that the "Twitter postings" contained "links to other sites including to the ABC Radio and news site wherein the defendant makes further statements". In their terms, these words were capable of including indirect reference to publications of extracts from Mr Alhadeff's interview with the ABC. However it cannot rationally be said that the pleading contained a complaint about the publication of what was said in that interview. The relevant allegation in the pleading was of great generality and did not inform the reader that the interview was the subject of a defamation claim by Rabbi Feldman. An implicit invitation to the reader of the statement of claim to "click the links" (to use Rabbi Feldman's expression) was wholly ineffective as a means of pleading a defamation claim in respect of whatever might be seen if the links were clicked.
That being the case, the condition in s 65(2)(c) was clearly not satisfied. The causes of action pleaded in the original statement of claim arose from different facts than those Rabbi Feldman sought to rely upon in the fourth proposed amended statement of claim. The former concerned the Board of Deputies' statement and the latter concerned Mr Alhadeff's interview with the ABC. The allegedly defamatory matters were quite distinct and the causes of action, and the facts from which they arose, were accordingly quite different.

Conclusions

Her Honour's decision not only to refuse leave to amend but also to dismiss the proceedings against Mr Alhadeff was not attended by any obvious error. Her Honour properly took into account in this respect, first, the history of the proceedings, including that Rabbi Feldman dropped any claim against Mr Alhadeff for a period of time, and, secondly, her Honour's conclusion about the prospects of success of the fourth proposed statement of claim which was served as the culmination of a substantial period of communication between the parties.
Rabbi Feldman contended before this Court that he had been denied procedural fairness below because Mr Alhadeff did not contend before McCallum J that the proposed second cause of action was statute barred. However the transcript and Mr Alhadeff's written submissions below demonstrate that the issue was in fact squarely raised.
In my view, Rabbi Feldman's application for leave to appeal should be refused on the ground that his proposed appeal does not have significant prospects of success. McCallum J's orders concerned matters of practice and procedure in relation to which this Court will ordinarily not intervene unless the proposed appeal is at least strongly arguable.
I propose that the application for leave to appeal be dismissed with costs.
EMMETT AJA: Rabbi Yosef Feldman seeks leave to appeal from interlocutory orders made by a judge in the Common Law Division on 29 July 2016 whereby defamation proceedings brought by Rabbi Feldman against Mr Vic Alhadeff and Mr Jeremy Spinak be dismissed insofar as they relate to Mr Alhadeff. I have had the advantage of reading in draft form the proposed reasons of Macfarlan JA. I agree with his Honour, for the reasons proposed, that the application for leave to appeal should be dismissed with 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: 16 February 2017

(Limitation Act 1969(NSW)s 14B).

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