HER HONOUR: Before the Court are three sets of proceedings for defamation commenced by Rabbi Feldman against various parties, all relating to publications concerning the Rabbi's evidence before the Royal Commission into Institutional Responses to Child Sexual Abuse.
The defendants have filed defences which include the defence of justification to particular imputations specified by Rabbi Feldman in his pleadings. The plaintiff moves today to have parts of the particulars of justification struck out.
It is common ground, I think, that the application can be determined by reference to one of the three sets of proceedings since, in each case, the particulars of justification are substantially the same and the basis for the application to have those particulars struck out is the same.
It is convenient to consider the application by reference to proceedings 2016/40435 against the Executive Council of Australian Jewry. The relevant imputation in those proceedings is that the plaintiff, a Rabbi by profession and occupation, is not fit to be a religious leader.
The impugned particulars of justification are in the following terms:
79 In or around 2010, the plaintiff, a married man with ten children, was recorded asking a woman if she would like to go on a date with him, and, if she wanted it, to have sexual intercourse with her.
80 On or around 9 February 2015, the audio referred to at paragraph 79, above, appeared on the website Failed Messiah at [details provided].
81 On or around 24 February 2015, the plaintiff wrote an email to the editor of the website Failed Messiah, in which he proffered the following explanation for the audio recording at the time the recording was made:
a. Yeshiva was in financial trouble and was about to close;
b. the plaintiff owed the woman on the tape thousands of dollars as she had been teaching for a long time without being properly paid;
c. the woman had stopped teaching but would come to the plaintiff regularly to get whatever money she could and to "farbreng" (a Yiddish word meaning "to spend time") with the plaintiff;
d. the plaintiff needed to stop "farbrenging" with the woman as it was wrong but he did not want to push her away as he owed her money;
e. the plaintiff and his friend came up with a "nice plan" whereby the plaintiff would propose a relationship with the woman (which was not harassment because she was no longer teaching at the school), which she would refuse but would make her feel great;
f. the "nice plan" was sort of a joke;
g. the "nice plan" worked as the woman rejected the plaintiff and stopped "farbrenging" with him;
h. the plaintiff recorded the conversation because his friend and other people thought it was an "interesting" tactic.
82. The email appears at the Failed Messiah website at [details provided].
83 On or around 22 July 2016, the plaintiff engaged in an exchange on Facebook with a user known as "Benny Forer", in which:
a. "Benny Forer" was critical of the plaintiff's attitudes towards the victims of child sex abuse and his ignorance of his obligations as director of a school;
b. the plaintiff responded by saying, inter alia:
"I wouldn't mind making such a disgusting piece of s…lowlife like yourself bankrupt. The world would be better off than having vermin like you with money. Let's see if you're a coward. Give me your address so I'll begin an action now."
"Let's see if you're a man ot (sic) a coward not to give me your address now for if you don't unless you apologise I'll likely surprise you when you're least expecting it … Like P Bush said re the terrorists - that in word you are like then … that even though it may take time we'll find them in their holes and sniff them out."
84 On or around 23 July 2016, during a debate on a blog called Lost Messiah [details provided], the plaintiff wrote the following to a user known as "H":
"The degenerate way you write like a paedophile writes shows on your character and I hope you end up in jail and get raped so you can even in a small way realise the hurt you've caused others"
"A low life coarse guy like you is probably a criminal. When you end up in jail and get raped and repeatedly until you bleed profusely … I hope that at least then you'll do Teshuva."
Rabbi Feldman seeks to have those particulars struck out on three principal grounds. The first is the contention that the material is wholly irrelevant to any issue in the proceedings because the imputations pleaded by him are tied to the statements he made in his evidence before the Royal Commission. The plaintiff makes the point that the defendants admit that connection in the pleadings. In particular, the Amended Statement of Claim at paragraph 5 contends:
The statement [a reference to the matter complained of] was in relation to evidence the plaintiff had given at the Royal Commission into Institutional Responses to Child Sexual Abuse regarding the Yeshiva College and Yeshiva Centre in Sydney.
That contention is admitted in the defence.
It may be accepted that the admissibility of any evidence adduced by the defendants at the proceedings will be determined as informed by the trial judge's consideration of the relevance of that evidence to the proof of the imputation as understood in the context of the matter complained of. The contextual importance of the matter complained of is well-established.
The test on the present application is different. The task for the Court is to consider whether the impugned particulars of justification are capable of being relevant to the proof of truth of the imputation.
The imputation itself has been cast in broad terms, bringing forward for litigation the question of the vindication of the Rabbi's reputation against the broadly framed imputation that he is not fit to be a religious leader. I am not persuaded that the particulars are incapable of informing the truth of that imputation, even having regard to the importance of the context in which the imputation is alleged to be conveyed.
The second broad basis for the application is that Rabbi Feldman submits the question of a religious leader's fitness to hold that profession or occupation, specifically in the case of a Rabbi, is one which falls to be determined by reference to whether the person has done anything against the Jewish law or the secular law and that it is incapable of being informed by that person's private conduct.
Rabbi Feldman submitted that fitness for leadership turns on a person's presentation to the public or what is done in public and that private matters cannot inform that question. That is a question which has vexed many leaders, both religious and political, probably for centuries.
The question of the relevance of a person's private conduct to their fitness to hold public office or a position of religious leadership is, in my view, quintessentially a question for the determination of the jury as the tribunal of fact. It is not an issue which I should pre-empt at an interlocutory stage in such a way as to deprive the defendant of the entitlement to bring forward the argument at the final hearing.
The third principal basis for the application was framed by reference to a question posed rhetorically by Rabbi Feldman, how could he defend the allegations? To a degree, that submission was tied to the second proposition in the sense that the question of the relevance of private conduct to public leadership is inherently subjective and one which is difficult to contest with any particular type of evidence Rabbi Feldman may have available to him. As with the second basis for the application, however, I think that is a matter for the trial and, particularly, for the determination of the tribunal of fact at the trial. I am not persuaded that forensic contest is properly amenable to a strike-out application.
As noted by Ms Amato, who appears for the defendants, the corresponding imputations in the second and third proceedings are different from the imputation in the first proceeding raising the question of fitness to hold a position of religious leadership. The imputation in support of which the impugned particulars are pleaded in proceedings 2016/40450 is that the plaintiff, a Rabbi by profession and occupation, is unfit to work in any communal capacity or any position which involves pastoral care within the Jewish and wider community at large. In the case of the third proceedings, 2016/40453, the relevant imputation is that the plaintiff, who is a Rabbi by profession and occupation, is unfit to hold any position of authority or leadership in the Jewish community.
Whilst the precise act or condition attributed to the Rabbi by each of those imputations is different from the question of fitness to hold the position of religious leadership, the arguments in my view are substantially the same and are to be rejected on the same basis.
Ultimately, I have not been persuaded that the impugned particulars are incapable of informing the questions of fact which will arise for the tribunal of fact at trial or that the defendants' case on that issue is so hopeless as to warrant striking it out pre-emptively. For those reasons, the application to have those particulars struck out is refused.
The defendants in each proceeding have proposed that the proceedings be referred to Court-annexed mediation. Rabbi Feldman consents to that course. In the circumstances it is appropriate, in my view, to defer the determination of the issues ordinarily determined at the second listing in accordance with the Practice Note and to make orders referring the proceedings for mediation in accordance with the Short Minutes provided by Ms Amato on behalf of the defendants.
ORDERS:
1. The plaintiff's application to have parts of the particulars of truth struck out is refused.
2. I order that the three proceedings be referred to court annexed mediation, such mediation to be listed on the first available date after 30 January 2017.
3. Proceedings relisted on 3 March 2017.
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Decision last updated: 05 December 2016