Feldman v Executive Council of Australian Jewry Inc; Feldman v Council of Orthodox Synagogues of Australia Ltd; Feldman v Spinak

Solicitors: Marsh Maher Solicitors (defendants) File Number(s): 2016/404352016/404502016/40453

JUDGMENT

1. 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.
2. 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.
3. 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.
4. 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.
5. 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."