HER HONOUR: These are proceedings for defamation commenced by Rabbi Yosef Feldman in respect of four articles published in newspapers owned by Nationwide News Pty Ltd. Each of the articles reported on evidence given by Rabbi Feldman before the Royal Commission into Institutional Responses to Child Sexual Abuse. By notice of motion filed 10 June 2016, the defendants seek to have the proceedings dismissed on the basis that they are frivolous or vexatious or otherwise an abuse of the process of the court. This judgment determines that application.
The application invokes r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), which confers power to order that proceedings be dismissed generally or in relation to any claim for relief if it appears that the proceedings are frivolous or vexatious; that no reasonable cause of action is disclosed or that the proceedings are an abuse of the process of the court. The basis for the application in the present case is that a statutory defence to the plaintiff's claim, the defence of fair report, is so obviously able to be established that the claim must be regarded as manifestly hopeless.
The defendants' written submissions acknowledged the well-established principle that a court should not determine contested issues in a case summarily except in the clearest of cases. It is necessary to consider the issues likely to be in contest in the present case.
Feldman v Nationwide News Pty Ltd [2016] NSWSC 1890 | Case summary | Zoe
Section 29(1) of the Defamation Act 2005 (NSW) relevantly provides:
"It is a defence to the publication of defamatory matter if the defendant proves that the matter was, or was contained in, a fair report of any proceedings of public concern."
The plaintiff accepts that the Royal Commission constitutes proceedings of public concern within the meaning of that section. The critical issue raised by the defence will be, in each case, whether the report was "fair". The defendants relied on the consideration of that element of the defence in Thom v Associated Newspapers Ltd (1964) 64 SR (NSW) 376 at 380, where it was said that a publication is "fair" if it expresses, with substantial accuracy, what took place in that part of the proceedings of which it purports to be a report. The court said:
"The report need not be verbatim, but to be privileged it must accurately express what took place. Errors may occur; but if they are such as not substantially to alter the impression that the reader would have received had he been present at the trial, the protection is not lost."
Similarly, in Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 63, Hunt J said (citations omitted):
If the report is fair, in the sense of reporting with substantial accuracy what in fact was said and done in the proceedings, it matters not that statements made in the course of those proceedings and included in the report were themselves irrelevant to the issues being litigated in those proceedings. Nor does it matter if those statements so reported are themselves factually untrue…If the statements made in the course of the proceedings were in fact false, they were nevertheless made and those present in court heard them. A report which includes those false statements does no more than inform the public of what they would have heard had they been present in court; the report simply records what had been said, and as such it is a fair report notwithstanding that what is reported is itself factually untrue.
The defendants also relied on Cook v Alexander [1974] QB 279 at 290 where it was said that a report dealing only with part of proceedings may attract a fair report defence provided it is not "so tendentious or otherwise so slanted as to make it a distorted report of that part of the proceedings to which it relates".
The defendants accepted that, for the purpose of the present application, the Court should assume, in the plaintiff's favour, that the tribunal of fact will find the imputations specified by him to be conveyed by the matters complained of. The plaintiff contends that each of the matters complained of conveyed the following imputation:
That he displayed reprehensible ignorance of the fact that it was against the law for an adult to sexually touch the genitals of a child.
In respect of the fourth matter complained of, the plaintiff has specified the following additional imputation:
The plaintiff displayed reprehensible ignorance of the fact that it is wrong for an adult to sexually touch the genitals of a child.
It may be noted that, in each case, the imputation is reprehensible ignorance regarding sexual touching.
In order to succeed in the application, the defendants must establish that the strength of the defence of fair report is such that the plaintiff's claim is manifestly hopeless or untenable. The defendants sought to make good that contention by reference to a schedule comparing the terms of each article with the transcript of the plaintiff's evidence before the Royal Commission. They submitted that the parts of the article that are capable of giving rise to the imputations pleaded by the plaintiff are almost entirely direct quotes from the plaintiff's evidence. It was submitted on that basis that it is "beyond argument" that the imputations pleaded by the plaintiff are a fair encapsulation of the gist of his evidence.
Mr Cohen, who appears for the plaintiff, submitted that there is a triable question as to whether the reports are "fair". He relied on the principles summarised by Kirby J in Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; [1998] HCA 37 at 587-8. In particular, Mr Cohen noted that a report will not be fair if it substantially alters the impression its recipient would have gained had he or she been present during the proceedings. A report also runs the risk that it will not be fair if it includes "excessive commentary or misleading headlines".
Mr Cohen identified, by reference to the transcript of the plaintiff's evidence before the Royal Commission, features of each of the matters complained of by reference to which those reports might be found not to be fair. Those submissions have persuaded me that the plaintiff's claim is not manifestly hopeless.
The principal focus of the articles was the plaintiff's alleged ignorance of the law. It is appropriate to set out the relevant passages from the transcript of the plaintiff's evidence before the Royal Commission. The questioning related to the plaintiff's response, when he was the rabbinical administrator of Yeshiva College, to a complaint by the mother of a boy at the College concerning the conduct of a teacher's aide at the College. The relevant exchange began at C6430 as follows:
"Question: You still assert that you did not know in 2002 from the fact that your father had told you a complaint had been made against him involving allegations that might be sex abuse and from your conversation with [xx] in which he admits lying down and massaging him, your evidence is that you did not know at this time that one of the results that might happen as a result of going to the authorities would be that he could be charged with a crime?
Answer: I didn't have a clue. I didn't think much about from the legal perspective. As I said, that wasn't my involvement and I don't deal with that sort of thing.
Question: But your understanding was that the allegations involving [xx] were that he touched the genitals of an underage boy.
Answer: I heard later. I don't think I heard at the time. If I would have heard that, then I would have probably thought that even from a criminal code that would probably be already something which is criminal. But, just the touching and massaging in itself, I only heard of that at that stage. I think I only found out about anything further much later on, not at the time."
Then at C6432, there was the following exchange:
"Question: What notes did you make of these in conversations?
Answer: Anyone who knows me knows that I don't usually make notes and I keep everything in my mind. It's not - unless it's at times, but it's not my style. I'm not - it's not what I normally do regarding these issues.
Question: Even though you have had a conversation with someone who has told you something has occurred that you, firstly, consider is highly inappropriate and, secondly, which you know might amount to child sexual abuse?
Answer: Child sexual abuse - when you say "child sexual", I'm not talking about from a legal perspective; I'm talking from a Jewish perspective it was highly inappropriate. I didn't know what the legal code or code legally would be in that regard. Whenever you mention "child sexual abuse" I hope you are not referring to the criminal act of child sexual abuse. I hope you are referring to the act of child sexual abuse…
Question: In 2002 did you understand it was against the law for an adult to touch the genitals of another child?
Answer: I didn't know that as a fact."
After a short adjournment, counsel assisting returned to the topic in the following exchange:
"Question: Rabbi, I just want to be clear that you understood the question that I asked you before the break. In 2002, the time that these conversations with [xx], is your evidence that you did not know it was against the law that is a crime, for an adult to touch the genitals of another child?
Answer: The genitals I would have assumed is a crime but massaging I wouldn't have necessarily thought it's a crime, and that's what I understood at the time, lying and massaging is what took place, and I wouldn't have thought that that would fall under the category of child sex abuse, whatever criminal aspects of it are.
Question: So you understood in 2002 that the nature of a massage, depending on what was touched, could have amounted to a crime?
Answer: As I said, it didn't enter my mind it being a criminal sort of thing until - it could have also been, for example, if someone can be banned from kids or whatever, but I didn't know that it would be a crime and I didn't think about it. If I would have heard he had touched the genitals then obviously that I would consider, as probably the criminal system would consider, it a crime. But what took place, it didn't enter my mind that it is a crime.
Question: I asked you before the break and I asked you this very question at line 30 page 6432 of the transcript, "In 2002 did you understand that it was against the law for an adult to touch the genitals of another child" and you said "I didn't know that as a fact".
Answer: I still don't - now I know as a fact it is. But then I didn't know it as a fact, but I would have imagined that it is."
It may be accepted that, in those exchanges, the plaintiff was professing a degree of ignorance concerning the law. However, the assessment of that evidence is complicated by two matters. First, there was evidently an issue as to when the plaintiff knew the complaint was one of touching a child's genitals, as opposed to "lying down and massaging him". Secondly, there was a legal assumption embedded in the questions asked by counsel assisting. The questioner asked whether the plaintiff was aware, in 2002, that it was "against the law, that is a crime, for an adult to touch the genitals of another child". While the context in which the questions were asked suggested she meant sexual touching, that was not the question. In fact, it is not always necessarily a crime for an adult to touch the genitals of a child (such as when a child is bathed or changed or medically examined). The wisdom of taking that point in the circumstances might be doubted but that is not the point. It is reasonably arguable that the plaintiff, in the evidence set out above, was not admitting ignorance of an accepted fact but was simply declining to accept the correctness of the premise on which the question was based.
In my assessment, the question whether the plaintiff must have appreciated what the questioner meant rather than what she said is a question of fact that cannot be determined summarily. There were nuances in the evidence that are not reflected in the two imputations pleaded by the plaintiff. The plaintiff is entitled to have those matters tried before the court in the ordinary way.
Separately, Mr Cohen's submissions have persuaded me that each of the matters complained of contains material by reason of which it is reasonably arguable that each report is not fair. As submitted by Dr Collins, who appears with Ms Barnett for the defendants, the fact that a report contains a combination of report and comment does not necessarily mean the defence does not apply. However, in the present case, it does mean that a question of fact is raised which must be determined by the tribunal of fact in the ordinary way.
As to the first matter complained of, the opening sentence of the article juxtaposes the evidence about the plaintiff's knowledge that "an accused child abuser might flee the country" with his ignorance of the fact "that it was illegal for an adult to touch a child's genitals". For the reasons explained above, I think it is reasonably arguable that a person present at the hearing might have gained a different impression of that evidence, namely, that the plaintiff was taking issue with the legal correctness of the premise that it is always necessary illegal for an adult to touch a child's genitals.
Separately, Mr Cohen noted the commentary at the conclusion of the article referring to the Royal Commission's "exposing the failures of religious leaders who had known about the abuse". The word "exposing" might reasonably be taken to refer to the evidence of the plaintiff reported in the main body of the article. As submitted by Mr Cohen, the inference is that the plaintiff's failures were exposed because he did not take the allegations seriously and did not know it was against the law for an adult to sexually touch the genitals of a child.
As to the second matter complained of, the article reports that the plaintiff "admitted" not knowing in 2002 that it was illegal for an adult to touch a child's genitals. The use of the word "admitted" pre-empts the determination of the issue I have identified above.
The third matter complained of accurately reports the particular exchange set out above. However, that article includes other commentary, including that the plaintiff's evidence "shocked victims of sexual abuse", which is at least reasonably capable of being considered tendentious.
As to the fourth matter complained of, the article states that the plaintiff did not know it was "wrong" for adults to touch the genitals of children. As with the second matter complained of, the article conveys a degree of opprobrium which pre-empts the issue I have identified above. The fourth matter complained of also includes the commentary that the plaintiff's evidence "shocked victims of sexual abuse".
In all the circumstances, I am not persuaded that the plaintiff's claim is manifestly hopeless. It follows that the defendants' application must be dismissed with costs.
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Decision last updated: 22 December 2016