Feldman v Nationwide News Pty Ltd

A. Anything could be. I didn't know that it is.' (RCT 699) 10 After further extensive questioning the appellant gave the following evidence: 'Q. So you knew on 24 July, when you had a conversation with [AVL], that the admission he had made to you of the physical contact, the laying down with him, could be a crime? A. I don't know what the Criminal Code is and what's a crime and what's not a crime. A lot of things could be a crime but I don't think it is, and a lot of things isn't - I didn't really think in those terms. What can I tell you? I think in my terms. I did not think about - it didn't enter into my mind the whole idea of what's considered a legal crime or not; what should be reported to the police or not. It's not something in those terms - I mainly deal with issues in the way in which I feel Jewish law would consider something as being proper or improper and I told him so. I did not think in the terms of what's a crime and what's not a crime legally.' (RCT 702) 11 Later, it was put to the appellant that he knew that teachers or anyone involved with children should not be massaging children while they lay down with them (RCT 704.5). He responded: 'As I said, from a legal perspective that wasn't what I knew. I knew from a Jewish perspective that that's very wrong, because it is a form of abuse that the child is not interested in and anything which is abuse, physical abuse, any sort of abuse is terrible, and I have seen people suffering because of any sort of abuse.' (RCT 704) 12 He refused to accept that if someone lay down with a child and massaged the child that that could potentially be a crime, saying 'It could potentially be something which is highly inappropriate. I do not know what a crime is from a legal society perspective.' (RCT 704-705) He accepted counsel assisting's summary of his evidence as to what he had been told. First, there may have been contact between AVL and the child. Secondly, AVL had laid down with the child. Thirdly, that according to AVL, he may have massaged the child, but not inappropriately (RCT 706-707). Fourthly, he believed that AVL had massaged the child. Fifthly, he believed that such conduct was highly inappropriate. 13 The appellant denied knowing that the complaint involved allegations that might amount to sexual abuse (RCT 707-708). He denied understanding that the allegation was that AVL had touched the genitals of an underage boy. He said that he heard that allegation later (RCT 708). It was put to the appellant again that he knew that the allegation might amount to child sexual abuse (RCT 709.20). He answered: '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 -' (RCT 709)"

1. After this last answer, the following exchange occurred: "Q. In 2002 did you understand it was against the law for an adult to touch the genitals of another child? A. I didn't know that as a fact. (RCT 709)"
2. The Commission then took a short adjournment. Counsel assisting returned to this question as follows: "Q. Rabbi, I just want to be clear that you understood the question that I asked you before the break. In 2002, the time these conversations with [AVL], 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? A. 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. Q. So you understood in 2002 that the nature of a massage, depending on what was touched, could have amounted to a crime? A. 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 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. Q. 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 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.' A. 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. (RCT 710)"
3. On 17 September 2015, oral submissions were made in the Royal Commission in relation to the appellant's evidence and Case Study No 22 more generally.
4. In October 2016, the Royal Commission released its report into Case Study No 22.

The reporting

1. Following the appellant's evidence to the Royal Commission in February 2015, the further oral submissions on Case Study No 22 in September 2015, and the release of the report into Case Study No 22 in October 2016, reporting occurred which gave rise to four sets of defamation proceedings brought in the Supreme Court of New South Wales by the appellant against various media organisations and individual journalists. These proceedings were heard together by Campbell J (the primary judge) over eight days from May to August of 2018.
2. Three of the sets of proceedings were brought against Nationwide News Pty Ltd (Nationwide News) and various individual journalists. The first of these proceedings was also brought against Herald and Weekly Times Pty Ltd. These sets of proceedings were described in the judgment under appeal as the News 1, News 2 and News 3 proceedings respectively. They corresponded chronologically to the reporting on each of the three events referred to in [1], [7] and [8] above.
3. The News 1 proceedings concerned the following publications:

• "Rabbi in the dark on abuse law", The Australian online, published 12AM on 7 February 2015 (Annexure A (1289172, pdf))
• "Controversial Rabbi Yosef Feldman resigns amid furore over sexual abuse comments to Royal Commission", News Local online (Wentworth Courier), published 11:52PM on 11 February 2015 (the 11 February 2015 publication) (Annexure B (1172361, pdf));
• "Rabbi Yosef Feldman tells royal commission he didn't know it's illegal for adults to touch children's genitals", Herald Sun online, published 7:06PM on 6 February 2015 (Annexure C (108301, pdf));
• "Rabbi out of touch: Jewish leader ignorant on child abuse", Herald Sun, published on 7 February 2015 (Annexure D (650121, pdf)).

1. The News 2 proceedings concerned the following publications:

• "Rabbi Yosef Feldman accused of mixed messages on child abuse", The Australian online, published 12AM on 19 September 2015 (Annexure E (554978, pdf));
• "Rabbi's 'mixed messages on abuse'", The Weekend Australian, published on 19-20 September 2015 (Annexure F (198178, pdf)).

1. The News 3 proceeding concerned the following publication:

• "Royal commission says Jewish leaders 'failed' abused children", The Australian online, published 12AM on 30 November 2016 (Annexure G (567617, pdf)).

1. The fourth set of proceedings concerned the online reporting by the Special Broadcasting Service Corporation (SBS) of the evidence given by the appellant on 6 February 2015, under the heading "Rabbi feared friend would be jailed" (Annexure H (731555, pdf)).
2. The primary judge dismissed each set of proceedings (Feldman v Nationwide News Pty Ltd [2020] NSWSC 26 (the primary judgment)) and a single appeal has been brought from those dismissals. No appeal has been brought against the judgments in favour of the individual journalists who were defendants in the proceedings at first instance.
3. The Nationwide News defendants and SBS were jointly represented by counsel at first instance and continued to be jointly represented on appeal.

The imputations

1. It was accepted at first instance that each of the four News 1 publications conveyed the following imputations: "(a) The plaintiff was reprehensibly ignorant of the fact that it was against the law for an adult to sexually touch the genitals of a child. (b) In the alternative to (a), the plaintiff in giving evidence displayed reprehensible ignorance of the fact it is against the law for an adult to sexually touch the genitals of a child." These imputations, and those referred to in [19]-[20] below, are only directly relevant in this appeal to the extent that the appellant challenges the primary judge's acceptance of defences of justification.
2. It was also contended that the fourth of the News 1 publications conveyed the following additional imputations: "(c) The plaintiff was reprehensibly ignorant of the fact it is morally wrong for an adult to sexually touch the genitals of a child. (d) Alternatively to (c), the plaintiff in giving his evidence displayed reprehensible ignorance of the fact it is morally wrong for an adult to sexually touch the genitals of a child. (e) Alternatively to (d), the plaintiff did not regard it as morally wrong for an adult to sexually touch the genitals of a child." This claim was rejected by the primary judge.
3. It was accepted that the SBS publication, which also related to the appellant's evidence on 6 February 2015, conveyed the imputation that the appellant displayed "reprehensible ignorance of the fact that it was against the law for an adult to sexually touch the genitals of a child" (imputation (n)).
4. It was accepted that the News 2 publications conveyed the following imputations: "(f) The plaintiff, one of the most senior religious figures of the Jewish ultra-orthodox movement of NSW and formerly the president of the Rabbinical Council of NSW, engaged in a disingenuous 'public relations' exercise in urging sexual abuse victims to contact police. (g) The plaintiff, one of the most senior religious figures of the Jewish ultra-orthodox movement of NSW and formerly the president of the Rabbinical Council of NSW, pressured his flock not to report child sexual abuse to the police. (h) The plaintiff, one of the most senior religious figures of the Jewish ultra-orthodox movement of NSW and formerly the president of the Rabbinical Council of NSW, refused to accept that Jewish organisations had a responsibility to report the sexual abuse of children to secular authorities."
5. In relation to the News 3 publication, the primary judge rejected the appellant's case that it conveyed five imputations that had been identified and to which I will return when considering the specific ground of appeal relating to this publication: see [171]-[184] below.

The defences

1. The respondents successfully raised "fair report" defences pursuant to s 29(1) of the Defamation Act 2005 (NSW) (the Act) in respect of each of the publications in relation to which defamatory imputations were either accepted or found to be conveyed.
2. In addition, the primary judge held, on a contingent basis, that the respondents would have made good the defence of justification in relation to the News 1 and News 2 publications, and the SBS publication.
3. In relation to the News 3 publication of 30 November 2016, the primary judge held, on a contingent basis (because he found that the publication did not carry the imputations for which the appellant contended), that the publication would have attracted the "fair summary of, or fair extract from, a public document" defence pursuant to s 28(1)(b) of the Act: primary judgment at [231].

The issues on appeal

1. The issues raised by the Further Amended Notice of Appeal (Notice of Appeal) can be divided into two broad groups:

• first, those grounds which entailed a general attack on the primary judgment; and
• secondly, those grounds which related to specific conclusions in respect of specific publications.

1. The general issues are as follows: (i) whether the primary judge erred by not acceding to an application that he recuse himself for apprehended bias which was made and rejected on the third day of the hearing (ground 12); (ii) whether the primary judge erred by admitting into evidence the transcript and video recording of the appellant's evidence before the Royal Commission (ground 1). This ground, if successful, would have necessarily resulted in a rejection of the fair report defences, at least in respect of the News 1 publications and the SBS publication, as the respondents would not have been able to relate the contents of their publications to the course of the appellant's cross-examination in the Royal Commission because the record of that evidence would not have been admissible; and (iii) whether the damages awarded by the primary judge on a contingent basis were manifestly inadequate (ground 14).
2. The specific issues included challenges to the rejection of imputations, challenges to findings of fair report and fair summary of a public document, and challenges to findings and contingent findings that the imputations carried were substantially true, such that the publications were justified.
3. The Notice of Appeal also included ground 7 which asserted that the primary judge "misconstrued the s 25 defence of justification in finding that something less or other than substantial truth is capable of establishing a s 25 defence". No written or oral submissions were advanced, however, in support of this ground and in those circumstances it must be taken to have been abandoned.
4. Ground 8 of the Notice of Appeal which asserted an unspecified contravention of s 91 of the Evidence Act 1995 (NSW) was expressly abandoned at the hearing of the appeal.

Refusal to recuse for apprehended bias (ground 12)

1. As noted at [26] above, on the third day of the trial, the primary judge rejected an application made by the appellant that he disqualify himself from hearing the matter for alleged apprehended bias.
2. The primary judge published detailed reasons for his refusal to recuse himself in a judgment delivered on 16 May 2018: Feldman v Nationwide News Pty Ltd (No 4) [2018] NSWSC 682 (the recusal judgment). At [2], the primary judge identified three matters which he understood to found the application for recusal. These were that: "First, when dealing with an application for an amendment of the Statement of Claim in one of the four defamation matters being heard together, I raised my voice at Counsel '[i]n such a manner that would give rise to the ordinary bystander or the average person that there is an apprehension of bias' (sic) (144.20T). Secondly, when I refused an application made by the defendants to require the plaintiff to make admissions about the meaning of Hebrew and Yiddish expressions contained in emails of which he was the author which had been opposed by Mr Cohen, I said to Mr Dawson SC and Ms Barnett, who appear for the defendants '... you better get yourself a translator' (91.35T) in a manner suggesting some partiality to the defendants (144.45T). Thirdly Mr Cohen argued 'there was what I considered some heated exchange in relation to whether a document had been admitted into evidence before or after lunch (yesterday), and I must say, in my respectful submissions there was enough to cause ... the ordinary bystander some concern' (145.5T)."
3. When pressed by the primary judge to identify how it was contended that a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question that the judge was required to decide within the Ebner test (see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (Ebner)), counsel for the appellant, Mr Cohen, said he could not think of an answer to that question. After being offered some time to consider the matter, Mr Cohen offered the vaguest of responses - "I might have made an application to an amendment to another statement of claim that could have a critical effect", quoted by the primary judge in the recusal judgment at [3]. After a further adjournment, the primary judge was informed by Mr Cohen that he did not intend to make any more submissions on the recusal application.
4. Notwithstanding the unsatisfactory way in which Mr Cohen prosecuted the recusal application, the primary judge delivered commendably thorough reasons for not recusing himself.
5. As to the issue of a raised voice, the primary judge said at [12]-[14] of the recusal judgment: "12 I acknowledge I had become irritated from the point where I said, 'when can you bring forward a document which you say represents the case you want me to consider?' My tone became firm, emphatic and insistent. And the volume of my speech would have grown noticeably louder to the listener. It is fair to say I raised my voice at Counsel. And the source of my irritation was, having sought an indulgence by way of leave to make a late amendment, Mr Cohen had become defiantly unco-operative when Mr Dawson was looking for co-operation as to the meaning of expressions used by the plaintiff in circumstances where he had not been called to give evidence in his own case. 13 I acknowledge that a judge should always act with moderation, c[o]urtesy and restraint, but that shortfalls from that standard do occur from time to time due to human frailty, at least in my own case. 14 I reflected upon how I had spoken to Counsel during the ensuing adjournment. Upon resumption, I said the following: 'HIS HONOUR: Mr Cohen before you say anything, I am sorry that there's only a few people in the courtroom, but I want to apologise to you for raising my voice to you this morning. The idea that I wanted to communicate would have been much better conveyed if I'd spoken to you in a normal conversational tone. I am sorry. COHEN: I apologise to your Honour if I did something to cause you to raise your voice. I apologise. HIS HONOUR: That's quite all right, Mr Cohen. Have you got your document? COHEN: Yes.'"
6. Far from giving rise to any apprehension, his Honour's conduct in apologising to counsel for having raised his voice was a model of judicial balance and propriety. The background to the exchange arose from the fact that the appellant's counsel had resisted an application by Mr Dawson SC on behalf of the respondents for the appellant to provide a translation of some Hebrew words he had used in an email or emails that he had authored, and which were or were to be placed in evidence. Mr Dawson had evidently anticipated that the appellant would be giving evidence in chief in the proceedings (a not unusual matter to expect in a defamation case) and had been proposing to ask the appellant the meaning of these words. When it became clear that the appellant was not going to give evidence in chief, Mr Dawson had made an application that the appellant provide a translation. This was resisted.
7. Parties in proceedings before the Supreme Court fall under an obligation pursuant to s 56 of the Civil Procedure Act 2005 (NSW) to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Mr Cohen accepted on the hearing of the appeal that the primary judge could have ordered the appellant to offer a translation in answer to interrogatories. Mr Cohen also did not challenge the primary judge's description of Mr Cohen having become "defiantly unco-operative" in resisting Mr Dawson's application cf SZUON v Minister for Immigration and Border Protection [2018] FCA 705 at [4]-[5].
8. In all of these circumstances, one can well understand the primary judge, engaged in the hearing of a complex trial of four related sets of proceedings, becoming impatient. Even so, his Honour properly recognised that he should not have raised his voice in the way he evidently did, and appropriately acknowledged this very soon thereafter. As the primary judge said at [20] of the recusal judgment: "I was justified insisting upon a document in final form containing all of the amendments counsel wished to make. I should have insisted upon that requirement in a calm and measured way rather than in a raised voice. Of course, this is why I apologised to counsel at the first available opportunity."
9. As to the second of the matters that had been relied upon, namely the primary judge's refusal of Mr Dawson's application that the appellant provide a translation of some Hebrew words in a document he had authored, the primary judge recorded at [16] of his recusal judgment that "I am at a complete loss to understand how anyone could understand my refusal of Mr Dawson's application in the light of Mr Cohen's opposition, let alone a fair-minded lay observer, displayed partiality to the defendant". I quite agree. The statement made by the primary judge to Mr Dawson that he had "better get a translator" was not evidence of any partiality on the judge's part, but simply the articulation of the fact that he was not going to accede to the application that the appellant himself supply the translation.
10. As to the third matter, namely the alleged "heated exchange", this arose in the context of an application on behalf of the appellant to review evidence which had been admitted the previous day. The primary judge held at [18]-[19] of the recusal judgment, in a finding that was not challenged, that he did: "18 … not accept that the discussion with Mr Cohen was heated. I did not raise my voice, and if I was at all terse, it may have been because I was concentrating on the ramifications of the submission. In particular whether there was a need to review the admission of all of what had been tendered when counsel was 'shaken up'. 19 I am not of the view that even a robust exchange between counsel and judge about the admissibility of evidence would give rise to any question in the mind of a fair-minded lay observer about the partiality of the judge so far as the determination of the case on its merits was concerned."
11. The appellant's submissions in relation to this ground of appeal really fell into two categories. It was first put in [41] of those submissions that some 13 matters exemplified the "crystallisation" of "any apprehension of bias", but all but two matters identified in the appellant's submissions were abandoned in oral argument. Those matters were not matters which formed the basis of the application made to the primary judge to recuse himself but, rather, related to matters that occurred after the judge's refusal to recuse himself. The two remaining matters were: "The hearing proceeded on an irregular basis, in that the appellant did not give his evidence in his primary case but rather in reply, which limited any potential evidence of damage. See judgment at [311]. If the appellant was going to give evidence, it made no sense to give the evidence in reply. Clearly, the appellant in giving evidence, did so in response to the conduct of the trial judge, the appellant feeling he "needed to be heard" in response to what he perceived as the breakdown in relationship between trial counsel and the trial judge. Thus, the conduct of the trial judge, as it transpired did cause prejudice." and: "The trial judge has not properly considered arguments put forward by the appellant both in closing oral submissions or tendered. The trial judge uses strawman arguments against the appellant such as criticising the fact the appellant had criticised counsel assisting's questioning containing erroneous statements of law but then, when dealing with the defence of fair report, deals with the effect of the evidence, rather than the accuracy of the reporting, The trial judge has ignored extensive oral submissions by the appellant on this issue including the one of the most fundamental and obvious propositions, namely, that it is not against the law for an adult to touch a child on the genitals. This fundamental proposition cannot be found in the judgment."
12. It seems that these two matters were advanced by the appellant as some evidence of the fact that there was actual bias. This argument is fundamentally misconceived. If the matters are advanced in support of an allegation of "apprehended bias", the possibility that a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the relevant question is not to be assessed with the benefit of hindsight, but at the time of the event or events said to give rise to that possibility in the first place. See, for example, Ebner at [7]-[9] and [33].
13. Moreover, even putting this objection to one side, the appellant's decision to give evidence in reply and not in chief was his own forensic choice. There was no evidence led to explain that choice and the fact that it was made says nothing as to whether there were grounds by reference to which the primary judge should have disqualified himself for apprehended bias on day three of the trial.
14. Further, the fact that the primary judge ultimately rejected the appellant's case for a variety of reasons does not and cannot demonstrate actual or apprehended bias. In Mohareb v Kelso (No 2) [2018] NSWCA 246 at [15], this Court said that: "Disagreement with the reasoning, or the outcome, provides no basis for an assertion of actual bias". See also Mohareb v Booth [2020] NSWCA 49 at [37].
15. The appellant also asserted in [41] of his written submissions on appeal that Ebner "was not relevant in the circumstances nor was the suggested 'second step' in Ebner necessary." During the hearing of the appeal, this surprising submission was modified. It was submitted that "[i]t's not quite the case that the Ebner test is not applicable … on a practical level of practically it was misapplied." Mr Cohen accepted that he was misguided in what he put to the primary judge in relation to the Ebner test and did not articulate any coherent criticism of the primary judge's application of Ebner.
16. As already noted, the attack on the primary judge's refusal to recuse himself for apprehended bias must be assessed by reference to the arguments made at the time of the application for recusal. In this context, [42] and [43] of the appellant's submissions contended that: "The judgment itself Yosef Yitzchak Feldman v Nationwide News Limited & Ors (2018) NSWSC (No 4) (2018) NSWSC 682 (16 May 2018) is indicative of bias. It is not impartial for the trial judge to offer suggestions to senior counsel ('you better get yourself a translator') particularly when no certified translation was served prior to the hearing (pre-empting an indulgence that would be granted to the respondent). Furthermore, the ordinary bystander would perceive the trial judge as punishing the appellant (possibly for being 'difficult') for insisting on a legal right. The whole of [10-12] reads as punishment for not acceding to a request to get Yiddish and Hebrew words translated culminating in the trial judge suggesting to senior counsel for the respondent to obtain a translator. The trial judge concedes he raised his voice and was angry at that point in time. His Honour also holds the appellant to blame for timewasting when a request was made by the defendant to adjourn for two days because counsel had a matter in the Court of Appeal. As it transpired the appellant gave evidence and voluntarily translated Yiddish and Hebrew words, to his detriment. The detriment being that mere translation enables reasonably complicated concepts to be taken out of context of time and place which is precisely what happened, crystalizing in the substantive judgment. A significant feature of rabbinic discussion involves discussing concepts that evolved in another era and place, and applying them to present time and location within the confines of the secular law. The trial judge appears to acknowledge that his conduct amounts to retaliation in the last sentence [12]. And the vice of the trial judge's conduct is encapsulated in [12] and [20]. There is no nexus between the issue of the translations, which involved substantive issues, and the amendment sought, which involved a minor amendment to the statement of claim which could not possibly prejudice the respondent At the conclusion of judgment [9], it is agreed between appellant counsel and His Honour that a short statement of the amendment would be read onto the record. Thereafter the discussion moves on to the issue of the translations. When however the appellant does not agree to translate the foreign words, the trial judge re-introduces the issue of the amendment, His Honour accepting he raised his voice at that point culminating in His Honour stating that the respondent 'better get a translator'. A reasonable observer would form the view that the trial judge was punishing the appellant's counsel, and by extension the appellant for his conduct, for not acceding to the respondents' request. Once this view is formed, it is inevitable that there must be a reasonable apprehension of bias."
17. In the course of oral submissions, Mr Cohen expressly withdrew the references in these paragraphs to the primary judge doing things to "punish" the appellant and his counsel, and to aspects of his Honour's conduct amounting to "retaliation". It was appropriate that these submissions be withdrawn. They were consistent with a case of actual bias which was never raised, and while it is to Mr Cohen's credit that they were withdrawn, it is very difficult to understand how they could have been put responsibly in the first place.
18. Once the submissions were amended in the way described above, [42] and [43] of the appellant's submissions did little more than repeat the matters that had been put to, and dealt with, by the primary judge. No submission was advanced either in writing or orally as to why the primary judge's reasoning in his recusal judgment was flawed.
19. This ground of appeal must be dismissed.

Admission of transcript and video from the Royal Commission into evidence (ground 1)

1. In the course of the trial, objection was taken on behalf of the appellant to the tender, by the respondents, of the transcript of the appellant's evidence given at the Royal Commission on 6 and 9 February 2015. This tender was objected to on the basis that it contravened s 6DD of the Royal Commissions Act 1902 (Cth) (the Royal Commissions Act).
2. A later tender of the video of that evidence was also objected to, albeit on different grounds, although it was ultimately accepted in this Court that, had the objection to the tender of the transcript been upheld, an objection to the tender of the video could and would also have been sustained on the same basis, albeit that an objection to the tender of the video on that ground was not formally made. Objection to the video's tender on other grounds was not the subject of challenge on appeal.
3. The appellant did not have the option to refuse to answer questions which may have incriminated him before the Royal Commission. Section 6A(2) of the Royal Commissions Act provides that: "A natural person is not excused from answering a question that the person is required to answer by a member of a Commission on the ground that answering the question might tend to: (a) incriminate the person; or (b) make the person liable to a penalty."
4. Section 6DD, which was introduced in substance by the Royal Commissions Act 1912 (Cth) (the 1912 Act) but put into its current form by the Royal Commissions and Other Legislation Amendment Act 2001 (Cth), relevantly provides that: "(1) The following are not admissible in evidence against a natural person in any civil or criminal proceedings in any court of the Commonwealth, of a State or of a Territory: (a) a statement or disclosure made by the person in the course of giving evidence before a Commission; (b) the production of a document or other thing by the person pursuant to a summons, requirement or notice under section 2 or subsection 6AA(3). (2) Subsection (1) does not apply to the admissibility of evidence in proceedings for an offence against this Act."
5. The interesting and very important question of construction raised on appeal is whether s 6DD proscribes the use of evidence given on compulsion in a Royal Commission defensively - that is, in the context of the present case, in order to sustain a defence of fair report in later defamation proceedings.
6. There is no doubt that criminal or civil proceedings could not have been brought against the appellant by reference to the evidence he gave in the Royal Commission.
7. There is also no doubt that the question raised at [53] above would be answered "no" had the chapeau to s 6DD(1) in terms read "[t]he following are not admissible in evidence against a natural person in any civil or criminal proceedings against that person in any court …" But can it be interpreted that way?
8. The primary judge held that it could be and, consequently, rejected the objection to the admission into evidence of the transcript of the appellant's evidence before the Royal Commission: see Feldman v Nationwide News Pty Ltd [2018] NSWSC 715. His Honour's reasons for so holding were subsequently endorsed by Jagot J in Herron v HarperCollins Publishers Australia Pty Ltd [2020] FCA 805 at [23] (Herron).
9. The appellant submitted that the primary judge erred in rejecting his objection to the tender of the transcript of his evidence in the Royal Commission for the following reasons: "(i) The language in the state act is not sufficiently different to the federal act. An 'answer' (s 17 State Act) is in substance no different to a 'statement, or disclosure' (s 6DD). Hatfield should have been applied. (ii) The language of the statute is clear and unambiguous. See Chubb Insurance Company of Australia v Moore (2013) NSWCA; (2013) 302 ALR 101 at 82. The words 'civil proceedings', referred to in s 6DD include any civil proceedings, not just one involving a civil penalty. Had the legislature intended such a limitation upon s 6DD, it would have used the expression 'civil penalty' as it does in s 6A of the Act. See also Cline v Deputy Federal Commissioner of Taxation (1981) 150 CLR. (iii) It is the compulsion to give evidence, without the right to object on the basis of self-incrimination, that creates the opportunity for the journalist to report evidence. The abrogation of the privilege against self-incrimination is to enable a Royal Commission to properly exercise its statutory function. In exchange for the abrogation of the right to exercise privilege against self­incrimination, the legislature has intended to confer a significant concession upon any person compelled to give evidence. This concession must be read in the broadest terms. The abrogation of the right to assert privilege is to enable the Royal Commission to achieve its stated aim, and no more. This right is abrogated not for some other additional purpose, such as enabling a defendant to make good a claim of fair report in defamation proceedings. Although the legislature has abrogated such a significant right, it's intention was to do so on strict terms, and if the legislature intended any loosening of such terms, in the manner determined by the trial judge, this would have been stated with 'irresistible clearness'. See Saeed v Minister of Immigration and Citizenship (2010) 241 CLR 252 at para 15".

The primary judge's reasons

1. The primary judge concluded (at [19]) that: "… looked at in its own context, s 6DD of the Commonwealth Act is concerned, by use of the expression 'against a natural person in any civil or criminal proceedings', with the use of the compelled evidence to establish a civil liability or criminal responsibility in the person whose privilege was abrogated by s 6A. It does not seem to me it has any wider meaning, although I accept that questions of liability and responsibility may arise in a variety of different contexts".
2. In reaching this conclusion, the primary judge drew heavily on the Second Reading Speech which accompanied the introduction of s 6DD in its original form in 1912. As shall be seen, the section has been amended a number of times subsequent to its introduction, but with no material alterations bearing on the question that was before the primary judge and which is now before this Court. The relevant portion of the Second Reading Speech is considered further at [80] below.
3. In reaching his conclusion, the primary judge declined to follow the reasoning of Young JA (with whom Sackville AJA agreed) in Hatfield v TCN Channel Nine Pty Ltd (2010) 77 NSWLR 506; [2010] NSWCA 69 (Hatfield) in relation to a similar provision, namely s 17(2) of the Royal Commissions Act 1923 (NSW), which provided that: "An answer made ... by a witness to or before the commission shall not, except as otherwise provided in this section, be admissible in evidence against that person in any civil or criminal proceedings."
4. Young JA, purporting to apply R v Bayeh [1999] NSWCCA 82 (Bayeh), held that "against" meant "in any way against that person's interest." This, the appellant submitted, would preclude the admission of the transcript from the Royal Commission to found a fair report defence. Such a defence, it was contended, was obviously against the appellant's interests.
5. The primary judge (at [17]-[20]) considered that this aspect of the decision in Hatfield was obiter, and that Bayeh did not in any way support Young JA's construction. Jagot J was of the same view in Herron.
6. The heart of the primary judge's reasoning was contained at [21]-[23] as follows: "21 … the transcript was to be put into evidence for a limited purpose under s 136 of the Evidence Act and that purpose is simply to make good the defence of fair report, arising both at common law and under the provisions of s 29 of the Defamation Act 2005 (NSW). The argument was put that to determine whether the articles impugned by the plaintiff were covered by the fair report defence, one had to look at the articles in the light of the whole of the evidence given by Rabbi Feldman. In my judgment there is force in this argument at a practical level. There is also force in the argument at a legal level, because, as Mr Dawson pointed out, principally by reference to the judgment of Brennan J (as the Chief Justice then was) in Stephens v West Australian Newspapers Limited (1994) 182 CLR 211 at 247, fair report had been recognised as a defence to an action in defamation at common law since at least 1895. However, more importantly, perhaps, Brennan J regarded it as an aspect of the qualified privilege defence. 22 Brennan J's analysis was applied by Gaudron and Gummow JJ in Chakravarti v Advertiser Newspapers (1998) 193 CLR 519 at 556 [88] - [90]. The significance of this was argued to be that, applying the principle of legality, the Court could not construe s 6DD to deprive the defendant of its common law privilege unless the clear words or necessary intendment of the provision made that unavoidable. I think there is force in this submission. It seems to me that there is a difference in admitting the evidence 'against' Rabbi Feldman on the one hand, so as to establish against him some civil liability or criminal responsibility, and admitting it in proceedings instituted by him so that a defendant can legitimately make out a defence available to it. 23 I suppose linguistically there may not be much difference between admitting evidence in favour of one party and admitting it against another, because what favours one might disfavour the other. But it seems to me overall that it is not the purpose of s 6DD to deprive a party who is sued by a person who has given evidence before a Royal Commission, on the basis of the report of the evidence by that party, of its right, or ability, to propound a lawful defence to the action; even if making the defence good might mean admitting evidence given by the person before the Royal Commission."

Approach to interpretation

1. By s 2(1) of the Acts Interpretation Act 1901 (Cth) and subject to any contrary intention, that Act applies to the interpretation of the Royal Commissions Act.
2. By s 15AA of the Acts Interpretation Act, the interpretation to be given to s 6DD of the Royal Commissions Act is "the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act)". This interpretation is "to be preferred to each other interpretation."
3. Section 15AB of the Acts Interpretation Act then provides: "(1) Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material: (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or (b) to determine the meaning of the provision when: (i) the provision is ambiguous or obscure; or (ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable. … (3) In determining whether consideration should be given to any material in accordance with subsection (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to: (a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; and (b) the need to avoid prolonging legal or other proceedings without compensating advantage."
4. Section 15AB(2)(f) of the Acts Interpretation Act provides that the material that may be considered, in accordance with that subsection, in the interpretation of a provision of an Act includes "the speech made to a House of the Parliament by a Minister on the occasion of the moving by that Minister of a motion that the Bill containing the provision be read a second time in that House".
5. The various materials listed in s 15AB(2) are not, however, exhaustive. This follows from: the reference in s 15AB(1) to "any material not forming part of the Act"; the fact that s 15AB(2) is prefaced with the words "[w]ithout limiting the generality of subsection (1)"; and the use of the word "includes" in s 15AB(2).
6. The Royal Commissions Act does not indicate any express intention that it should be construed other than in accordance with the approach indicated by the Acts Interpretation Act. The starting point, therefore, is to identify the interpretation that would best achieve the purpose or object of the Act. The purpose of a statutory provision is to be determined objectively. It may be inferred from the text and structure of the Act, and by appropriate reference to extrinsic material: Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10 at [44].
7. In the present case, the extrinsic material exposed by the legislative history leading to the 1912 Act is a source of particular elucidation.

Legislative history

1. The Royal Commissions Act was the 12th statute passed in the second year of the Commonwealth Parliament. Section 6 of that Act provided that: "If any person appearing as a witness before the Commission refuses to be sworn or to make an affirmation or to answer any question put to him by any of the Commissioners touching the subject matter of the inquiry he shall be liable on summary conviction to a penalty not exceeding Fifty pounds." Section 7(2) provided that: "Every witness summoned to attend or appearing before the Commission shall have the same protection, and shall in addition to the penalties provided by this Act be subject to the same liabilities in any civil or criminal proceeding, as a witness in any case tried in the High Court."
2. In the year preceding the passage of the Royal Commissions Act, the New South Wales legislature had passed the Royal Commissioners Evidence Act 1901 (NSW), with the long title "An Act to consolidate the law relating to the taking of Evidence by Commissioners under the Great Seal".
3. In 1905, the Lands Commission (Witnesses) Act 1905 (NSW) (the 1905 NSW Act) was passed which, by s 1, was to be "construed with the Lands Commission Act 1905, the Lands Commission (Amendment ) Act 1905 , and the Royal Commissioners Evidence Act 1901." Section 2 of the 1905 NSW Act read as follows: "A person examined as a witness before the Commissioner shall not be excused from answering any question put to him on the ground of any privilege, or on the ground that the answer thereto may criminate or tend to criminate himself: Provided that no evidence taken before the Commissioner after the commencement of this Act shall be admissible against any person in any civil or criminal proceeding, except in the case of a witness accused of having made a false statement on oath before the Commissioner, or of a person accused of having procured or caused or attempted or conspired to procure or cause the making of such statement." (emphasis added)
4. Section 3 was expressed in the following terms: "(1) Every person examined as a witness before the Commissioner who, in the opinion of the Commissioner, makes a full and true disclosure touching all matters in respect of which he is examined, may, in the discretion of the Commissioner, be granted a certificate signed by the Commissioner, stating that the witness has, on his examination, made a full and true disclosure as aforesaid. (2) If any civil or criminal proceeding is at any time thereafter instituted against any such witness in respect of any matter touching which he has been so examined, the court having cognizance of the case shall, on proof of the certificate, stay the proceedings, and may in its discretion award to the witness such costs as he may be put to in or by reason of the proceedings." (emphasis added)
5. Provisions such as ss 2 and 3 of the 1905 NSW Act appeared in a number of statutes enacted by the Parliament of the United Kingdom during the second half of the 19th century: see, for example, Trades Union Commission Act 1867, 30 Vict, c 8, s 4; and, particularly, the Metropolitan Board (Commission) Act 1888, 51 Vict, c 6, s 4 and the Special Commission Act 1888, 51 & 52 Vict, c 35, s 10 (together, the British Acts). The High Court in X v Australian Prudential Regulation Authority (2007) 226 CLR 630; [2007] HCA 4 at [44]-[45] (X v APRA) drew a connection between the British Acts and the provision which became s 6DD of the Royal Commissions Act, albeit that s 6DD did not find its way into that Act as originally enacted in 1902.
6. A similar but not identical provision to ss 2 and 3 of the 1905 NSW Act and their equivalents in the British Acts had also been introduced in Canada in 1889. Thus, by An Act to make further provision respecting inquiries concerning Public Matters 1889, 52 Vict, c 33 (Canada), the operative Act respecting inquiries concerning Public Matters 1868, 31 Vict, c 38 (Canada); Revised Statutes of Canada, c 114 was amended to insert a new s 3 as follows: "No witness examined before such commissioners or before any commissioners appointed by the Lieutenant Governor in Council of any province of Canada to conduct any inquiry into and concerning the good government of such province, or the conduct of any part of the public business thereof, or the administration of justice therein, or in reference to any municipal matter shall be excused from answering any question put to him on the ground that the answer thereto may criminate or tend to criminate him; but no evidence so taken shall be admissible against any such witness in any criminal proceeding, except in the case of a witness charged with having given false evidence at any such inquiry or with having procured, or attempted or conspired to procure, the giving of such evidence." (emphasis added)
7. As noted above, the Royal Commissions Act did not, as originally enacted in 1902, contain a provision equivalent to any of those that gave protection in subsequent proceedings to a witness who had given evidence in a Royal Commission or statutory commission of inquiry. The Royal Commissions Act was, however, amended a decade later by the 1912 Act. Liability on summary conviction under s 6 of the Act was replaced by "guilt of an offence", with the resultant penalty increased from "Fifty" to "Five hundred pounds".
8. Most significantly for present purposes, however, s 6DD was introduced, providing that: "A statement or disclosure made by any witness in answer to any question put to him by a Royal Commission or any of the Commissioners shall not (except in proceedings for an offence against this Act) be admissible in evidence against him in any civil or criminal proceedings in any Commonwealth or State Court or any Court of any Territory of the Commonwealth."
9. An obvious similarity may be seen between the language of s 6DD and s 2 of the 1905 NSW Act. The 1912 Act did not, however, contain any provision equivalent to s 3 of the 1905 NSW Act, or its progenitors in the British Acts.
10. In delivering the Second Reading Speech in support of the 1912 Act (House of Representatives, Parliamentary Debates (Hansard), 24 July 1912 at 1181), however, the then Attorney-General, W M Hughes, said: "Under clause 6d it is declared that it shall not be compulsory for any witness before a Royal Commission to disclose any secret process of manufacture. We are not going to compel a man to disclose any secret of trade. That does not mean that he is not to produce his books. It simply means that he is not to disclose any secret process of manufacture that a Court of law would not compel him to disclose. Another provision which I propose to insert in this Bill is that no evidence given by a witness before a Royal Commission shall render him liable in subsequent civil or criminal proceedings. That, I take it, will put a witness before a Royal Commission in exactly the position he would occupy if he were before the Bankruptcy Court. In any case, under section 7 of the present Act he has the same protection that a witness before the High Court enjoys." (emphasis added)
11. The introduction of s 6DD brought the Royal Commissions Act broadly into line with the 1905 NSW Act and the British and Canadian Acts. As a provision affording a measure of protection to witnesses, it may be viewed as a provision that supplied a degree of amelioration to what was otherwise seen as very "drastic" legislation, the terms of which gained a measure of international prominence in the year following the enactment of the 1912 Act in W Harrison Moore's article "Executive Commissions of Inquiry" (1913) 13 Columbia Law Review 500 at 508-509.
12. In X v APRA at [45], the plurality observed that the occasion for provisions such as those contained in the British Acts and s 6DD of the Royal Commissions Act: "… may have been a perceived need to overcome the ruling by Abbott J in R v Merceron (1818) 2 Stark 366 [171 ER 675]. On a trial of a magistrate for corruptly granting licences to public houses which were his own property, Abbott J ruled that there might be admitted evidence of what he had said in the course of his examination before a committee of the House of Commons. His Lordship overruled the objection that the evidence was inadmissible because it had been made under compulsory process from the House of Commons and under pain of punishment for contempt."
13. Obviously, the Canadian provision set out at [76] above was concerned with the use of evidence given in a Royal Commission not being used against the person who had given it in a subsequent criminal proceeding where that person was being prosecuted. In that Act, the reference to evidence being inadmissible "against" a witness was plainly being used in the sense of evidence which was being sought to be used to establish a person's criminal liability. To this extent, it is clear that the Canadian provision was designed to operate in the same way as contemplated by Attorney-General Hughes in respect of its cognate, s 6DD, namely that it was designed to preclude the use of Royal Commission evidence to establish liability.
14. Section 6DD, if interpreted in the manner contemplated by Attorney-General Hughes, namely as a protection against criminal or civil prosecution, may also be seen to be functionally equivalent to ss 2 and 3 of the 1905 NSW Act and similar or analogue provisions in the British Acts. That the provisions of the 1905 NSW Act were intended to operate only where a witness in a Royal Commission was the subject of proceedings brought against him or her is given powerful support by the opening words of s 3(2) of that Act: "If any civil or criminal proceeding is at any time thereafter instituted against any such witness in respect of any matter touching which he has been so examined, the court having cognizance of the case shall, on proof of the certificate, stay the proceedings …"
15. Before turning to examine judicial consideration of s 6DD and its counterparts, it may be noted that various State statutes contain or have contained similar provisions to s 6DD of the Royal Commissions Act: see, for example, s 37(3) of the Independent Commission Against Corruption Act 1988 (NSW); s 23 of the Special Commissions of Inquiry Act 1983 (NSW); s 40 of the Inquiries Act 2014 (Vic); s 14A of the Commissions of Inquiry Act 1950 (Qld); s 20 of the Royal Commissions Act 1968 (WA); s 16 of the Royal Commissions Act 1917 (SA); s 13 of the Inquiries Act 1945 (NT); and s 24(3) of the Royal Commissions Act 1991 (ACT).
16. Section 6DD and its counterparts may be contrasted, for example, with provisions of now-repealed statutes, such as s 30 of the Evidence Act 1928 (Vic) which made it plain that compelled evidence was not "admissible in evidence in any proceedings civil or criminal against [the witness], [and may] not be made the ground of any prosecution action or suit against him".

Judicial consideration

1. Section 6DD was the subject of early attention by the High Court, but not in a way that bore upon the question of interpretation raised in the current proceedings. In Colonial Sugar Refining Co Ltd v Attorney-General (Cth) (1912) 15 CLR 182; [1912] HCA 94, the High Court considered the constitutionality of various provisions of the Royal Commissions Act including s 6DD, the question being whether a Commonwealth Act could affect the admissibility of evidence in a State court exercising non-federal jurisdiction. At 195-196, Griffiths CJ noted that: "A more serious objection was based upon sec. 6DD, which purports to give a qualified protection in State Courts from the criminative effect of admissions made by a witness on examination before a Commission. It was contended that the attempted protection was ineffectual, and that as Parliament did not intend to compel, without that condition, the provision for compulsion must fail with the ineffectual condition. I think, however, that if Parliament has, as I think it must have, a power to compel information on the subjects necessary for the effectual performance of federal functions, the power to protect witnesses from the consequences of self-crimination may fairly be regarded as incidental to that power. It was so said, if not finally decided, by the Supreme Court of the United States in Brown v. Walker. In that view any law of a State under which the criminating admissions would be admissible in evidence against the witness would be in conflict with the law of the Commonwealth, and the latter would prevail." (footnotes omitted) Similarly, Barton J outlined that s 6DD was not severable, as "I think it may be supported as a valid exercise of a power incident to the right to exact information, for the protection of the testimony extracted is ancillary to such a power … I am not prepared to hold this section to be invalid": at 209.
2. Section 6DD underwent a number of relatively minor amendments: in 1982, by the Statute Law (Miscellaneous Amendments) Act (No. 1) 1982 (Cth); in 2001, by the Royal Commissions and Other Legislation Amendment Act 2001 (Cth); and in 2018 by the Prime Minister and Cabinet Legislation Amendment (2017 Measures No. 1) Act 2018 (Cth). The most recent of these Acts effected a minor amendment to s 6DD(1)(a) which is not material to the question which arises in the current case.
3. The impact of the 1982 amendments was considered by the High Court in Giannarelli v The Queen (1983) 154 CLR 212; [1983] HCA 41, but again not in any way touching upon the question currently before this Court. The effect of the subsequent 2001 amendments (see [52] above) was also not material to the question under consideration in the present case.

Consideration

1. The observations of Attorney-General Hughes in the Second Reading Speech in relation to the 1912 Act strongly support the interpretation of s 6DD favoured by the primary judge. So too does a consideration of the legislative history of the section.
2. As I have sought to demonstrate, s 6DD has its origins in provisions designed to ensure that answers compelled by royal commissions or public commissions of inquiry could not be used against the person giving those answers in a way that would expose him or her to liability, whether criminal or civil. The protection was a trade-off for compelling candour in such commissions, protecting a witness not only from prosecution for any criminal offences he or she may have committed, but also from suits for a civil penalty or indeed actions for defamation as a result of any answers given under compulsion at a Royal Commission (and see, now, s 27(2)(b) of the Act and its state analogues, providing absolute privilege for a matter published in the course of proceedings of, inter alia, a Royal Commission).
3. In this context, counsel for the respondents drew attention to the speech of Senator J H Keating when the Royal Commissions Bill was being debated in the Senate (Senate, Parliamentary Debates (Hansard), 14 August 1912 at 2105) which included the following observations: "There is in the proposed new section 6dd a very proper and necessary provision for the protection of witnesses who give evidence before Royal Commissions. It disposes at once of one of the original grounds put forward for the opinion that the Crown has not the power to appoint Royal Commissions. In 1850, when a Royal Commission was appointed to investigate the affairs of the University and Colleges of Oxford, one of the grounds put forward in support of the opinion referred to was that witnesses who came before the Commission would have to give evidence, not necessarily on oath, and might not be protected from actions for defamation, whereas, if their evidence were given in a Court of law, it would be privileged, and no action for defamation could lie in respect of the Statements so made".
4. By way of contrast, one finds no support in the legislative history for the proposition that s 6DD was designed to preclude the availability of a fair report defence for the purposes of the law of defamation. As was pointed out in Hood v The Queen (1997) 91 A Crim R 526 at 536, royal commissions historically have been called in relation and/or in response to events of great public interest. It would be passing strange if both the Commonwealth and state legislatures intended, by a side wind, to eliminate by s 6DD and its cognate state counterparts an important element of the law of defamation, and one which recognises the importance and encourages the fair report of evidence given at such commissions.
5. As with both the primary judge and Jagot J in Herron, I do not consider that Hatfield is persuasive or dictates that the primary judge erred in admitting the transcript of the appellant's testimony at the Royal Commission.
6. Hatfield treated the issue in a single paragraph (at [154]) as follows: "In my view there is no room for any waiver of the statutory protection given by the Act. The statute plainly says that the evidence is not to be admissible against the witness. During argument, appellant's counsel put that 'against that person' meant in any way against that person's interest. Although this was said in reply, it was based on R v Bayeh [1999] NSWCCA 82 and must be correct."
7. As to that paragraph, the following matters may be observed. First, the issue was evidently raised in reply and so necessarily was not the subject of any argument or exploration in argument. Secondly, nothing in Bayeh supports the argument. Indeed, it would appear that, to the extent that there was any argument in that case coming close to the issue sought to be relied upon in this appeal, it was regarded by the Court in Bayeh at [23] as "unsuitable for [its] resolution" as a Court constituted pursuant to s 6AA of the Criminal Appeal Act 1912 (NSW), and was only raised orally and not in any written submissions. Thirdly, the paragraph from Hatfield makes no reference to matters of legislative purpose or history which point significantly towards a construction of s 6DD which only precludes the admissibility of compelled evidence in circumstances where it is being sought to be used in proceedings against the person who has given the compelled testimony in the Royal Commission. Fourthly, Hatfield was not a decision concerned with s 6DD of the Royal Commissions Act.
8. For these reasons, s 6DD did not preclude the transcript or video of the appellant's evidence in the Royal Commission from being admitted and relied upon to support the fair report defence.
9. In reaching this conclusion, I do not place any store on the "legality" argument relied upon by the primary judge at [22] of his decision, reproduced at [63] above. In Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 at [307]-[314] Gageler and Keane JJ explained the principle as one of construction and said at [314]: "The principle of construction is fulfilled in accordance with its rationale where the objects or terms or context of legislation make plain that the legislature has directed its attention to the question of the abrogation or curtailment of the right, freedom or immunity in question and has made a legislative determination that the right, freedom or immunity is to be abrogated or curtailed. The principle at most can have limited application to the construction of legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked. The simple reason is that '[i]t is of little assistance, in endeavouring to work out the meaning of parts of [a legislative] scheme, to invoke a general presumption against the very thing which the legislation sets out to achieve'." (footnote omitted)
10. These reasons now turn to consider particular grounds of appeal relating to each of the News 1, 2 and 3 publications as well as the SBS publication.

News 1 publications - imputations (c), (d) and (e) (ground 5)

1. These alleged imputations have been set out at [18] above. The primary judge held that they were not carried or conveyed by the Herald Sun publication of 7 February 2015, the only publication in which they were said to have been conveyed. A copy of that publication appears at Annexure D to these reasons, its text being as follows: "A high-profile Jewish leader says he didn't know it was wrong for adults to touch the genitalia of children. Rabbi Yosef Feldman told the Royal Commission into Institutional Child Sexual Abuse he was unfamiliar with child abuse laws and even while [D]irector of the Yeshivah Gedola Rabbinical College didn't bother familiarising himself with them. 'Obviously I knew I had certain obligations. I didn't know what they were. I relied on my father,' he said. Rabbi Feldman's father, Pinchus Feldman, has been Sydney's top [R]abbi since 1968. Counsel assisting the [C]ommission Maria Gerace asked: 'Did you understand it was against the law for an adult to touch the genitalia of a child?' 'I didn't know that as a fact', he replied. He said he had been a director of the Yeshivah [C]orporation, which ran a school, from about the age of 25, but didn't consider child sexual abuse to be a common problem. 'Child sexual abuse, I didn't believe, was very common. Even now I don't think it's common. It happens,' he said. 'I haven't seen statistics, but I would believe it (its prevalence) is about 5 to 10 per cent, based on things I've read.' Rabbi Feldman said child abuse allegations should be reported to the police, but only if there was no doubt about their truth. He said that if a child disclosed abuse but the truth of it was doubted, a [R]abbi should be consulted first. Feldman shocked victims of sexual abuse in 2011 when he emailed [R]abbis to say it should be up to them to decide whether a paedophile should be reported and, where possible, allegations should be dealt with outside the legal system. Rabbis could 'threaten' the child abuser with publicity instead of reporting them. 'I really don't understand why … should we immediately go to the secular authorities'. 'One must go to a [R]ov ([R]abbi) who should firstly investigate the veracity of the complaint and if thought to be serious, warn the culprit etc and act in a way that could scare him by threatening him with publicity'. The hearing continues."
2. The primary judge rejected the appellant's contention that the article conveyed that the appellant was ignorant as to how "morally wrong" it was for an adult to sexually touch the genitals of a child.
3. The appellant fastened on the first paragraph of the article to support the three alternative imputations contended for. The primary judge correctly observed, however, that the ordinary reasonable reader is taken to read the article as a whole and in its complete context: at [145].
4. The primary judge accepted at [151] that the word "'wrong', like most words, may bear shades of meaning depending upon the context in which it appears. I accept that it may, in context mean morally rather than legally wrong." His Honour also accepted that "perhaps in this area especially, there will be a large intersection between what is legally and morally wrong." His Honour concluded, however, that viewed in its full context, the ordinary reasonable reader would not read the article as conveying imputations as to the appellant's ignorance of that which was morally, as opposed to legally, wrong.
5. In my opinion, there is no error in the primary judge's assessment and his Honour was correct to say that the imputation was not conveyed by the matter complained of. The article is replete with references to notions of legal wrong, lawfulness and legality, and the appellant's knowledge of those matters or lack thereof. This can be seen in the references to "child abuse laws", "certain obligations", "against the law", reporting to the police, and "outside the legal system". An ordinary reader would not understand these references, or the article as a whole, as betokening an ignorance of the moral wrongfulness of child sex abuse. Indeed, the whole focus of the article and the cross-examination it reports, fairly read, is on the appellant's ignorance of his legal responsibilities.
6. Although it may be the case, as submitted on behalf of the appellant, that the word "wrong" in the English language "almost never means 'illegal'", the word was not used in isolation in the subject article and took its meaning from the balance of the article, which is all about ignorance of the law and legal obligations. Indeed, in the appellant's written submissions in respect of ground 6, concerning the fair report defence that was upheld by the primary judge, it was put that "the appellant was being tested about his legal knowledge".
7. I would also reject the appellant's submission in support of this ground to the effect that "[a] person who does not know it is against the law for an adult to sexually touch children on the genitals is likely to not think it is also immoral." A person may be ignorant of the law for a variety of reasons but still have a strong moral compass. Furthermore, a reasonable reader would not, in my opinion, expect a religious leader not to have a strong view as to the immorality of the act of an adult sexually touching a child on his or her genitals. The word "abuse" in the phrase "child sex abuse" attributed to the appellant in the article, moreover, also conveyed a knowledge on his part of the immorality of such conduct.

News 1 publications - fair report (ground 6)

1. This ground and its equivalent in relation to the News 2 publications is in the alternative to ground 1 relating to the admission of the transcript of the Royal Commission into evidence. That is to say, this ground and ground 9 are pressed on the assumption that ground 1 fails such that the transcript of the Royal Commission was properly admitted into evidence.

Fair report - relevant principles

1. Under s 29(1) of the Act, "[i]t 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."
2. In order to be fair, a report need not be a complete report of the proceedings in question, nor need it be accurate in every respect: Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; [1998] HCA 37 at [42] (Chakravarti); Feldman v Polaris Media Pty Ltd as trustee of The Polaris Media Trust trading as The Australian Jewish News (No 2) [2018] NSWSC 1035; [2018] Aust Torts Reports 82-395 at [288].
3. However, a report must be "substantially accurate": Thom v Associated Newspapers Ltd (1964) 64 SR (NSW) 376 at 383 and 385 (Thom); Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 63 (Waterhouse); Anderson v Nationwide News Pty Ltd (1970) 72 SR (NSW) 313 at 318 and 323-324; Cook v Alexander [1974] QB 279 at 291 (Cook); Nationwide News Pty Limited v Rush (2020) 380 ALR 432; [2020] FCAFC 115 at [439] (Rush); Chakravarti at [42]; Macdougall v Knight (1890) 25 QBD 1 at 7; Burns v Sunol [2014] NSWCATAD 61 at [39]; Ekermawi v Jones (No 3) [2014] NSWCATAD 58 at [54]. Contrary to the appellant's submissions, the primary judge did not imply that the defence is only lost by the positive statement of an untruth.
4. The question of whether a report is substantially accurate is a question of fact: Chakravarti at [42]; Leslie v Mirror Newspapers Ltd (1971) 125 CLR 332; [1971] HCA 66.
5. The relevant question is not whether the report is fair or unfair to any particular person; the question is whether it substantially records what was said and done: Thom at 383.
6. If the report is fair, in the sense of reporting with substantial accuracy what in fact was said and done in the proceedings, it does not matter that statements made in the course of those proceedings and included in the report were themselves irrelevant to the material issues in those proceedings: Waterhouse at 63; Hutchison v Robinson (1900) 21 LR (NSW) 130 at 145 (Hutchison).
7. If the report is fair, it does not matter if those statements so reported are themselves factually untrue: Waterhouse at 63; Hutchison at 145; Cook at 288.
8. Recently, in Poniatowska v Channel Seven Sydney Pty Ltd [2019] SASCFC 111, Blue J at [561] summarised the relevant principles in the context of the corresponding common law defence as follows: "To be a fair and accurate report, the defamatory matter [must]: • be a report of the court proceedings or that part thereof of which it purports to be a report: it is not sufficient that the proceedings are the source of information, or the subject, of an expression of opinion; • be a substantially accurate expression of the court proceedings or the part thereof of which it purports to be a report; and • not substantially alter the impression that an ordinary reasonable recipient would have gained if present during the proceedings." (footnotes omitted)
9. Pursuant to s 29(3), the statutory defence may be defeated if the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education: see, for example, Rush at [439].
10. With respect to s 29(3) of the Act, the tone of voice used in a radio or television broadcast or the prominence given to a report can be factors relevant to whether the report was published honestly: Waterhouse at 69-71.

The primary judgment

1. At [191] of his reasons, the primary judge observed that: "… at times, when he was appearing for Rabbi Feldman, Mr J Cohen of counsel appeared to argue that the reports were not fair because the questioning by counsel assisting, in Mr Cohen's submission, were either not fair, illogical, syntactically flawed or tainted by an erroneous statement of the law. … In my judgment this is not to the point; it was not for the journalists to grade the fairness, skill, knowledge or even grammar of counsel. The journalists' task was to accurately report what actually transpired in the hearing room on the topics the subject of their reports."
2. Mr Cohen, who also appeared for the appellant on appeal, engaged in similar arguments in his written submissions on appeal, submitting, for example, that "[g]iven the lack of detail contained in the questions by counsel assisting, the answers are reasonable in the circumstances". Further, Mr Cohen submitted that "[i]t is a fundamental principle of fairness that a witness has no obligation to answer a question other than what is asked" and that "the question repeated by counsel assisting [was] confusing".
3. For the same reasons given by the primary judge, such arguments miss the mark. The focus in the context of a fair report defence is whether or not the report is a fair report of the proceedings or a relevant aspect of the proceedings, not whether or not the proceedings were in themselves fair.
4. The primary judge reviewed and set out large portions of the appellant's evidence at [44]-[64] of his judgment, and the Court was also taken to much of that evidence by Mr Dawson, who appeared with Ms Barnett for the respondents on appeal. The evidence extracted at paras [59]-[61] of the primary judgment was of particular significance to his Honour's conclusion as to fair report, as follows: "59 At DTB 46, the Rabbi gave evidence that he did not take any notes of these conversations with AVL because 'it's not my style'. He was challenged about that answer as follows: 'Q. 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? A. 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 - ... (He was interrupted) Q. In 2002 did you understand it was against the law for an adult to touch the genitals of another child? A. I didn't know that as a fact.' 60 After that last question, the morning adjournment was taken. When the evidence resumed, counsel assisting asked (DTB 47): 'Q. Rabbi, I just want to be clear that you understood the question that I asked you before the break. In 2002, at the time of these conversations with AVL, 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? A. The genitals I would have assumed as 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. Q. So you understood in 2002 that the nature of a massage, depending on what was touched, could have amounted to a crime? A. 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. Q. I asked you before the break, and I asked you this very question ... "In 2002 did you understand 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. A. 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. Q. Do you think that as the director of an incorporated entity responsible for running a school you should have known about crimes of child sexual abuse and what contact may result in abuse occurring? A. In general, yes, I would think a director should.' 61 He explained his position by saying that he was not at all involved in day to day management and he relied on his father. He became a director to help. He added: 'So I do agree with you that in general a director of a children's organisation should certainly know all of the legal ramifications of being involved, but I relied on my father in that regard.' (DTB 47.)"
5. The primary judge emphasised the evidence from the Royal Commission reproduced above, but also indicated that his conclusion as to fair report in relation to the News 1 publications was based on his review of the appellant's evidence to the Royal Commission as a whole: see the primary judgment at [196], [198], [199] and [202]. Portions of that evidence have been reproduced at [4]-[6] above.
6. In this context, reference may also be made to the following portion of the appellant's cross-examination at the Royal Commission in relation to a complaint regarding the person identified as AVL: "Q. You knew then that as a result of that process one of the things that might occur is that a complaint will be made to the police? A. I didn't know whether at that time much of the seriousness and of the legal legalities of these issues and I didn't know whether it's a criminal matter, I didn't know ‐ I really didn't know much about sex abuse at all or, you know, I was very unaware of that whole area. The whole thing came as a surprise to me. Basically he was reported and, you know, I didn't know much about this whole area at all, to tell you the truth. … Q. You knew at the very least that it could be a crime, didn't you? A. Anything could be. I didn't know that it is."
7. Later, the appellant said that he "didn't have a clue" that AVL could be charged with a crime and that "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."
8. One of the Commissioners was incredulous, asking: "Are you saying to the Commission that, notwithstanding you were a director of a school, an ordinary school, you had no knowledge at all of the issue of child sexual abuse nor the requirements that existed in New South Wales at that time; is that your evidence?" In response, the appellant stated that the Commissioner was "correct".
9. Earlier in the appellant's Royal Commission evidence, the following exchange occurred: "Q. So you knew from your discussions with your father that the complaint was of contact that could be abuse? A. Yes. Q. You knew that abuse involving a child might expose someone to criminal liability, didn't you? A. I didn't think in those terms. People think in the terms of what they deal with and what they ‐ I'm not in the business of thinking about how the society would deal with issues, and that's not what I was thinking about, that's not what I'm in to. I didn't think about what things should go to police, what shouldn't go to police."
10. Having thoroughly reviewed the appellant's evidence to the Royal Commission, I agree with the primary judge's conclusion that the reporting in the News 1 publications was fair. The appellant was at pains to differentiate in his evidence between his knowledge of Jewish law and morality, on the one hand, and secular law on the other. Indeed his own words reiterated his evident lack of knowledge of child abuse laws. Further, he candidly accepted and indeed volunteered that he didn't know what his legal obligations were with regard to the reporting of child abuse. The News 1 publications contained numerous quotations from the appellant's evidence as to his ignorance of child abuse laws. Those quotations were accurate both in terms and contextually.
11. The primary judge was correct, in my opinion, to uphold the statutory defence of fair report. This ground of appeal should be dismissed.

11 February 2015 publication

1. A specific submission was made on behalf of the appellant in relation to the publication on 11 February 2015 (Annexure B). Unlike the other News 1 publications, which had all occurred following the appellant's evidence to the Royal Commission on 6 February 2015 and predated his further evidence on the following Monday 9 February 2015, the 11 February 2015 publication was criticised as not comprising a fair report because it did not make reference to the appellant's evidence to the Royal Commission on 9 February 2015, which the primary judge described as an attempted retraction of the controversial evidence which the appellant had given on 6 February 2015 which had been the focus of the other News 1 publications.
2. The appellant resigned from his position as Director of Management of the Yeshiva Centre in Bondi, and the focus of the 11 February 2015 publication was on that resignation. The primary judge held at [210] that: "The article accurately recorded his 6 February evidence which had initiated the furore that lead to his resignation. The main thrust, as I have said, of Exhibit B was the report of his resignation. Reference to his 6 February evidence was necessary to explain the circumstances of it to the reader. I think it not irrelevant that no complaint is made about any other aspect of the reporting. The report was not inaccurate or unfair in the relevant sense by its omission of Rabbi Feldman's attempted retraction."
3. The respondents submitted that a reporter or editor is entitled to select part of proceedings which he or she considers to be of particular public importance, and report only that part of the proceedings. They referred to Cook at 288 in support of the proposition that a report dealing only with part of proceedings may attract a fair report defence, provided that the report 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": Cook at 290.
4. This submission should be accepted and I do not consider that the 11 February 2015 publication was not a fair report because it did not refer to the attempted retraction of the appellant's evidence given on 6 February 2015. The story in respect of the appellant's resignation was ineluctably tied to the evidence that he had given on 6 February 2015. That evidence and the response to it were what was reported to have led to the appellant's resignation.

News 1 publications/SBS publication - justification (ground 2)

1. The appellant submitted that the primary judge erred in allowing the defence of justification in respect of the News 1 publications and the SBS publication. As outlined above at [17], the two imputations arising from each of the four News 1 publications were: (a) that the appellant was reprehensibly ignorant of the fact that it was against the law for an adult to sexually touch the genitals of a child; or alternatively (b) that the appellant in giving evidence displayed reprehensible ignorance of the fact it is against the law for an adult to sexually touch the genitals of a child. The imputation conveyed by the SBS publication, outlined at [19] above, was that: (n) the appellant displayed reprehensible ignorance of the fact that it was against the law for an adult to sexually touch the genitals of a child.
2. The primary judge accepted that "imputation (n) said to be conveyed by [the SBS publication] is substantially the same as the alternatives (a) and (b)" (at [198]). At [259], the primary judge found the elements of imputation (a) to be substantially true and, although not strictly necessary to decide as imputation (b) had been pleaded in the alternative to imputation (a), the primary judge found the elements of imputation (b) to be substantially true at [267].
3. At [256] of his judgment, the primary judge made reference to the evidence of the appellant himself, as follows: "Q. How do you accidentally touch the genitals of a child in the position of a teacher lying on a bed with that child giving him a massage? A. How? Q. How do you physically do that by accident, Rabbi? A. I'll tell you why, because when you massage around and you move your body it may not even be with your hand you may just fly by the genitals, or when you're moving your hand you didn't realise it is in a certain position and you went to go the other way. Just touching genitals in itself, in the context of AVL, I didn't know whether the law would be able to deal with it, to discern if the guy would claim it's an accident, you know, just because he was touched doesn't necessarily mean that it was something that can be discerned and realise that it's a touching which is sexual, and that's what I meant in all of these things, touching. You know, touching in itself, you can't know unless it's clearly sexual, which fondling shows on there could be many reasons you can touch genitals. I mean, one of them is accidental, one of them is what you meant, whatever."
4. After referring to this evidence, the primary judge held (at [257]-[259]): "257 I have formed a view that the plaintiff was forthright and earnest in his evidence before me. I formed the impression he was sincere in his views even if he held them somewhat inflexibly. He also struck me as a person who relished what he might have regarded as the cut and thrust of intellectual debate, sometimes for its own sake. He struck me as very intelligent and eager to take on the cross-examiner in their exchange which he regarded as a dialogue, if not an opportunity for discourse, rather than a forensic examination. I had the impression that he felt there was no proposition that could be put that he could not talk his way around. For these reasons I formed the view that the opinions he expressed were firmly held and not easily susceptible to change by persuasion. 258 His evidence that he did not know as fact that sexually touching the genitals of a schoolboy under the perpetrator's care was illegal was a true expression of the state of his knowledge at least on 6 February 2015. And for a person in his profession with his qualifications, intellectual attributes and great responsibilities in the Jewish ultra-orthodox community his ignorance of that matter and of his responsibilities as a mandatory reporter was reprehensible. 259 This being so I find element (ii) of imputation (a) going to the sting of the imputation is substantially true. On this basis and in respect of my evaluation of all the evidence, I find that the plaintiff was reprehensibly ignorant as to whether it was against the law for an adult to sexually touch the genitals of a child. For clarity I find that both elements of imputation (a) are substantially true, namely: (1) It was against the law for an adult to sexually touch the genitals of a child; and (2) The plaintiff was reprehensibly ignorant of this fact."
5. Earlier (at [247]), the primary judge had drawn attention to the following question, and telling answer, arising from the appellant's cross-examination at the trial: "Q. You would accept wouldn't you, Rabbi, being honest about it, that in retrospect it was reprehensible for you in the positions you held to be so ignorant? You accept that, don't you? A. From a certain perspective."
6. The appellant submitted that the evidence given: "… does not establish any ignorance on the part of the appellant. The evidence must be read in its proper context. The appellant's evidence … makes it clear the appellant was aware it is against the law for an adult to sexually touch children on the genitals. On the respondent's own case, the highest the respondents' case can be taken is … [that] the appellant merely 'assumed' it was against the law for an adult to fondle a child's genitals as distinct from 'know(ing) as a fact' it is against the law. The distinction sought to be made by the respondents is no more than one of semantics, and does not support the defence of justification. At judgment [257] the trial judge accepts the appellant is a witness of truth. As such the defence of justification is untenable once it is accepted the appellant was being truthful in relation to the evidence he gave … The conclusion His Honour comes to, after having accepted that the witness is being truthful, is also untenable by virtue of the evidence of the appellant …"
7. The appellant continued that the "perception of ignorance on the part of the appellant in reality arises as a result of the idiosyncrasies of the appellant as a witness rather than any ignorance" and that, at most, "the appellant got it wrong" as opposed to fundamentally failing to understand "the concept that it is against the law for an adult to sexually touch a child on the genitals."
8. In relation to the primary judge's findings of justification with respect to imputation (a), the respondents submitted that: "The abundance of evidence summarised by the primary judge was more than sufficient to establish the substantial truth of imputation (a). The Appellant's ignorance was especially demonstrated by his own evidence set out in J [256] … The fact that the Appellant would not immediately recognise touching of a child's genitals as sexual and unlawful in the circumstances recounted is ignorant, and reprehensibly so. In the scenario of a teacher lying down and massaging a child there is no scope for a touch of the genitals that would not be unlawful. The Appellant's continued attempt … to distinguish between 'mere touching of the genitals' and 'sexual touching of the genitals' in such a scenario reveals that the reprehensible ignorance persists. Further, the evidence was not taken out of context by the primary judge, as the Appellant submits".
9. With respect to imputation (b), the respondents submitted that, as imputation (a) was found to arise by the primary judge, it was strictly unnecessary for this Honour to address imputation (b), which had been pleaded by the appellant in the alternative.
10. In my view, the primary judge was correct to find that the alternative imputations arising from the News 1 publications, and the imputation conveyed by the SBS publication, were justified. That conclusion really flows from the appellant's own language in answering questions before the Royal Commission in which he eschewed knowledge of the law: see, for example, the lengthy extracts at [4]-[6] above; see also [136] and [138]. This was only reinforced by the fact that the appellant was a leader of a community with important reporting responsibilities, another matter which he acknowledged.

News 2 publications - fair report (ground 9)

1. The principles relevant to a fair report defence have been set out at [108]-[117] above.
2. The News 2 publications related to the submissions that had been made to the Royal Commission regarding Case Study No 22.
3. It was not submitted, with the exception of imputation (g) discussed at [149]-[151] below, that the publications did not accurately summarise the submissions of counsel assisting in relation to the appellant, and no challenge was made to the primary judge's finding at [216] that: "The imputations (f), (g) and (h) are virtually drawn directly from the express language of Exhibits E and F, which in turn are solidly based upon the written submissions of counsel assisting, which I have summarised. There can be no question that in substance Exhibits E and F are an accurate report of that part of the proceedings. The articles appear to be based on and summarise the findings contended for by counsel assisting at F11, F12, F22, F23, F20, F13 and F7."
4. Rather, it was submitted on behalf of the appellant that "[i]n accordance with Chakravarti, it was necessary to summarise all parts of the proceedings relevant to the imputation, which would obviously include the appellant's counsel's submissions [to the Royal Commission]." No specific page or aspect of the decision in Chakravarti was referred to.
5. A similar submission was made and rejected at first instance. In this context, the primary judge accepted the respondents' submission that this argument misunderstood the scope of the fair report defence and referred to the decision of Buckley LJ in Cook at 290, where his Lordship said: "… [an editor] is I think entitled to report on the proceedings or that part of it which he selects in a manner which fairly and faithfully gives an impression of the events reported and will convey to the reader what he himself would have appreciated had he been present during the proceedings."
6. In oral submissions, Mr Cohen focussed in particular on the following statement which appeared in the News 2 publications: "One of the most senior religious figures of the Jewish ultra-orthodox movement in NSW, Rabbi Yosef Feldman, allegedly engaged in a disingenuous 'public relations' exercise in urging sexual abuse victims to contact police as he privately pressured his flock not to report outside the community".
7. These statements formed the basis of imputation (g) which has been set out at [20] above. The submission was that counsel assisting the Royal Commission had not used the expression "his flock" either in writing or orally, and thus the statements set out in the previous paragraph cannot attract a fair report defence. The primary judge rejected this argument at [221]-[222] of his judgment as follows: "221 Not every inaccuracy in a report of proceedings deprives the report of the benefit of the defence. As the Court said in Thom (see at [184] above): 'errors may occur, but the protection is not lost provided they are not such as substantially alter the impression that the reader would have received had he read the [written submissions] for himself.' (My emphasis).' 222 Applying this test, I am of the view that the disputed expression does not depart from the accuracy of the report. As the fourth substantive paragraph of the report demonstrates, in his evidence at the Royal Commission, Rabbi Feldman expressed the view that Jewish leaders should not publically encourage victims to go to police. Victims, of course, are part of the flock. Counsel assisting contended for a finding that this was Rabbi Feldman's view see [86], [87], [89], [90] and [91] above. Moreover, the reference in the submissions set out at [94]-[96] above and in particular the reference to the wider Jewish community show that counsel assisting was contending, rightly or wrongly, that Rabbi Feldman was seeking to discourage Jewish laypeople from reporting complaints of abuse to the police rather than the Rabbi. Indeed, the whole tenor of the written submissions in this regard, is that the Rabbi should not be accepted as genuine when he professes his support for and adherence to the 2010 RCV resolution. That is to say, that the Rabbi's protestations in that regard cannot be accepted at face value. If this is so, it is legitimate to understand counsel assisting as saying, as she did in terms, that he adhered to his previous view of halachic obligations that these complaints be dealt with in the first instance by the Rabbi. This could only occur if that view was expressed to the congregation, backed by the authority of a senior Rabbi." (emphasis in original)
8. In my view, the seizing on the reference to "flock" by the appellant does not render the report unfair or inaccurate. Rabbis are religious leaders whose views command respect amongst members of their congregations or those who follow their teachings. What both the Royal Commission and the primary judge said (at [294]) in this respect is common sense: "The finding of the Royal Commission (p 80; DTB 620) that an institution can only act through its senior members who shape the response of the institution to allegations and incidents of child sexual abuse have an impact upon the way their community thinks about those matters is no more than a statement of the common experience of life. Likewise, the view that the actions and views of senior members of a religion will have a direct bearing on whether child sexual abuse survivors come forward at all. Given the central position of the Rabbi in the Jewish ultra-orthodox community and the requirement of strict adherence to Jewish law, together with the shunning and reduction in status of those who contravene it, it is not hard to conclude as the Royal Commission did that Rabbi Feldman's views were influential within his community and were capable of affecting the decision of a member of the community about whether to report incidents of child sexual abuse."
9. The fact that "flock" was used in the article but not in the submissions did not, in my view, alter in any material way the substance of what was being reported, nor did it alter the fact, as found by the primary judge at [216] and not seriously challenged, that "[t]he imputations (f), (g) and (h) are virtually drawn directly from the express language of Exhibits E and F, which in turn are solidly based upon the written submissions of counsel assisting". The report was fair for the purposes of ss 29(1) and (2) of the Act.
10. This ground, too, should be dismissed.

News 2 publications - justification (ground 3)

1. The appellant submitted that the primary judge erred by allowing the defence of justification in relation to the News 2 publications. As outlined at [20] above, the three imputations arising from the News 2 publications were imputations (f), (g) and (h).
2. The primary judge dealt with the justification defence in relation to imputations (f), (g) and (h) at [268]-[303] of the primary judgment.
3. With respect to imputation (f), that the applicant engaged in a disingenuous "public relations" exercise in urging sexual abuse victims to contact police, the primary judge said at [273]-[275]: "273 … there are several factors supporting the proposition that the plaintiff's statement was a disingenuous public relations exercise. The defendants argue … that he effectively admitted in his evidence at (T297.45-297.47T) that he 'wasn't too excited to come out with [it] but I was basically forced to'. The plaintiff accepts that he didn't draft the statement, but that he did approve it. 274 The sting of this imputation is that Rabbi Feldman's endorsement was an insincere attempt to persuade the Jewish community and the wider public that notwithstanding what he had written in private to his senior colleagues, which was directly contrary to 2010 RCV resolution, he in fact adhered to the resolution for the sole purpose of attempting to restore his reputation after his true views had been leaked to the Jewish press. 275 I am satisfied that this imputation is substantially true."
4. The appellant submitted that the "fundamental problem in upholding the defence of justification is the trial judge has accepted the appellant was a reliable witness and had good credit at [257]". The appellant further submitted that: "The emails were between members of the Rabbinic Council of New South Wales and concerned whether or not the Council should put out a public statement endorsing the position that anyone with information about allegations about child abuse should report the information to the police. There is no legal obligation for any organization to make such a statement The appellant did not agree with this course of action and sought to engage other rabbis in a debate about whether such a statement should be published. The appellant put forth his views about Jewish Law, and based on his views it was his position that such a public statement would contravene Jewish Law (there being no secular obligation to publish such a statement). The appellant had given evidence that the principle of 'dina demalchusa dina' (T 203. 40 to 204.30) (literally meaning the law of the land [ie secular Australian law] is the law) is a core belief of his. That is, it was a religious belief of appellant that secular law must be adhered to. This was not questioned or doubted in evidence, nor was it in dispute. The appellant gave evidence at both the hearing and at the Royal Commission to the effect that he sought to engage other Rabbis in a debate, about whether the making of such a statement was prohibited from a religious perspective."
5. The respondents submitted that the primary judge's summation of the evidence demonstrated that there was ample to establish that imputation (f) was substantially true. With respect to the appellant's submission that the fundamental problem in upholding the defence of justification was that the primary judge accepted the appellant as a witness of credit, the respondents submitted that this: "… overlooks that the majority of the material in support of the imputation was the Appellant's own evidence. The fact that the primary judge considered the Appellant to be 'forthright and earnest' and accepted that he was 'sincere in his views' (which the Appellant's submission equates with his Honour having accepted the Appellant as a witness of credit) does not mean the primary judge is bound to accept all of his evidence, including protestations that run contrary to his other evidence".
6. There is force in this submission. The passage in the transcript of his evidence extracted by the primary judge at [273] (see [155] above) supports a finding that the imputation of disingenuousness was made good. The primary judge plainly drew upon rather than rejected the rabbi's evidence that he "wasn't too excited" to come out with the statement urging sexual abuse victims to contact police and was effectively "forced into it" scarcely admits of a genuine concern for victims of sexual abuse and the need for sexual abuse to be treated by secular authorities. That conclusion is fortified by the following passage from the appellant's cross-examination on the fifth day of the trial: "Q. You think, do you, that the issue of the ORA statement in the middle of 2011 and the Beth din statement were more likely to promote false accusations than real ones? A. That's correct, because real accusations, everyone in the community knew already that you should be reporting, it was already reported, the RCV statement, that was a good statement and there was no reason, and I know why that statement was given out by the president of ORA which was also to make himself look good, if I may say so, but I didn't see any benefit in it whatsoever."
7. The primary judge's assessment as to whether or not the appellant in fact engaged in a disingenuous public relations exercise was also likely to be assisted by his Honour's opportunity to observe the appellant under cross-examination, as well as the other advantages enjoyed by a trial judge: see Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [23].
8. In my opinion, it was open to the primary judge to conclude that this imputation was justified, and his Honour was correct in doing so. Although this Court's duty is to decide the issue for itself, some recognition must be given to the advantages enjoyed by the primary judge who conducted the trial: Macquarie Radio Network Pty Ltd v Dent [2007] NSWCA 261 at [48]-[50], applying Warren v Coombes (1979) 142 CLR 531 at 551; [1979] HCA 9. See also Chakravarti at [42]: "the question that arises is whether it was open for his Honour to find that they [the publications] were not [fair and accurate]".
9. With respect to imputation (g), namely that that the applicant pressured his flock not to report child sexual abuse to the police, the primary judge concluded at [294] that this was substantially true. His Honour held that: "It must also be borne in mind that the report of the Royal Commission is before me as part of the evidence in the case. Although admitted for the purpose of determining the fair summary defence in relation to Exhibit G, once in, it is in for all purposes under s 60 of the Evidence Act 1995 (NSW). The Royal Commission's finding (at p. 70; DTB 619) that when considering the issue of child sexual abuse, Rabbi Feldman's focus is on the perspective of the perpetrator, rather than the victim is consistent with the evidence before me as I have recorded above. The views recorded in his various emails of 2011, 2013 and 2014 are inconsistent with the view that his statement in support of 2010 RCV resolution was genuine. It is my finding based upon the evidence before me that Rabbi Feldman adheres to the view expressed in the 2011 emails. The finding of the Royal Commission (p 80; DTB 620) that an institution can only act through its senior members who shape the response of the institution to allegations and incidents of child sexual abuse have an impact upon the way their community thinks about those matters is no more than a statement of the common experience of life. Likewise, the view that the actions and views of senior members of a religion will have a direct bearing on whether child sexual abuse survivors come forward at all. Given the central position of the Rabbi in the Jewish ultra-orthodox community and the requirement of strict adherence to Jewish law, together with the shunning and reduction in status of those who contravene it, it is not hard to conclude as the Royal Commission did that Rabbi Feldman's views were influential within his community and were capable of affecting the decision of a member of the community about whether to report incidents of child sexual abuse. In my judgment these same considerations, informing an inferential reasoning process, persuade me on the balance of probabilities that imputation (g) is made good."
10. The appellant submitted that in relation to the primary judge's conclusion that imputation (g) was substantially true: "Imputation (g) is suggestive of criminal conduct, particularly as the ordinary reader is entitled to employ a degree of loose thinking, giving the ambiguous nature of article, and therefore the imputation. The evidence the trial judge relies on at [294] is incapable of supporting the truth of the imputation. Furthermore, a finding of fact establishing substantial truth of the imputation would be subject to the Briginshaw standard as the allegation is serious and potentially criminal. The trial judge relies on conclusions of the Royal Commission Report to support justification, which is an impermissible approach. The conclusions of the Royal Commission are unsubstantiated hearsay opinions which could not satisfy the Briginshaw standard. They were the opinions of the Commissioners who had no first hand knowledge of the relevant facts in dispute. While s 60 may not prohibit the manner in which the evidence can be used, this does not mean the opinion of the Commissioners has any significant probative value in relation to a defence of justification. More importantly, the trial judge contravenes s 91 Evidence Act 1995 (NSW), the Report clearly falling within the ambit of s 91, being a finding of fact in an Australian Proceedings. Accordingly the reasoning in [291 to 294] exposes error."
11. The appellant's separate appeal ground in relation to s 91 of the Evidence Act was expressly abandoned and so too, it must be inferred, was the last portion of this submission. But the submission has other difficulties. Paragraph 294 of the primary judgment constituted a combination of the primary judge's findings, coupled with observations in relation to what was contained in the Royal Commission report. I read the primary judge as saying that he reached the same views as had been reached by the Royal Commissioners, rather than drawing on or accepting, in some fact-finding sense, opinions expressed in the Royal Commission report.
12. The respondents submitted that there was no error in the primary judge's reasoning, as the relevant evidence demonstrated how strongly the appellant's views were held, which was sufficient to establish the substantial truth of the imputation. The respondents thus submitted that the primary judge did not misconstrue the s 25 defence of justification to find that something less or other than substantial truth established the defence.
13. The finding that the primary judge reached as to the substantial truth of imputation (g) was open to him. I reject the challenge to the primary judge's conclusion that imputation (g) was substantially true.
14. With respect to imputation (h), namely that the applicant refused to accept that Jewish organisations had a responsibility to report the sexual abuse of children to secular authorities, the primary judge outlined the relevant evidence at [298]-[302], and concluded (at [303]) that he was: "… comfortably satisfied that Rabbi Feldman refused to accept that Jewish organisations had an obligation to report the sexual abuse of children to secular authorities. In my judgment Rabbi Feldman at best regarded reporting such allegations to secular authorities as only one way of handling them, and not the best way from the 'Jewish perspective'." (emphasis in original)
15. The appellant submitted that the primary judge erred in this respect as there was "no evidence to support justification", and at "no stage did the appellant ever refuse to accept Jewish institutions had a responsibility to report child abuse." The appellant contended that: "The evidence before the court and the tribunal had little to do with whether or not Jewish organisations, such as schools, hospitals, and religious institutions should or should not report allegations, particularly when they may be required to do so by law. The evidence at its highest could only establish that the appellant opposed making a public statement, by rabbis, encouraging, the reporting of allegations of abuse. There is no evidence capable of supporting (h) nor does the trial judge point to anything in the judgment that could satisfy the defence of justification."
16. In response, the respondents submitted that, contrary to the submissions of the appellant, there was: "… an abundance of evidence to support the substantial truth of imputation (h). His Honour was 'comfortably satisfied' that the Appellant refused to accept that Jewish organisations had an obligation to report the sexual abuse of children to secular authorities. His Honour's conclusion at J [303] that the Appellant at best regarded reporting allegations to secular authorities as only one way of handling them, and not the best way from a 'Jewish perspective', is a generous description of the Appellant's state of mind evidenced by the 2011 emails."
17. The appellant's submission that there was no evidence to support the primary judge's conclusion must be rejected. That evidence was set out by the primary judge at [298]-[302] of his reasons and was simply not engaged with by the appellant in his written or oral submissions. The submissions, such as they were, rise little above bald assertion.
18. No basis has been shown for rejecting the primary judge's conclusion in this regard. This ground must be dismissed.

News 3 publication - imputations (ground 13)

1. The primary judge rejected the appellant's case that the following five imputations were conveyed by the News 3 publication: "(i) The plaintiff was significantly involved in the cover up of multiple acts of paedophilia. (j) The plaintiff was significantly involved in endangering children by allowing perpetrators of child sex abuse to remain associated with the Chabad organisation. (k) The plaintiff discouraged victims of child sexual abuse from reporting abuse. (l) The plaintiff was significantly involved in endangering children by covering up multiple acts of paedophilia. (m) The plaintiff so conducted himself so as to warrant being singled out by the Royal Commission (the Royal Commission into Institutional Responses to Complaints of Child Sexual Abuse in relation to Melbourne and Sydney Yeshiva) as being the most egregious example of the failure of the leadership of the ultra-orthodox community to appropriately respond to allegations of child sexual abuse."
2. The publication appears at Annexure G and its text was as follows: "Children abused within ultra-orthodox Jewish communities in Sydney and Melbourne were failed by religious leaders who stridently or incorrectly applied religious principles to keep the abuse from police and the public. The Royal Commission into Institutional Responses to Child Sexual Abuse has lambasted the leadership at Yeshiva Bondi and Yeshivah Melbourne, with a report released yesterday finding allegations prompted little, if any, action and perpetrators were allowed to remain associated with the Chabad organisations. The commission found there was strong evidence victims had been discouraged from reporting abuse because of the way halachic (Jewish law) principles were applied, including prohibitions on informing on other Jews to secular authorities. It found Rabbi Yitzchok Dovid Groner, who led Melbourne's Yeshivah community until his death in 2008, had ignored multiple reports of abuse by pedophiles [sic] David Cyprys and Rabbi David Kramer, with other rabbis also publicly discouraging victims from speaking out. 'Criticism of those who spoke out was forceful,' the commission said. 'There was a marked absence of supportive leadership for survivors of child sexual abuse.' It noted that neither he nor his father, Rabbi Pinchus Feldman, had taken steps to inform anyone that a rabbinical student accused of molesting was thinking of leaving the country, saying they didn't believe an obligation existed to inform police. The commission singled out a formerly senior figure at Yeshiva Bondi, Rabbi Yosef Feldman, who resigned from his role as a director on Yeshiva's board of management following his testimony. The Executive Council of Australian Jewry and the NSW Jewish Board of Deputies said they would continue to seek changes to address a 'systemic failure'." (emphasis added)
3. As the primary judge noted at [102] of his judgment, there was much controversy at the hearing about the obvious editing error resulting in the transposition of the paragraphs which have been italicised at [172] above. His Honour was: "… of the view that the ordinary reasonable reader, being of fair average intelligence would pick up the error immediately and reorganise the flow of the article in his or her own mind as he or she read on. At most a moment's reflection may have been necessary."
4. It might be observed that even if the reader did not do this and read the article through in a linear fashion, that reader would suppose that the "he" referred to in the third last paragraph of the article was Rabbi Yitzchok Dovid Groner and not the appellant, so that, if a defamatory imputation arose about what followed, it was not about the appellant. But I consider that the primary judge was correct to hold as he did at [102]. A reasonable reader would associate the appellant with Rabbi Pinchus Feldman, and would not naturally associate the latter with Rabbi Groner who had a different surname. So read, the article's focus insofar as it concerned the appellant was in the statement in the ante-penultimate paragraph of the article, namely that neither the appellant nor his father had "taken steps to inform anyone that a rabbinical student accused of molesting was thinking of leaving the country".
5. The primary judge expressed his findings as to this issue at [159]-[169] as follows: "159 With respect to the plaintiff's submissions I am not convinced that Exhibit G can be said as a matter of fact to be vague, or unclear, such that it invites loose thinking. The article is objective, factual and does not make assertions that are not based upon referred sources. 160 To this extent the article takes a considered approach to the subject matter. Specifically regarding imputation (i) and (l), I would not accept the position that the article invites an ordinary reasonable reader of the Australian newspaper to understand that in particular the plaintiff was significantly involved in the cover up of multiple acts of paedophilia. 161 Taken at its highest, the plaintiff's submission supposes that because Rabbi Feldman is photographed in the article (leaving the Royal Commission) and because he is the last-named 'person in the article', that cumulatively, this impresses upon the ordinary reader a heightened significance of the role played by Rabbi Feldman in context of the summary of the Royal Commission's views on the collective failure of the Jewish leadership as reported in the article. The submission that flows from this initial proposition, the plaintiff says, is the insinuation (p 9 [21]): 'that all of the failings of the Jewish leadership when expressed [generally] refer to him [Rabbi Feldman]'. The plaintiff says the ordinary reasonable reader would be 'entitled' to draw this inference. 162 There is a single reference to Rabbi Feldman's actions in relation to his and his father's failure to notify anyone that an accused rabbinical student (AVL) was planning to leave the country. Even if this single instance were taken to be a significant involvement in a cover up, the article does not make express reference to any other conduct of Rabbi Feldman which one might consider, even in a broad sense, to be a cover up of paedophilia or sexual abuse. To this extent the gravamen of the respective asserted imputations, namely that multiple acts of paedophilia were covered up by Rabbi Feldman, is not conveyed and as such imputation (i) and (l) do not carry. 163 In respect of (j) and (k), I accept the submission of the defendants that if carried these two imputations would equate the collective failing of the Jewish leadership with Rabbi Feldman. I have set out above the features of the article which the plaintiff says would impart this imputation to the ordinary reasonable reader. While I accept these features are present in the article, I do not accept in the light of the analytical, rigorous and factual approach taken in the content and form of the article, that the ordinary reasonable reader would without a strained or forced approach understand the article to convey this meaning. I do not accept that (j) and (k) are carried. 164 Lastly regarding Exhibit G is imputation (m), I accept generally that the first component of the imputation would be understood as being conveyed by the ordinary reader, namely that the plaintiff conducted himself so as to warrant being singled out by the Royal Commission. However, I am not so persuaded regarding the second component. I cannot accept that an ordinary reasonable reader would understand the article as conveying the imputation that the plaintiff was 'the most egregious example of the failure of the ultra-orthodox community'. I accept the defendants' submission that the inclusion of the findings made against Rabbi Groner, demonstrates that the article would not convey to the ordinary reader that Rabbi Feldman in particular was singled out as the most egregious example of the failure of the Jewish leadership. 165 The article separately sets out the Royal Commission's findings against Rabbi Groner and his 'serious failings' in handling sex abuse complaints. The article makes clear that Rabbi Groner was from Melbourne, and that he ignored multiple complaints of child sexual abuse, in particular, against two persons now convicted of multiple counts of child sexual abuse offences. None of this, or anything like it, is said against or about Rabbi Feldman. If anything, the criticisms of specific conduct by named leaders are more likely to implicate Rabbi Groner in egregious failure than Rabbi Feldman. 166 None of the asserted imputations focus upon what the report identifies as the collective failure of the leadership in both cities, i.e. the insistence upon the primacy of applying Jewish law, rather than secular law, when dealing with allegations of child sexual abuse within the broader Jewish community. In particular: discouraging complainants from taking their complaints to the police, at least in the first instance, so they may be dealt with in-house; in fact taking little or no action to investigate the allegations; and permitting alleged perpetrators to remain associated with the ultra-orthodox community. It is in these respects that the article focuses upon implicating the collective Jewish leadership as a whole. But these reported adverse findings do not support or underpin the imputations for which the plaintiff contends. 167 I am not persuaded that imputation (m), that Rabbi Feldman is the most egregious example of the failure of the Jewish leadership, would be understood by the ordinary reasonable reader of the article. In coming to this view I have had regard to the ordinary meaning of the italicised phrase as the worst example of extraordinarily bad misconduct. This wording alone, which is inextricably linked to the purported sting of the imputation, imposes a markedly specific and onerous meaning. This particular meaning would have to be understood by the ordinary reasonable reader as referring to Rabbi Feldman in the light of the article read as a whole, in order for the imputation to have been conveyed. 168 I do not accept the ordinary reasonable reader of the Australian newspaper would understand Exhibit G as conveying the imputation (m), namely that Rabbi Feldman was the most egregious example of the failings of the Jewish leadership. I therefore do not accept imputation (m) has been conveyed by the article. 169 Because I have found that none of the imputations said to have been conveyed by Exhibit G have been made good. It follows from this that the News 3 proceedings must fail and I will make orders in that regard in due course." (emphasis in original)
6. On appeal, the appellant submitted that the primary judge erred by not finding any of the defamatory imputations were conveyed with respect to this article, based on the finding that the ordinary reasonable reader would understand that there was an obvious editing error. At [45] of the appellant's submissions, it was contended that: "The editing error is neither obvious nor is it necessary to reorganise the flow of the article to make sense of it. The trial judge provides no reasons for his conclusion, nor could any sensible reason be given. The article is coherent without reversing the order of the paragraphs. The only reason it could be said that an ordinary reader would reverse the paragraphs is that Rabbi Pinchas Feldman has a different surname to Rabbi Groner, which could conceivably seem odd. However, that is nothing more than speculative (if that was the trial judge's reason, which is unstated). It is not unusual for a parent to have a different surname to their child, putting to rest to any suggestion about the peculiarity of the differing surnames. It also assumes the ordinary reader would care sufficiently about that detail, when the article is coherent in any event. The ordinary reader would not be interested in the familial relationship between Rabbi Groner and Rabbi Pinchas Feldman. That is hardly the point of the article. Nor does it follow that because the appellant has the same surname as Rabbi Pinchus Feldman, they must be father and son. The editing error is only obvious to those who know Rabbi Pinchas Feldman is the father of the appellant, and not Rabbi Groner, which would not be known to the ordinary reader."
7. The appellant submitted that if the primary judge had "considered the article according to law, all of the pleaded imputations would have been conveyed." The appellant submitted that the article asserted that there was a cover-up of multiple acts of paedophilia, and gave the impression to the ordinary reasonable reader that that the appellant was significantly involved in this. The appellant pointed to the fact that there was a photograph of the appellant, but no photographs of anybody else, which "would place in the readers mind that the appellant is very significant, if not the most significant in relation to the failings of the Jewish leadership." At [46] of his written submissions, the appellant argued that: "The article clearly allows the ordinary reader to draw an inference, speculate or employ loose thinking that all of the failings of the leaders when expressed in a general sense, refer to the appellant. At paragraph 3, it says The Royal Commission has lambasted the leadership. Clearly the appellant is being included as being lambasted by the Royal Commission. It also refers to the Bondi Yeshiva in paragraph 3, and then in paragraph 9 refers to the appellant as being a senior figure in Bondi Yeshiva. Furthermore, in paragraph 9 it says the appellant was singled out but doesn't say why he was singled out. The inference is that he was singled out for being significantly involved in all the shortfalls of the leadership, apart from those that expressly stated as involving Rabbi Groner and Rabbi Pinchus Feldman. Given the fact the picture is of the appellant and the second last paragraph is about him, most people would infer the article is essentially about the appellant. A reader does not have to employ a great deal of loose thinking to understand the article in a way that intimately connected the appellant to paragraphs 1,2,3,4,6, 7, & 10."
8. The respondents submitted that the primary judge was correct in concluding that he was not satisfied that it would be conveyed to the ordinary reasonable reader that the appellant had covered up multiple acts of paedophilia. It was submitted that the ordinary reasonable reader would not understand the references to the failures of the collective leadership at Yeshiva Bondi and Yeshivah Melbourne to be solely those of the appellant, particularly in circumstances where the article specified the failures of other named leaders.
9. The respondents further submitted that the primary judge was correct in reaching the following conclusions: that the ordinary reasonable reader would not equate the references to the collective failings of the Yeshiva leadership with the appellant; that no ordinary reasonable reader could understand the appellant's alleged failings to be the "most egregious example" as per imputation (m); and that the appellant's complaint about the primary judge accounting for the obvious editing error did "not explain how a different conclusion would have been reached" if the primary judge did not account for the error.
10. I accept the respondents' submissions and consider that the primary judge's reasoning on this issue was correct for the reasons he gave.
11. As regards imputations (i), (j), (k) and (l), each of those imputations referred to multiple instances of the appellant covering up the acts of multiple perpetrators of child sexual abuse. The report in relation to the appellant was with respect to only one case for which the appellant was singled out. True it is that the title of the article refers to the failing of abused children, but that statement was not made solely with regard to the appellant, but also to Rabbi Groner. Moreover, the reference to Rabbi Groner, in contrast to the reference to the appellant, is in relation to "multiple reports" against two alleged paedophiles. Contrary to the appellant's submission, I do not think that a reasonable reader would consider or "infer the article is essentially about the appellant."
12. Whilst it is true that the article carries a photograph of the appellant, its heading refers to "Jewish leaders" and the text of the article makes it plain that more than one such leader is being referred to. This is reinforced by the fact that the text of the article refers to Yeshiva Bondi and Yeshivah Melbourne, both of which institutions would be expected to have separate leaders. In fact, the article identified Rabbi Groner as leading Yeshivah Melbourne until his death in 2008. The photograph does not have the effect of altering the text and an ordinary reasonable reader would understand that it is no more than a photograph of one of the rabbis referred to in the article.
13. In relation to imputation (m), I agree with the primary judge's observation at [231] that: "… it is impossible to, even on a contingent basis, assess such an extravagant asserted imputation as imputation (m). There is nothing in the factual and restrained account contained in Exhibit G that would support the extravagant pleading that Rabbi Feldman was singled out as the most egregious example of the failure of the leadership of the ultra-orthodox community to appropriately respond to allegations of child sexual abuse."
14. This ground of appeal should be dismissed.

News 3 publication - public document defence (ground 10)

1. Section 28(1)(b) of the Act relevantly provides that "[i]t is a defence to the publication of defamatory matter if a defendant proves that the matter was contained in: [a] fair summary of, or a fair extract from, a public document." The definition of public document found in s 28(4)(c) extends to "[a]ny report or other document that under the law of any country: (i) is authorised to be published; or (ii) is required to be presented to or submitted to, tabled in, or laid before, a parliamentary body."
2. There was no question that the report of the Royal Commission was a public document. Nor was there any issue taken with the primary judge's acceptance of the respondents' submission that the requirements of fairness for the purposes of s 28 are informed by the principles articulated in the authorities discussed in relation to the defence of fair report of proceedings of public concern: primary judgment at [225].
3. At [227]-[230], the primary judge made clear findings that the publication satisfied s 28(1)(b) of the Act as a "fair summary" of a public document, namely the Royal Commission report. His Honour said in this respect: "227 There's no question, of course, that Exhibit G purports to be nothing more or less than a summary of the Royal Commission's report into Case Study No. 22. It does not purport to be a full or comprehensive report on all of the contents of that comparatively voluminous publication. Nor need it be, as the authorities referred to in relation to fair report make clear. It is a matter for the publisher or reporter to decide what part or parts of the Royal Commission's report should be reported in the press. I am of the view that the statement of Lord Denning MR from Cook v Alexander has equal application. Provided the defendants demonstrate that their report on that part of the publication which they have selected has summarised it fairly and faithfully the 'privilege' will be available. 228 Clearly the journalist has concentrated upon those aspects of the findings of the Royal Commission which deal with the failings of the Yeshiva leadership in both Melbourne and Sydney. Those failings relate to the way in which halachic principles were applied by Yeshivah Melbourne and Yeshiva Bondi. 229 As I have summarised at [107]-[113] above, these findings included ostracising survivors and their family members if they communicated with secular authorities about other Jews against whom allegations of child sexual abuse had been made. Further, the failings were: • Continued ostracism of victims continued notwithstanding the 2010 RCV resolution. • That the experience of survivors and their family of the handling of their complaints by Yeshiva Bondi and Yeshivah Melbourne ranged from inaction to enabling those adverse experiences, perhaps to protect the reputations of individuals or institutions concerned. • Assurances of action to survivors were kept. • Perpetrators were permitted a continuing association with the institutions. • Because of the way in which concepts of Jewish law were applied in this area, at least some members of the community were discouraged from reporting child sexual abuse to secular authorities. • Survivors and families could be treated as outcasts if it became known they had reported to secular authorities, lowering their status and the prospects of their children making good marriages as a consequence. • A risked loss of standing inside the closed Chabad-Lubavictch community was a fearsome driver for compliance with the principles of Jewish law as interpreted by the Rabbi. 230 It was fair to say that the Royal Commission had singled out Rabbi Feldman for criticism. I have summarised the findings about Rabbi Feldman in relation to various matters above from [114] to [133] above. The statement that Rabbi Feldman resigned from his role as a director on Yeshiva Bondi's board of management is perhaps extraneous to the Royal Commission's report, but it is, as I have discussed in relation to Exhibit B factually accurate. This degree of co-mingling does not detract from the fairness or accuracy of the summary. Moreover, the fact that Rabbi Feldman and his father, Rabbi Pinchus Feldman failed to inform anyone that AVL was thinking of leaving the country because they did not believe that had an obligation to inform the police is an accurate and restrained summary of the Royal Commission's views about that matter. In particular as I point out at [115]-[116] above, the Royal Commission was very critical of Rabbi Feldman's handling of the AVL matter. They singled him out by stating he was either ignorant or ill-informed about conduct amounting to child sex abuse, the criminal nature of child sexual abuse, and mandatory reporting obligations".
4. The appellant did not develop any oral argument in relation to this ground of appeal, challenging the primary judge's contingent upholding of the defence for fair publication of public documents, in his principal written submissions. The matter was dealt with fleetingly in some short supplementary submissions, it being contended that "[t]here were other people, whose conduct was equally or more serious than the appellant's conduct, 'singled out' in the Royal Commission …"
5. Properly understood as in my view it would have been by an ordinary reasonable reader, the article fairly and accurately identified what the appellant was singled out for and the primary judge's analysis of that matter was correct. The appellant's own submission implicitly accepts that to be "singled out" does not require a person to be the only or sole person mentioned in a report. Rather, it highlights that particular emphasis was given to a person in respect of a particular matter.
6. The faint attack made under ground 10 should be dismissed.

News 3 publication - justification (grounds 4 and 11 and notice of contention)

1. Ground 4 asserted that the primary judge erred in allowing the defence of justification in respect of the News 3 publication, whereas ground 11 asserted that the primary judge erred by finding imputation (k) to be substantially true.
2. In its notice of contention, the first respondent (Nationwide News) contended that the primary judge's conclusion with regard to imputations (i), (j), (l) and (m) should be affirmed on the basis that, if made, each was substantially true, it being implicit in the notice of contention that the primary judge did not decide the justification defence in relation to any of these imputations. Imputation (k) stood on different ground as the primary judge held that, if made, it was substantially true.
3. The primary judge observed correctly at [304] that "[i]t is a highly abstract exercise to attempt to run the ruler of justification over imputations which have been rejected."
4. The appellant's submission on ground 4 was that had the imputations with regard to the News 3 publication been found to have been conveyed, the primary judge's finding at [306] dictated that the defence of justification would not have succeeded.
5. In my view and subject to the respondent's notice of contention, the appellant's submission is correct at least as concerns imputations (i) and (l) as the primary judge indicated at [306] that he was not satisfied that the appellant was significantly involved in the cover up of multiple acts of paedophilia. That paragraph stated: "Nor am I satisfied that he was significantly involved in the cover-up of multiple acts of paedophilia; that he was significantly involved in endangering children by allowing perpetrators of child sex abuse to remain associated with the Chabad Organisation; that he was significantly involved in endangering children by covering-up multiple acts of paedophilia; or as I have said, that he so conducted himself as to warrant being singled out as the most egregious example of the failure of the leadership of the ultra-orthodox community to appropriately respond to allegations of child sexual abuse."
6. But even if, again subject to the notice of contention, the appellant's submission in relation to this ground as far as concerns imputations (i) and (l) is partially correct, that does not avail the appellant in light of my findings in relation to the imputations not being conveyed at [171]-[184] of this judgment. Ground 4 goes nowhere. Its success was contingent on the success on ground 13.
7. As regards imputation (j), namely that "[t]he [appellant] was significantly involved in endangering children by allowing perpetrators of child sex abuse to remain associated with the Chabad organisation", the primary judge did not address the justification defence, it being strictly unnecessary to do so in light of his finding that the imputation was not conveyed and that the report was a fair summary of a public document in any event.
8. No specific submission was advanced by the appellant in support of this ground of appeal insofar as it related to imputation (j).
9. As regards imputation (k), namely that the appellant discouraged victims of child sexual abuse from reporting abuse, the primary judge found at [309] that this was established. Again, no specific submission was advanced by the appellant in support of ground 11 challenging this finding. In brief supplementary submissions, however, the appellant submitted that the primary judge provided no specific reasons for coming to this conclusion, but appeared to be relying on his findings in relation to imputation (g). The respondents agreed at least with this submission.
10. One point, however, should be noted, namely that the imputations differ significantly in their language, imputation (g) using the word "pressured" and imputation (k) being cast in terms of "discourage".
11. The primary judge's reasons in relation to imputation (g) and the justification defence have been set out at [161]-[165] above. The respondents argued that: "Imputation (k) has as its key integer that the Appellant discouraged victims of sexual abuse from reporting abuse. In that sense it is substantially similar to imputation (g), although there is no element of the Appellant pressuring his "flock". His Honour's findings in relation to imputation (g) would otherwise be equally applicable to imputation (k), and it is presumably on that basis that his Honour found imputation (k) to be substantially true for the reasons his Honour had already given (J [309] (Red 239E-G)). The primary judge was correct so to conclude, for the reasons set out above in relation to imputation (g)."
12. I agree that there is a similarity between imputations (g) and (k), with the former being the more difficult of the two to establish as a matter of fact because of the use of the word "pressured" rather than "discouraged". In light of my conclusion that imputation (g) was substantially true, the same conclusion must follow in relation to imputation (k).
13. In light of my conclusions in relation to grounds 13 and 10, it is not necessary to deal with the respondents' notice of contention which was not the subject of particularly detailed written or oral submissions by either party.

Contingent award of damages - manifestly inadequate? (ground 14)

1. Ground 14 of the Notice of Appeal challenges the primary judge's contingent assessment of damages. Only two paragraphs were advanced in support of this ground which was not developed orally. The written submissions are exiguous in the extreme and principally comprise trite propositions of law, culminating in the unhelpful assertion that "clearly the amount awarded is manifestly inadequate".
2. Moreover, as the respondents submitted, an assessment of damages in a defamation action is an exercise of a discretionary judgment such that an appellate court "may interfere with an award of damages for defamation if it appears that the trial judge proceeded upon a wrong principle in fixing the amount of damages, or if the court can infer from the amount adopted by the trial judge, or otherwise, that in some way the discretion to award damages must have miscarried": Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [89]; see, also, Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at 348-349; [2003] HCA 52 at [62]-[66]. No error of principle is identified by the appellant.
3. The submission was also made by the appellant that significant damages would have been awarded had the imputations in respect of the publication considered at [100]-[106] of this judgment been found to have been conveyed. For the reasons there given, those imputations were not conveyed and there is no occasion to revisit the contingent assessment of damages on this basis.
4. This contingent ground of appeal must be dismissed.

Conclusion

1. For the foregoing reasons, the appeal is dismissed with costs.
2. MACFARLAN JA: I agree with Bell P.
3. PAYNE JA: I agree with Bell P.

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