HER HONOUR: These are proceedings for defamation arising out of the publication of three articles and an editorial in The Australian Jewish News.
The plaintiff is a rabbi. The articles reported on evidence he gave to the Royal Commission into Institutional Responses to Child Sexual Abuse. The principal focus of the articles was to criticise the plaintiff for his alleged ignorance of the law concerning child sexual abuse and the manner in which he responded to a particular allegation of abuse.
In addition to the usual optimistic denials as to defamatory meaning, the defendants have pleaded a number of statutory defences including defences of truth under s 25 of the Defamation Act 2005 (NSW) and contextual truth under s 26 of the Act. At the second listing of the proceedings, [1] the plaintiff moved to have part of the contextual truth defence struck out. This judgment determines that application. The interlocutory processes are otherwise substantially complete; the proceedings were referred for a hearing date at the second listing and are now listed for hearing on 3 July 2017.
The imputations specified by the plaintiff as being conveyed by the articles focus exclusively on the matters the subject of his evidence at the Royal Commission. The imputations are that the plaintiff displayed reprehensible ignorance of the fact that to touch a child on the genitals for sexual gratification was a crime; that he displayed reprehensible ignorance of the fact that it was a crime for a teacher to touch a child sexually on the genitals; that he gave evidence that he was not aware in 2002 that for a man to touch a child on the genitals sexually was a crime and was therefore shockingly ignorant and morally depraved; that he failed to notify the Department of Community Services that a sex offender was about to leave the jurisdiction in circumstances where he was obliged either morally or legally to notify DOCS and was therefore a person of low morals and low ethics; that he attempted to assist a child sex offender from evading justice and was therefore a person of low morals and low ethics and that he was reprehensibly ignorant because he was not aware in 2002 that it was illegal for an adult to touch a child on the genitals for sexual gratification.
The defendants contend that the plaintiff has been selective in the imputations on which he has chosen to sue. The defence pleads a number of contextual imputations containing specific defamatory attributions said to be conveyed by the matters complained of. There is no objection to those. The plaintiff's objection to the defence is confined to a single contextual imputation pleaded only in respect of the second and third matters complained of. The contextual imputation objected to (pleaded in paragraphs 19(vi) and 22(vii) of the defence) is:
"that the plaintiff, a rabbi, had behaved disgracefully".
The particulars of truth in support of that imputation repeat particulars relied upon to support the truth defence in respect of the plaintiff's imputations and other contextual imputations relating to similar matters. Those particulars all relate to the issues addressed in the plaintiff's evidence before the Royal Commission. However, the particulars in support of the challenged contextual imputation also include two topics which are completely extraneous to the plaintiff's evidence before the Royal Commission. The two extraneous topics are, first, a secretly-recorded conversation between the plaintiff and a young woman in which he is alleged to have proposed a (consensual) sexual relationship with her and his subsequent public explanation of that conversation and, secondly, the plaintiff's alleged failure to pay the balance of $1.1 million of a debt owed to another rabbi, Rabbi Tayar, in accordance with a judgment of the Beth Din (a rabbinic court). For convenience, I will refer to those two topics as "the extraneous topics".
It should be noted that the particulars relating to the extraneous topics are repeated in support of another contextual imputation which is not the subject of any challenge (that the plaintiff, a rabbi, had so conducted himself as to warrant losing his position as the President of the Rabbinical Council of New South Wales: paragraph 16(v) of the defence). Mr Cohen suggested, perhaps tentatively, that the particulars (if proved) are not capable of proving the truth of that imputation. I do not accept that submission. It is clear, in my view, that the particulars may stand. I reached a similar conclusion in separate proceedings commenced by the same plaintiff where the same particulars are relied upon to support a truth defence in respect of one of the plaintiff's imputations. The plaintiff's imputation in that case is cast in general terms, raising the question whether the plaintiff is "fit to be a religious leader". I held that the particulars are capable of being relevant to that question: Feldman v Executive Council of Australian Jewry Inc; Feldman v Council of Orthodox Synagogues of Australia Ltd; Feldman v Spinak [2016] NSWSC 1669.
It is nonetheless necessary to determine the fate of the challenged imputation in the present case. The Court should not exercise its power to strike out a contextual imputation unless the contextual imputation pleaded is obviously untenable or "unarguably bad": Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228 at [28] per McColl JA; Gleeson and Payne JJA agreeing at [108] and [113] respectively.
Mr Cohen, who appears for the plaintiff, acknowledged that a defamatory publication can convey both a specific imputation and a general imputation at the same time, in accordance with the principles stated in Maisel v Financial Times Ltd (1915) 112 LT 953. He submitted, however, that the imputation that the plaintiff had behaved disgracefully is so general that it should be disallowed.
Ms Chrysanthou, who appears for the defendants, submitted that the "entire tenor" of the matters complained of is that the plaintiff has behaved disgracefully. She submitted that, in addition to making the specific allegations about the plaintiff that are captured in the plaintiff's imputations, each article gives a list of the disgraceful conduct of the plaintiff, with the result that it also conveys the general imputation that he had behaved disgracefully.
The difficulty is that, as suggested by the defendants' reliance on the extraneous topics, the challenged imputation covers a much broader range of potential meaning than is conveyed by the specific topics addressed in the articles. Upon reflection, the real difficulty with the imputation is that it does not specify a defamatory attribution with sufficient particularity. It is, as submitted by Mr Cohen, too general.
The present application raises issues similar to those I determined in King v Fairfax Media Publication Pty Ltd (No 2) [2014] NSWSC 1244. In that case, I said (at [8]-[11]):
Precision is an undoubted requirement of the imputations relied upon by the plaintiff: Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137-138 per Gleeson CJ; at 155F per Priestley JA. The decision in Drummoyne acknowledges that the appropriate degree of precision in any particular case is a judgment which will usually be made by reference to "considerations of practical justice rather than philology".
The extent to which precision is equally a requirement of any contextual imputations relied upon by a defendant was considered by the Court of Appeal in Australian Broadcasting Corporation v Hodgkinson [2005] NSWCA 190. The Court expressly rejected the proposition that less precision and specificity is required for a defendant's contextual imputation than for a plaintiff's imputation: at [32] to [34] per Hodgson JA; McColl JA and McClellan AJA agreeing at [42] and [43].
At [31] of the judgment, Hodgson JA said:
"But in my opinion, the question of whether the contextual imputation is sufficiently precise and specific raises considerations of "practical justice" as indicated by Drummoyne; and in this regard, it is relevant to consider to what extent this contextual imputation is based on material that supports it, otherwise than through the respondent's imputations and the appellants' other contextual imputations. If it is not supported otherwise than by inference from these other imputations, which the appellants can address directly, it could well be unjust to allow the appellants to defend on the basis of this contextual imputation by ranging widely over alleged discreditable conduct of the respondent having nothing to do with matters raised by the broadcast. "
I would not understand those remarks to be inconsistent with the proposition recognised by Simpson J in Ange (with which I respectfully agree) that the Court has no supervisory role in the formulation of a contextual imputation and no power to direct the manner of pleading by reference to notions of fairness other than as to form. Precision, however, is a requirement as to form. The content of the requirement was summarised in Hodgkinson at [34] in the following terms:
"So I think Blake requires that a contextual imputation be formulated so that facts, matters and circumstances that can be relied on to establish its truth bear a reasonable relationship both to the contextual imputation itself and to the published material relied on by the plaintiff."
That decision was upheld on appeal: Fairfax Media Publication Pty Ltd v King [2015] NSWCA 172. The Court remarked (at [41]) "the distinction to be drawn in this case is not between an imputation that is general, on the one hand, and one that is specific, on the other hand. Rather, the relevant distinction is between an imprecise imputation and a specific imputation".
In the present case, Mr Cohen's submissions have persuaded me that the challenged contextual imputation is imprecise and falls foul of the requirement of specificity. The imputation is liable to be struck out on that basis.
It does not follow that the particulars pleaded in support of the imputation (paragraphs 20.11 to 20.26 of the defence) must be struck out. When this matter was argued, Ms Chrysanthou was under the misapprehension that those particulars are not presently pleaded in support of any other contextual imputation. As already noted, they are. There is no challenge to the other contextual imputation in support of which they are pleaded.
Conversely, it does not follow that evidence concerning the two extraneous topics will necessarily be admitted at the trial. As I noted in King in the passage set out above, the fact that a general imputation, whether relied upon by a plaintiff or a defendant, has the potential to introduce a broad range of evidence unrelated to the content of the matter complained of has not been held to be a reason for striking out or disallowing the imputation: see also the remarks of Simpson J in Ange v Fairfax Media Publications [2010] NSWSC 645.
Support for a robust approach to prevent the undue expansion of the issues at trial may be found in the fact that general damages in defamation are capped; the normative proposition stated in s 60 of the Civil Procedure Act 2005 (NSW) (that the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject matter in dispute); the court's power under s 62 of the Civil Procedure Act to limit the time that may be taken by the hearing and the power under s 135 of the Evidence Act 1995 (NSW) to refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might cause or result in undue waste of time.
In any event, for the reasons I have stated, I am satisfied that the contextual imputation pleaded at paragraphs 19(vi) and 22(vii) of the defence should be struck out as being bad in form.
The only other issue raised for determination at the second listing was the defendants' application for interrogatories relating to the loan by Rabbi Tayar. The plaintiff's objection to answering those interrogatories was founded upon the objection to the contextual imputation. As already noted, at the time of the hearing, the parties were labouring under the misapprehension that those particulars were not pleaded in support of any other imputation. Mr Cohen very fairly acknowledged that, if the interrogatories did go to an issue in the proceedings, they should properly be answered. In the circumstances, I am satisfied that interrogatories 84 to 98 should be answered.
I make the following orders:
1. That the contextual imputation pleaded in paragraphs 19(vi) and 22(vii) of the defence be struck out.
2. That the plaintiff answer the defendants' interrogatories 84 to 98.
[3]
Endnote
See Defamation List Practice Note SC CL 4, clause 16.
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Decision last updated: 22 December 2016