Feldman v Polaris Media Pty Ltd as Trustee of the Polaris Media Trust t/as The Australian Jewish News

Leave to Appeal

1. On 15 August 2018, Rabbi Feldman served a notice of intention to appeal from the orders made by the primary judge. On 22 October 2018, he filed a summons seeking leave to appeal. On 10 December 2018, Polaris and Mr Levi filed a notice of contention.
2. Subsequently, on 15 February 2019, Rabbi Feldman filed a notice of appeal. That prompted Polaris and Mr Levi to file, on 21 February 2019, a notice of motion seeking an order under Uniform Civil Procedure Rules 2005 (NSW), r 51.41(1) that the notice of appeal be dismissed as incompetent. The basis upon which Polaris and Mr Levi assert that the notice of appeal is incompetent is as follows:

• The notice of appeal was not filed within the time required by the rules and no explanation has been given as to why an extension should be granted.
• The appeal does not involve a matter amounting to or of the value of $100,000 or more, as required by s 101(2)(r) of the Supreme Court Act 1970 (NSW). Clearly enough, the purported notice of appeal of 15 February 2019 is incompetent and should be dismissed as such.

1. The appeal was fixed for hearing on 20 May 2019 and a direction was given that the application for leave be heard concurrently with the appeal. On 20 May 2019, during the hearing, Rabbi Feldman sought leave to rely on a proposed amended draft notice of appeal, annexed to an affidavit sworn on 10 May 2019, which raised some 13 grounds. The proposed amended notice of appeal raised, for the first time, an additional ground of appeal, Ground 13, that the primary judge conducted the hearing in a manner giving rise to an apprehension of bias. The ground had not been raised previously, and was not raised during the trial. The respondents opposed the ground being raised at that late stage. Leave was granted to Rabbi Feldman to rely on the amended notice of appeal as his proposed draft notice of appeal, save for proposed Ground 13.
2. Polaris and Mr Levi were aware of Rabbi Feldman's desire to appeal from the orders made by the primary judge. It would therefore have been appropriate, if leave to appeal is granted, that the time for filing the notice of appeal be extended. However, had the application for leave been heard separately from the argument on the appeal, it would probably have been appropriate to refuse leave to appeal, for the reasons that follow. However, since the Court has heard full argument on the grounds proposed, the appropriate course is to grant leave to appeal. For the reasons indicated below, none of the grounds should succeed.
3. A further complication that has arisen in relation to the appeal is that, since the hearing of the appeal, Mr Levi has died. If Rabbi Feldman wishes to maintain the appeal as against the estate of Mr Levi, appropriate steps will need to be taken. In the meantime, it is appropriate that the appeal as against Polaris be disposed of, having regard to the unfortunate delay since the hearing, which has been occasioned, to a not insubstantial extent by the indisposition of a member of the Court.

Reasons of the Primary Judge

1. In her reasons for directing judgment for the defendants, the primary judge found that the imputations alleged in relation to the first [2] and second [3] articles and the editorial [4] and the first imputation alleged in relation to the third article [5] were carried and were defamatory. Her Honour found that the second and third imputations alleged in relation to the third article were not carried. [6]
2. The primary judge also found that the imputations alleged in relation to the first and second articles and the editorial were expressions of opinion that were rationally based on proper material for comment and therefore that the first and second articles and the editorial were defensible as opinion. [7] Her Honour found that the first imputation in relation to the third article was not an expression of opinion and accordingly the defence of honest opinion must fail in respect of the third article. [8]
3. In addressing the contextual truth defence, the primary judge first discerned which of the contextual imputations were in fact carried by the publications. [9] The remaining elements of the contextual truth defence would be considered only by reference to the contextual imputations found to be conveyed. The primary judge secondly determined whether the contextual imputations found to be conveyed were substantially true. Her Honour was not persuaded that the "reporting child abuse" [10] and "reprehensible attitude" [11] contextual imputations were substantially true. Her Honour found that the "friends with a paedophile" contextual imputations were substantially true [12] and that certain of the "leniency for sex offenders" contextual imputations were substantially true. [13]
4. The primary judge then considered whether the defamatory imputations did not further harm the reputation of Rabbi Feldman because of the substantial truth of the contextual imputations. Her Honour found that, had it been necessary to decide the issue, the defence of contextual truth was established in relation to the first and second articles. [14] With respect to the third article, the primary judge was not persuaded that the plaintiff's second and third imputations were conveyed, but shorn of those imputations, the contextual truth defence would succeed. [15]
5. Her Honour also found that the defence of qualified privilege under s 30 of the Defamation Act 2005 (NSW) (the Defamation Act) was established in relation to the third article and the editorial. [16] Finally, her Honour held that the defence of fair report under s 29 of the Defamation Act failed in relation to all three articles and the editorial. [17]

Grounds of Appeal

1. The amended notice of appeal alleges that the primary judge made errors as follows: 1. her Honour erred in finding that the respondents had the defence of honest opinion in relation to the first and second articles and the editorial; 2. her Honour erred in determining that there was proper material for the respondents to base their opinion in relation to the first and second articles and the editorial; 3. her Honour failed to afford Rabbi Feldman procedural fairness in determining the facts; 4. her Honour erred by making findings of fact incapable of being supported by the evidence or not reasonably available on the evidence, specifically, in finding that Rabbi Feldman was not, or gave evidence at the Royal Commission that he was not, aware it was against the law for an adult to touch a child sexually on the genitals; 5. her Honour did not have regard to the principles in Browne v Dunn; [18] 6. her Honour did not take relevant evidence into consideration; 7. her Honour erred in relation to the defence of statutory qualified privilege in determining the reasonableness of the conduct of the respondents with regard to: 1. the fact that the respondents did not seek comment from Rabbi Feldman nor publish any relevant comment obtained from him; 2. the fact that Rabbi Feldman's evidence at the Royal Commission was not fairly reported; and 3. the fact that the respondents were not of the view that the imputations complained of were true. 1. her Honour erred in finding that the conduct of the respondents was reasonable in determining the issue of statutory qualified privilege, erred in finding that the respondents contacted Rabbi Feldman in relation to the third article and the editorial and erred in finding that Rabbi Feldman's side of the story was published; 2. her Honour erred in finding that, because of the contextual imputations alleged by the respondents, the defamatory imputations did no further damage to Rabbi Feldman; 3. her Honour failed, in determining the defence of contextual truth, to have regard to relevant evidence given by Rabbi Feldman; 4. her Honour erred in that it was not reasonably open to find that the contextual imputations were true; 5. her Honour erred in not awarding damages in favour of the appellant above the sum of $100,000. [19]

Appeal Ground 1: Honest Opinion

1. Section 31 of the Defamation Act relevantly provides that it is a defence to the publication of defamatory matter if the defendant proves that:

• the matter was an expression of opinion of the defendant or an employee or agent of the defendant, rather than a statement of fact; and
• the opinion related to a matter of public interest; and
• the opinion is based on proper material. The defence under s 31 is defeated if, and only if, the plaintiff proves, relevantly, the opinion was not honestly held by the defendant or did not believe that the opinion was honestly held by the employee or agent, at the time the defamatory matter was published. For the purpose of s 31, an opinion is based on proper material if it is based on material that:
• is substantially true; or
• was published on an occasion of absolute or qualified privilege; or
• was published on an occasion that attracted the protection of a defence under ss 28, 29 or 31.

1. Section 28 provides that it is a defence to the publication of defamatory material if the defendant proves that the matter was contained in a public document. Section 29 provides that it is a defence to the publication of defamatory matter if the defendant proves that the matter was, or was contained in, a fair report of any proceedings of public concern.
2. The primary judge found that the first article was presented argumentatively and that the whole piece was presented as an argument. That is a proper basis upon which to conclude that the relevant statements were expressed as opinion as opposed to fact. The primary judge found that the second article opened in the language of an opinion piece and was written in a "personal tone", including being expressed in the first person. It therefore would have been understood as an expression of opinion. Her Honour also found that the tone of the editorial was of moral discourse and reflection and, so, conveyed an opinion. There was no error on the part of the primary judge in upholding the defence under s 31.

Appeal Ground 2: Proper Material for Basing Opinion

1. Most of the facts relied upon by the respondents as proper material were things said by Rabbi Feldman in the course of his evidence at the Royal Commission. He does not dispute that his evidence was given on an occasion of absolute privilege. That is determinative of the issue of proper material for the purpose of the Defamation Act, s 31 to the extent that those facts formed the basis of the opinion. Further, Rabbi Feldman does not point to any aspect of the reasons of her Honour in relation to the question of facts found to be substantially true that amounts to error for the purposes of s 31(5)(a). Disputing whether Rabbi Feldman's evidence at the Royal Commission expressly stated that he did not "realise" that it was illegal to touch a child's genitals leads nowhere so long as that was the effect of his evidence, which her Honour found it was. It is irrelevant if Rabbi Feldman's evidence before the Royal Commission was false, as that would not detract from the proposition that his evidence was to that effect. All that was needed to be proven as substantially true was that Rabbi Feldman had given evidence to that effect, whether or not it was true. There was no error on the part of the primary judge in concluding that there was proper material for the respondents to base their opinion in relation to the first and second articles and the editorial. Ground 2 has not been made out.

Appeal Grounds 3, 4, 5 and 6: Procedural Fairness, Findings Unsupported by Evidence, Browne v Dunn and Relevant Evidence

1. Rabbi Feldman asserts that the particulars relied upon by the respondents in alleging substantial truth were not capable of proving the substantial truth of the imputations nor to prove that the opinions expressed by the matters complained of were based on facts that were substantially true. The assertion was not argued below and is not explained.
2. Another of Rabbi Feldman's complaints appears to be that the primary judge erred in regarding his answer in re-examination at the Royal Commission on 9 February 2015 "with some scepticism". Rabbi Feldman contends that such a conclusion was not open to her Honour because it was not put to him during the hearing that the evidence was "false" and thus he was denied procedural fairness. However, her Honour did not find that the evidence was "false". Her Honour noted that Rabbi Feldman's answers in re-examination at the Royal Commission were out of step with his earlier evidence on 6 February 2015. Her Honour found he had no hesitation in repeating the assertion that he did not know the secular law and, in particular, that he did not know as a fact that it was illegal to touch a child on the genitals. Her Honour remarked that, if any sense was to be made of Rabbi Feldman's evidence in re-examination, it was that he was trying to distinguish between "fondling" and "touching".
3. The question that was before the primary judge was whether or not it was substantially true that Rabbi Feldman gave evidence that, in 2002, he did not realise it was illegal to touch a child's genitals, in the sense that he was not aware whether the secular law would regard that as a crime. Whatever answers might have been given in re-examination, Rabbi Feldman had in fact given that evidence on 6 February 2015. Her Honour was satisfied that it was substantially true that Rabbi Feldman gave evidence that in 2002 he did not realise it was illegal to touch a child's genitals. Her Honour was satisfied that the burden of the evidence taken as a whole was to claim ignorance as to what was unlawful according to secular law, as opposed to Jewish law.
4. The primary judge considered the separate question as to whether it was true that Rabbi Feldman did not know, in 2002, that it was a crime for a teacher to touch the genitals of a child. Her Honour found that it was true. Rabbi Feldman complains that, in reaching that finding, her Honour ought not to have found that his evidence during the hearing reflected "an ex post facto revision" of his previous position during the Royal Commission, in which he sought to portray his earlier equivocation on the basis of alternative facts rather than ignorance of the law. That was squarely raised.
5. Thus, Rabbi Feldman first started to suggest that he gave the evidence that he did before the Royal Commission when he said that there are many ways you can touch a child's genitals. Her Honour then asked whether Rabbi Feldman had taken up the idea that the reason he answered in that way was because he knew, for a fact, that there were legal ways to touch a child and he was drawing a distinction. He responded "yes". Her Honour then asked Rabbi Feldman whether he had just taken that up that idea recently and he responded "No: I knew all along". Her Honour expressed the view that those matters were "concerning" and made it clear to Rabbi Feldman's counsel that she considered his evidence in the proceedings to be potentially inconsistent with the evidence he gave to the Royal Commission. Thus, her Honour directly invited Rabbi Feldman to explain the inconsistency between his evidence in 2017, in the trial before her Honour, and his earlier evidence in 2015, to the Royal Commission. He gave an explanation but her Honour did not accept it. There was no lack of procedural fairness.
6. It is quite apparent that Rabbi Feldman was given an adequate opportunity to explain his position. There was no denial of procedural fairness. None of Grounds 3, 4, 5 or 6 has been made out.

Appeal Grounds 7 and 8: Statutory Qualified Privilege and Reasonableness of the Conduct of the Respondents

1. Rabbi Feldman contends that the conduct of the respondents was not reasonable because they did not contact him for comment prior to publication, only published selected excerpts of his evidence before the Royal Commission and did not report on his further evidence in re-examination on 9 February 2015. Her Honour rejected the defence under s 30 in relation to the first article and the second article because Rabbi Feldman was not contacted prior to publication. However, he was contacted, albeit through his brother, prior to the publication of the third article and the editorial. Through his brother, Rabbi Feldman provided a statement to the respondents, which they published. Rabbi Feldman gave evidence that his brother was "the spokesperson" for the family and that any questions that the respondents had were to be directed to him. Rabbi Feldman was afforded the opportunity to comment on the allegations prior to publication of the third article and the editorial. His position was included in the Newspaper in full. Grounds 7 and 8 have not been made out.

Appeal Grounds 9, 10 and 11: Contextual Imputations

1. In their amended defence of 17 March 2017, the respondents relied on s 26 of the Defamation Act, which relevantly provides that it is a defence to the publication of defamatory matter if the defendant proves that the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true, and the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.
2. In relation to the first article, the respondents alleged that each of the following imputations was conveyed and is substantially true: 1. Rabbi Feldman, when he was a director of a school, was incompetent in that he was not aware that it was illegal for an adult to touch a child's genitals; 2. Rabbi Feldman behaved inappropriately by sending emails saying that people should report allegations of child abuse to a rabbi in the first instance and not the police; 3. Rabbi Feldman was friends with the now convicted paedophile David Cyprys; 4. Rabbi Feldman held a reprehensible attitude to the problem of child sexual abuse in that he was opposed to the publication of a rabbinical statement which urged the reporting of alleged paedophiles to the police because it might affect his friend, the convicted paedophile David Cyprys; and 5. Rabbi Feldman had so conducted himself as to warrant losing his position as the President of the Council.
3. The amended defence also alleged that the second article conveyed the following imputations and that each of them is substantially true: 1. Rabbi Feldman, as the head of a school, was incompetent in that he did not know it was a crime for a teacher to touch a child's genitals; 2. Rabbi Feldman, being the director of a company that had a school, was incompetent in that he did not understand mandatory reporting laws; 3. Rabbi Feldman behaved inappropriately by saying that reports of abuse should be made to rabbis instead of the police; 4. Rabbi Feldman was friends with the now convicted paedophile David Cyprys; and 5. Rabbi Feldman behaved inappropriately by urging rabbis not to call on victims to go to the police because it would hurt his friend, the now convicted paedophile David Cyprys.
4. The amended defence alleged that the third article conveyed the following imputations and that each of them is substantially true: 1. Rabbi Feldman, the head of a school, was incompetent in that he did not know it was a crime for a teacher to touch a child's genitals; 2. Rabbi Feldman, a director of a company that ran a school, was incompetent in that he did not know that it was a crime for an adult to lie down with a child and massage him; 3. Rabbi Feldman behaved inappropriately by sending emails saying that victims of child abuse should go to rabbis and not the police; 4. Rabbi Feldman behaved inappropriately by urging rabbis not to call on victims to go to the police because it would hurt his friend, the now convicted paedophile David Cyprys; 5. Rabbi Feldman called a victim of a convicted paedophile a phony attention seeker; and 6. Rabbi Feldman was of the view that child sex offenders who had not offended for 20 years should be shown leniency for crimes committed in the past.
5. Finally, the amended defence alleged that the editorial conveyed the following imputations and that each of them is substantially true: 1. Rabbi Feldman had so conducted himself in giving evidence at the Royal Commission that the Jewish community was shamed; 2. Rabbi Feldman behaved inappropriately by suggesting that complaints of abuse should be made to a rabbi ahead of the police; 3. Rabbi Feldman argued with his colleagues in order to protect his friend, child sex abuser, David Cyprys; 4. Rabbi Feldman was of the view that child sex offenders who had not offended for a number of years should be shown leniency; 5. Rabbi Feldman, a director of a school, was incompetent in that he was not aware that it was illegal to touch a child's genitals; and 6. Rabbi Feldman has so conducted himself that it warranted him stepping down from his senior positions with Sydney's Yeshiva Centre.
6. In dealing with contextual imputations, the Court is not required to compare imputation with imputation. Rather, it is required to take into account the evidence led in support of the contextual imputations and consider whether, in the light of that evidence, the reputation of the plaintiff was not further damaged by the publication of the imputations about which complaint is made. The admissions made by Rabbi Feldman in the course of his evidence to the Royal Commission were analysed in detail by the primary judge and the allegation that he did not know it was against the law for an adult to sexually touch children on the genitals was found to be substantially true. Her Honour held that the harmful impact of the imputation of ignorance was swallowed by the airing of the true position: that his admission that he did not know "what's a crime and what's not a crime" was merely incidental to his principal thesis, which called for adherence to the repugnant proposition that a halachic ruling confers special immunity upon Jewish perpetrators of child sexual abuse from the rule of law. [20] That finding was clearly capable of overwhelming any defamatory effect of the imputations complained of by Rabbi Feldman.
7. The primary judge declined to consider the truth of the contextual imputation that Rabbi Feldman had so conducted himself as to warrant dismissal because it was not necessary.
8. There is no doubt that the imputations were proved to be substantially true, given the findings made by her Honour about Rabbi Feldman. The imputations and the evidence supporting them were adequate to satisfy the requirements of a defence under s 26. Accordingly, there is no substance in grounds 9, 10 or 11.

Other Issues

1. By his proposed Ground 12, Rabbi Feldman also asserted that the primary judge erred in not awarding damages in excess of $100,000. In light of the conclusions reached above, it is unnecessary to consider that ground. It is also unnecessary to consider matters raised by the notice of contention filed on behalf of Polaris and Mr Levi.

Conclusion

1. I would make the following orders: 1. Grant leave to the applicant to appeal from the orders of 23 July 2018. 2. Direct that the proposed amended notice of appeal that is annexure "A" to the affidavit of Ljupka Subeska dated 10 May 2019, except paragraph 13, stand as the notice of appeal. 3. Dismiss the appeal. 4. Order that the appellant pay the respondents' costs of the application for leave to appeal and of the appeal, and the costs of the respondents' notice of motion of 21 February 2019.
2. SIMPSON AJA: On 23 July 2018 McCallum J ("the primary judge") in the Common Law Division of the Supreme Court gave judgment in favour of Polaris Media Pty Ltd ("Polaris") and Mr Joshua Levi (collectively, "the respondents") in proceedings brought against them by Rabbi Feldman, in which he claimed damages in respect of four publications which he claimed conveyed imputations defamatory of him: Feldman v Polaris Media Pty Ltd as trustee of The Polaris Media Trust trading as The Australian Jewish News (No 2) [2018] NSWSC 1035.
3. On 15 August 2018 Rabbi Feldman filed a notice of intention to appeal. On 22 October 2018 he filed a summons seeking leave to appeal against the orders. On 15 February 2019 he filed a notice of appeal.
4. On 21 February 2019, pursuant to Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 51.41(1), the respondents filed a notice of motion seeking an order that the notice of appeal be dismissed as incompetent. That notice of motion was supported by an affidavit of Nicholas Pullen, the solicitor representing the respondents.
5. There are two independent bases for the respondents' application. The first is that the notice of appeal was filed, without explanation and without the leave of the Court, out of time.
6. I would uphold the application on that basis alone. By UCPR r 51.9, a party who has served a notice of intention to appeal must file and serve a notice of appeal on each necessary party within three months of the "material date". The "material date" is, by UCPR r 51.2(a), in this case, the date on which judgment was given - 23 July 2018. Accordingly, the last date for filing the notice of appeal was 23 October 2018. The notice of appeal was not filed until almost four months later. No application has been made for an extension of time, and no explanation has been given for the failure to file within the time prescribed by the UCPR.
7. That is, in itself, a sufficient basis to dismiss the notice of appeal as incompetent.
8. The second basis on which the respondents relied is equally valid, but requires a little more explanation. As indicated above, Rabbi Feldman's claim was for damages for defamation. After a five day hearing the primary judge found that the defamatory imputations he pleaded had been conveyed in each of the four publications on which Rabbi Feldman sued, but also held that each was successfully defended by the respondents. Her Honour did not, for reasons she gave, proceed to assess damages on the notional basis that Rabbi Feldman's claim had succeeded.
9. By s 101(2)(r) of the Supreme Court Act 1970 (NSW) an appeal does not lie to this Court, without leave, where the value of the matter in issue does not exceed $100,000. By UCPR r 51.22, where such a restriction applies, the party proposing to appeal must file and serve an affidavit that identifies the nature of the restriction, and sets out the material facts on which the proposed appeal relies to show that the restriction does not apply. In other words, it was necessary for Rabbi Feldman to file and serve an affidavit identifying the reasons that he contended that, had judgment been given in his favour, it would probably have exceeded $100,000.
10. On 15 February 2019, with his notice of appeal, Rabbi Feldman filed an affidavit sworn on 14 February 2019 in which he deposed that: "2 To the best of my knowledge and understanding, if I was to obtain judgment in his [sic] favour, the amount of damages would exceed $100,000."
11. He went on to say that he based this view on certain "uncontested" facts. These uncontested facts were as follows: "i. I am a rabbi. ii. The respondent is the proprietor of a newspaper called The Australian Jewish News ('AJN'). iii. The 4 articles pleaded in [the] Statement of Claim were published by the respondent in the AJN. iv. The AJN is the most widely circulated newspaper in the Jewish community and is well regarded by a significant segment of the Jewish community in Australia."
12. He further asserted that the imputations were highly defamatory, particularly in the context of significant publicity in relation to child sex offending (a subject with which his claim for defamation was concerned), that the defamatory imputations had "greatly affected" his reputation within the Jewish community, and were "extremely damaging" to him personally.
13. Rabbi Feldman offered no basis on which he was qualified to express what is, essentially, a professional or expert opinion as to the quantification of damages he might have expected to receive had his claim been successful.
14. In his affidavit Mr Pullen deposed that he, as a lawyer who has practised in defamation and media law for over 30 years, is familiar with the law of defamation and that he maintains familiarity with awards of damages in defamation cases. For reasons he gave, he considered that the proposed appeal does not involve a matter amounting to or greater than $100,000. A principal reason for this included what he described as the relatively limited circulation of the publication. He also referred to findings of the primary judge that four of the imputations on which Rabbi Feldman sued were substantially true. In addition, he attached copies of a number of deeds of release relevant to other proceedings commenced by Rabbi Feldman in relation to similar imputations to those the subject of these proceedings.
15. The relevance of the deeds is not apparent to me; moreover, reliance on the findings that the imputations conveyed were substantially true is, in my opinion, questionable. However, even if Rabbi Feldman were to achieve partial success in his proposed appeal, it could not be assumed that he would be awarded damages in respect of all of the imputations he pleaded. Assessment of the value of his claim is, in these circumstances, complex. That was one of the reasons the primary judge declined to embark upon that exercise.
16. The exercise is not assisted by the sparseness of the evidence provided by Rabbi Feldman.
17. In the circumstances, I am not satisfied that Rabbi Feldman has established that the matter in issue is potentially to the value of $100,000 or more. The notice of appeal is incompetent for that reason also. I would therefore order that the notice of appeal be dismissed.
18. The proceedings in this Court ought to be treated as an application for leave to appeal, and, if leave is granted, an appeal to be heard concurrently.

The proceedings in the Supreme Court

1. As indicated above, Rabbi Feldman (to whom I will now refer as "the applicant") commenced proceedings against the respondents claiming damages for publications which he alleged were defamatory of him. The operative pleading was a first amended statement of claim filed on 3 March 2016.
2. The first respondent (Polaris) is the publisher of a newspaper called Australian Jewish News ("AJN"). The second respondent (Joshua Levi) was at relevant times a journalist and the author of articles published in the AJN.
3. In his first amended statement of claim the applicant alleged that four separate publications by Polaris and Mr Levi conveyed meanings that were defamatory of him. The first matter complained of was an article published on 6 February 2015 under the heading "Rabbi Yossi Feldman, the RCNSW and the AJN". The second matter complained of was an article published on 7 February 2015 under the heading "Royal Commission: Our darkest week". The third matter complained of was an article published on 13 February 2015 under the heading "Rabbi Yossi Feldman urged leniency for abusers". The fourth matter complained of was an editorial also published on 13 February 2015 headed "Our community's shame".
4. All four matters reported on evidence given by the applicant in February 2015 to the Royal Commission into Institutional Responses to Child Sexual Abuse. In the course of giving evidence, the applicant was questioned as to his views and understanding of allegations of child sexual abuse in the context of his handling of a particular complaint. It was that evidence that was predominantly the subject of each publication.
5. Material had previously been published in the AJN, in 2011, calling for the removal of the applicant as President of the Rabbinical Council of New South Wales ("RCNSW") after it was revealed that he had written to other members of the RCNSW urging the view that, before being reported to secular authorities, allegations of child sexual abuse (in the Jewish community) should first be reported to a rabbi so that the rabbi could determine what course of action to take.
6. The first article, after noting AJN's 2011 call for the removal of the applicant, contained (inter alia) the following: "Today have [sic] learnt through the Royal Commission that Rabbi Feldman thought you should report allegations of abuse to a rabbi before the proper authorities first, because a rabbi has common sense and can investigate … even when time and again we now know through the commission that senior rabbis put the welfare of paedophiles above children and didn't report them and even though Rabbi Feldman has admitted that even though he was director of a school he didn't realise it was illegal to touch a child's genitals. It has also now been shown he was worried about a rabbinic statement urging reporting alleged paedophiles to the police because it might affect his friend, the now convicted paedophile, David Cyprys …"
7. The article then referred to a statement issued by RCNSW, and concluded: "So the RCNSW stood by their man and condemned The AJN. Under pressure, Rabbi Feldman did step aside briefly as the president … but subsequently resumed in the role."
8. The second article, which appeared under Mr Levi's name, began with: "The Australian Jewish community has just witnessed one of its darkest weeks. I have covered child abuse in the Jewish community for several years but even I didn't understand the extent of the cover-ups, the lies, the ignorance and ridiculous actions of Rabbis in our community."
9. It then set out a series of factual statements, including, but not limited to: "• There are dozens of victims of child abuse in our community. … • The head of Yeshiva's Rabbinic School, Rabbi Yossi Feldman, did not know it was a crime for a teacher to touch the genitals of a child in 2002. • Rabbi Yossi Feldman, at the age of 33, didn't understand mandatory reporting laws when he was the director of a company that had a school. • As recently as 2011 Rabbi Yossi Feldman said you 'must' go to rabbis to report abuse instead of the police. • As recently as 2011 Rabbi Yossi Feldman urged the rabbis not to call on victims to go [to] the police because it would hurt his 'friend', and now convicted child sexual abuser, David Cyprys. And these are just some of the unbelievable revelations that came out this week."
10. The third article (also published under Mr Levi's name) contained the following: "FORMER president of the Rabbinical Council of NSW Rabbi Yossi Feldman gave testimony at the Royal Commission last Friday and on Monday that shocked the community and made headlines in the national press. During questioning, Rabbi Feldman revealed that in 2002, when he was 33 years old and was the head of Yeshiva Sydney's Rabbinical College, he wasn't aware it was illegal for a man to touch a child's genitals. The counsel assisting the Royal Commission asked: 'In 2002 did you understand it was against the law for an adult to touch the genitals of another child?' and Rabbi Feldman responded 'I didn't know that as a fact'. It came to light that an alleged abuser, known as AVL, had been accused of committing child sexual abuse. Rabbi Feldman then became aware that AVL was considering leaving the country before Yeshiva made the Department of Community Services or the police aware of the allegations. Rabbi Feldman's testimony was that he was aware that AVL had been lying down with a child and massaging him. … It was also revealed that Rabbi Feldman had urged his colleagues not to issue a statement urging victims to go to the police because it might impact on his 'friend', the now convicted child sexual abuser, David Cyprys, and that he considered such statements as PR. He had further argued that too much media 'hype' about child abuse could lead 'fake victims' to come forward, and labelled Manny Waks, who was a victim of Cyprys, as a 'phony attention seeker'."
11. The editorial was published on the front page of AJN, and contained the following: "OVER the past few days, Rabbi Yossi Feldman's testimony at the Royal Commission has shocked and saddened the community and shamed us in the full glare of the mainstream media spotlight. As well as suggesting back in 2011 that complaints of abuse should be taken to a rabbi for investigation ahead of the civil authorities, it was also revealed that he had argued against his colleagues issuing a plea for victims to come forward as he feared the impact such a statement may have on his friend, the now convicted child abuser, David Cyprys. He also thought the 'hype' surrounding abuse would encourage 'fake victims' to come forward, called for lenciency for abusers who hadn't offended for a number of years and admitted that in 2002, even though he was director of a school, he was not aware it was illegal to touch a child's genitals. …"
12. In large and bold print at the bottom of the page, it was said: "We can only hope the lessons have now been learnt so as a community we can move forward without these terrible crimes and despicable errors of judgment being committed again."
13. The applicant pleaded that each publication conveyed a defamatory imputation or imputations as follows (it will be convenient to refer to the imputations by their position and numbering in the first amended statement of claim): 1. First article: "that he [the applicant] displayed reprehensible ignorance of the fact that to touch a child for sexual gratification on the genitals was a crime" (imputation 3(a)); 2. Second article: "that he [the applicant], although the head of a rabbinical college fundamentally concerned with the responsibilities of teachers, behaved shamefully in that:- (a) He displayed reprehensible ignorance of the fact that it was a crime for a teacher to touch a child sexually on the genitals" (imputation 6(a)); 1. Third article:

• "He [the applicant] 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" (imputation 9(a));
• "He [the applicant] failed to notify the Department of Community Services (DOCS) 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" (imputation 9(b));
• "He [the applicant] attempted to assist a child sex offender from evading justice. 1. The editorial: "That he [the applicant], in giving evidence at the Royal Commission into Institutional Responses to Child Sexual Abuse concerning his attitudes to child sexual abuse in the Jewish community: (a) … 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" (imputation 12(a)).

1. Polaris admitted that it published the three articles and the editorial and Mr Levi admitted that he was the author of the second and third articles. Each denied that any of the material conveyed the defamatory imputations pleaded by the applicant. Each pleaded positive defences under the Defamation Act 2005 (NSW) of honest opinion (s 31), justification (s 25), contextual truth (s 26), fair report of proceedings (s 29), statutory qualified privilege (s 30) and qualified privilege at common law.
2. Pursuant to s 26, the respondents pleaded multiple contextual imputations with respect to each publication.
3. The proceedings were heard by the primary judge without a jury. The applicant was represented by counsel and solicitors for the first four days of the trial but then withdrew instructions to counsel and solicitors and thereafter represented himself. On 23 July 2018, after a trial over five days, the primary judge directed the entry of judgment for the respondents: Feldman v Polaris Media Pty Ltd as trustee of The Polaris Media Trust trading as The Australian Jewish News (No 2) [2018] NSWSC 1035. On 3 August 2018, for reasons published on 6 August 2018, the primary judge refused an application made by the applicant to have judgment set aside and for her Honour to recuse herself: Feldman v Polaris Media Pty Ltd as trustee of The Polaris Media Trust trading as The Australian Jewish News (No 3) [2018] NSWSC 1201. Her Honour ordered the applicant to pay the costs of the respondents of defending the proceedings and of the further application.
4. The primary judge found that the imputations alleged in relation to the first and second articles and the editorial and the first imputation alleged in relation to the third article were conveyed and were defamatory. Her Honour found that the second and third imputations alleged in relation to the third article were not conveyed.
5. The primary judge also found that the imputations alleged in relation to the first and second articles and the editorial were expressions of opinion that were rationally based on proper material for comment and therefore that the first and second articles and the editorial were defensible under s 31 as honest opinion. Her Honour found that the first imputation in relation to the third article was not an expression of opinion and accordingly the defence of honest opinion failed in respect of that article.
6. Her Honour also found that the defence of qualified privilege under s 30 of the Defamation Act was established in relation to the third article and the editorial. Her Honour found that each imputation that had been conveyed was substantially true. Finally, her Honour held that the defence of fair report under s 29 of the Defamation Act failed in relation to all three articles and the editorial.
7. Thus, each imputation found to have been conveyed and to have been defamatory was successfully defended on at least two bases without resort to the defence of contextual truth. Imputations 3(a) and 6(a) were found to have been defended on the basis of honest opinion and justification; imputation 9(a) on the basis of justification and statutory qualified privilege, and imputation 12(a) on the basis of honest opinion, justification and statutory qualified privilege. It was therefore unnecessary to determine the contextual truth defence. However, against the possibility of error in her earlier rulings, the primary judge did address that defence. She found that several of the contextual imputations pleaded by the respondents were substantially true, and that, by reason of the substantive truth of those imputations, the imputations conveyed by the first and second articles did not further harm the applicant's reputation. She reached a different view in relation to the third article and the editorial.

The application for leave to appeal

1. At the hearing in this Court, the applicant sought leave to rely on an amended notice of appeal (which should be treated as a draft). Limited leave was granted. The draft amended notice of appeal alleges that the primary judge made errors as follows: 1. in finding that the respondents had the defence of honest opinion in relation to the first and second articles and the editorial; 2. in determining that there was proper material for the respondents to base their opinion in relation to the first and second articles and the editorial; 3. in failing to afford the applicant procedural fairness in determining the facts; 4. by making findings of fact incapable of being supported by the evidence, or not reasonably available on the evidence, specifically, in finding that the applicant was not, or gave evidence at the Royal Commission that he was not, aware that it was against the law for an adult to touch a child sexually on the genitals; 5. by failing to have regard to the principles in Browne v Dunn (1893) 6 R 67; 6. by failing to take relevant evidence into consideration; 7. in relation to the defence of statutory qualified privilege, in determining the reasonableness of the conduct of the respondents with regard to: 1. the fact that the respondents did not seek comment from the applicant nor publish any relevant comment obtained from him; 2. the fact that the applicant's evidence at the Royal Commission was not fairly reported; and 3. the fact that the respondents were not of the view that the imputations complained of were true. 1. in finding that the conduct of the respondents was reasonable in determining the issue of statutory qualified privilege, erred in finding that the respondents contacted the applicant in relation to the third and fourth articles and erred in finding that the applicant's side of the story was published; 2. in finding that, because of the contextual imputations alleged by the respondents, the defamatory imputations did no further damage to the applicant; 3. in determining the defence of contextual truth by failing to have regard to relevant evidence given by the applicant; 4. in determining that it was not reasonably open to find that the contextual imputations were true; 5. in failing to award damages above the sum of $100,000.

Proposed appeal grounds 1 and 2: honest opinion

1. Section 31 of the Defamation Act relevantly provides: 31 Defences of honest opinion (1) It is a defence to the publication of defamatory matter if the defendant proves that - (a) the matter was an expression of opinion of the defendant rather than a statement of fact, and (b) the opinion related to a matter of public interest, and (c) the opinion is based on proper material. (2) It is a defence to the publication of defamatory matter if the defendant proves that - (a) the matter was an expression of opinion of an employee or agent of the defendant rather than a statement of fact, and (b) the opinion related to a matter of public interest, and (c) the opinion is based on proper material. (3) … (4) A defence established under this section is defeated if, and only if, the plaintiff proves that - (a) … (b) in the case of a defence under subsection (2) - the defendant did not believe that the opinion was honestly held by the employee or agent at the time the defamatory matter was published, or (c) … (5) For the purposes of this section, an opinion is based on proper material if it is based on material that - (a) is substantially true, or (b) was published on an occasion of absolute or qualified privilege (whether under this Act or at general law), or (c) was published on an occasion that attracted the protection of a defence under this section or section 28 or 29. (6) An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material.
2. Section 28 provides that it is a defence to the publication of defamatory material if the defendant proves that the matter was contained in a public document. Section 29 provides that it is a defence to the publication of defamatory matter if the defendant proves that the matter was, or was contained in, a fair report of any proceedings of public concern.
3. In the circumstances of this case, the questions that arise in relation to the defences under s 31 are, in relation to each publication: 1. whether the matter (that is, the publication, as distinct from the imputations found to have been conveyed by the publication) was an expression of opinion (of the defendant - subs (1), or an employee or agent of the defendant - subs (2)); and 2. whether the opinion related to a matter of public interest; and 3. whether the opinion was based on proper material (as defined in subs (5)).
4. Such a defence is defeated only if the plaintiff proves that the opinion was not honestly held by the defendant, or the employee or agent of the defendant, at the time the defamatory matter was published (s 31(4)).

Expression of opinion

1. The primary judge gave a number of reasons for finding that the first article was an expression of opinion rather than a statement of fact. First, she accepted a submission made by the respondents that, "in its textual context", the point of reporting the applicant's ignorance of the requirements of the law was to convey disagreement with his reported belief that rabbis have common sense and can investigate allegations of child sexual abuse. That, her Honour held, was an indicator of opinion rather than fact.
2. Second, her Honour considered that the article was presented as an argument in defence of its 2011 publication calling for the applicant to be removed from his position on the RCNSW. That too, her Honour concluded, was a strong indicator of opinion rather than fact, particularly by reference to the concluding two sentences of the article.
3. Third, her Honour relied on the use of the word "reprehensible" in the imputation, as: "… apt to convey an evaluative moral judgment."

Proper material

1. The primary judge found, upholding the respondents' submissions, that the matter was based on material that was substantially true. Six factual propositions underlie that finding, they are: 1. the applicant is a rabbi; 2. the applicant sent emails saying people should report allegations of child abuse to a rabbi in the first instance and not the police; 3. the applicant gave evidence to the Royal Commission; 4. the applicant had been a director of a school; 5. the applicant gave evidence that he did not realise that it was illegal to touch a child's genitals; 6. the applicant was president of the RCNSW.
2. It was not in issue that propositions (a), (c), (d) and (f) were true. Her Honour gave extensive consideration to the truth of propositions (b) and (e) and concluded that each was substantially true. Accordingly, the respondents successfully defended the first article under s 31. No issue under subs 31(4) was raised.

The applicant's contentions on appeal

1. The applicant contended that the primary judge was in error in finding that the first article was an expression of opinion and not a statement of fact.
2. The written submissions he provided are difficult to understand. It is best to extract some passages therefrom. They include: "2. … It is submitted the ordinary reader would not have understood the article as an opinion. [The article] only asserts statements of fact. 3. The opening line 'Today have learnt through the Royal Commission …' clearly indicates the article is stating objective facts. No reader would have read otherwise. It is objectively unacceptable by ordinary standards for an ordinary adult, not afflicted by some form of cognitive impairment, to not know it is against the law for an adult to molest children on the genitals. The Court should take judicial notice that most, if not all ordinary adults are aware it [sic] against the law to sexually touch children on the genitals, including child sex offenders. There might be some exceptional circumstance where it is acceptable that an adult does not know that it is against the law for an adult to molest a child on the genitals, for example of [sic] the person is decided to live as a hermit and have no contact with children. That is not the case here. The mere fact the article asserts the appellant does not know it is against the law to sexually molest children on the genitals is unacceptable or reprehensible ignorance by ordinary standards. 4. No explanation is given in the article why the applicant could be so ignorant … The ordinary reader would understand the article as asserting the applicant didn't regard there being any legal issues with an adult molesting a child on the genitals, and as such the article is asserting the applicant is reprehensibly ignorant as fact. …" There is more, in the same vein. It is fruitless to go further. The submissions fail to advance any comprehensible basis for a conclusion that the primary judge erred in her findings with respect to the defences of honest opinion.
3. For the reasons given by the primary judge, the first article should be seen as an expression of opinion. One key to that conclusion, as her Honour found, lies in the word "reprehensible". It is telling that, in formulating the imputations alleged to have been conveyed by the first article, the applicant (or his advisors) focussed on what they discerned as the undertone of the matter. Once it is accepted that the article conveyed the accusation that the applicant displayed "reprehensible ignorance", it is inevitable that the matter will be seen as an expression of opinion. "Reprehensible" is the language of opinion and value judgment.
4. Nothing in the argument advanced on behalf of the applicant persuades me that the ruling of the primary judge that the first matter was an expression of opinion was wrong.
5. The applicant also contended that the primary judge was in error in determining that there was proper material on which the opinion was based.
6. In this respect the applicant seized upon the language of proposition (e), that he "gave evidence that he did not realise that it was illegal to touch a child's genitals". He asserted that that was substantially false because, not having used the word "realise", he did not give that evidence. The argument went on: "Further, imbedded in it, by the use of the word 'realise' is a conclusion which is false, namely that it is against the law to touch a child's genitals. To suggest that one is capable of not realising or knowing something which is false, flouts the ordinary usage of language. Thus, the writer of the article is stating something which is substantially false, that it is always against the law for an adult to touch a child's genitals."
7. In concluding that proposition (e) was substantially true the primary judge quoted lengthy extracts from the transcript of the applicant's evidence in the Royal Commission. It is necessary to mention only two of those extracts. They are: "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. … 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 is a fact, but I would have imagined that it is."
8. In my opinion, the proposition that the applicant gave evidence to the Royal Commission that he did not "realise" that it was illegal to touch a child's genitals is amply borne out by these answers. It is not to the point that other answers given by the applicant were more equivocal; nor is it to the point that the word "realise" was not used.
9. I would reject the challenge to the finding that the expression of opinion contained in the first article was based on proper material. I would reject grounds 1 and 2 of the proposed appeal.

Proposed appeal grounds 3, 4, 5 and 6

1. In his written submissions the applicant dealt with these grounds together. I will do the same.
2. Ground 3 is an assertion that the primary judge failed to afford procedural fairness in her determination of the facts. In the written submissions filed in support of this ground, I am able to detect only two references that could remotely be taken to be assertions of denial of procedural fairness.
3. Those references are to questioning of the applicant in the Royal Commission, generally on the subject of the illegality of adults touching children on the genitals, and, more specifically, the applicant's awareness of that illegality. Specific reference was made in the questioning to a person known as "AVL", who, it seems, had been involved in child sexual offending.
4. In the primary judgment, lengthy passages of the applicant's evidence in the Royal Commission and cross-examination at trial are set out. It is fair to say that his answers are, at times, equivocal and appear to be evasive.
5. The applicant was initially questioned on Friday, 6 February 2015, and was re-examined by his own counsel on Monday, 9 February 2015. In his evidence at first instance, the applicant was asked to explain some of the expressions he had used in cross-examination in relation to AVL. The following passage of transcript from the trial is extracted in the judgment: "A. Yeah. Because with regard to AVL, it would have touched - it's likely he would have touched of a sexual nature by touching, but it could very well be it was touched by accident inadvertently as he was massaging so that's why I probably-- HER HONOUR Q. Are you saying you used the word 'probably' because you were allowing for the possibility that he touched the genitals in the course of the massage accidentally? A. Correct." Her Honour considered (primary judgment [128]) that that explanation reflected "an ex post facto revision" of the equivocal position he had earlier taken concerning his knowledge of the legality of touching children on the genitals.
6. With that background, I come to the submission made by the applicant; it was submitted: "… Her Honour infringes on one the most fundamental principles of procedural fairness - that a witness has no other obligation other than to answer the question as the witness hears it."
7. His second complaint was that the primary judge: "… had no basis to conclude … the applicant's evidence at the hearing was an ex post facto revision."
8. He asserted that this had never been put to the applicant in cross-examination and that he had no notice that this was the respondents' case.
9. Both submissions, in my opinion, should be rejected. It is plain that her Honour paid careful attention to the evidence given by the applicant, both in the Royal Commission, and in the proceedings before her. It was open to her to draw the conclusions that she did. It was, indeed, her task to assess the evidence given by the applicant in both proceedings. There is no basis to conclude that she failed to understand that the applicant's obligation in the Royal Commission was merely to answer the questions put to him.
10. Further, it was open to her, and, indeed, her task, to assess the evidence given by the applicant before her. She was not bound to accept his evidence and she was not bound to notify him of any scepticism she experienced. There was no denial of procedural fairness in the manner in which the primary judge went about her task.
11. Ground 4 asserted that the primary judge made errors of law by making findings of fact incapable of being supported by the evidence, or not reasonably available on the evidence. The ground specifies a finding of fact that the applicant gave evidence at the Royal Commission that he was not aware that it was against the law for an adult sexually to touch a child on the genitals.
12. The written submissions do not identify any other finding of fact said to be unsupportable on the evidence. They do assert that her Honour had no basis to conclude, as she did, (at [128]) that the applicant's evidence in the Supreme Court hearing was an ex post facto revision.
13. The argument appeared to be directed to an explanation of why the applicant was equivocal in his answers in the Royal Commission. For example, it was put: "22 The most obvious explanation for the [applicant] not knowing as a fact [that] it is against the law for an adult to touch the genitals of another child is that it is in fact not per se against the law for an adult to touch a child on the genitals."
14. It was also suggested that the questions directed to the applicant in the Royal Commission were vague, meaning that it was reasonable for the applicant to give the less than forthcoming answers that he did.
15. The primary judge gave careful attention to the transcript of evidence in the Royal Commission. The issue to which her Honour was directing attention in this part of the judgment was whether it was true that, in the Royal Commission, the applicant had given evidence that he did not realise that it was illegal to touch a child on the genitals. After careful examination of the relevant transcript her Honour concluded that it was substantially true. The extracts of evidence from the Royal Commission amply support that conclusion. There is no basis for concluding that her Honour made findings of fact that were not capable of being supported by the evidence.
16. Ground 5 of the proposed appeal was that her Honour failed to have regard to the principles in Browne v Dunn. In support of this ground the applicant asserted that in cross-examination in the proceedings before the primary judge, the respondents did no more than put to the applicant that the imputations were true, and that Browne v Dunn required more.
17. Again, this overlooks the issue to which the cross-examination was directed. That issue was the evidence given by the applicant in the Royal Commission. It was not the truth or otherwise of that evidence. It was sufficient for the respondents to put to the applicant that he had given evidence to the effect of that recorded in the transcript of the Royal Commission. In any event, given that the transcript was available, that question was incontrovertible.
18. Ground 6 asserts that the primary judge failed to take into account relevant evidence. In the written submissions it is submitted: "37 Furthermore, Her Honour makes no reference at all in the judgment [to] the [applicant's] express evidence that he had known his whole adult life that is [sic] was a crime for an adult to sexually touch a child on the genitals."
19. It was also asserted that her Honour failed to take into consideration the applicant's uncontested evidence that, at the Royal Commission, he intentionally answered questions "in a literal manner".
20. The applicant did not identify the "express evidence" to which he was referring concerning what the applicant had known "his whole adult life".
21. There is nothing contained in the submissions advanced on behalf of the applicant that persuades me that the primary judge overlooked or failed to take account of any relevant evidence. I would reject each of those proposed grounds.

Proposed appeal grounds 7 and 8

1. These grounds concern the defence of qualified privilege provided by s 30 of the Defamation Act. That section relevantly provides: 30 Defence of qualified privilege for provision of certain information (1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that - (a) the recipient has an interest or apparent interest in having information on some subject, and (b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and (c) the conduct of the defendant in publishing that matter is reasonable in the circumstances. (2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest. (3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account - (a) the extent to which the matter published is of public interest, and (b) the extent to which the matter published relates to the performance of the public functions or activities of the person, and (c) the seriousness of any defamatory imputation carried by the matter published, and (d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, and (e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously, and (f) the nature of the business environment in which the defendant operates, and (g) the sources of the information in the matter published and the integrity of those sources, and (h) whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and (i) any other steps taken to verify the information in the matter published, and (j) any other circumstances that the court considers relevant. …
2. The principal issue raised by the applicant under these grounds concerns the assessment of the reasonableness of the respondents' conduct in publishing the defamatory matter having regard to the matters specified in subs (3)(h). It was asserted that failure by the respondents to give the applicant an opportunity to respond to the allegations would "mean reasonableness is untenable".
3. The implied assertion that the applicant was not given an opportunity to respond to any of the allegations calls for further examination. The primary judge dealt with this at [327] and following. She noted that the respondents accepted that the applicant's comments were not sought in relation to the first and second articles, which were published on the day of and the day after his evidence to the Royal Commission. An explanation for that was given by the author (a Mr Lawrence). Mr Lawrence said that, as far as he was concerned, the first article was not specifically to do with the applicant, but was an attack on RCNSW and, moreover, was effectively an opinion piece. Further, in relation to the third article and the editorial, Mr Lawrence said that AJN had been asked by the Feldman family to stop contacting the applicant and his mother, and, instead, if comment were needed, to contact the applicant's brother, Eli. Mr Lawrence said that was done.
4. Further, although it is not apparent from the publications in respect of which the applicant sued, the third article and the editorial appeared in an edition of AJN that included the statement made by the applicant and published his request through his brother Eli.
5. Her Honour considered that that circumstance was a strong factor pointing in favour of accepting the reasonableness of the respondents' conduct in publishing the third article and the editorial.
6. Her Honour found "a measure of artificiality" in determining the reasonableness of the conduct of the respondents in publishing the first and second articles and their failure to contact the applicant for his response. She found that the requirement of providing an opportunity to respond did not sit comfortably with the finding that the matter published was an expression of opinion based on proper material and substantially true.
7. In my opinion there is no substance in these grounds of appeal and they ought to be rejected.

Proposed appeal grounds 9, 10 and 11

1. These grounds concern the defence of contextual truth.
2. By ground 9 the applicant complains of the conclusions reached by the primary judge in relation to the defence of contextual truth. The ultimate conclusion was that by reason of the contextual imputations her Honour found to have been conveyed and to be true, the defamatory imputations relied on by the applicant did not further damage his reputation.
3. Her Honour considered the contextual truth defence only against the possibility that she was held to be in error in relation to another or others of the issues presented to her for determination.
4. Since I am not satisfied that any other ground of appeal has been made out, it is unnecessary to consider the contextual truth defence. The respondents have successfully defended each of the publications.
5. The consequence is that ground 12 (assessment of damages) does not arise.

Proposed appeal ground 13: apprehended bias

1. The amended notice of appeal signed on 10 May 2019 raised, for the first time, an additional ground of appeal, that the primary judge conducted the hearing in a manner giving rise to an apprehension of bias. The ground had not been raised previously, and was not raised during the trial. The respondents opposed the ground being raised at that late stage.
2. The proposed ground complained only of a specific exchange occurring on 12 July 2017 in which the primary judge addressed two questions to the applicant. The primary judge put to the applicant that he had recently "taken up this idea" that there were legal ways to touch a child. The applicant replied that he had known that "all along". Although counsel for the applicant objected to the primary judge's questions of his client, on the basis they were "not fair questions", he made no application. There was nothing untoward about the questions asked by her Honour, who made clear she was merely "flagging issues" that were of concern to her and inviting the applicant to correct issues that may otherwise turn out to be unfavourable to him. In any event, the applicant should, in the circumstances, be treated as having waived a complaint as to that matter. Leave to raise this proposed ground was refused.
3. The applicant has failed to make out any arguable or reasonable basis for a grant of leave to appeal.
4. As indicated in the other judgments, the Court has been advised that, since judgment was reserved, Mr Levi has died. It was suggested by his former lawyers that the appeal ought, so far as he is concerned, be dismissed, by reason of s 10(b) of the Defamation Act. Section 10(b) precludes the assertion, continuation or enforcement of a cause of action in relation to a person who has died since the publication in question.
5. This appeal is neither the assertion, continuation or enforcement of a cause of action in defamation. It is not affected by s 10(b). Section 10(b) would have implications for Rabbi Feldman if he were to be successful in the appeal.

Conclusion

1. The orders I propose are: 1. The notice of appeal filed on 15 February 2019 and subsequently amended is dismissed. 2. Leave to appeal against the orders of 23 July 2018 is refused. 3. The applicant is to pay the respondents' costs of the proceedings.

APPENDIX Our community's shame Over the past few days, Rabbi Yossi Feldman's testimony at the Royal Commission has shocked and saddened the community, and shamed us in the full glare of the mainstream media spotlight. As well as suggesting back in 2011 that complaints of abuse should be taken to a rabbi for investigation ahead of the civil authorities, it was also revealed that he had argued against his colleagues issuing a plea for victims to come forward as he feared the impact such a statement may have on his friend, the now-convicted child abuser, David Cyprys. He also thought the 'hype' surrounding abuse would encourage 'fake victims' to come forward, called for leniency for abusers who hadn't offended for a number of years and admitted that in 2002, even though he was director of a school, he was not aware it was illegal to touch a child's genitals. Yesterday, amid a storm of criticism, Rabbi Feldman apologised to the community and stepped down from his senior positions within Sydney's Yeshiva Centre. By then, though, the damage had been done. However, it could have been avoided. When Rabbi Feldman first put forward heinous views regarding the reporting of child abuse to rabbis rather than the police, The AJN broke the story and called for his resignation as president of the Rabbinical Council of NSW (RCNSW). While many of our communal leaders privately congratulated the AJN, few went on the record to openly condemn him and support our call. Amid the furore that followed, Rabbi Feldman briefly stepped aside as RCNSW president, but then resumed the role. The fact the RCNSW allowed him to return as president speaks for itself. In 2013, The AJN carried a front-page headline which reads "Enough cover-ups, excuses, denials and finger pointing. No more." In the accompanying article, we wrote, "It is time all those involved and all those with any knowledge of what happened 10, 20 or 30 years ago come forward and tell the truth. 'It's time for our spiritual leadership to take a lead. Instead of merely reacting to the latest revelation, they need to come clean - If our rabbinate is to regain our faith, if it is to be more than simply fodder fuelling tabloid tittle-tattle, if our rabbinate is to move forwards, our rabbis must own up to their past." Instead of embracing the spirit of the article, the rabbinate reacted with fury, clutching onto one simple phrase to which we said that, given what had emerged with regard to child abuse and cover-ups, the institution was "an apple that's rotted to the core". It was a harsh description but as we subsequently tried to explain we knew there were a lot of good rabbis out there, however, the institution as a whole was being tainted. Suffice to say, they were not appeased and continued to lambast us for the disrespect we had shown. How things have changed. This week on Facebook, two senior rabbis have publicly lamented the silence and inaction of their colleagues. Others have contacted us in private to express their dismay at the way the rabbinate is being shamed by the evidence emerging from the Royal Commission: one even said Rabbi Feldman "has made us all look rotten to the core". In the wake of his evidence, many communal leaders and organisations, including the RCNSW, have now spoken out, expressing their revulsion and abhorrence at his statements to the Commission. While it's gratifying that they've now come to this realisation, given what they knew at the time - which in the case of some was more than we at The AJN knew - if they had been a little more vocal and forthright a few years ago, we could have been spared the embarrassment of the past few days. As the president of the Organisation of Rabbis of Australasia, Rabbi Meir Shlomo Kluwgant, said on Tuesday, "the concerns raised by The AJN were warranted and justified." However it should not have had to take a Royal Commission for the community's leadership - our roof bodies and rabbis - to express how appalled they were. Much of what is coming out at the Commission has been known for years. The writing was on the wall - and on the cover of The AJN. Let us be clear, this is not about saying "we told you so", nor is it a witch hunt against an individual rabbi who is clearly naive and out of touch. This is about our responsibility as a community, to the victims and their families - the fact that they were ignored at the time of their abuse, and ignored, disparaged and shamed when they finally had the courage to come forward. Simply issuing glib statements encouraging people to go to the police was not enough. The cancerous attitudes within our community needed to be stamped out years ago. Like the victims, our leaders should also have had the courage to take a public stand much sooner. The editorial also included the following statements in bold type: "Like the victims, our leaders should also have had the courage to take a public stand much sooner.", and "We can only hope the lessons have now been learnt so as a community we can move forward without these terrible crimes and despicable errors of judgment being committed again."

Endnotes

1. Feldman v Polaris Media Pty Ltd as trustee of The Polaris Media Trust trading as The Australian Jewish News (No 2) [2018] NSWSC 1035.
2. Primary decision at [18].
3. Primary decision at [24].
4. Primary decision at [40].
5. Primary decision at [28].
6. Primary decision at [32].
7. Primary decision at [116] and [137].
8. Primary decision at [139].
9. The conclusions of the primary judge are set out in the primary decision as follows: first article at [191], second article at [203], third article at [218] and editorial at [234].
10. Primary decision at [242].
11. Primary decision at [254].
12. Primary decision at [245].
13. Primary decision at [262] and [263].
14. Primary decision at [277] and [279].
15. Primary decision at [281].
16. Primary decision at [345].
17. Primary decision at [293].
18. Browne v Dunn (1893) 6 R 67.
19. It was ultimately unnecessary to consider this ground. See [38].
20. Primary decision at [276]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 April 2020