HER HONOUR: Rabbi Yosef ("Yossi") Feldman sued the proprietor of The Australian Jewish News and its editor for defamation. On 23 July 2018, I ordered that judgment be entered for the defendants: Feldman v Polaris Media Pty Ltd as Trustee of The Polaris Media Trust trading as the Australian Jewish News (No 2) [2018] NSWSC 1035. The order for judgment was entered on JusticeLink by my Associate that day. Three further matters have been argued since publication of the judgment.
[2]
Application to have the judgment set aside
By notice of motion filed 1 August 2018, Rabbi Feldman sought the following orders:
"(1) Pursuant to rule 36.16, that the judgment of McCallum J of 23 July 2018 be set aside.
(2) The trial judge consider the real defamation issue and all the evidence and rule accordingly.
(3) Costs."
On 3 August 2018, I refused the application, reserving my reasons. These are my reasons for refusing the application.
Rule 36.16(1) of the Uniform Civil Procedure Rules 2005 (NSW) confers power on the Court to set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order. Rule 36.16(3A) in effect grants a period of grace in the application of that rule by providing that, if the relevant notice of motion is filed within 14 days after the judgment or order is entered, the Court may determine the matter and, if appropriate, set aside or vary the judgment or order under sub-rule (1) as if the judgment or order had not been entered. Rabbi Feldman's notice of motion was filed within 14 days after the entry of judgment on JusticeLink and accordingly the power under the rule is enlivened.
The Court's discretion to exercise that power is guided by competing considerations. On the one hand, there is a public interest in the finality of litigation. However, it has been recognised, notwithstanding the force of that consideration, that the Court can in an appropriate case reopen a judgment which has "apparently miscarried": Autodesk Inc v Dyson (No 2) (1993) 176 CLR 300 at 302.2 per Mason CJ. The proper approach to those competing interests was expressed by his Honour in the following terms (at 302.8): "the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law".
The Chief Justice was in dissent in that case but the principle stated has since been authoritatively approved by the High Court: De L v Director-General, New South Wales Department of Community Services (No 2) (1997) 190 CLR 207 at 215.2 (Toohey, Gaudron, McHugh, Gummow and Kirby JJ) (a case involving accidental oversight of a regulation purporting to confer immunity against costs). In De L, the High Court cited two further grounds for that Court to reopen its judgments or orders, namely, where there is "some matter calling for review" and where "the interests of justice so require" (at 215.3).
The decision in De L was concerned with the power of the High Court, which is of course the final court of appeal. I had occasion to consider the application of those principles in the case of an application to reopen the judgment of a judge sitting at first instance in Big Kahuna Holdings Pty Ltd v Kitas (No 2) [2012] NSWSC 858. In that case, I rejected an argument based on considerations of efficiency and cost, as follows (at [15]):
"In making the application, [counsel for the party seeking to reopen the judgment] explained that he was endeavouring to solve issues "as cheaply as possible to both parties". He is to be commended for thinking laterally to that end. Counsel's duty to facilitate the just, quick and cheap resolution of the real issues in a dispute are now enshrined in s 56 of the Civil Procedure Act 2005. However, I do not think the statutory endorsement of those objectives should encourage a single judge of this court to assume appellate jurisdiction over herself. In my view, any dilution of the strictures against revisiting an order after it has been pronounced, particularly by a puisne judge, would ultimately be inimical to the overriding purpose stated in s 56 of the Civil Procedure Act."
However, a subsequent decision of the Court of Appeal relied on by Rabbi Feldman endorses a different approach, citing the interests of case management as a basis for encouraging litigants to apply to have any perceived miscarriage of the judgment rectified by the primary judge so as to avoid the expense and inconvenience of an appeal: Consolidated Lawyers Ltd v Abu Mahmoud; Abu Mahmoud v Consolidated Lawyers Limited [2016] NSWCA 4 at [39]-[40] per Macfarlan JA (Bathurst CJ and Tobias AJA agreeing at [1] and [71]). In that case, the Court expressed the view that, where a primary judge has overlooked a significant submission (particularly where it is one requiring findings of fact possibly involving questions of credit to be made), the aggrieved party "should" apply to the primary judge pursuant to r 36.16 to set aside or vary the judgment and address the overlooked point. Those remarks were obiter dicta as the Court found that the point asserted to have been overlooked in that case had not in fact been raised at first instance (at [48]).
The judgment in Consolidated Lawyers does not refer to the decision of the High Court in Autodesk and, with respect, may reflect a subtle shift in thinking. In Consolidated Lawyers, the Court of Appeal said that, in the circumstances stated above, the parties "should" approach the judge "in the absence of particular valid reasons for not doing so", citing the object of determining the issues in a manner that is "just, quick and cheap" stated in s 56 of the Civil Procedure Act 2005 (NSW) whereas the High Court in Autodesk (decided before the enactment of the Civil Procedure Act) emphasised the public interest in the finality of litigation and referred to the step of reviewing or rehearing an issue as "exceptional".
The plaintiff also relied on the decision of the Court of Appeal in Nominal Defendant v Livaja [2011] NSWCA 121 at [23] (Basten and Campbell JJA and Rothman J). The plaintiff quoted the last sentence of that paragraph, where the Court said "where an apparent error can readily be addressed without the need to resort to expensive and time-consuming appeal proceedings, that course should be permitted and encouraged". However, it is appropriate to have regard to the whole of the relevant passage, as follows:
"Further, it is helpful to distinguish between a case such as Autodesk, where the High Court believed it had delivered a final judgment, a case such as Brooker v Friend (No 2) [2008] NSWCA 129, where this Court delivered its reasons, with proposed final orders, but sought submissions in respect of the appropriate form of the orders, and a case such as the present, where a trial judge, without the benefit of transcript, is delivering an oral judgment from handwritten notes. It is also desirable to distinguish between cases where, perhaps because of the delivery of formal written reasons, the application to vary the judgment is delayed, as compared with the present case, where it was made immediately the calculation had been expressed. The reason why such distinctions are important is that the public interest in the finality of litigation carries far less weight in some circumstances than in others. Where an apparent error can readily be addressed without the need to resort to expensive and time-consuming appeal proceedings, that course should be permitted and encouraged."
It is clear that the Court in Livaja considered the circumstance where (as here) a court believes it has delivered a final judgment as one in which the public interest in the finality of litigation carries greater weight than in the circumstances under consideration in that case (where the primary judge had given an oral judgment from handwritten notes and the asserted error was identified immediately).
In any event, it is not necessary for present purposes to determine whether, as I apprehend, the approach in Consolidated Lawyers poses a less stringent test for a party seeking to reopen a judgment (in placing less weight on the public interest in the finality of litigation) than suggested in Autodesk. The present application can be determined on the basis most favourable to Rabbi Feldman, that is, applying the principles stated in Consolidated Lawyers, which are appropriately regarded by me as persuasive authority although said by way of obiter dicta.
[3]
Grounds for the present application
Rabbi Feldman's application was supported by an affidavit affirmed by him which was received as being in the nature of a submission. The affidavit identified three alleged issues arising from the primary judgment. He addressed those issues further in a series of emails sent in response to the defendants' written submissions.
The first issue was the assertion that I "seemed to have misunderstood the main defamation of the case ie the imputations of the reprehensibility of sexually touching genitals".
Before considering that issue, it will be helpful to give a brief account of the determinative findings in the primary judgment. Rabbi Feldman sued on four articles. I held that each article conveyed an imputation to the effect "that he displayed reprehensible ignorance of the fact that to touch a child for sexual gratification on the genitals was a crime" (at paragraphs [18], [24] [28] and [38] of the judgment). There were variations in the form of the imputations specified in respect of each of the four matters complained of. It is sufficient for present purposes to refer to the imputation quoted above, while noting that the principal difference between the form of the "reprehensibly ignorant" imputations was that, for the first, second and fourth matters complained of the imputation focussed on whether the plaintiff in fact displayed reprehensible ignorance whereas for the third matter complained of the focus was on the effect of his evidence (the form of the imputation implicitly assuming as a premise that the evidence was truthful). As to two further defamatory imputations specified in respect of the third matter complained of, I found that those imputations were not conveyed (at paragraphs [30] and [32] of the judgment).
The defendants pleaded defences of honest opinion, justification, contextual truth, fair report and statutory qualified privilege. As to the first, second and fourth matters complained of, I upheld the defence of honest opinion. As to the third matter complained of, I rejected the defence of honest opinion but upheld the defence of justification. The imputation I found to be substantially true was "the plaintiff 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". As already noted, the form of that imputation implicitly assumed as a premise that the evidence was truthful, so that the burden for the defence of justification was to prove Rabbi Feldman gave evidence to the effect stated and to satisfy the Court that, if he gave that evidence, it showed that he was shockingly ignorant.
The first issue raised in support of the present application asserts that I misunderstood "the imputations of the reprehensibility of sexually touching genitals". As I understood the submission, Rabbi Feldman contends that, contrary to the way in which I analysed the case in the primary judgment, his case was not based on the proposition that his ignorance as to what amounted to a crime was reprehensible (in circumstances where he was a director of a school). He submitted that his case was, rather, that the articles convey the meaning that he holds "that you can molest kids".
The submission was developed by reference to the primary judgment at [87] where I referred to the principle that the identification of an act as indecent is an objective question determined by reference to the standards of decency held by "right-thinking members of the community". In that part of the judgment, I was addressing the proper material for comment relied upon by the defendants in respect of the first matter complained of. In particular, it was necessary for that purpose to determine whether it was substantially true that the plaintiff gave evidence to the Royal Commission into Institutional Responses for Child Sexual Abuse that he did not realise that it was illegal to touch a child's genitals. One of the elements of that proposition was to consider whether it was in fact unlawful in 2002 to touch a child's genitals. It was in that context that I stated the principle set out above.
In any event, Rabbi Feldman's written submissions in support of the contention that I misunderstood "the main defamation of the case" invoked that principle to inform the meaning of the defamatory imputations sued on by him. At paragraph 11 of his affidavit, he said (ellipsis in original):
"It was reprehensible as mentioned in the end of paragraph 87 of HHs judgment that indecent is… determined by reference to the standards of decency held by right-thinking members of the community. The imputations are that the articles conveyed that I wasn't a right-thinking member of the community and certainly not as a Rabbi in that I didn't know that legally (meaning that the standard of decency etc as per above) you can't sexually touch the genitals of a child."
My purpose in setting out the detail of these matters is to show that, upon analysis, the first issue now raised by Rabbi Feldman puts his case on the basis of an imputation which was not pleaded and which is different in an important respect from the imputations relied upon at the hearing. The imputations specified in the amended statement of claim were imputations of reprehensible ignorance (or, in the case of the third matter complained of, being shockingly ignorant) as to what amounted to a crime. The complaint now made is that I did not understand that the main defamation was that the plaintiff is not a right-thinking member of the community and that the plaintiff holds that it is acceptable to sexually molest children, in other words, imputations of depravity or immorality as opposed to ignorance. That is not how the case was framed. Nor was it argued by the plaintiff that the defence of justification to the third article should fail on the basis that, even if it was established that Rabbi Feldman gave evidence to the effect that he was not aware in 2002 that for a man to touch a child on the genitals sexually was a crime, his evidence on that issue was disingenuous and therefore did not display shocking ignorance but something else.
Rabbi Feldman's submissions in support of the motion have not persuaded me that I proceeded on a misapprehension or misunderstanding of the case as it was put.
The second issue raised by Rabbi Feldman relates to my remarks at [124] of the judgment. In that section of the judgment, I was addressing the proper material for comment for the purpose of the defence of honest opinion in respect of the second matter complained of. That required me to determine whether it was true to say that Rabbi Feldman did not know it was a crime for a teacher to touch the genitals of a child in 2002. Addressing that issue, I said at [124]:
"I have been troubled by one aspect of this issue. It is possible that, in 2002, the plaintiff did comprehend the obvious unlawfulness of touching a child sexually on the genitals but that, in his evidence before the Royal Commission in 2015, he was taking a technical or intellectual point professing ignorance of the precise content of the law in order to protect himself and Yeshiva against the suggested criticism of their response to the allegation made against AVL. However, that is not the explanation put forward by the plaintiff in these proceedings for the answers he gave in his evidence before the Royal Commission, nor was that explanation put to him in cross-examination. Accordingly, as a matter of procedural fairness, I am required to put that theory to one side. The appropriate course is to take the plaintiff's evidence at face value in accordance with the analysis set out above."
Rabbi Feldman submitted that I must have overlooked his evidence on day five of the trial at page 498 of the transcript. In fact, that page of the transcript records his closing submissions, not his evidence. It is appropriate to set out the whole of the relevant exchange, which begins at page 497:
"HER HONOUR: Is it fair to say that your position is encapsulated in the answer I think you gave to a question I asked during your evidence that you remain of the view that you see nothing wrong with the evidence that you gave.
PLAINTIFF: Yes and no one who told me to go out of my positions didn't tell
me anything else besides mainly that issue. No other issue was mentioned with regard to why I should resign.
HER HONOUR: And you don't see anything wrong with the answer you gave on that issue?
PLAINTIFF: The way I gave the answer from the way the counsel asked me and the way she was harassing me, I thought that was the only way I could get out of you know her continuously harassing me the way she was, as though I knew that he had touched, fondled the genitals. In other words, look within, for the statement for itself yes, but within the context if one reads the evidence how she was constantly going after me about saying, but did I know it's a crime, as though that I should have reported it, as though that I knew about the AVL and I should have reported it and I wanted to get out of it, I wanted to, enough, I wanted to, so when I was asked that question it was within that realm, I wanted to look for any negative to say regarding that issue.
What I didn't know as a fact, even though I knew probably she was talking about that case, but I said, you didn't ask the question in that way, I was looking to get out of it so she couldn't lure me back in, so yes from looking at the statement itself like most people did, possibly it could come out like that, but not from the perspective of what she was trying to bring out and she was pushing me to and making me crazy about.
HER HONOUR: Do you contemplate the possibility that rather than characterising her questioning as harassment, an alternative possibility is that she was pressing you because you were persistently denying obvious truths, do you see that as--
PLAINTIFF: No, I don't see that, I was seeing that as though it's her job to be able to try and find whatever problems in the Jewish community or in general communities and she was trying to just constantly this way, that way, asking the same question in many different ways just you know really trying to pin me down on something so exactly she got a prize, the way The Jewish News reported it and the way everyone reported it, because it took, totally out of context and that was at, the bottom line was you know, I understand where she's coming from because she has to prove her point, but I had enough of it when she was just harassing me in so many different ways, I looked at it as harassment, people told me the way she was questioning me is very unfair. A lot of people told me afterwards also and I felt it's very unfair, I think if anyone reads the evidence--
HER HONOUR: I think I understand how you feel about it."
In his written submissions on the present application, Rabbi Feldman said (emphasis in original):
"16 Accordingly my response (not as a fact) should certainly be looked at not in the context of sexual touching but more so in the context of being harassed re the AVL issue and therefore distancing myself as much as possible. THAT ALSO EXPLAINS WHY I WAS BEING VERY EVASIVE RE MY RESPONSES INITIALLY RE SECULAR LAW WITH REGARD TO AVL'S LYING AND MASSAGING AS I WANTED TO DISTANCE MYSELF AS MUCH AS POSSIBLE FROM [COUNSEL ASSISTING] HARRASING ME RE AVL AND WHY I DIDNT REPORT ETC."
As already noted, the exchange set out at [23] above took place during closing submissions on the fifth and last day of the trial. In any event, the submissions did not go so far as to assert, as apparently now asserted, that Rabbi Feldman was deliberately being "very evasive" in his evidence before the Royal Commission so as to distance himself "as much as possible" from the allegations put to him by counsel assisting. At no stage during the hearing before me did Rabbi Feldman give evidence to that effect (and so subject himself to cross-examination on the issue). Had he given such evidence, I apprehend there would have been an application to amend the particulars of truth in support of the "conduct warranting dismissal" contextual imputations (set out at [189] and [230] of the primary judgment). In any event, as I stated at [124] of the primary judgment, I considered that I was bound, as a matter of procedural fairness, to determine the issue within the framework of the evidence.
For those reasons, I have not been persuaded that I misunderstood the facts as alleged in issue 2.
The third issue raised by Rabbi Feldman relates to the material he provided to the Court by way of submissions at the conclusion of the primary hearing. Rabbi Feldman handed up two documents. The first was a single page submission written by himself. The second was a copy of the submissions put forward on his behalf at the Royal Commission into Institutional Responses to Child Sexual Abuse dated August 2015 and signed by Mr P Strickland SC. The transcript of the hearing before me records those documents as having been marked MFI 6 and 7 respectively but in fact they were marked together as MFI 7.
Rabbi Feldman submitted that I must have overlooked that material. He relied in particular on the primary judgment at [94], where I said:
"The questioning then turned to his appreciation of the possibility that a complaint might be made to the police (C6422). While it is difficult to be certain (having only the transcript and no other documents concerning the relevant case study), those questions appear to have been asked in the context of a suggestion that the plaintiff knew AVL was considering leaving Australia after learning of the complaint against him and that the plaintiff failed to take appropriate steps to bring that to the attention of authorities."
A question arises in this context as to the extent to which the Court can or should explain itself in the face of an assertion that material was overlooked. As already noted, the decision of the Court of Appeal in Consolidated Lawyers encourages litigants to approach the primary judge in circumstances where "it appears that the judge has overlooked a significant point in formulating the Court's judgment" (at [40]). The decision opens the possibility that judges at first instance will be called upon to rule on the issue of whether a point was raised, whether it was "a significant point" and whether it was overlooked, giving reasons. There is an obvious tension between that task and the finality of the primary reasons. The determination of an application to re-open an issue is not an occasion for the primary judge to shore up the reasons first published. The status of the later reasons is confined to explaining the determination of the application to have the judgment set aside. For that reason, in my view it is appropriate to be circumspect in stating reasons for rejecting this aspect of the application.
In Consolidated Lawyers, the plaintiff succeeded at first instance in a claim against his former lawyers for negligent advice in respect of a commercial property development. The point allegedly overlooked by the primary judge was an argument that the plaintiff's "independent unreasonable conduct" precluded the judge's finding of causation in the plaintiff's favour (see [38] of the judgment on appeal). Had that point in fact been made at first instance (the Court of Appeal held it was not), it would plainly have been a significant point requiring determination.
For present purposes, it is enough to record that I was aware of the contents of MFI 7 and did not overlook that material in formulating the judgment. I am not persuaded that any significant point has been overlooked. In my assessment, the application in effect invites the re-litigation of issues I have finally determined. Whether I have determined those issues correctly will be a matter for the Court of Appeal.
[4]
Recusal application
At the hearing of the present application on 3 August 2018, after I indicated that I was not persuaded it was appropriate to grant the relief sought in the notice of motion, I turned to the question of costs, which was the original reason the proceedings were listed. At that point, Rabbi Feldman made an oral application for me to recuse myself and refer the issue of costs to another judge, saying he felt that I was "subjective" (T15.40) and that "obviously you will rule against me like you normally do" (T16.16).
It is true that I have ruled against Rabbi Feldman on a number of occasions. Caselaw records 14 decisions published by me in proceedings commenced by him. While it is fair to say that he has been unsuccessful more often than not, I have ruled in favour or partly in favour of Rabbi Feldman in a number of decisions (including one judgment in these proceedings): see Feldman v Spinak [2016] NSWSC 1083; Feldman v Polaris Media Pty Ltd [2016] NSWSC 1889; Feldman v Nationwide News Pty Ltd [2016] NSWSC 1890; Feldman v GNM Australia Pty Ltd (No 2) [2016] NSWSC 1188 (refusal of an application for indemnity costs) and Feldman v Nationwide News Pty Ltd; Feldman v Special Broadcasting Service Corporation [2018] NSWSC 607. Two adverse rulings by me have been the subject of applications for leave to appeal by Rabbi Feldman. In one (against the unsuccessful part of Feldman v Spinak cited above), leave was refused: Feldman v Alhadeff [2017] NSWCA 18. In the other, leave was granted and the appeal was allowed: Feldman v GNM Australia Ltd [2017] NSWCA 107.
I do not consider that the fact that I have found in favour of the defendants in the present case would cause a well-informed bystander aware of my previous decisions involving Rabbi Feldman to apprehend that I am biased against him, nor am I in fact biased against him. Accordingly, I declined to recuse myself before determining costs.
[5]
Costs
The ordinary rule is that costs follow the event. The defendants did not seek any special order as to costs. The only submissions made by Rabbi Feldman in opposition to an order for costs were the submissions as to bias addressed above. No submissions having been put to the contrary, I am satisfied that it is appropriate to order the plaintiff to pay the defendants' costs of the proceedings.
Orders:
1. The plaintiff's application to have the judgment given 23 July 2018 set aside is refused;
2. I decline to recuse myself;
3. The plaintiff is to pay defendants' costs of the proceedings including the costs of the notice of motion determined today.
[6]
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: 30 October 2018
Parties
Applicant/Plaintiff:
Feldman
Respondent/Defendant:
Polaris Media Pty Ltd as trustee of The Polaris Media Trust trading as The Australian Jewish News