HER HONOUR: I published my substantive judgment in these proceedings on 23 July 2018 ordering that judgment be entered for the defendants: see Feldman v Polaris Media Pty Ltd as Trustee of the Polaris Media Trust trading as the Australian Jewish News (No 2) [2018] NSWSC 1035.
By notice of motion filed 1 August 2018, Rabbi Feldman sought an order that that judgment be set aside. I refused that application on 3 August 2018, publishing my reasons on 6 August 2018: see Feldman v Polaris Media Pty Ltd as trustee of The Polaris Media Trust trading as The Australian Jewish News (No 3) [2018] NSWSC 1201.
By notice of motion filed 7 August 2018, Rabbi Feldman made what might be termed a meta-application seeking an order setting aside my decision of 3 August 2018 dealt with in the judgment delivered on 6 August 2018; in other words, the motion seeks an order setting aside the order refusing the application to set aside the primary judgment.
In support of the second motion, Rabbi Feldman has sworn an affidavit of 7 August 2018 which, as occurred on the previous occasion, I have taken to be relied upon as being in the nature of a submission.
A threshold question raised by Ms Chrysanthou, who appears on the present application for the defendants, is whether the present application, as framed, falls within the authority of the Court under r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) to set aside or vary a judgment or order.
The principles in respect of such applications were addressed at the hearing of the first motion and are discussed in my judgment in Feldman v Polaris (No 3). Rabbi Feldman submitted that I should revisit that ruling because, in the judgment published on 6 August 2018, I did not mention the fact that Rabbi Feldman had terminated the services of his legal representatives on the fifth day of the hearing in the substantive proceedings and had subsequently clarified the way in which his case was put.
The reference to the alleged clarification of the plaintiff's case is a reference to a submission Rabbi Feldman put before the Court on the last day of the substantive hearing, which was marked MFI #7. As I think I noted in my judgment on the first motion, the transcript of the substantive proceedings identifies two separate documents handed up by Rabbi Feldman (the first being a one-page submission written by him on 14 July 2017 and the second being the submissions put on his behalf before the Royal Commission into Institutional Responses to Child Sexual Abuse) as having been marked respectively MFI #6 and MFI #7 at the hearing before me. However, what in fact occurred was that both documents were clipped together and marked MFI #7. That material was before me at the time I prepared both the substantive judgment and the judgment dated 6 August 2018.
The burden of the submission based on the alleged failure to refer to the fact that Rabbi Feldman fired his lawyer, as I understood it, was that my judgment published 6 August 2018 failed to grapple with the fact that "the real defamation", as Rabbi Feldman contends, was not that captured in the imputations pleaded by him (which, with variations on the theme, were to the effect that he was reprehensibly ignorant in that he did not know the fact that it is a crime to sexually molest a child) but that he holds that it is not wrong to sexually molest a child.
In the submission handed up by Rabbi Feldman on the last day of the hearing, which is the first page of MFI #7, the submission was put in the following terms in the first paragraph of the document:
"I would just like to set out clearly the defamation with regard to the touching of genitals. If the AJN would have quoted everything necessary ie that within the context of AVL or as Josh Levi mentioned within the context of the Royal Commission) touching PROBABLY is a crime AS I MENTIONED EARLIER (6431) or I would have assumed or imagined it to be, as also mentioned a little later but I didn't know it as a fact (which is also included in my answer that I didn't know it as a fact) then it could be correct (albeit not knowing to explain why not as a fact, since there could be an inadvertent or accidental touch etc as by definition touching doesn't mean only deliberate or even deliberate but not indecent or sexual in other circumstances or contexts) but just saying that I didn't know it as a fact (without questioning why I changed to a negative expression not as a fact which was also referring to any sort of touching) within the context of the Royal Commission, to not also say that I thought that probably or assumed or imagined it is as I CLEARLY said, can give the meaning to a normal reader - as it clearly did give that impression to most - that within the context of AVL or as Josh Levi said within the context of the Royal Commission, I didn't EVEN CONSIDER IT PROBABLY OR ASSUMED OR IMAGINED IT TO BE A CRIME but just that likely I didn't know or assume so AT ALL as a fact that touching including fondling which denotes clear sexual intent is a crime and in fact most readers took what was written re touching I didn't know is a crime in the colloquial sense or all forms of touching and molesting a child and that I held that I didn't know AT ALL that its wrong or a crime to sexually molest a child in any and in the most severe way!"
The burden of the submission was that the clarification related to the understanding of the imputations as pleaded based on whether Rabbi Feldman knew that it was wrong or, as he put it today, "did not have a clue that it is wrong" to molest a child.
Contrary to the submission put today, I consider that I did engage with that submission and address it in the judgment of 6 August 2018. I did not there expressly refer to the fact that Rabbi Feldman terminated the services of his lawyers at the conclusion of the hearing and subsequently sought to clarify the way the case was put whilst representing himself but I did at [14] and following engage with the submission that I had misunderstood the main defamation of the case. For the reasons there explained, I concluded at [20] that the way in which Rabbi Feldman sought to frame the case when he was representing himself after terminating the services of his lawyers reflected a departure from the way in which the case had been pleaded and conducted up to that point.
Rabbi Feldman says he has now been told, I think since arguing the last motion, that the submissions handed up at the conclusion of the hearing could not be relied upon as evidence. However, he submits that there could have been no need (after he identified what he regarded to be real defamation) for any further evidence or cross-examination because it was simply a question of re-interpretation or clarification of the case put.
I do not accept that submission and I am not persuaded that I failed to grapple with the primary issue when I determined the first motion in the judgment published on 6 August 2018.
Beyond that submission, the submissions that have been put today in substance mirror the submissions put by Rabbi Feldman in support of the first notice of motion. There is no new issue which has prompted me to reconsider the correctness of my ruling in respect of that motion.
Ms Chrysanthou put two further submissions opposing the present application. First, she submitted that the Rabbi's submissions ignore the fact that, in the primary judgment, multiple defences were upheld. She submitted that, even if there were force in the contention that I misapprehended the way in which the imputations were to be understood, the defences of honest opinion and qualified privilege would stand and that there could be no miscarriage of the process as required to be established in accordance with the authorities concerning the Court's power to intervene or set aside a judgment under r 36.16.
In response to that submission, Rabbi Feldman submitted that, if the imputation was correctly understood to be stronger than I understood it to be, as he argues (being an imputation to the effect that he holds that it is acceptable or, as he puts it, "fine to molest kids" or "does not have a clue that it is wrong to molest kids"), then the defences of honest opinion and qualified privilege would no longer hold because the matter published would no longer reflect the newspaper's opinions.
There is some force in that argument. However, I am not persuaded that I misapprehended the way in which the case was framed in the pleadings and conducted throughout the hearing. I did not overlook Rabbi Feldman's submissions handed up at the conclusion of the hearing but rather rejected them as not reflecting the meaning of the matters complained of in accordance with the way the case was framed.
Secondly, Ms Chrysanthou noted that a notice of intention to appeal has been filed and submitted that these matters should be dealt with on appeal. Rabbi Feldman indicated that he filed a notice of intention to appeal in order to preserve his position but that he would rather I deal with the matter and "look at things again".
Again, I think there is force in the suggestion that the mere fact that Rabbi Feldman has filed a notice of intention to appeal should not of itself defeat the present application. However, I remain of the view that the matters that have been argued by Rabbi Feldman today were addressed in my first judgment and I am not persuaded that there is any basis to set that judgment aside.
I would note for completeness that the issue characterised in my earlier judgment as the second issue (which related to a comment I made at [124] of the primary judgment) was in my assessment expanded upon today by Rabbi Feldman on his feet in a way which did not reflect the evidence or submissions at the trial. Today, Rabbi Feldman argued, in effect (as I understood it) that the evidence that he gave before the Royal Commission, while technically correct, did not reflect the full extent of his knowledge. He said "sometimes you can be disingenuous for a good reason", submitting that to answer the questions put to him before the Royal Commission honestly would have "put him in hot water with the Royal Commission". He said he felt he had to put an end to being "harassed" by Counsel Assisting the Royal Commission but that his answers were technically correct.
As I held in the earlier judgment, that simply did not reflect the way in which the case was put at the primary hearing and as addressed in the primary judgment. Nothing that has been put on those issues today has prompted me to revisit my determination as to issue 2 in the judgment of 6 August 2018.
Finally, as to the issue I described as the third issue in the judgment of 6 August 2016, Rabbi Feldman submitted today, as he has submitted before, that the findings I made in the primary judgment were significantly more damaging to him than anything found by the Royal Commission. He was concerned on the last occasion and today that I overlooked his submissions before the Royal Commission. Those submissions, as already indicated, were handed up by way of a submission at the end of the hearing.
From what Rabbi Feldman has said today, he appears to have been under a misapprehension that by handing the submissions up, they went into evidence. Rabbi Feldman acknowledged that misunderstanding today but said that he wanted the submissions to be in evidence but did not know how to do that. I simply observe that, had Rabbi Feldman tendered the submissions that were before the Royal Commission to be evidence at the hearing before me in the primary hearing, they plainly would not have been admissible. The only way, it would seem, in which they could be handed up and considered was by way of submission. Nothing that has been put today has persuaded me that I failed to have regard to anything properly before me in the primary hearing.
For those reasons I refuse the application.
I order the plaintiff to pay the defendants' costs of today.
[2]
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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