Feldman v Alhadeff

[2017] NSWCA 18

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Feldman v Alhadeff [2017] NSWCA 18
Hearing dates:	6 February 2017
Decision date:	16 February 2017
Before:	Macfarlan JA at [1]; Emmett AJA at [18]
Decision:	Application for leave to appeal dismissed with costs.
Catchwords:	DEFAMATION – application for leave to appeal against interlocutory decision – alleged defamations arose out of evidence given to the Royal Commission into Institutional Responses to Child Sexual Abuse – primary judge refused leave to amend statement of claim – proposed statement of claim would have reinstated claims that were previously abandoned and did not include necessary particulars – new claim sought to be added held to be statute barred – s 65(2) Civil Procedure Act – whether original statement of claim pleaded a cause of action arising from the same or substantially the same facts
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 65 Limitation Act 1969 (NSW), ss 14B, 56A Uniform Civil Procedure Rules 2005
Cases Cited:	Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Sims v Wran [1984] 1 NSWLR 317 Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173
Category:	Procedural and other rulings
Parties:	Rabbi Yosef Yitzchak Feldman (Applicant) Vic Alhadeff (Respondent)
Representation:	Counsel: Self-represented Applicant Ms C Amato (Respondent)   Solicitors: Self-represented Applicant Marsh & Maher (Respondent)
File Number(s):	CA 2016/256299
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: Feldman v Spinak [2016] NSWSC 1083 Date of Decision: 29 July 2016 Before: McCallum J File Number(s): SC 2016/00040453

Judgment

1. MACFARLAN JA: This is an application by Rabbi Yosef Feldman to appeal against a 29 July 2016 interlocutory decision of McCallum J ([2016] NSWSC 1083), given in defamation proceedings brought by him against Mr Jeremy Spinak and Mr Vic Alhadeff. They are the President and CEO respectively of the New South Wales Jewish Board of Deputies. The proposed appeal relates only to her Honour’s decision concerning the claims against Mr Alhadeff. Her Honour dismissed the proceedings so far as they related to him.

2. The alleged defamations arose out of evidence given by Rabbi Feldman to the Royal Commission into Institutional Responses to Child Sexual Abuse. In his statement of claim filed on 8 February 2016, Rabbi Feldman alleged that the Board of Deputies published statements defamatory of him on its website and Facebook page, and that these were “re-published in media outlets”. He alleged that the publications “contained statements” by Mr Spinak and Mr Alhadeff. The statement of claim continued:

“6   The second defendant [Mr Alhadeff] made further publications on his Twitter account (9th, 10th and 11th February 2015). In these Twitter postings the defendant also posts links to other sites including to the ABC Radio and news site wherein the defendant makes further statements.”

3. On 13 May 2016 McCallum J made an order striking this statement of claim out. That order is not challenged. Rabbi Feldman thereafter served on the defendants (but did not file) various iterations of a proposed amended statement of claim. This culminated in a fourth proposed amended statement of claim which is the subject of her Honour’s judgment of 29 July 2016.

4. In that proposed pleading, Rabbi Feldman maintained his allegations concerning the Board of Deputies’ statement of 10 February 2015, now referring to it by its title: “A Statement by Jeremy Spinak on Royal Commission into Institutional Child Sexual Abuse” (emphasis added). Notwithstanding this title, he alleged that both defendants were responsible for the statement’s publication

5. The proposed pleading also alleged that on 11 February 2015 Mr Alhadeff made statements defamatory of Rabbi Feldman during an interview broadcast on ABC Radio. As relevant to damages, but not as separate causes of action (see Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173 at 182), he alleged re-publications.

6. Rabbi Feldman required leave to file this proposed pleading as more than 28 days had elapsed since the original statement of claim was filed (Uniform Civil Procedure Rules 2005 r 19.1). McCallum J refused this leave so far as it related to Mr Alhadeff.

The Board of Deputies’ statement

7. In respect of the Board of Deputies’ statement, her Honour noted that the first, second and third proposed amended statements of claim which were served omitted any pleading against Mr Alhadeff, resulting in Mr Alhadeff inviting Rabbi Feldman to discontinue proceedings against him “on the basis of no order as to costs”. Her Honour then observed that the fourth proposed amended statement of claim, which reinstated the claim against Mr Alhadeff, “still included no particulars, by reason of which Mr Alhadeff was said to be liable as a publisher for the words expressly attributed to Mr Spinak in the matter complained of” ([12]). By implication her Honour accepted that this and the fact that the pleading sought to reintroduce an allegation previously abandoned, a course said by Mr Alhadeff to have been implicitly disapproved by the Court of Appeal in Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 (see [20]-[33]), warranted refusal of leave to amend. Her Honour reiterated that the current version of the pleading “wholly fails to particularise how Mr Alhadeff might be held liable as a publisher” ([15]) when the statement itself expressly said that it had been made by Mr Spinak. A complaint as to the omission of such particulars from the original pleading had been made to Rabbi Feldman and had led, at least in part, to that pleading being struck out.

8. Her Honour did not err in concluding that in the context of the present case, where the allegedly defamatory statement purported to be that of Mr Spinak and not Mr Alhadeff, the particulars sought by the respondent were necessary for the proper conduct of the case (see Sims v Wran [1984] 1 NSWLR 317 at 321-2 per Hunt J as to the importance and nature of particulars in defamation, as in other, matters).

The ABC Interview

9. As to the interview with Mr Alhadeff broadcast on the ABC on 11 February 2015 (see [5] above), her Honour found that leave to amend should be refused because a period in excess of 12 months had elapsed since the original statement of claim was filed, and the cause of action was therefore statute barred (Limitation Act 1969 (NSW) s 14B). Rabbi Feldman did not suggest that this was a case in which an extension of the limitation period might have been granted under s 56A of the Limitation Act. As a result, consideration needed to be, and was, given by her Honour to s 65(2) of the Civil Procedure Act 2005 (NSW) which permits a plaintiff, with the leave of the court to amend an originating process so as:

“(c)   To add or substitute a new cause of action, together with a claim for relief on the new cause of action, being a new cause of action that, in the court’s opinion, arises from the same (or substantially the same) facts as those giving rise to an existing cause of action and claim for relief set out in the originating process” (s 65(2)).

10. If that condition is satisfied, the amendment takes effect from the date on which the proceedings were commenced (s 65(3)). In the present case, that date is within the limitation period.

11. Rabbi Feldman relied upon paragraph 6 of the initial statement of claim (see [2] above) as pleading a cause of action that arose from the same (or substantially the same) facts as those giving rise to the cause of action related to Mr Alhadeff’s interview with the ABC pleaded in the fourth proposed statement of claim. Her Honour was not satisfied that this was the case and in my view there was no error in her Honour so concluding.

12. The original statement of claim related to statements published by the NSW Jewish Board of Deputies “on its website and Facebook page” on 10 February 2015. In light of the context in which it appeared, the reference in paragraph 6 of the statement of claim to Mr Alhadeff making “further publications on his Twitter account” was a reference to further publications of the same statements, namely those published by the Board of Deputies. The paragraph then alleged that the “Twitter postings” contained “links to other sites including to the ABC Radio and news site wherein the defendant makes further statements”. In their terms, these words were capable of including indirect reference to publications of extracts from Mr Alhadeff’s interview with the ABC. However it cannot rationally be said that the pleading contained a complaint about the publication of what was said in that interview. The relevant allegation in the pleading was of great generality and did not inform the reader that the interview was the subject of a defamation claim by Rabbi Feldman. An implicit invitation to the reader of the statement of claim to “click the links” (to use Rabbi Feldman’s expression) was wholly ineffective as a means of pleading a defamation claim in respect of whatever might be seen if the links were clicked.

13. That being the case, the condition in s 65(2)(c) was clearly not satisfied. The causes of action pleaded in the original statement of claim arose from different facts than those Rabbi Feldman sought to rely upon in the fourth proposed amended statement of claim. The former concerned the Board of Deputies’ statement and the latter concerned Mr Alhadeff’s interview with the ABC. The allegedly defamatory matters were quite distinct and the causes of action, and the facts from which they arose, were accordingly quite different.

Conclusions

14. Her Honour’s decision not only to refuse leave to amend but also to dismiss the proceedings against Mr Alhadeff was not attended by any obvious error. Her Honour properly took into account in this respect, first, the history of the proceedings, including that Rabbi Feldman dropped any claim against Mr Alhadeff for a period of time, and, secondly, her Honour’s conclusion about the prospects of success of the fourth proposed statement of claim which was served as the culmination of a substantial period of communication between the parties.

15. Rabbi Feldman contended before this Court that he had been denied procedural fairness below because Mr Alhadeff did not contend before McCallum J that the proposed second cause of action was statute barred. However the transcript and Mr Alhadeff’s written submissions below demonstrate that the issue was in fact squarely raised.

16. In my view, Rabbi Feldman’s application for leave to appeal should be refused on the ground that his proposed appeal does not have significant prospects of success. McCallum J’s orders concerned matters of practice and procedure in relation to which this Court will ordinarily not intervene unless the proposed appeal is at least strongly arguable.

17. I propose that the application for leave to appeal be dismissed with costs.

18. EMMETT AJA: Rabbi Yosef Feldman seeks leave to appeal from interlocutory orders made by a judge in the Common Law Division on 29 July 2016 whereby defamation proceedings brought by Rabbi Feldman against Mr Vic Alhadeff and Mr Jeremy Spinak be dismissed insofar as they relate to Mr Alhadeff. I have had the advantage of reading in draft form the proposed reasons of Macfarlan JA. I agree with his Honour, for the reasons proposed, that the application for leave to appeal should be dismissed with costs.

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Decision last updated: 16 February 2017