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

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.
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.”

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Feldman v Alhadeff

Details

AGLC: Feldman v Alhadeff [2017] NSWCA 18
Case: [2017] NSWCA 18
Decision Date: 16 February 2017

CaseChat Overview and Summary

Feldman (the appellant) sought leave to appeal from an interlocutory decision of the primary judge who had refused leave to amend the appellant's statement of claim in defamation proceedings against Alhadeff (the respondent). The alleged defamatory imputations arose from evidence given to the Royal Commission into Institutional Responses to Child Sexual Abuse.

The central legal issues before the Court of Appeal were whether the primary judge erred in refusing leave to amend the statement of claim, particularly in relation to claims that had been previously abandoned and a new claim that appeared to be statute-barred under section 65(2) of the Civil Procedure Act. The court also considered whether the original statement of claim pleaded a cause of action arising from the same or substantially the same facts as the proposed amendments.

The Court of Appeal found that the primary judge had correctly exercised her discretion. The proposed amendments sought to reinstate claims that had been abandoned and did not include the necessary particulars to establish a cause of action. Furthermore, the new claim sought to be added was found to be statute-barred. The court held that the original statement of claim did not plead a cause of action arising from the same or substantially the same facts as the proposed amendments, and therefore, section 65(2) of the Civil Procedure Act did not apply to permit the addition of the new claim.

The application for leave to appeal was dismissed with costs.

Orders

Orders of the court

Application for leave to appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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