Feldman v Australian Broadcasting Corporation

[2017] NSWSC 359

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Feldman v Australian Broadcasting Corporation [2017] NSWSC 359
Hearing dates:	3 April 2017
Decision date:	03 April 2017
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Plaintiff’s application to have contextual imputations struck out refused
Catchwords:	DEFAMATION – pleadings – objection to form of imputations
Category:	Procedural and other rulings
Parties:	Y Feldman (plaintiff) Australian Broadcasting Corporation (first defendant) Mint Pictures Pty Ltd (second defendant) Dan Goldberg (third defendant)
Representation:	Counsel: J Cohen (plaintiff) R Potter (defendants)   Solicitors: ABC Legal and Business Affairs (first defendant) Wotton + Kearney (second and third defendants)
File Number(s):	2016/321326

Judgment

1. HER HONOUR: These are proceedings for defamation arising out of the broadcast on ABC National Television of a documentary program entitled "Breaking the Silence". The documentary analysed issues considered by the Royal Commission into Institutional Responses to Child Sexual Abuse, particularly concerning segments of the hearings of the Commission which addressed allegations of sexual abuse in Jewish institutions in Melbourne and Sydney.

2. The plaintiff is Rabbi Yosef Feldman. He is featured in segments of the documentary.

3. The proceedings were commenced by statement of claim filed 27 October 2016 and have progressed with commendable expedition.    A minor objection to the form of the plaintiff's pleading was addressed at the first listing and the proceedings have now reached the stage of the second listing, as contemplated by the Defamation List Practice Note SC CL 4.

4. The defence pleads defences of truth and contextual truth. The plaintiff objects to the form of the contextual imputations relied upon by the defendants. That argument came before me on 24 March 2017. On that occasion, the defendant responded to one of the plaintiff's objections by observing that a contextual imputation in identical terms to one objected to in these proceedings had been pleaded and remained on the pleading without objection in other proceedings brought by Rabbi Feldman against the ABC: see Feldman v Australian Broadcasting Corporation; Feldman v Special Broadcasting Services Corporation [2016] NSWSC 757.

5. It does not follow that the plaintiff is precluded from bringing the present application. On the contrary, it is established that a party who considers an imputation pleaded against it to be ambiguous should move to have the imputation struck out; the Court has a duty to determine that issue and should not leave it to the jury to determine the meaning of an imputation: Singleton v Ffrench (1986) 5 NSWLR 425; Fairfax Media Publications Pty Ltd v Alex [2014] NSWCA 273 at [19]-[24].

6. In the course of hearing argument as to whether the imputation was ambiguous, I formed an apprehension (based only on my reading of the transcript of the matter complained of) that there may be a real question as to whether the contextual imputation then propounded by the defendant was reasonably capable of arising from the matter complained of. The proceedings were accordingly stood over until today to allow me an opportunity to watch the broadcast.

7. Mr Potter, who appears for the ABC, took the opportunity of the adjournment to revisit the form of the contextual imputations objected to by the plaintiff. He now seeks to rely on three revised contextual imputations, as follows:

A    “As a director of an educational establishment involved in the education of young children, the plaintiff was reprehensibly ignorant of the need to immediately report incidences of child sexual abuse to the authorities.”

B “The plaintiff failed in his duty as a director of an educational establishment to protect the welfare and safety of the children studying there in that he failed to inform himself of the type of conduct which could constitute child sexual abuse and was thereby ill equipped to actually detect any such conduct.”

C “By failing to inform himself of the type of conduct which could constitute child sexual abuse, the plaintiff as a director of an educational establishment for Jewish children, warranted condemnation from within the Jewish community.”

8. Mr Cohen, who appears for the plaintiff, does not seek to contend that the matter complained of is not reasonably capable of conveying those imputations. Having viewed the broadcast myself, I am satisfied that each of those imputations is reasonably capable of arising.

9. As to the form of the amended imputations, there is no objection to imputation A. However, Mr Cohen submitted that imputations B and C are problematic because they combine an imputation or defamatory attribution with particulars of the attribution. Mr Cohen submitted that, in the circumstances, it is not clear precisely what the defamatory sting is intended to be in either case.

10. I do not accept those submissions. In my view, as submitted by Mr Potter, each of the new imputations is perfectly orthodox in form. The form of each imputation is to identify a defamatory attribution and then to specify by way of further particularity the precise sense in which it is contended the matter complained of attributes that conduct or condition to the plaintiff. I do not think there is any vice in the form of either imputation. The application to have contextual imputations B and C struck out is refused.

11. ADDENDUM: Following publication of the above reasons, Mr Cohen sought to be heard further as to a threshold issue addressed by him in a short written outline which did not reach me before the commencement of the argument, namely, a question as to whether the issue of capacity should be determined at this stage or rather left for determination by the trial judge.

12. The Practice Note contemplates that any objection to the form of a defence will be argued at the second listing and specifically communicates the Court’s expectation that the parties will be ready to argue any such objections at that time. There is real practical utility, which in my view serves the objects of pt 6 of the Civil Procedure Act 2005 (NSW), in having rulings as to capacity at an early stage in proceedings for defamation. It obviates the risk of waste of time and costs in preparing for issues which may ultimately not arise in the proceedings.

13. Having anticipated that any objection to capacity would be brought forward today, I viewed the broadcast myself and am persuaded that the matter complained of is reasonably capable of conveying each of the three contextual imputations now brought forward. In the circumstances, whilst I acknowledge Mr Cohen's argument, I think it should be rejected. The ruling shall be as indicated in the judgment just published, namely, that each of the contextual imputations is reasonably capable of arising from the matter complained of.

14. I direct the defendant to file and serve an amended defence within fourteen days and stand the proceedings over to 28 April 2017 for further second listing.

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Amendments

06 April 2017 - Style correction