Feldman v Australian Broadcasting Corporation; Feldman v Special Broadcasting Services Corporation

[2016] NSWSC 757

Supreme Court

New South Wales

Medium Neutral Citation:	Feldman v Australian Broadcasting Corporation; Feldman v Special Broadcasting Services Corporation [2016] NSWSC 757
Hearing dates:	3 June 2016
Decision date:	03 June 2016
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Application to have part of defence struck out refused save as to para 8.32 of the defence in the proceedings against the ABC and 6.32 of the defence in the proceedings against SBS
Catchwords:	DEFAMATION – pleadings – application to have particulars of truth struck out
Cases Cited:	Cheikho v Nationwide News Pty Limited No 3 [2015] NSWSC 146 Hayson v John Fairfax Publications Pty Ltd [2007] NSWCA 376
Category:	Procedural and other rulings
Parties:	Yosef Yitzhak Feldman (Plaintiff in proceedings 2016/38355) Australian Broadcasting Corporation (First Defendant in proceedings 2016/38355) Jean Edwards (Second Defendant in proceedings 2016/38355) Yosef Yitzhak Feldman (Plaintiff in proceedings 2016/38360) Special Broadcasting Service Corporation (Defendant in proceedings 2016/38360)
Representation:	Counsel: J Cohen (Plaintiff) L Barnett (Defendants)   Solicitors: Cambridge Lawyers (Plaintiff) Australian Broadcasting Corporation (Defendants in proceedings 2016/38355) Special Broadcasting Corporation (Defendant in proceedings 2016/38360)
File Number(s):	2016/383552016/38360
Publication restriction:	None

Judgment

1. HER HONOUR: Before the Court are two sets of proceedings, both commenced by Rabbi Yosef Feldman, one against the Australian Broadcasting Corporation and one against the Special Broadcasting Service Corporation. In each case, the proceedings relate to articles published on the internet service of the relevant defendant relating to evidence given by the Rabbi before the Royal Commission into Child Sexual Abuse.

2. Both proceedings are before the Court today for the second listing in accordance with the Defamation List Practice Note SC CL 4. There had previously been directions made in each proceeding fixing a timetable which contemplated that the pleadings would be closed on 20 May 2016. In the SBS proceedings Rabbi Feldman has, until today or recently, represented himself and a reply has not yet been filed in accordance with that timetable, but the pleadings are otherwise closed. The replies were due on 20 May 2016. On that date, the ABC served proposed categories for discovery and interrogatories; the SBS did the same shortly afterwards. At 4.20pm yesterday the solicitor for the plaintiff responded by informing the defendants of an objection to some of the particulars of the defence. It is therefore necessary to determine that objection first.

3. The particulars objected to are the same in each defence, being paras 8.26 to 8.34 of the ABC defence and 6.26 to 6.34 of the SBS defence. Those particulars address an issue arising from an allegation that a person identified in the Royal Commission by the acronym or pseudonym AVL, whilst under the supervision of the plaintiff as a student Rabbi, was the subject of a complaint of inappropriate behaviour with respect to a male child.

4. The particulars allege that the plaintiff became aware of a complaint by a parent of the child; that the complaint had been or was about to be reported to authorities; that at least one other complaint of a sexual nature (evidently concerning a different child) had been made against AVL; that AVL had admitted that he had "laid down with a child and massaged him" and that AVL was proposing to leave Australia.

5. The defendants contend that, despite being aware of those matters, the plaintiff made no attempt to prevent AVL from leaving Australia. Para 8.32 of the ABC defence, which is the same as paragraph 6.32 of the SBS defence, alleges:

The plaintiff ought to have advised AVL that he should remain in Australia until the allegations against him had been investigated and/or reported to authorities that he intended to leave Australia.

6. The plaintiff seeks to have those particulars struck out on the basis that they are not capable of proving the matter in aid of which they are pleaded. The imputations pleaded in the amended statement of claim against the ABC filed 31 March 2016 are that:

(a)   The plaintiff displayed reprehensible ignorance of the fact that it is against the law for an adult to touch the genitals of a child for sexual gratification;

(b)   The plaintiff was ignorant of the fact that sexually abusing a child was against the law.

7. The single imputation sued on in the SBS proceedings is relevantly the same as imputation (a) in the ABC proceedings. The defendants also rely, in the ABC proceedings, on a contextual imputation that "the plaintiff was reprehensibly ignorant as to the law relating to child sexual abuse".

8. Ms Barnett, who appears for the defendant in each case, submitted that the particulars are capable of sustaining the truth of both the plaintiff's imputations and the contextual imputation in the ABC proceedings. She acknowledged that, in an appropriate case, particulars of a truth or contextual truth defence may fall so far short of being capable of supporting the truth of the relevant imputations as to warrant striking them out, as stated by the Court of Appeal in Hayson v John Fairfax Publications Pty Ltd [2007] NSWCA 376 at [20]. However, Ms Barnett also reminded me of my consideration of that principle in Cheikho v Nationwide News Pty Limited No 3 [2015] NSWSC 146 at [16]-[17], as follows:

16.   Two observations may be made about that statement of principle. The first is that, although it stands as a decision that is binding on me, being a decision of the Court of Appeal, it is a case which was decided before the introduction of the Defamation List Practice Note. I do not think it should now be, if it ever was to be, understood to encourage parties to bring forward objections to particulars, particularly when such matters can readily be dealt with by the trial judge. There may be cases in which the application is helpfully brought forward at an early point in time, but the clear intent of the Practice Note is to discourage what was perceived to be a vice of defamation proceedings conducted in this List, which is the interminable round of interlocutory applications and the long and expensive path to a final hearing.

17.   Secondly, it is equally established that particulars are not to be regarded as the evidence, rather that they denote the topics of which evidence will be adduced. To allow the particulars to stand says nothing as to whether the evidence sought to be adduced in support of them will be admitted. That is a matter for the trial judge. In my view, if the defendants wish to be able to argue that the matters in those particulars go to proving the truth of the imputations, the particulars should be allowed to stand on the pleading. That says nothing as to whether that evidence will be admitted, but it preserves the defendant's position. For my part, I would add that I can see a logical connection between the particulars added to the pleading and the propositions that the defendants will have to prove in support of the truth defence.

9. It might be debatable whether a person who becomes aware that another person may have committed a criminal offence is under an obligation of the kind pleaded in para 8.32 set out above but, in my view, that is a matter for submissions at the trial. The particulars identify facts and circumstances sufficiently relevant to the truth of the imputations set out above to stand.

10. As indicated during argument, however, I consider that para 8.32 of the defence should be struck out, since it puts forward a matter properly characterised as submission rather than a particular of a fact, matter or circumstance relied upon by the defendants.

11. The remaining particulars, together with any additions which might be made (some of which were foreshadowed during argument) are sufficient to support the contentions outlined by Ms Barnett. The application to have those parts of the defence struck out is accordingly rejected, save as to para 8.32 of the ABC defence and 6.32 of the SBS defence.

12. That ruling informs the objections as to the categories for discovery and the interrogatories which have been the subject of rulings given by me during argument. It is not necessary to state any further reasons in respect of those rulings.

13. The orders will be in accordance with the short minutes of order as amended by agreement of both counsel at the conclusion of argument.

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