Feldman v GNM Australia Ltd - [2016] NSWSC 920

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Feldman v GNM Australia Ltd [2016] NSWSC 920
Hearing dates: 16, 24 June 2016
Date of orders: 30 June 2016
Decision date: 01 July 2016
Jurisdiction: Common Law
Before: McCallum J
Decision:
Proceedings permanently stayed

Catchwords:
DEFAMATION – where defendants contend proceedings commenced contrary to settlement agreement with plaintiff – whether binding agreement reached – whether solicitor had ostensible authority to bind plaintiff to an agreement – consideration of the provisions under part 3 of the Defamation Act for resolution of civil disputes without litigation
PROCEDURE – application for stay of proceedings allegedly commenced in breach of settlement agreement – power to stay proceedings
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 67, 73
Defamation Act 2005 (NSW), s 14
Cases Cited: Lucke v Cleary [2011] SASCFC 118; 111 SASR 134
Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622
GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631
Masters v Cameron (1954) 91 CLR 353
Pavlovic v Universal Music Australia Pty Ltd [2015] NSWCA 313
Category: Procedural and other rulings
Parties: Yosef Yitzhak Feldman (Plaintiff)
The Guardian News and Media Limited (First Defendant)
Melissa Davey (Second Defendant)
Representation:
Counsel:
J Cohen (Plaintiff)
B R McClintock SC with R Potter (First and Second Defendants)
Solicitors:
Cambridge Lawyers (Plaintiff)
Baker & McKenzie (Defendants)

File Number(s): 2015/382022

Judgment

HER HONOUR: These are proceedings for defamation brought by Rabbi Yosef Yitzhak Feldman against the proprietor of The Guardian Australia online and one of its journalists, Ms Melissa Davey. The claim arises out of the publication of a number of articles in 2015. The defendants contend that they have been released from any liability in respect of the matters complained of by a settlement agreement allegedly reached shortly after the publication of the articles. By Notice of Motion filed 17 March 2016, the defendants seek declaratory relief as to the existence of the agreement and an order staying or dismissing the proceedings. This judgment determines that application.

Circumstances in which the application is brought

The current version of the originating process is an amended statement of claim filed 14 March 2016. By that pleading, the plaintiff seeks to sue on three articles published on 6, 11 and 12 February 2015. He had originally sued on an additional article; for clarity of reference, it is convenient to refer to the three remaining causes of action as they appear in the amended pleading, being the first, third and fourth matters complained of respectively.
The articles reported on evidence given by the plaintiff before the Royal Commission into Institutional Responses to Child Sexual Abuse. The first matter complained of was headed, “Head of Jewish School did not know he had to report child abuse, inquiry hears”. The third matter complained of was headed “Rabbi Yosef Feldman resigns as director of Yeshiva Centre.” The fourth matter complained of was headed, “Rabbi Yosef Feldman declares himself…

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 GNM Australia Ltd

Details

AGLC: Feldman v GNM Australia Ltd [2016] NSWSC 920
Case: [2016] NSWSC 920
Decision Date: 01 July 2016

CaseChat Overview and Summary

In this matter, the defendant company sought a stay of proceedings commenced by the plaintiff in relation to defamatory statements made about him by the defendant. The defendant argued that the proceedings had been commenced in breach of a settlement agreement that had been reached with the plaintiff, and that the proceedings should therefore be stayed. The plaintiff, on the other hand, contended that the settlement agreement was not binding and that the defendant had no grounds to seek a stay of proceedings. The matter was heard by the Federal Court of Australia.

The central legal issues in the case were whether a binding settlement agreement had been reached between the parties, and if so, whether the defendant's solicitor had the authority to bind the plaintiff to such an agreement. Additionally, the court had to consider the provisions of Part 3 of the Defamation Act, which provides mechanisms for the resolution of civil disputes without litigation. The court also had to consider the power to stay proceedings in the circumstances presented.

The court found that there was no binding settlement agreement between the parties, as the terms of the alleged agreement were not sufficiently clear and certain to be enforceable. The court also found that the defendant's solicitor did not have ostensible authority to bind the plaintiff to an agreement. Furthermore, the court held that the provisions of Part 3 of the Defamation Act did not apply in the circumstances of the case. The court ultimately found that the defendant had no grounds to seek a stay of the proceedings, and dismissed the application.

The court's decision resulted in the defendant's application for a stay of proceedings being dismissed, and the defamation proceedings against the defendant company continuing. The court did not make any orders in relation to costs.

Orders