Feldman v Nationwide News Pty Ltd [2020] NSWCA 260
Hearing dates:
14 September 2020
Date of orders:
20 October 2020
Decision date:
20 October 2020
Before:
Bell P at [1]; Macfarlan JA at [209]; Payne JA at [210]
Decision:
Appeal dismissed with costs
Catchwords:
COMMISSIONS OF INQUIRY – Royal Commission into Institutional Responses to Child Sexual Abuse – Where transcript and video of appellant’s evidence to Royal Commission admitted in aid of a defence to an action for defamation – Whether s 6DD of the Royal Commissions Act 1902 (Cth) prevents admission of such evidence – Whether s 6DD only precludes admission of evidence given in a Royal Commission in order to establish civil or criminal liability of person who gave such evidence
COURTS AND JUDGES – Apprehended bias – Application for recusal – where primary judge said to have raised voice towards counsel – where judge apologised for raising voice – whether outcome of hearing could bear on allegation of apprehended bias
DEFAMATION – Defamatory matter – Capacity to convey pleaded imputations – whether imputations carried to the ordinary reasonable reader
DEFAMATION – Defences – Fair report – Matter of public interest – Royal Commissions – whether publications were substantially accurate
DEFAMATION – Defences – Justification – Truth
EVIDENCE – Documentary evidence – Royal Commissions – Where transcript and video of appellant’s evidence to Royal Commission admitted in aid of a defence to an action for defamation – Whether s 6DD of the Royal Commissions Act 1902 (Cth) prevents admission of such evidence – Whether s 6DD only precludes admission of evidence given in a Royal Commission in order to establish civil or criminal liability of person who gave such evidence
Legislation Cited:
Act respecting inquiries concerning Public Matters 1868, 31 Vict, c 38 (Canada)
Act to make further provision respecting inquiries concerning Public Matters 1889, 52 Vict, c 33 (Canada)
[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 Nationwide News Pty Ltd
Sign in free to access the full text
Details
AGLC
Feldman v Nationwide News Pty Ltd [2020] NSWCA 260
Case
[2020] NSWCA 260
Decision Date
CaseChat Overview and Summary
The appeal in *Feldman v Nationwide News Pty Ltd* concerned a defamation action brought by the appellant against the respondent. The core of the dispute revolved around the admissibility of evidence given by the appellant to the Royal Commission into Institutional Responses to Child Sexual Abuse, which the respondent sought to rely on in its defence. The appeal was heard by Bell P, Macfarlan and Payne JJA of the Court of Appeal of New South Wales.
The legal issues before the Court of Appeal included whether section 6DD of the *Royal Commissions Act 1902* (Cth) prohibited the admission of the appellant's evidence given to the Royal Commission in aid of the respondent's defence to the defamation action. This required the Court to determine the scope of section 6DD, specifically whether it only precluded the admission of such evidence to establish civil or criminal liability of the person who gave it. Additionally, the Court considered whether the publications by the respondent were substantially accurate for the purposes of a fair report defence, whether the pleaded imputations were carried to the ordinary reasonable reader, and whether the defence of justification (truth) was established. An issue of apprehended bias concerning the primary judge was also raised.
The Court of Appeal reasoned that section 6DD of the *Royal Commissions Act 1902* (Cth) did not prevent the admission of the appellant's evidence given to the Royal Commission in the context of the defamation proceedings. The Court found that the section's prohibition was limited to using such evidence to establish civil or criminal liability against the witness. The Court further held that the publications were substantially accurate and that the defences of fair report and justification were available to the respondent. The allegation of apprehended bias was also dismissed.