Feldman v Nationwide News Pty Ltd

[2020] NSWCA 260

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

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)

Acts Interpretation Act 1901 (Cth) ss 2(1), 15AA, 15AB

Civil Procedure Act 2005 (NSW) s 56

Commissions of Inquiry Act 1950 (Qld) s 14A

Criminal Appeal Act 1912 (NSW) s 6AA

Defamation Act 2005 (NSW) ss 28(1)(b), 29(1)

Evidence Act 1928 (Vic) s 30

Evidence Act 1995 (NSW) s 91

Independent Commission Against Corruption Act 1988 (NSW) s 37(3)

Inquiries Act 1945 (NT) s 13

Inquiries Act 2014 (Vic) s 40

Lands Commission (Witnesses) Act 1905 (NSW) ss 1, 2, 3

Metropolitan Board (Commission) Act 1888, 51 Vict, c 6, s 4

Prime Minister and Cabinet Legislation Amendment (2017 Measures No. 1) Act 2018 (Cth)

Public Matters 1889, 52 Vict, c 33 (Canada)

Royal Commissioners Evidence Act 1901 (NSW)

Royal Commissions Act 1902 (Cth) ss 6, 6A(2), 6DD, 7(2), 27(2)(b), 28, 29

Royal Commissions Act 1912 (Cth)

Royal Commissions Act 1917 (SA) s 16

Royal Commissions Act 1923 (NSW) s 17(2)

Royal Commissions Act 1968 (WA) s 20

Royal Commissions Act 1991 (ACT) s 24(3)

Royal Commissions and Other Legislation Amendment Act 2001 (Cth)

Special Commission Act 1888, 51 & 52 Vict, c 35, s 10

Special Commissions of Inquiry Act 1983 (NSW) s 23

Statute Law (Miscellaneous Amendments) Act (No. 1) 1982 (Cth)

Trades Union Commission Act 1867, 30 Vict, c 8, s 4

Cases Cited:

Ali v Nationwide News Pty Ltd [2008] NSWCA 183

Anderson v Nationwide News Pty Ltd (1970) 72 SR (NSW) 313

Burns v Sunol [2014] NSWCATAD 61

Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; [1998] HCA 37

Colonial Sugar Refining Co Ltd v Attorney-General (Cth) (1912) 15 CLR 182; [1912] HCA 94

Cook v Alexander [1974] QB 279

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Ekermawi v Jones (No 3) [2014] NSWCATAD 58

Feldman v Polaris Media Pty Ltd as Trustee of the Polaris Media Trust t/as The Australian Jewish News [2020] NSWCA 56

Feldman v Polaris Media Pty Ltd as trustee of The Polaris Media Trust trading as The Australian Jewish News (No 2) [2018] NSWSC 1035; [2018] Aust Torts Reports 82-395

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Giannarelli v The Queen (1983) 154 CLR 212; [1983] HCA 41

Hatfield v TCN Channel Nine Pty Ltd (2010) 77 NSWLR 506; [2010] NSWCA 69

Herron v HarperCollins Publishers Australia Pty Ltd [2020] FCA 805

Hood v The Queen (1997) 91 A Crim R 526

Hutchison v Robinson (1900) 21 LR (NSW) 130

Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10

Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39

Leslie v Mirror Newspapers Ltd (1971) 125 CLR 332; [1971] HCA 66

Macdougall v Knight (1890) 25 QBD 1

Macquarie Radio Network Pty Ltd v Dent [2007] NSWCA 261

Mohareb v Booth [2020] NSWCA 49

Mohareb v Kelso (No 2) [2018] NSWCA 246

Nationwide News Pty Limited v Rush (2020) 380 ALR 432; [2020] FCAFC 115

Poniatowska v Channel Seven Sydney Pty Ltd [2019] SASCFC 111

R v Bayeh [1999] NSWCCA 82

Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52

SZUON v Minister for Immigration and Border Protection [2018] FCA 705

Thom v Associated Newspapers Ltd (1964) 64 SR (NSW) 376

Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58

X v Australian Prudential Regulation Authority (2007) 226 CLR 630; [2007] HCA 4

Texts Cited:

House of Representatives, Parliamentary Debates (Hansard), 24 July 1912 at 1181

Senate, Parliamentary Debates (Hansard), 14 August 1912 at 2105

Category:

Principal judgment

Parties:

Rabbi Yosef Yitzchak Feldman (Appellant)
Nationwide News Pty Ltd (First Respondent)
Herald and Weekly Times Pty Ltd
(Second Respondent)
Special Broadcasting Service Corporation (SBS)
(Third Respondent)

Representation:

Counsel:

Mr J Cohen (Appellant)
Mr A T S Dawson SC with Ms L Barnett (Respondents)

Solicitors:

Brigitte Simeonides & Associates (Appellant)
M & K Lawyers Group Pty Ltd (Respondents)

File Number(s):

2020/57569

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2018] NSWSC 682; [2018] NSWSC 715; [2020] NSWSC 26

Date of Decision:

31 January 2020

Before:

Campbell J

File Number(s):

2016/38344; 2016/277467; 2016/38360; 2017/24476

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant, Rabbi Yosef Yitzchak Feldman, was the Director of Management of the Yeshiva Centre in Bondi when he gave evidence to the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission) in February 2015. This evidence was the subject of further oral submissions made to the Royal Commission on 17 September 2015. In October 2016, the Royal Commission released its report into Case Study No 22, part of which concerned the evidence given by the appellant.

The appellant’s evidence, the further oral submissions, and the report into Case Study No 22 were reported either online and in print by the first respondent (Nationwide News Pty Ltd) and the second respondent (Herald and Weekly Times Pty Ltd) between 7 February 2015 and 30 November 2016, and online by the third respondent (Special Broadcasting Service Corporation (SBS)) on 6 February 2015. These reports gave rise to four sets of defamation proceedings brought by the appellant.

These first of these proceedings (News 1) was brought against the first and second defendants and concerned a series of four publications in The Australian online, News Local online, and the Herald Sun’s print and online editions respectively. The second (News 2) and third (News 3) sets of proceedings were brought against the first respondent. The News 2 proceedings concerned a distinct set of two publications in The Australian’s print and online editions, whilst the News 3 proceedings concerned a separate publication in The Australian online. The fourth set of proceedings concerned the third respondent’s publication of an article on its news website.

In the course of the trial, the primary judge rejected an application that he disqualify himself from hearing the matter for alleged apprehended bias. The primary judge also overruled an objection, taken on behalf of the appellant, to the respondents’ tender of the transcript and a video recording of the appellant’s evidence to the Royal Commission in February 2015. It was submitted that s 6DD of the Royal Commissions Act 1902 (Cth) precluded the tender of such evidence.

The primary judge proceeded to dismiss each set of proceedings.

In the News 1 proceedings, it was accepted that each of the four publications conveyed imputations that “the [appellant] was reprehensibly ignorant of the fact that it was against the law for an adult to sexually touch the genitals of a child” and that “the [appellant] in giving evidence displayed reprehensible ignorance of the fact it is against the law for an adult to sexually touch the genitals of a child”. The primary judge rejected the appellant’s claim that the fourth publication conveyed three additional imputations.

In the News 2 proceedings, the primary judge accepted that the two publications each conveyed a series of three imputations, that “the [appellant] … engaged in a disingenuous ‘public relations’ exercise in urging sexual abuse victims to contact police”, that “the [appellant] … pressured his flock not to report child sexual abuse to the police” and that “the appellant … refused to accept that Jewish organisations had a responsibility to report the sexual abuse of children to secular authorities”. The five imputations alleged to have been conveyed by the publication in the News 3 proceedings were rejected by the primary judge, whilst it was accepted that the SBS publication conveyed the imputation of reprehensible ignorance as to the law on the appellant’s part.

The respondents successfully asserted the defence of “fair report”, under s 29(1) of the Defamation Act 2005 (NSW) in respect of the News 1, News 2 and SBS publications. The success of this defence largely rested upon the admission into evidence of the transcript and video recording of the appellant’s evidence to the Royal Commission. Notwithstanding that “fair report” was a complete defence, the primary judge held that he would have found the defence of justification under s 25 of the Act to be made out for those publications. It was also held, on a contingent basis, that the News 3 publication would have attracted the defence of justification as well as that of “fair summary” in s 28(1)(b) of the Defamation Act, had it carried the imputations alleged by the appellant.

Rabbi Feldman filed an appeal against the primary judge’s dismissal of the four proceedings.

The issues on appeal were:

1. whether a fair-minded lay observer might have reasonably apprehended that the primary judge might not have brought an impartial mind to the resolution of the questions before his Honour at trial;

2. whether s 6DD of the Royal Commissions Act precluded the admission into evidence of the transcript and video recording of the appellant’s evidence to the Royal Commission in aid of the defence of “fair report”; and

3. whether the primary judge erred in rejecting certain imputations, and in accepting the defences of “fair report”, “justification” and “fair summary” where the imputations were carried.

The Court held (Bell P, Macfarlan JA and Payne JA agreeing), dismissing the appeal with costs:

1. The primary judge did not err in rejecting the appellant’s application that he recuse himself, as a fair-minded lay observer would not have reasonably apprehended that his Honour might not have brought an impartial mind to the resolution of the questions at trial. The question of reasonable apprehension was to be assessed at the time of the event or events said to give rise to that possibility, and not with the benefit of hindsight. The fact that the primary judge ultimately rejected the appellant’s case does not and cannot demonstrate actual or apprehended bias: [41]–[43], [48] (Bell P); [209] (Macfarlan JA); [210] (Payne JA).

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63; Mohareb v Kelso (No 2) [2018] NSWCA 246, applied.

2. The tender by the media respondents of the transcript and video recording of the appellant’s evidence in the Royal Commission in aid of their “fair report” defence was not precluded by s 6DD of the Royal Commissions Act, which is directed to circumstances where it is being sought to be used in proceedings against the person who has given the compelled testimony to the Royal Commission. On its proper construction, s 6DD was intended to preclude the use of compelled evidence to a Royal Commission against the person who gave the evidence in order to establish their civil or criminal liability: [80]–[84], [96]–[97] (Bell P); [209] (Macfarlan JA); [210] (Payne JA).

Herron v HarperCollins Publishers Australia Pty Ltd [2020] FCA 805; Hatfield v TCN Channel Nine Pty Ltd (2010) 77 NSWLR 506; [2010] NSWCA 69; R v Bayeh [1999] NSWCCA 82; X v Australian Prudential Regulatory Authority (2007) 226 CLR 630; [2007] HCA 4; Colonial Sugar Refining Co Ltd v Attorney-General (Cth) (1912) 15 CLR 182; [1912] HCA 94, discussed.

3. The primary judge did not err in holding that certain imputations were not carried or conveyed by publications in the News 1 and News 3 proceedings. The ordinary reasonable reader is taken to have read the article as a whole and in its complete context: [104]–[106], [180] (Bell P); [209] (Macfarlan JA); [210] (Payne JA).

4. The publications in the News 1 and News 2 proceedings were “fair reports” in the sense that they substantially recorded what was said and done in the course of the appellant’s evidence to the Royal Commission, the further oral submissions, and the report into Case Study 22: [127], [132], [151] (Bell P); [209] (Macfarlan JA); [210] (Payne JA).

Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; [1998] HCA 37; Thom v Associated Newspapers Ltd (1964) 64 SR (NSW) 376; Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58; Anderson v Nationwide News Pty Ltd (1970) 72 SR (NSW) 313; Cook v Alexander [1974] QB 279; Leslie v Mirror Newspapers Ltd (1971) 125 CLR 332; [1971] HCA 66, applied.

5. The primary judge did not err in allowing the defence of justification in respect of the News 1, News 2, News 3 and SBS publications. The imputations carried therein were substantially true: [142], [160], [165], [169], [196], [202] (Bell P); [209] (Macfarlan JA); [210] (Payne JA).

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22; Macquarie Radio Network Pty Ltd v Dent [2007] NSWCA 261; Warren v Coombes (1979) 142 CLR 531; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; [1998] HCA 37, referred to.

6. The News 3 publication fairly and accurately summarised Case Study No 22 and therefore attracted the “fair summary” defence: [189] (Bell P); [209] (Macfarlan JA); [210] (Payne JA).

Judgment

1. BELL P:

Introduction

On Friday 6 February 2015, Rabbi Yosef Feldman (the appellant) gave evidence during the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission). He continued his evidence on Monday 9 February 2015. This evidence formed part of what was described as Case Study No 22 before the Royal Commission.

2. As is well known, the Royal Commission attracted enormous public interest with corresponding press and media coverage.

3. A principal focus of the cross examination of the appellant in the Royal Commission was a reported complaint made by a child in July 2002 against a rabbinical student identified in the Commission with the letters AVL. For about 15 years until 2015, the appellant had held the role of Rabbinical Administrator of the Yeshiva Gedola in Bondi which was a tertiary vocational school that provided education and training for young men wishing to be ordained as rabbis. AVL was one of the students. It was a practice in 2002 for students of the rabbinical college to be involved as assistant teachers at the Yeshiva Centre and to attend camps. In 2002, the appellant had learnt from his father, also a rabbi, that a complaint had been made that AVL had engaged in inappropriate behaviour with regard to children.

4. I adopt the following overview of the appellant’s evidence in the Royal Commission from the judgment of White JA in Feldman v Polaris Media Pty Ltd as Trustee of the Polaris Media Trust t/as The Australian Jewish News [2020] NSWCA 56 at [7]–[13], which were separate defamation proceedings brought by Rabbi Feldman against the Australian Jewish News in relation to his evidence at the Royal Commission. It was that same evidence that was the subject of the reporting and matters complained of in the present proceedings. References to RCT are to the transcript of the appellant’s evidence before the Royal Commission:

“7   A meeting was held between the appellant, his father and AVL on 24 July 2002. The appellant gave evidence before the Commission that at that meeting AVL was told that they had heard that there was a complaint of inappropriate behaviour with regard to children and that AVL should not have anything more to do with children, and they would see whether the complaints were verified or not. AVL maintained that he did not do anything. The appellant and his father were prepared to allow him to continue towards ordination. AVL had come to Sydney from New York. He asked whether he could leave and still obtain the ordination, but was told that ordination could not be given for people who had ceased to study (RCT 689).

8   After this meeting the appellant had another meeting with AVL. In the course of that meeting, AVL started telling the appellant what the allegations were and said ‘A bit of touching. Maybe I massaged him a bit or whatever. What’s the issue with that?’ or something to that effect (RCT 697.37). The appellant’s opinion was that was ‘really inappropriate’ (RCT 697). AVL told the appellant that he just lay down with a child and may have massaged him and there might have been a bit of touch (RCT 697-698). AVL said that he was lying with the child (not that he went to bed with him) and gave him a ‘massage or touched or that sort of thing’ (RCT 698.39).

9   The appellant was then cross-examined as to whether what had been reported to him was a potential crime involving child abuse which he knew had to be reported to the police. He said:

‘A.   I didn’t know whether at that time much of the seriousness and of the legal legalities of these issues and I didn’t know whether it’s a criminal matter, I didn’t know – I really didn’t know much about sex abuse at all or, you know, I was very unaware of that whole area. The whole thing came as a surprise to me. Basically he was reported and, you know, I didn’t know much about this whole area at all, to tell you the truth.

Q.   You recall thinking, don’t you, that what he did was highly inappropriate?

A.   In my opinion it was. I’m a very religious sort of a person and anything which is highly inappropriate to me is not necessarily highly inappropriate according to law.

Q.   You knew at the very least –

A. Or according to Jewish law what’s highly inappropriate is not necessarily highly inappropriate in the Criminal Code and in our legal system.

Q.   You knew at the very least that it could be a crime, didn’t you?

A.

   Anything could be. I didn’t know that it is.’ (RCT 699)

10   After further extensive questioning the appellant gave the following evidence:

‘Q.  So you knew on 24 July, when you had a conversation with [AVL], that the admission he had made to you of the physical contact, the laying down with him, could be a crime?

A. I don’t know what the Criminal Code is and what’s a crime and what’s not a crime. A lot of things could be a crime but I don’t think it is, and a lot of things isn’t – I didn’t really think in those terms. What can I tell you? I think in my terms. I did not think about – it didn’t enter into my mind the whole idea of what’s considered a legal crime or not; what should be reported to the police or not. It’s not something in those terms – I mainly deal with issues in the way in which I feel Jewish law would consider something as being proper or improper and I told him so. I did not think in the terms of what’s a crime and what’s not a crime legally.’ (RCT 702)

11   Later, it was put to the appellant that he knew that teachers or anyone involved with children should not be massaging children while they lay down with them (RCT 704.5). He responded:

‘As I said, from a legal perspective that wasn’t what I knew. I knew from a Jewish perspective that that’s very wrong, because it is a form of abuse that the child is not interested in and anything which is abuse, physical abuse, any sort of abuse is terrible, and I have seen people suffering because of any sort of abuse.’ (RCT 704)

12   He refused to accept that if someone lay down with a child and massaged the child that that could potentially be a crime, saying ‘It could potentially be something which is highly inappropriate. I do not know what a crime is from a legal society perspective.’ (RCT 704-705) He accepted counsel assisting’s summary of his evidence as to what he had been told. First, there may have been contact between AVL and the child. Secondly, AVL had laid down with the child. Thirdly, that according to AVL, he may have massaged the child, but not inappropriately (RCT 706-707). Fourthly, he believed that AVL had massaged the child. Fifthly, he believed that such conduct was highly inappropriate.

13   The appellant denied knowing that the complaint involved allegations that might amount to sexual abuse (RCT 707-708). He denied understanding that the allegation was that AVL had touched the genitals of an underage boy. He said that he heard that allegation later (RCT 708). It was put to the appellant again that he knew that the allegation might amount to child sexual abuse (RCT 709.20). He answered:

‘Child sexual abuse – when you say “child sexual”, I’m not talking about from a legal perspective; I’m talking from a Jewish perspective it was highly inappropriate. I didn’t know what the legal code or code legally would be in that regard. Whenever you mention “child sexual abuse” I hope you are not referring to the criminal act of child sexual abuse. I hope you are referring to the act of child sexual abuse –’ (RCT 709)”

5. After this last answer, the following exchange occurred:

“Q.   In 2002 did you understand it was against the law for an adult to touch the genitals of another child?

A.     I didn’t know that as a fact. (RCT 709)”

6. The Commission then took a short adjournment. Counsel assisting returned to this question as follows:

“Q.   Rabbi, I just want to be clear that you understood the question that I asked you before the break. In 2002, the time these conversations with [AVL], is your evidence that you did not know it was against the law, that is a crime, for an adult to touch the genitals of another child?

A.    The genitals I would have assumed is a crime. But massaging I wouldn’t have necessarily thought it’s a crime, and that’s what I understood at the time, lying and massaging is what took place, and I wouldn’t have thought that that would fall under the category of child sex abuse, whatever criminal aspects of it are.

Q.    So you understood in 2002 that the nature of a massage, depending on what was touched, could have amounted to a crime?

A.    As I said, it didn’t enter my mind it being a criminal sort of thing until – it could have also been, for example, if someone can be banned from kids or whatever, but I didn’t know that it would be a crime and I didn’t think about it. If I would have heard he touched the genitals then obviously that I would consider, as probably the criminal system would consider, it a crime. But, what took place, it didn’t enter my mind that it is a crime.

Q.   I asked you before the break, and I asked you this very question at line 30, page 6432 of the transcript, ‘In 2002 did you understand it was against the law for an adult to touch the genitals of another child,’ and you said, ‘I didn’t know that as a fact.’

A.   I still don’t – now I know as a fact it is. But then I didn’t know it as a fact, but I would have imagined that it is. (RCT 710)”

7. On 17 September 2015, oral submissions were made in the Royal Commission in relation to the appellant’s evidence and Case Study No 22 more generally.

8. In October 2016, the Royal Commission released its report into Case Study No 22.

The reporting

9. Following the appellant’s evidence to the Royal Commission in February 2015, the further oral submissions on Case Study No 22 in September 2015, and the release of the report into Case Study No 22 in October 2016, reporting occurred which gave rise to four sets of defamation proceedings brought in the Supreme Court of New South Wales by the appellant against various media organisations and individual journalists. These proceedings were heard together by Campbell J (the primary judge) over eight days from May to August of 2018.

10. Three of the sets of proceedings were brought against Nationwide News Pty Ltd (Nationwide News) and various individual journalists. The first of these proceedings was also brought against Herald and Weekly Times Pty Ltd. These sets of proceedings were described in the judgment under appeal as the News 1, News 2 and News 3 proceedings respectively. They corresponded chronologically to the reporting on each of the three events referred to in [1], [7] and [8] above.

11. The News 1 proceedings concerned the following publications:

• “Rabbi in the dark on abuse law”, The Australian online, published 12AM on 7 February 2015 (Annexure A (1289172, pdf))

• “Controversial Rabbi Yosef Feldman resigns amid furore over sexual abuse comments to Royal Commission”, News Local online (Wentworth Courier), published 11:52PM on 11 February 2015 (the 11 February 2015 publication) (Annexure B (1172361, pdf));

• “Rabbi Yosef Feldman tells royal commission he didn’t know it’s illegal for adults to touch children’s genitals”, Herald Sun online, published 7:06PM on 6 February 2015 (Annexure C (108301, pdf));

• “Rabbi out of touch: Jewish leader ignorant on child abuse”, Herald Sun, published on 7 February 2015 (Annexure D (650121, pdf)).

12. The News 2 proceedings concerned the following publications:

• “Rabbi Yosef Feldman accused of mixed messages on child abuse”, The Australian online, published 12AM on 19 September 2015 (Annexure E (554978, pdf));

• “Rabbi’s ‘mixed messages on abuse’”, The Weekend Australian, published on 19–20 September 2015 (Annexure F (198178, pdf)).

13. The News 3 proceeding concerned the following publication:

• “Royal commission says Jewish leaders ‘failed’ abused children”, The Australian online, published 12AM on 30 November 2016 (Annexure G (567617, pdf)).  

14. The fourth set of proceedings concerned the online reporting by the Special Broadcasting Service Corporation (SBS) of the evidence given by the appellant on 6 February 2015, under the heading “Rabbi feared friend would be jailed” (Annexure H (731555, pdf)).

15. The primary judge dismissed each set of proceedings (Feldman v Nationwide News Pty Ltd [2020] NSWSC 26 (the primary judgment)) and a single appeal has been brought from those dismissals. No appeal has been brought against the judgments in favour of the individual journalists who were defendants in the proceedings at first instance.

16. The Nationwide News defendants and SBS were jointly represented by counsel at first instance and continued to be jointly represented on appeal.

The imputations

17. It was accepted at first instance that each of the four News 1 publications conveyed the following imputations:

“(a)   The plaintiff was reprehensibly ignorant of the fact that it was against the law for an adult to sexually touch the genitals of a child.

(b)     In the alternative to (a), the plaintiff in giving evidence displayed reprehensible ignorance of the fact it is against the law for an adult to sexually touch the genitals of a child.”

These imputations, and those referred to in [19]–[20] below, are only directly relevant in this appeal to the extent that the appellant challenges the primary judge’s acceptance of defences of justification.

18. It was also contended that the fourth of the News 1 publications conveyed the following additional imputations:

“(c)   The plaintiff was reprehensibly ignorant of the fact it is morally wrong for an adult to sexually touch the genitals of a child.

(d)    Alternatively to (c), the plaintiff in giving his evidence displayed reprehensible ignorance of the fact it is morally wrong for an adult to sexually touch the genitals of a child.

(e)   Alternatively to (d), the plaintiff did not regard it as morally wrong for an adult to sexually touch the genitals of a child.”

This claim was rejected by the primary judge.

19. It was accepted that the SBS publication, which also related to the appellant’s evidence on 6 February 2015, conveyed the imputation that the appellant displayed “reprehensible ignorance of the fact that it was against the law for an adult to sexually touch the genitals of a child” (imputation (n)).

20. It was accepted that the News 2 publications conveyed the following imputations:

“(f)   The plaintiff, one of the most senior religious figures of the Jewish ultra-orthodox movement of NSW and formerly the president of the Rabbinical Council of NSW, engaged in a disingenuous ‘public relations’ exercise in urging sexual abuse victims to contact police.

(g)   The plaintiff, one of the most senior religious figures of the Jewish ultra-orthodox movement of NSW and formerly the president of the Rabbinical Council of NSW, pressured his flock not to report child sexual abuse to the police.

(h)   The plaintiff, one of the most senior religious figures of the Jewish ultra-orthodox movement of NSW and formerly the president of the Rabbinical Council of NSW, refused to accept that Jewish organisations had a responsibility to report the sexual abuse of children to secular authorities.”

21. In relation to the News 3 publication, the primary judge rejected the appellant’s case that it conveyed five imputations that had been identified and to which I will return when considering the specific ground of appeal relating to this publication: see [171]–[184] below.

The defences

22. The respondents successfully raised “fair report” defences pursuant to s 29(1) of the Defamation Act 2005 (NSW) (the Act) in respect of each of the publications in relation to which defamatory imputations were either accepted or found to be conveyed.

23. In addition, the primary judge held, on a contingent basis, that the respondents would have made good the defence of justification in relation to the News 1 and News 2 publications, and the SBS publication.

24. In relation to the News 3 publication of 30 November 2016, the primary judge held, on a contingent basis (because he found that the publication did not carry the imputations for which the appellant contended), that the publication would have attracted the “fair summary of, or fair extract from, a public document” defence pursuant to s 28(1)(b) of the Act: primary judgment at [231].

The issues on appeal

25. The issues raised by the Further Amended Notice of Appeal (Notice of Appeal) can be divided into two broad groups:

• first, those grounds which entailed a general attack on the primary judgment; and

• secondly, those grounds which related to specific conclusions in respect of specific publications.

26. The general issues are as follows:

1. whether the primary judge erred by not acceding to an application that he recuse himself for apprehended bias which was made and rejected on the third day of the hearing (ground 12);

2. whether the primary judge erred by admitting into evidence the transcript and video recording of the appellant’s evidence before the Royal Commission (ground 1). This ground, if successful, would have necessarily resulted in a rejection of the fair report defences, at least in respect of the News 1 publications and the SBS publication, as the respondents would not have been able to relate the contents of their publications to the course of the appellant’s cross-examination in the Royal Commission because the record of that evidence would not have been admissible; and

3. whether the damages awarded by the primary judge on a contingent basis were manifestly inadequate (ground 14).

   27. The specific issues included challenges to the rejection of imputations, challenges to findings of fair report and fair summary of a public document, and challenges to findings and contingent findings that the imputations carried were substantially true, such that the publications were justified.

   28. The Notice of Appeal also included ground 7 which asserted that the primary judge “misconstrued the s 25 defence of justification in finding that something less or other than substantial truth is capable of establishing a s 25 defence”. No written or oral submissions were advanced, however, in support of this ground and in those circumstances it must be taken to have been abandoned.

   29. Ground 8 of the Notice of Appeal which asserted an unspecified contravention of s 91 of the Evidence Act 1995 (NSW) was expressly abandoned at the hearing of the appeal.

Refusal to recuse for apprehended bias (ground 12)

30. As noted at [26] above, on the third day of the trial, the primary judge rejected an application made by the appellant that he disqualify himself from hearing the matter for alleged apprehended bias.

31. The primary judge published detailed reasons for his refusal to recuse himself in a judgment delivered on 16 May 2018: Feldman v Nationwide News Pty Ltd (No 4) [2018] NSWSC 682 (the recusal judgment). At [2], the primary judge identified three matters which he understood to found the application for recusal. These were that:

“First, when dealing with an application for an amendment of the Statement of Claim in one of the four defamation matters being heard together, I raised my voice at Counsel ‘[i]n such a manner that would give rise to the ordinary bystander or the average person that there is an apprehension of bias’ (sic) (144.20T). Secondly, when I refused an application made by the defendants to require the plaintiff to make admissions about the meaning of Hebrew and Yiddish expressions contained in emails of which he was the author which had been opposed by Mr Cohen, I said to Mr Dawson SC and Ms Barnett, who appear for the defendants ‘... you better get yourself a translator’ (91.35T) in a manner suggesting some partiality to the defendants (144.45T). Thirdly Mr Cohen argued ‘there was what I considered some heated exchange in relation to whether a document had been admitted into evidence before or after lunch (yesterday), and I must say, in my respectful submissions there was enough to cause ... the ordinary bystander some concern’ (145.5T).”

32. When pressed by the primary judge to identify how it was contended that a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question that the judge was required to decide within the Ebner test (see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (Ebner)), counsel for the appellant, Mr Cohen, said he could not think of an answer to that question. After being offered some time to consider the matter, Mr Cohen offered the vaguest of responses — “I might have made an application to an amendment to another statement of claim that could have a critical effect”, quoted by the primary judge in the recusal judgment at [3]. After a further adjournment, the primary judge was informed by Mr Cohen that he did not intend to make any more submissions on the recusal application.

33. Notwithstanding the unsatisfactory way in which Mr Cohen prosecuted the recusal application, the primary judge delivered commendably thorough reasons for not recusing himself.

34. As to the issue of a raised voice, the primary judge said at [12]–[14] of the recusal judgment:

“12   I acknowledge I had become irritated from the point where I said, ‘when can you bring forward a document which you say represents the case you want me to consider?’ My tone became firm, emphatic and insistent. And the volume of my speech would have grown noticeably louder to the listener. It is fair to say I raised my voice at Counsel. And the source of my irritation was, having sought an indulgence by way of leave to make a late amendment, Mr Cohen had become defiantly unco-operative when Mr Dawson was looking for co-operation as to the meaning of expressions used by the plaintiff in circumstances where he had not been called to give evidence in his own case.

13   I acknowledge that a judge should always act with moderation, c[o]urtesy and restraint, but that shortfalls from that standard do occur from time to time due to human frailty, at least in my own case.

14   I reflected upon how I had spoken to Counsel during the ensuing adjournment. Upon resumption, I said the following:

‘HIS HONOUR:  Mr Cohen before you say anything, I am sorry that there's only a few people in the courtroom, but I want to apologise to you for raising my voice to you this morning. The idea that I wanted to communicate would have been much better conveyed if I'd spoken to you in a normal conversational tone. I am sorry.

COHEN:  I apologise to your Honour if I did something to cause you to raise your voice. I apologise.

HIS HONOUR:  That's quite all right, Mr Cohen. Have you got your document?

COHEN:  Yes.’”

35. Far from giving rise to any apprehension, his Honour’s conduct in apologising to counsel for having raised his voice was a model of judicial balance and propriety. The background to the exchange arose from the fact that the appellant’s counsel had resisted an application by Mr Dawson SC on behalf of the respondents for the appellant to provide a translation of some Hebrew words he had used in an email or emails that he had authored, and which were or were to be placed in evidence. Mr Dawson had evidently anticipated that the appellant would be giving evidence in chief in the proceedings (a not unusual matter to expect in a defamation case) and had been proposing to ask the appellant the meaning of these words. When it became clear that the appellant was not going to give evidence in chief, Mr Dawson had made an application that the appellant provide a translation. This was resisted.

36. Parties in proceedings before the Supreme Court fall under an obligation pursuant to s 56 of the Civil Procedure Act2005 (NSW) to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Mr Cohen accepted on the hearing of the appeal that the primary judge could have ordered the appellant to offer a translation in answer to interrogatories. Mr Cohen also did not challenge the primary judge’s description of Mr Cohen having become “defiantly unco-operative” in resisting Mr Dawson’s application cf SZUON v Minister for Immigration and Border Protection [2018] FCA 705 at [4]–[5].

37. In all of these circumstances, one can well understand the primary judge, engaged in the hearing of a complex trial of four related sets of proceedings, becoming impatient. Even so, his Honour properly recognised that he should not have raised his voice in the way he evidently did, and appropriately acknowledged this very soon thereafter. As the primary judge said at [20] of the recusal judgment:

“I was justified insisting upon a document in final form containing all of the amendments counsel wished to make. I should have insisted upon that requirement in a calm and measured way rather than in a raised voice. Of course, this is why I apologised to counsel at the first available opportunity.”

38. As to the second of the matters that had been relied upon, namely the primary judge’s refusal of Mr Dawson’s application that the appellant provide a translation of some Hebrew words in a document he had authored, the primary judge recorded at [16] of his recusal judgment that “I am at a complete loss to understand how anyone could understand my refusal of Mr Dawson’s application in the light of Mr Cohen’s opposition, let alone a fair-minded lay observer, displayed partiality to the defendant”. I quite agree. The statement made by the primary judge to Mr Dawson that he had “better get a translator” was not evidence of any partiality on the judge’s part, but simply the articulation of the fact that he was not going to accede to the application that the appellant himself supply the translation.

38. As to the third matter, namely the alleged “heated exchange”, this arose in the context of an application on behalf of the appellant to review evidence which had been admitted the previous day. The primary judge held at [18]–[19] of the recusal judgment, in a finding that was not challenged, that he did:

“18   … not accept that the discussion with Mr Cohen was heated. I did not raise my voice, and if I was at all terse, it may have been because I was concentrating on the ramifications of the submission. In particular whether there was a need to review the admission of all of what had been tendered when counsel was ‘shaken up’.

19   I am not of the view that even a robust exchange between counsel and judge about the admissibility of evidence would give rise to any question in the mind of a fair-minded lay observer about the partiality of the judge so far as the determination of the case on its merits was concerned.”

40. The appellant’s submissions in relation to this ground of appeal really fell into two categories. It was first put in [41] of those submissions that some 13 matters exemplified the “crystallisation” of “any apprehension of bias”, but all but two matters identified in the appellant’s submissions were abandoned in oral argument. Those matters were not matters which formed the basis of the application made to the primary judge to recuse himself but, rather, related to matters that occurred after the judge’s refusal to recuse himself. The two remaining matters were:

“The hearing proceeded on an irregular basis, in that the appellant did not give his evidence in his primary case but rather in reply, which limited any potential evidence of damage. See judgment at [311]. If the appellant was going to give evidence, it made no sense to give the evidence in reply. Clearly, the appellant in giving evidence, did so in response to the conduct of the trial judge, the appellant feeling he "needed to be heard" in response to what he perceived as the breakdown in relationship between trial counsel and the trial judge. Thus, the conduct of the trial judge, as it transpired did cause prejudice.”

and:

“The trial judge has not properly considered arguments put forward by the appellant both in closing oral submissions or tendered. The trial judge uses strawman arguments against the appellant such as criticising the fact the appellant had criticised counsel assisting's questioning containing erroneous statements of law but then, when dealing with the defence of fair report, deals with the effect of the evidence, rather than the accuracy of the reporting, The trial judge has ignored extensive oral submissions by the appellant on this issue including the one of the most fundamental and obvious propositions, namely, that it is not against the law for an adult to touch a child on the genitals. This fundamental proposition cannot be found in the judgment.”

41. It seems that these two matters were advanced by the appellant as some evidence of the fact that there was actual bias. This argument is fundamentally misconceived. If the matters are advanced in support of an allegation of “apprehended bias”, the possibility that a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the relevant question is not to be assessed with the benefit of hindsight, but at the time of the event or events said to give rise to that possibility in the first place. See, for example, Ebner at [7]–[9] and [33].

42. Moreover, even putting this objection to one side, the appellant’s decision to give evidence in reply and not in chief was his own forensic choice. There was no evidence led to explain that choice and the fact that it was made says nothing as to whether there were grounds by reference to which the primary judge should have disqualified himself for apprehended bias on day three of the trial.

43. Further, the fact that the primary judge ultimately rejected the appellant’s case for a variety of reasons does not and cannot demonstrate actual or apprehended bias. In Mohareb v Kelso (No 2) [2018] NSWCA 246 at [15], this Court said that:

“Disagreement with the reasoning, or the outcome, provides no basis for an assertion of actual bias”.

See also Mohareb v Booth [2020] NSWCA 49 at [37].

44. The appellant also asserted in [41] of his written submissions on appeal that Ebner “was not relevant in the circumstances nor was the suggested ‘second step’ in Ebner necessary.” During the hearing of the appeal, this surprising submission was modified. It was submitted that “[i]t's not quite the case that the Ebner test is not applicable … on a practical level of practically it was misapplied.” Mr Cohen accepted that he was misguided in what he put to the primary judge in relation to the Ebner test and did not articulate any coherent criticism of the primary judge’s application of Ebner.

45. As already noted, the attack on the primary judge’s refusal to recuse himself for apprehended bias must be assessed by reference to the arguments made at the time of the application for recusal. In this context, [42] and [43] of the appellant’s submissions contended that:

“The judgment itself Yosef Yitzchak Feldman v Nationwide News Limited & Ors (2018) NSWSC (No 4) (2018) NSWSC 682 (16 May 2018) is indicative of bias. It is not impartial for the trial judge to offer suggestions to senior counsel (‘you better get yourself a translator’) particularly when no certified translation was served prior to the hearing (pre-empting an indulgence that would be granted to the respondent). Furthermore, the ordinary bystander would perceive the trial judge as punishing the appellant (possibly for being ‘difficult’) for insisting on a legal right. The whole of [10-12] reads as punishment for not acceding to a request to get Yiddish and Hebrew words translated culminating in the trial judge suggesting to senior counsel for the respondent to obtain a translator. The trial judge concedes he raised his voice and was angry at that point in time. His Honour also holds the appellant to blame for timewasting when a request was made by the defendant to adjourn for two days because counsel had a matter in the Court of Appeal. As it transpired the appellant gave evidence and voluntarily translated Yiddish and Hebrew words, to his detriment. The detriment being that mere translation enables reasonably complicated concepts to be taken out of context of time and place which is precisely what happened, crystalizing in the substantive judgment. A significant feature of rabbinic discussion involves discussing concepts that evolved in another era and place, and applying them to present time and location within the confines of the secular law.

The trial judge appears to acknowledge that his conduct amounts to retaliation in the last sentence [12]. And the vice of the trial judge's conduct is encapsulated in [12] and [20]. There is no nexus between the issue of the translations, which involved substantive issues, and the amendment sought, which involved a minor amendment to the statement of claim which could not possibly prejudice the respondent At the conclusion of judgment [9], it is agreed between appellant counsel and His Honour that a short statement of the amendment would be read onto the record. Thereafter the discussion moves on to the issue of the translations. When however the appellant does not agree to translate the foreign words, the trial judge re-introduces the issue of the amendment, His Honour accepting he raised his voice at that point culminating in His Honour stating that the respondent ‘better get a translator’. A reasonable observer would form the view that the trial judge was punishing the appellant's counsel, and by extension the appellant for his conduct, for not acceding to the respondents' request. Once this view is formed, it is inevitable that there must be a reasonable apprehension of bias.”

46. In the course of oral submissions, Mr Cohen expressly withdrew the references in these paragraphs to the primary judge doing things to “punish” the appellant and his counsel, and to aspects of his Honour’s conduct amounting to “retaliation”. It was appropriate that these submissions be withdrawn. They were consistent with a case of actual bias which was never raised, and while it is to Mr Cohen’s credit that they were withdrawn, it is very difficult to understand how they could have been put responsibly in the first place.

47. Once the submissions were amended in the way described above, [42] and [43] of the appellant’s submissions did little more than repeat the matters that had been put to, and dealt with, by the primary judge. No submission was advanced either in writing or orally as to why the primary judge’s reasoning in his recusal judgment was flawed.

48. This ground of appeal must be dismissed.

Admission of transcript and video from the Royal Commission into evidence (ground 1)

49. In the course of the trial, objection was taken on behalf of the appellant to the tender, by the respondents, of the transcript of the appellant’s evidence given at the Royal Commission on 6 and 9 February 2015. This tender was objected to on the basis that it contravened s 6DD of the Royal Commissions Act 1902 (Cth) (the Royal Commissions Act).

50. A later tender of the video of that evidence was also objected to, albeit on different grounds, although it was ultimately accepted in this Court that, had the objection to the tender of the transcript been upheld, an objection to the tender of the video could and would also have been sustained on the same basis, albeit that an objection to the tender of the video on that ground was not formally made. Objection to the video’s tender on other grounds was not the subject of challenge on appeal.

51. The appellant did not have the option to refuse to answer questions which may have incriminated him before the Royal Commission. Section 6A(2) of the Royal Commissions Act provides that:

“A natural person is not excused from answering a question that the person is required to answer by a member of a Commission on the ground that answering the question might tend to:

(a)   incriminate the person; or

(b)   make the person liable to a penalty.”

52. Section 6DD, which was introduced in substance by the Royal Commissions Act 1912 (Cth) (the 1912 Act) but put into its current form by the Royal Commissions and Other Legislation Amendment Act 2001 (Cth), relevantly provides that:

“(1)   The following are not admissible in evidence against a natural person in any civil or criminal proceedings in any court of the Commonwealth, of a State or of a Territory:

(a)   a statement or disclosure made by the person in the course of giving evidence before a Commission;

(b) the production of a document or other thing by the person pursuant to a summons, requirement or notice under section 2 or subsection 6AA(3).

(2)   Subsection (1) does not apply to the admissibility of evidence in proceedings for an offence against this Act.”

53. The interesting and very important question of construction raised on appeal is whether s 6DD proscribes the use of evidence given on compulsion in a Royal Commission defensively — that is, in the context of the present case, in order to sustain a defence of fair report in later defamation proceedings.

54. There is no doubt that criminal or civil proceedings could not have been brought against the appellant by reference to the evidence he gave in the Royal Commission.

55. There is also no doubt that the question raised at [53] above would be answered “no” had the chapeau to s 6DD(1) in terms read “[t]he following are not admissible in evidence against a natural person in any civil or criminal proceedings against that person in any court …” But can it be interpreted that way?

56. The primary judge held that it could be and, consequently, rejected the objection to the admission into evidence of the transcript of the appellant’s evidence before the Royal Commission: see Feldman v Nationwide News Pty Ltd [2018] NSWSC 715. His Honour’s reasons for so holding were subsequently endorsed by Jagot J in Herron v HarperCollins Publishers Australia Pty Ltd [2020] FCA 805 at [23] (Herron).

57. The appellant submitted that the primary judge erred in rejecting his objection to the tender of the transcript of his evidence in the Royal Commission for the following reasons:

“(i)   The language in the state act is not sufficiently different to the federal act. An ‘answer’ (s 17 State Act) is in substance no different to a ‘statement, or disclosure’ (s 6DD). Hatfield should have been applied.

(ii)   The language of the statute is clear and unambiguous. See Chubb Insurance Company of Australia v Moore (2013) NSWCA; (2013) 302 ALR 101 at 82. The words ‘civil proceedings’, referred to in s 6DD include any civil proceedings, not just one involving a civil penalty. Had the legislature intended such a limitation upon s 6DD, it would have used the expression ‘civil penalty’ as it does in s 6A of the Act. See also Cline v Deputy Federal Commissioner of Taxation (1981) 150 CLR.

(iii)   It is the compulsion to give evidence, without the right to object on the basis of self-incrimination, that creates the opportunity for the journalist to report evidence. The abrogation of the privilege against self-incrimination is to enable a Royal Commission to properly exercise its statutory function. In exchange for the abrogation of the right to exercise privilege against self­incrimination, the legislature has intended to confer a significant concession upon any person compelled to give evidence. This concession must be read in the broadest terms. The abrogation of the right to assert privilege is to enable the Royal Commission to achieve its stated aim, and no more. This right is abrogated not for some other additional purpose, such as enabling a defendant to make good a claim of fair report in defamation proceedings. Although the legislature has abrogated such a significant right, it's intention was to do so on strict terms, and if the legislature intended any loosening of such terms, in the manner determined by the trial judge, this would have been stated with ‘irresistible clearness’. See Saeed v Minister of Immigration and Citizenship (2010) 241 CLR 252 at para 15”.

The primary judge’s reasons

58. The primary judge concluded (at [19]) that:

“… looked at in its own context, s 6DD of the Commonwealth Act is concerned, by use of the expression ‘against a natural person in any civil or criminal proceedings’, with the use of the compelled evidence to establish a civil liability or criminal responsibility in the person whose privilege was abrogated by s 6A. It does not seem to me it has any wider meaning, although I accept that questions of liability and responsibility may arise in a variety of different contexts”.

59. In reaching this conclusion, the primary judge drew heavily on the Second Reading Speech which accompanied the introduction of s 6DD in its original form in 1912. As shall be seen, the section has been amended a number of times subsequent to its introduction, but with no material alterations bearing on the question that was before the primary judge and which is now before this Court. The relevant portion of the Second Reading Speech is considered further at [80] below.

60. In reaching his conclusion, the primary judge declined to follow the reasoning of Young JA (with whom Sackville AJA agreed) in Hatfield v TCN Channel Nine Pty Ltd (2010) 77 NSWLR 506; [2010] NSWCA 69 (Hatfield) in relation to a similar provision, namely s 17(2) of the Royal Commissions Act 1923 (NSW), which provided that:

“An answer made ... by a witness to or before the commission shall not, except as otherwise provided in this section, be admissible in evidence against that person in any civil or criminal proceedings.”

61. Young JA, purporting to apply R v Bayeh [1999] NSWCCA 82 (Bayeh), held that “against” meant “in any way against that person's interest.” This, the appellant submitted, would preclude the admission of the transcript from the Royal Commission to found a fair report defence. Such a defence, it was contended, was obviously against the appellant’s interests.

62. The primary judge (at [17]–[20]) considered that this aspect of the decision in Hatfield was obiter, and that Bayeh did not in any way support Young JA’s construction. Jagot J was of the same view in Herron.

63. The heart of the primary judge’s reasoning was contained at [21]–[23] as follows:

“21 … the transcript was to be put into evidence for a limited purpose under s 136 of the Evidence Act and that purpose is simply to make good the defence of fair report, arising both at common law and under the provisions of s 29 of the Defamation Act 2005 (NSW). The argument was put that to determine whether the articles impugned by the plaintiff were covered by the fair report defence, one had to look at the articles in the light of the whole of the evidence given by Rabbi Feldman. In my judgment there is force in this argument at a practical level. There is also force in the argument at a legal level, because, as Mr Dawson pointed out, principally by reference to the judgment of Brennan J (as the Chief Justice then was) in Stephens vWest Australian Newspapers Limited (1994) 182 CLR 211 at 247, fair report had been recognised as a defence to an action in defamation at common law since at least 1895. However, more importantly, perhaps, Brennan J regarded it as an aspect of the qualified privilege defence.

22   Brennan J's analysis was applied by Gaudron and Gummow JJ in Chakravarti v Advertiser Newspapers (1998) 193 CLR 519 at 556 [88] - [90]. The significance of this was argued to be that, applying the principle of legality, the Court could not construe s 6DD to deprive the defendant of its common law privilege unless the clear words or necessary intendment of the provision made that unavoidable. I think there is force in this submission. It seems to me that there is a difference in admitting the evidence ‘against’ Rabbi Feldman on the one hand, so as to establish against him some civil liability or criminal responsibility, and admitting it in proceedings instituted by him so that a defendant can legitimately make out a defence available to it.

23   I suppose linguistically there may not be much difference between admitting evidence in favour of one party and admitting it against another, because what favours one might disfavour the other. But it seems to me overall that it is not the purpose of s 6DD to deprive a party who is sued by a person who has given evidence before a Royal Commission, on the basis of the report of the evidence by that party, of its right, or ability, to propound a lawful defence to the action; even if making the defence good might mean admitting evidence given by the person before the Royal Commission.”

Approach to interpretation

64. By s 2(1) of the Acts Interpretation Act 1901 (Cth) and subject to any contrary intention, that Act applies to the interpretation of the Royal Commissions Act.

65. By s 15AA of the Acts Interpretation Act, the interpretation to be given to s 6DD of the Royal Commissions Act is “the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act)”. This interpretation is “to be preferred to each other interpretation.”

66. Section 15AB of the Acts Interpretation Act then provides:

“(1)   Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:

(a)   to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or

(b)   to determine the meaning of the provision when:

(i)    the provision is ambiguous or obscure; or

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