Feldman v Nationwide News Pty Ltd

Case [2020] NSWSC 26

Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Feldman v Nationwide News Pty Ltd & Ors; Feldman v Nationwide News Pty Ltd & Ors; Feldman v Nationwide News Pty Ltd & Ors; Feldman v Special Broadcasting Corporation [2020] NSWSC 26
Hearing dates: 8, 9, 10, 11, 16, 17 May; 5 July; 17 August 2018
Date of orders: 31 January 2020
Decision date: 31 January 2020
Jurisdiction:Common Law
Before: Campbell J
Decision:

See paragraph [326]

Catchwords:

DEFAMATION — capacity to convey pleaded imputations — where defendants published articles concerning evidence given by a Rabbi during the Royal Commission into Institutional Responses to Child Sexual Abuse — where articles allege reprehensible ignorance of the criminality of touching a child for sexual gratification — where majority of imputations conceded — whether articles conveyed additional imputations including to the effect that the plaintiff was ignorant of the moral wrongfulness of touching a child for sexual gratification

 

DEFAMATION — defences — justification — consideration of plaintiff’s evidence given to Royal Commission and a 2011 email exchange where plaintiff expressed views that instances of child sexual abuse ought not be reported to secular authorities in the first instance

  DEFAMATION — defences — protected report under statute — whether articles report the substance of proceedings
Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW), s 27(b)
Defamation Act 2005 (NSW), ss 25, 28, 29, 34, 35, 38, 39
Cases Cited: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158; [1998] NSWSC 4
Associated Newspapers Ltd v Dingle [1964] AC 371
Charleston v News Group Newspapers Ltd [1995] 2 AC 65
Clark v Ainsworth (1996) 40 NSWLR 463
Cook v Alexander [1974] 1 QB 279
Curistan v Times Newspapers Limited [2008] EWCA Civ 432; [2008] 3 All ER 923
DC v New South Wales [2016] NSWCA 198; [2016] Aust. Torts Reports 82 – 295
Fairfax Digital Australia & New Zealand Pty Ltd v Kazal (2018) 97 NSWLR 547; [2018] NSWCA 77
Farquar v Bottom [1980] 2 NSWLR 380
Feldman v Polaris Media Pty Ltd as Trustee of the Polaris Media Trading t/as The Australian Jewish News (No 2) [2018] NSWSC 1035
Greek Herald Pty Ltd v Nikolopoulous (2002) 54 NSWLR 165; [2002] NSWCA 41
John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 201 ALR 77
Lewis v Daily Telegraph Ltd [1964] AC 234
Manobendro Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; [1998] HCA 37
Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52
Skuse v Granada Television ltd [1986] EMLR 278 (CA)
Category:Principal judgment
Parties:

Proceedings No. 2016/38344
Yosef Yitzhak Feldman (Plaintiff)
Nationwide News Pty Ltd (First Defendant)
Herald & Weekly Times Pty Ltd (Second Defendant)

 

Proceedings No. 2016/277467
Yosef Yitzhak Feldman (Plaintiff)
Nationwide News Pty Ltd (Defendant)

 

Proceedings No. 2017/244766
Yosef Yitzhak Feldman (Plaintiff)
Nationwide News Pty Ltd (Defendant)

  Proceedings No. 2016/38360
Yosef Yitzhak Feldman (Plaintiff)
Special Broadcasting Service Corporation (Defendant)
Representation:

Counsel:
Mr J Cohen (Plaintiff) (for all but 17 August 2018 when the plaintiff was self-represented)
Mr A T S Dawson SC with Ms L Barnett (Defendant)

  Solicitors:
Jacobs Legal (Plaintiff)
M & K Lawyers Group Pty Ltd (Defendants in Nationwide News Proceedings)
Lesley Power, Special Broadcasting Service Corporation (SBS proceedings)
File Number(s): 2016/38344; 2016/277467; 2016/38360; 2017/244766
Publication restriction: Nil

Judgment

  1. These four proceedings claiming damages for defamation were heard together, with evidence in one standing as evidence in the others, insofar as relevant to the others. The plaintiff in each is Rabbi Yosef Feldman. Each proceeding arises from the publication at various times between 6 February 2015 and 30 November 2016 of one or more print-news and online articles reporting on: Rabbi Feldman’s evidence given to the Royal Commission into Institutional Responses to Child Sexual Abuse (“the Royal Commission”) on 6 February 2015; the publication of the submissions of Counsel Assisting on the Royal Commission’s website on 18 September 2015; and the publication of the Royal Commission’s report on this part of its investigation (Case Study No. 22) in October 2016. There are eight articles in all, spread across the four proceedings.

The proceedings

  1. The first proceeding is 2016/38344. There are five defendants. The first defendant was Nationwide News Pty Ltd; the second The Herald and Weekly Times Pty Ltd; and the third to fifth are three journalists who wrote the various articles. This proceeding was referred to at the hearing as the “News 1” proceeding. Four news articles in different publications are complained of. Not strictly in chronological order, they are Exhibits A, B, C and D referred to below.

  2. The second proceeding is no. 2016/277467. The first defendant is Nationwide News Pty Ltd and the second defendant, a journalist. This proceeding relates to two articles published on 19 September 2015 which are Exhibits E and F below. This proceeding was referred to as the “News 2” proceeding at the hearing.

  3. The third proceeding is no. 2016/38360 and the sole defendant is the Special Broadcasting Service Corporation (SBS). The proceeding arises out of one article published online on 6 February 2015 which is Exhibit H referred to below.

  4. The fourth proceeding is 2017/244766. The first defendant is Nationwide News Pty Ltd and the second the journalist who is the fourth defendant in the News 1 proceedings (who was not served and did not appear). This proceeding was referred to at the hearing as the “News 3” proceeding. The matter complained of is an article published on 30 November 2016, reporting on the report in Case Study No. 22. These proceedings are referred to as the News 3 proceeding. The article is Exhibit G below.

  5. In due course I will dismiss the proceedings against the journalist who is the fourth defendant in the News 1 proceeding and the second defendant in the News 3 proceeding.

  6. For the reasons expressed below I have decided that Rabbi Feldman has not made good any of his claims of defamation. Without in any way seeking to qualify my reasons I think it apposite to observe that the central matter complained of amounts to no more than the media accurately reporting Rabbi Feldman’s own words chosen by him to explain himself in evidence he gave before the Royal Commission. They were not taken out of context.

Imputations

  1. The articles in question (Exhibits A to H) are listed in this paragraph. It will be obvious that the series of articles were not tendered in strict chronological order. This was a function of the order of commencement of the four separate proceedings and choices made by counsel. Nothing much turns on the chronology, but it may make sense to deal with the articles in order of publication. The chronology of publication is: C, H, A, D, B, E, F and G. The articles are:

  • Exhibit A: ‘Rabbi in the dark on abuse law’, The Australian online, published 12AM 7 February2015 (News 1).

  • Exhibit B: ‘Controversial Rabbi, Yosef Feldman resigns amid furore over sexual abuse comments to Royal Commission’, News Local online (Wentworth Courier), published 11:52PM 11 February 2015 (News 1).

  • Exhibit C: ‘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 6 February 2015 (News 1).

  • Exhibit D: ‘Rabbi out of touch, Jewish leader ignorant on child abuse’, Herald Sun, published 7 February2015 (News 1).

  • Exhibit E: ‘Rabbi Yosef Feldman accused of mixed messages on child abuse’, The Australian online, published 12AM 19 September2015 (News 2).

  • Exhibit F: ‘Rabbi Yosef Feldman accused of mixed messages on child abuse’ The Weekend Australian, published 12AM 19-20 September 2015 (News 2).

  • Exhibit G: ‘Royal commission says Jewish leaders ‘failed’ abused children, The Australian online’, published 12AM 30 November2016 (News 3).

  • Exhibit H: ‘Rabbi feared friend would be jailed’, SBS NEWS online, published 6 February 2015 (SBS).

  1. In their written submissions, Mr ATS Dawson SC and Ms L Barnett grouped the imputations relied on in respect of each matter into the following categories. I did not understand Mr Cohen of counsel who appeared for Rabbi Feldman on all but the last day of hearing nor Rabbi Feldman himself, who was self-represented on the last day, to take issue with this convenient organisation of the matter.

  2. Exhibits A, B, C and D are said to convey imputations (a) and (b):

  1. 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.

  2. 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.

  1. Exhibit D is said also to convey imputations (c), (d) and (e):

(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.

  1. Exhibits E and F are said to convey imputations (f), (g) and (h):

(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.

  1. Exhibit G is said to convey imputations (i) to (m):

(i)   The plaintiff was significantly involved in the cover up of multiple acts of paedophilia.

(j)   The plaintiff was significantly involved in endangering children by allowing perpetrators of child sex abuse to remain associated with the Chabad organisation.

(k)   The plaintiff discouraged victims of child sexual abuse from reporting abuse.

(l)   The plaintiff was significantly involved in endangering children by covering up multiple acts of paedophilia.

(m)   The plaintiff so conducted himself so as to warrant being singled out by the Royal Commission (the Royal Commission into Institutional Responses to Complaints of Child Sexual Abuse in relation to Melbourne and Sydney Yeshiva) as being the most egregious example of the failure of the leadership of the ultra-orthodox community to appropriately respond to allegations of child sexual abuse.

  1. Exhibit H is said to convey imputation (n):

(n)   The plaintiff displayed reprehensible ignorance of the fact it was against the law for an adult to sexually touch the genitals of a child.

Meaning and other issues

  1. Mr ATS Dawson SC, who appears for the defendants with Ms L Barnett, for the defendants accepts that each of Exhibits A, B, C and D would convey to the ordinary reasonable reader imputation (a) or alternatively imputation (b). (Written submissions, 16/05/18 pp7-10)

  2. Counsel for the defendants dispute that Exhibit D would convey either of imputation (c), (d), or (e) to the ordinary reasonable reader.

  3. Counsel accept that Exhibits E and F would convey imputations (f), (g) and (h).

  4. Counsel for the defendants say that the imputations asserted to arise from Exhibit G are “strained and forced” and on that basis submit that imputations (i), (j), (k), (l), (m) would not be conveyed to the ordinary reasonable reader.

  5. Finally counsel for the defendants accept that the SBS article, Exhibit H, would convey imputation (n).

  6. The defendants also rely on the defences of justification, fair summary of a public document and fair report of proceedings of public concern under ss 25, 28 and 29 of the Defamation Act 2005 (NSW) (“the Act”). Fair summary is relied on in relation to Exhibit G. Fair report is advanced as a defence to each of the other articles (Exhibits A,B ,C ,D ,E ,F and H). Justification is advanced in respect of all imputations which may be found to have been conveyed except imputations (c), (d) and (e) said to arise from Exhibit D.

  7. Issues as to damages include the question of mitigation under s 38(1)(c)-(e) of the Act.

Factual matrix

  1. All of the articles complained of by the plaintiff are reports of aspects of the proceedings of the Royal Commission. It is convenient therefore to set out that material now as it provides the matrix from which the issues arise. I propose to provide background by setting out matters found by the Royal Commission in its report on Case Study No. 22. The manner in which the matter was conducted before me makes it important to know something of the origins and beliefs of the so-called ultra-orthodox Jewish movement of which the plaintiff is an adherent and some aspects of Jewish law which shape attitudes within that part of the Jewish community. There are various sources available in the evidence but as these matters are dealt with by the Royal Commission in the report I have found that a convenient reference point. Little if any of this is in dispute.

  2. It is also appropriate to say something of the case of child sexual abuse allegations made against a rabbinical student referred to as AVL. This is because it was during his examination about that matter that Rabbi Feldman gave the evidence the subject of Exhibits A, B, C, D and H. Again, the report of the Royal Commission is a convenient and reliable source.

  3. I will then set out my summary of Rabbi Feldman’s evidence to the Royal Commission on 6 February 2015 relevant for present purposes to Exhibits A, B, C, D and H; the submissions of counsel assisting and those of Mr Strickland SC, who appeared for Rabbi Feldman before the Royal Commission, for the purpose of Exhibits E and F; and that part of the report of the Royal Commission relevant to Exhibit G. During this narrative I will intersperse the articles as appropriate.

The Royal Commission’s report of Case Study No. 22

  1. The report of the Royal Commission was admitted as Exhibit DTB 7. “DTB” is an initialism for the Defendants’ Tender Bundle. The bundle is a single volume and I will refer to it in this judgment simply as DTB followed by the relevant page number/s. The Commissioners who conducted this part of the inquiry were Justice Jennifer Coate (presiding), Mr Robert Fitzgerald AM, and Mr Andrew Murray. The scope of the case study is set out in pages 6 to 7 (DTB 546). An Executive Summary is provided (DTB 548).

The Chabad-Lubavitch Movement and relevant concepts of Jewish law

  1. The Chabad-Lubavitch Movement is explained and described in the following terms (p 8; DTB 548):

“Both Yeshivah Melbourne and Yeshiva Bondi are part of the Chabad-Lubavitch Movement, which is a sect of orthodox Judaism within the general class of movements described as Hasidism. Members of the Chabad-Lubavitch Movement are sometimes, but not uniformly, referred to as “ultra” orthodox Jews.

Although both Yeshivah Melbourne and Yeshiva Bondi are part of the Chabad-Lubavitch Movement, there is no formal relationship between the institutions and they operate independently of one another."

  1. “Chabad” is an amalgam derived from the Hebrew words for wisdom, comprehension and knowledge. The movement was founded in the village of Lubavitch, within the borders of modern-day Ukraine, 250 years ago. (p 12; DTB 552)

  2. In modern times the movement is based in New York. Its American leader known as “the Rebbe” is highly influential. There was significant expansion of the movement after the Second World War. The Rebbe dispatched emissaries known as Shluchim worldwide to encourage adherence to the precepts of ultra-orthodox Judaism (p 13; DTB 553). The Shluchim enjoyed significant status and influence in the communities “because they had been chosen by the revered Rebbe”. The faithful in Chabad-Lubavitch communities are required to strictly adhere to the obligations of the practice of the orthodox Jewish faith: modesty and gender segregation; daily prayers; dedication to Jewish study; and outreach to bring non-orthodox Jews closer to God. Members are expected to marry within the community only. The communities are insular with a limited level of engagement with the secular community and many parents limit their children’s exposure to the secular world through television, newspapers and other media.

  3. The Rabbi plays a fundamental role in guiding and leading their community, particularly in respect of the application of Jewish law (Halocho) to daily life (p 14; DTB 554). The community looks to the Rabbi for authoritative guidance and leadership. If the Rabbi is a Shluchim he has greater authority. It is not unusual for community members to seek guidance from a Rabbi about making any important life decision.

  4. The Commissioners made this finding about the influence of the Rabbi (p 14; DTB 554):

“The evidence identified that, in the period examined, the Rabbis had significant influence upon the thinking and conduct of members of Yeshivah Melbourne and Yeshiva Bondi communities (particularly the responses of those communities to the issue of child sexual abuse).

The evidence identified a common tendency to report events of child sexual abuse to a Rabbi rather than a secular authority such as the police...”

  1. Halachic conduct is of particular importance to members of the community and there is a focus upon whether conduct “is, or is not, halachically permitted” (p 15; DTB 555). Publicly calling for institutions within the community to be accountable for errors or failures or saying something negative against a senior Rabbi are considered grave sins (p 16; DTB 556). The punishment is “shunning”, or exclusion from the normal interactions within the community.

  2. Concerning the previously mentioned requirement of strict adherence to the obligations of the practice of the Jewish faith within the Chabad-Lubavitch communities and the loss of standing of those who contravened their obligations under Jewish law, the Commissioners found (p 19; DTB 559).

“A risked loss of standing inside the closed Chabad-Lubavitch community is a fearsome driver for compliance with the principles of Jewish law as interpreted by the Rabbis.”.”

  1. A number of concepts of Jewish law relevant to the case study are set out (at p 9; DBT 549). These are referred to as “Halachic” concepts. I will not set them all out. There is a requirement that disputes between Jews be resolved by Jewish rather than secular law referred to as arka’ot. Mesirah prohibits a Jew from informing on another Jew to secular authority. Moser is a term of contempt applied to a Jew who has committed Mesirah. Loshon horo is the act of gossiping about another Jew or a Jewish institution, even when what is said is objectively true. Some of these concepts have grown up in response to discrimination against the Jewish people by secular authorities in Europe in centuries past. There has been tension about the continuing relevance of these concepts in contemporary Australia in relation to child sexual abuse. The Royal Commission observes that “there is a tension in the evidence as to whether that controversy has been genuine or whether some members have misused the concepts to limit communication about, and publication of incidents of, child sexual abuse in the Yeshivah Melbourne and Yeshiva Bondi communities” (p 9; DTB 549).

Yeshiva Bondi

  1. Yeshiva Bondi was established in 1956. At relevant times it has conducted a day school and the Yeshiva Gedolah Rabbinical College. The Rabbinical College is a vocational training school for young men aged between 20 and 22 years of age who are seeking ordination (semicha) as Rabbis. The students assist as volunteers at the day school (p 25; DTB 565).

  2. Rabbi Pinchus Feldman is the Dean and spiritual leader of Yeshiva Bondi. He is a Schluchim of the Rebbe.

  3. Rabbi Yosef Feldman is described by the Commissioners as follows (p 26; DTB 566):

“Rabbi Yosef Feldman is the son of Rabbi Pinchus Feldman …

In 1993, Rabbi Yosef Feldman was appointed as a supervisor of students of the Yeshiva Gedolah Rabbinical College and subsequently as Rabbinical administrator (a position he has held for approximately 15 years).”

  1. As Rabbinical administrator, Rabbi Feldman said he relied heavily upon his father for guidance and advice. His assumption was that Rabbi Pinchus Feldman would bring all matters of importance to his attention.

  2. Rabbi Yosef Feldman also held the position of President of the Rabbinical Council of New South Wales. When he gave his evidence, Rabbi Feldman was also the Rabbi of Southern Sydney Synagogue at Allawah in New South Wales.

Royal Commission findings about the AVL matter

  1. The Royal Commission sets out detail about the complaint made against rabbinical student AVL in July 2002 (p 66; DTB 606). This event provided much of the content for the examination of Rabbi Feldman by counsel assisting. The allegation made against AVL was that he touched a young male school student’s genitals and attempted to force the boy to touch his during a school camp on 12 July 2002. The complainant was a student under AVL’s care in his capacity as a volunteer at the day school. The complaint was brought to the attention of Rabbi Pinchus Feldman and Rabbi Yosef Feldman by the head of the primary school, a Mr Conway. I interpolate that the Royal Commission made no criticism of Mr Conway’s handling of the complaint. Indeed it found that he properly documented the complaint and reported the allegations to the relevant authorities. I should also record that when it was reported to him, Rabbi Pinchus Feldman directed that AVL was to be stood down from duties at the school until investigations were complete.

  2. Rabbi Pinchus Feldman and Rabbi Yosef Feldman met with AVL on the afternoon of 24 July 2002. The Royal Commission recorded in its report that Rabbi Yosef Feldman said that the only information he had received was that the complaint concerned “inappropriate behaviour with regard to children”. He also understood that the complaint was to be reported to police. He had limited recollection of the content of his meeting with AVL. Rabbi Yosef Feldman recalled that AVL denied any wrongdoing and that AVL spoke of leaving Australia and returning to his home in the United States. Rabbi Pinchus Feldman told AVL that he would not be given a semicha (ordination) unless he completed his studies at the rabbinical college.

  3. Rabbi Yosef Feldman gave evidence that after the meeting with Rabbi Pinchus Feldman, he met privately with AVL who told him that semicha was not so important to him. AVL admitted to Rabbi Yosef Feldman that he had lain with and massaged a child. Rabbi Yosef Feldman said at the time of this conversation he suspected that AVL might have been thinking of leaving Australia. He did not take any steps to inform anyone that AVL was contemplating leaving Australia. AVL left Australia soon after the meeting and returned to New York.

  4. Rabbi Yosef Feldman said he did not discover until after AVL had left that the complaint was to the effect that AVL had touched the child’s genitals. He said he thought that that conduct was probably a criminal offence (p 68; DTB 608).

  5. The Royal Commission found that the complaint about AVL concerned conduct which Rabbi Yosef Feldman (and from a Jewish perspective) regarded as “wrong, very wrong” (p 69; DTB 608), although, he did not know whether the conduct would constitute a secular crime. He did perceive that there could be civil or criminal ramifications arising from the complaint.

Rabbi Feldman’s evidence of 6 February 2015

  1. Rabbi Feldman gave evidence at the Royal Commission on 6 and 9 February 2015. The transcript of evidence is found behind DTB tabs 3 and 4 respectively (Exhibits DTB 3 and 4). I repeat that the articles the subject of the News 1 and SBS proceedings were written about the evidence of 6 February 2015. The News 2 proceeding reported on the written submissions of Counsel Assisting the Royal Commission, Ms Gerace (Tab 15). And the News 3 proceeding, the report of the Commission of October 2016 (Tab 7). The page numbers I will adopt are those in the DTB which are less cumbersome than the Commission’s page numbers.

  2. The evidence which was reported principally concerned what Rabbi Feldman said about his conversations with the alleged offender the rabbinical student, AVL. Rabbi Feldman confirmed an allegation had been made of inappropriate touching of a schoolboy attending the camp which was being investigated by Mr Conway, head of the school. He said when the matter was reported to Rabbi Feldman and his father, they had a meeting with AVL on the day following the complaint, that is on 24 July 2002. After the meeting, Rabbi Feldman had a private conversation with AVL.

  3. Rabbi Feldman said at meeting, his father said “We’ve heard that there’s inappropriate behaviour with regard to children and on that basis AVL really shouldn’t have anything more to do with children.” Rabbi Feldman said that they didn’t have an issue with him continuing his rabbinical studies while they saw whether the complaints were verified or not (DTB 26). AVL denied doing anything at the meeting. Rabbi Feldman said that if AVL was exonerated, the College would be happy to give him the semicha.

“AVL was quite worried about how things would be dealt with and he felt that maybe he would want to leave, possibly, and that’s why he asked the question whether, you know, he actually could leave and whether we would arrange for him this ordination. We told him that this was not possible because we don’t arrange ordination for people who aren’t studying with us and been tested by us.”

  1. AVL asked “what if I leave Australia?” and Rabbi Pinchus Feldman replied saying that “It’s not our decision what you decide to do in life … but the one thing we can tell you is if you leave you will not be getting semicha from us” (DTB 27). Rabbi Feldman agreed that his father was “certainly” not going to stop him from leaving. The Rabbinical College pays for the tickets of the overseas students to attend to study in Australia. Only in exceptional cases do they not pay (DTB 28). “The college usually pays a return ticket because they know that the student will want to go back home at the completion of the course” (DTB 29). Rabbi Feldman confirmed he had had another conversation with AVL (DTB 31) after the meeting with his father ended.

  2. Rabbi Feldman regarded AVL as “extended family” (DTB 34). He was a nephew of the wife of an uncle of the Rabbi. The Rabbi gave this evidence:

“Q:   You must have been concerned for your cousin or your relation by marriage that a complaint of child sexual abuse had just been made against him.

A:   Yes, I was. It came as I surprise to me that he would be involved in inappropriate behaviour, albeit at the time I didn’t know what inappropriate behaviour it was. Then he started telling me what the allegations were. But he told me that it was – I did ask him about it. He said, “a bit of touching. Maybe I massaged him a bit or whatever. What’s the issue with that”. You know sort of thing. That’s what he had told me. But even that I thought was really inappropriate. If the boy is already complaining it means that – you know, it means that – you know, it means that it inappropriate or else boys wouldn’t complain out of just a little touch sort of thing.”.”

  1. The Rabbi said that AVL told him (at DTB 35):

“that he was lying with [the boy]. He didn’t say that he went to bed with him. He was just lying with him, gave a massage or touched or that sort of thing”.

“AVL didn’t think its very inappropriate. He may have thought that its maybe not the norm, maybe that not everyone does that, but I don’t think he felt on a moral level it was inappropriate.”

  1. At DTB 36, the Rabbi agreed that he knew, probably from Mr Conway, that the complaints were about to be reported to the authorities. When asked whether he knew that one of the things that might occur is that a complaint would be made to the police, he said:

“I didn’t know, whether at that time much of the seriousness and of the legal liabilities 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.”

  1. When asked whether he recalled thinking that “what he did was highly inappropriate” the Rabbi said:

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

  1. When asked whether he knew that at the very least that it could be a crime he replied “Anything could be. I didn’t know that it is”.

  2. Counsel persisted asking whether he knew “It could be a crime of abuse against a child”. The Rabbi answered:

“I knew that there’s a lot of abusing against children that society has changed over the years, including whether you could hit a child, whether and I don’t know what the state at the moment is with regard to that. Anything could be, as I say, but I’m not – I didn’t think much about the ‘could-be’s’.” (DTB 37)

  1. The Rabbi understood that AVL would not be permitted to work with children and he was asked whether the reason for that was because the matter complained of “was sufficiently serious to warrant his removal”. The Rabbi answered:

“No, from a Jewish perspective, not necessarily from the legal prospective.” (DTB 37)

  1. In response to further questions, Rabbi Feldman said that he knew that the complaints had been made but he said he didn’t know whether they raised a criminal issue, nor did he know whether or how the legal system would deal with the issue. He said:

“I don’t think about how necessarily the secular authorities would deal. What I did think about was that I knew from a Jewish perspective it’s highly inappropriate. I understood that my father also felt that from a religious Jewish perspective it is inappropriate for someone who a child is complaining about abuse for him to continue dealing with children. That’s it.” (DTB 37.)

  1. The Rabbi agreed that, from what his father had said that he knew that the complaint could have been child abuse (at DTB 37-38). He was asked:

“Q.   You knew that abuse involving a child might expose someone to criminal liability, didn’t you?

A.   I didn’t think in those terms. People think in the terms of what they deal with and what they – are not in the business of thinking about how the society would deal with issues, and that’s not what I was thinking about, that’s not what I’m into. I didn’t think about what things should go to police, what shouldn’t go to police. The only thing really I think about is obviously the safety of people in doing what I can, and I strongly feel from a Jewish perspective what was being done was wrong, very wrong, and I told him so – I believe I told him so, because any abuse to a child in any way is wrong, not just sexual abuse, but any abuse, and if an abuse – and generally speaking and I don’t look – I wasn’t looking from a legal criminal perspective and that’s not how I think initially about anything.”

He added (at DTB 38):

“I look at Judaism as being extremely strict and a lot stricter than how society views things, and that’s the way I view issues and I don’t think much about how society would deal unless it’s necessary and it’s needed, as it is in certain issues, for example, in child sexual abuse today that it is extremely serious and society deals with it seriously. I found that recently. I didn’t know that in the past, by the way. I didn’t know how society would deal – I didn’t know the criminal code. There are certain things that I think is disgusting what society thinks is fantastic. Like, for example, if I may say so, there are new discussions about incest of being something which should be fine.”

  1. At DTB 39, Rabbi Feldman gave the following evidence:

“Q.   You know now that there has in fact been physical contact between [AVL] and a child?

A.   Correct.

Q.   You know that from your conversation with your father the complaint is being made that that contact might amount to abuse; correct?

A.   Not legal abuse. Abuse as in the term "abuse"; correct.

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 knew from a Jewish law perspective this was highly 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.”.”

  1. At DTB 45, the Rabbi gave this evidence:

“Q.   But your understanding was that the allegations involving [AVL] were that he touched the genitals of an underage boy.

A. I heard later. I don't think I heard at the time. If I would have heard that, then I would have probably thought that even from a Criminal Code that would probably be already something which is criminal. But, just the touching and massaging in itself, I only heard of that at that stage. I think I only found out about anything further much later on, not at that time.”

  1. At DTB 46, the Rabbi gave evidence that he did not take any notes of these conversations with AVL because “it’s not my style”. He was challenged about that answer as follows:

“Q.   Even though you have had a conversation with someone who has told you something has occurred that you, firstly, consider is highly inappropriate and, secondly, which you know might amount to child sexual abuse?

A.   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 –

… (He was interrupted)

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.”

  1. After that last question, the morning adjournment was taken. When the evidence resumed, counsel assisting asked (DTB 47):

“Q.   Rabbi, I just want to be clear that you understood the question that I asked you before the break. In 2002, at the time of 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 as 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 had 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 … "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.

Q.   Do you think that as the director of an incorporated entity responsible for running a school you should have known about crimes of child sexual abuse and what contact may result in abuse occurring?

A.   In general, yes, I would think a director should.”

  1. He explained his position by saying that he was not at all involved in day to day management and he relied on his father. He became a director to help. He added:

“So I do agree with you that in general a director of a children's organisation should certainly know all of the legal ramifications of being involved, but I relied on my father in that regard.” (DTB 47.)

  1. From DTB 57 on there is a long passage of cross-examination on the emails of July 2011 (DTB tabs 8-17) relating to what Jewish law required about reporting child sex abuse matters to the police (“the July 2011 emails”). On any reading of his emails Rabbi Feldman was propounding the premise that Jewish law required a complaint of child sex abuse to be made to the Rabbi rather than the police. It is unnecessary to descend into the detail of the argument for present purposes. The Rabbi could then investigate the circumstances before deciding whether secular authorities should be involved. A circumstance telling against their involvement was whether the perpetrator had sincerely repented.

  2. Rabbi Moshe David Gutnick was one of Rabbi Feldman’s correspondents. Rabbi Gutnick is a distinguished scholar and a judge of the Sydney Beth Din or Rabbinical Court. It is clear from their report (p 18; DTB 558) that the commissioners conducting the case study were impressed with and accepted his evidence. It is fair to say that Rabbi Gutnick expressed his disagreement with Rabbi Feldman’s view of the requirements of Jewish law in very strong terms. When cross-examined about Rabbi Gutnick’s opposing view (at DTB 92-3) Rabbi Feldman said he didn’t think that Rabbi Gutnick was addressing his “halachic issue”. He continued:

“I agreed with everything he was saying. He wasn't addressing my issue. If you notice, I brought a whole Halachic issue and sources and everything, and he just goes on with just a general sort of response, which I agreed to basically everything he was saying anyway. I was looking for serious Halachic grounds to be able to say that you can put someone in a position to be raped or killed in gaol even though he may be innocent and whether in those instances even then we should go to authorities which he didn't give me that explanation but I've worked out myself.”

The cross-examiner asked whether Rabbi Feldman thought Rabbi Gutnick was coming from a different perspective, Rabbi Feldman interrupted the question and said:

“But that perspective according to Jewish law isn’t good enough to be able to address my concerns according to Jewish law, and that he didn't respond to.”

  1. Because of the argument mounted by and on behalf of Rabbi Feldman about the scope of the fair report defence it is necessary to set out some of his evidence from the second day of hearing (9 February 2015) even though this post-dates the publication of Exhibits A, B, C, D and H. I will set out that evidence after dealing with articles complained of. It will be recalled that Exhibits E and F concern counsel’s submission and Exhibit G, the Royal Commission’s report into Case Study No. 22.

Exhibit C

  1. I propose to deal with the articles in chronological order rather than in the order in which they were introduced into evidence.

  2. The first article in time is Exhibit C published on the Herald Sun online on 6 February 2015 at 7:06 PM. Including the headline (and a photograph of Rabbi Feldman) the article consists of 23 paragraphs. The headline is as follows:

“Rabbi Josef Feldman tells royal commission he didn’t know it’s illegal for adults to touch children’s genitals.”.

  1. The opening seven paragraphs are as appears below:

“A HIGH’ profile Jewish leader says he didn’t know it was illegal for adults to touch the genitals of children.

Giving evidence to the Royal Commission into Institutional Child Sexual Abuse Rabbi Yosef Feldman said he was unfamiliar with child abuse laws.

He said even while director of the Yeshivah Gedola Rabbinical College he didn’t bother familiarising himself with the laws. ‘Obviously I knew I had certain obligations. I didn’t know what they were. I relied on my father,’ he said.

Rabbi Feldman’s father, Pinchus Feldman, has been Sydney’s top Rabbi since 1968.

Counsel assisting the commission Maria Gerace asked directly: ‘Did you understand that it was against the law for an adult to touch the genitals of another child?’

‘I didn’t know that as a fact,’ he said.”

  1. The article continued, recording that Rabbi Feldman was a director of the Yeshiva Corporation from about the age of 25 and that he gave evidence that he didn’t consider sexual abuse to be a common problem, his belief was that its prevalence (presumably in the wider community) was about “5 to 10 per cent”. The article went on to record that the exposure of Rabbi Feldman’s views expressed in the 2011 emails “sparked wide-spread outrage”. One of his 2011 emails was quoted. That email concluded with the words “I feel that if we as a Jewish leadership can’t deal with this and other issues bif nim (internally) were are showing ourselves to be impotent”. The article concluded by informing readers “the hearing continues”.

Exhibit H

  1. Exhibit H was published online by SBS News on the evening of 6 February 2015. The headline is “Rabbi feared friend would be jailed”. It then consisted of 20 short paragraphs. The first 11 paragraphs relate to the headline which concerns Rabbi Feldman’s fears for his friend David Cyrpys and emails he sent to Rabbi Moshe Gutnick about that matter. No imputations are said to arise out of that material. Exhibit H is said only to convey imputation (n), dealing with the same alleged ignorance of the law as imputations (a) and (b). There is also a reference to the July 2011 emails and then a reference to the 2002 investigation into the conduct of AVL. The article continues:

“AVL fled to the United States just 48 hours after the sex abuse complaint and just hours after a meeting with Rabbi Feldman and his father Rabbi Pinchus Feldman.

Rabbi Feldman said AVL had admitted lying down and massaging the victim but said he did not believe, then, that it would fall into the category of child sex abuse.

Ms Gerace then questioned whether Rabbi Feldman knew in 2002 it was against the law for an adult to touch the genitals of a child.

He responded: "I didn't know that as a fact".

Rabbi Feldman also revealed that in 2002 he was probably unaware of his mandatory reporting responsibilities under NSW law.

He will continue to give evidence when the hearings resume on Monday.”

Exhibit A

  1. Exhibit A was published on the Australian on online at 12:00 a.m. on 7 February 2015. The headline was “Rabbi in the dark on abuse law.” The article carried a photograph of Rabbi Feldman and a further 15 paragraphs. The matter relevant to the pleaded imputations contained within the article is as follows:

“A RABBI who knew an accused child abuser might flee the country says he did not know at the time that it was illegal for an adult to touch a child’s genitals.

Yosef Feldman, the rabbinical administrator of Bondi’s orthodox Yeshiva centre, told the Royal Commission into Institutional Responses to Child Sexual Abuse yesterday that the prospect of criminal charges did not cross his mind when he spoke to the alleged abuser the day after a young boy’s mother notified Yeshiva College of her son’s allegation in 2002.

Rabbi Feldman said at the time he believed the allegation only ­related to the man, a rabbinical student and teacher’s aide known as AVL, lying down with the boy and massaging him.

‘‘I didn’t know it could have been a crime,’ Rabbi Feldman said. ‘‘I didn’t see that as necessarily being sexual ... (but) it could potentially be something which is highly inappropriate. 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 (when) I don’t think it is.’

Rabbi Feldman said he only learnt later that the complaint also involved allegations of genital touching. Asked if he had known it was against the law for an adult to touch a child’s genitals, he replied: ‘‘I didn’t know that for a fact.’

The article continued, reporting that AVL told Rabbi Feldman and his father that he may leave the country, that they thought they could not stop him, and that they did not inform the authorities. The article also dealt with the cross-examination on the July 2011 emails, but that is not the subject of the plaintiff’s complaint in this case. The article pointed out that the emails were written when Rabbi Feldman was president of the Rabbinical Council of New South Wales and recorded Rabbi Feldman’s evidence that he had changed his mind since July 2011 “but said no one had convinced him of the religious reasons why police should be automatically informed”. It also reported the response of the Executive Council of Australian Jewry to Rabbi Feldman’s evidence. As this part of the report is not the subject of complaint in the proceedings, I need not set it out.

Exhibit D

  1. Exhibit D was published in the Herald Sun Newspaper on 7 Saturday February 2015 on page 25. The article carried the following headline in bold large type:

“Rabbi out of touch.”

A second headline in smaller bold type was as follows:

“Jewish leader ignorant on child abuse.”

  1. The article was written by the same journalist as Exhibit C. Unsurprisingly it is very similar in content to Exhibit C but not the same. Additional matters are complained of. In particular it is said to convey imputations (c),(d), and (e) as set out above. The first four paragraphs read:

“A high-profile Jewish leader says he didn’t know it was wrong for adults to touch the genitalia of children.

Rabbi Josef Feldman told the Royal Commission into institutional child sexual abuse that he was unfamiliar with child abuse laws and even while direct of the Yeshiva Gedolah Rabbinical College didn’t bother familiarising himself with them.

‘Obviously, I knew I had certain obligations. I didn’t know what they were. I relied on my father,’ he said.

Rabbi Feldman’s father, Pinchus Feldman has been Sydney’s top Rabbi since 1968.

Counsel assisting the Commission Maria Gerace asked: ‘Did you understand it was against the law for an adult to touch the genitalia of a child?’

‘I didn’t know that as a fact, he replied.’”

  1. Like Exhibit C, the article went on to summarise Rabbi Feldman’s evidence about the prevalence of child sexual abuse which he did not believe “was very common” as well as his previously stated views that child sexual abuse should in the first instance be reported to a Rabbi, and only passed onto the police if the Rabbi was in no doubt about the truth of the complaint. Reference was made to the response to Rabbi Feldman’s July 2011 emails. No complaint is made about how these matters are reported and the article concludes with the statement “the hearing continues”.

Exhibit B

  1. Exhibit B was reported in the Daily Telegraph on-line on 11 February 2015 at 11:52 p.m., which carried a photograph of Rabbi Feldman with the headline:

“Controversial Rabbi Josef Feldman resigns amid furore over sexual abuse comments to Royal Commission.”

  1. The article commenced as follows:

“Controversial Rabbi Josef Feldman has resigned from a senior post after criticism over comments he made to a Royal Commission into child sexual abuse.

Rabbi Feldman appealed for leniency for repentant paedophiles and admitted not knowing in 2002 it was illegal for an adult to touch a child’s genitals. The comments were labelled by senior members of the Jewish community as ‘repugnant’ and ‘appalling’.

Today he stepped down as a director of the Board of Management of the Yeshiva Centre in Bondi, which includes his administrative responsibilities.”

  1. The article then quoted Rabbi Feldman’s statement apologising to persons “who may have been embarrassed or ashamed of my views, words, understandings, recordings or emails about child sexual abuse or any other matter”. It also reported the statement of the Yeshiva Centre thanking Rabbi Feldman “for his years of selfless dedication to the Centre”. The article continued:

“On Monday, Rabbi Feldman told the Royal Commission hearing that if he had a chance to lobby government he would ask for judicial leniency for repentant paedophiles.

‘I would be asking for more leniency on people who have shown they haven’t offended in the last 20 years or decades’, he said.”

  1. The article concluded with disapproving comments over Rabbi Feldman’s evidence from the President and Chief Executive of the New South Wales Jewish Board of Deputies.

Rabbi Feldman’s evidence of 9 February 2015

  1. When the hearing resumed on 9 February 2015, the Rabbi was cross-examined about the other matters referred to in the report of the Commission concerning convicted perpetrators David Cyprys and Daniel Hayman, who were friends of Rabbi Feldman occurring in 2013 and 2014 and his contact with a survivor Manny Waks (who apparently prefers to eschew the statutory anonymity available to him) (DTB 249).

  2. When examined by his own counsel, Mr Strickland SC, Rabbi Feldman was permitted to read from his own further statement of 6 February 2015 at DTB 2 (which was exhibit 22-25 in the inquiry). He stated that he had been affected by the evidence of the victims of sexual abuse. He felt deeply sorry for their suffering and he expressed deep sorrow “for the pain that they have experienced as a result of the vilification and abuse from the community for having reported or publicised that abuse”. He agreed that it is obligatory, without qualification, to immediately report all allegations of sexual abuse to the police. He agreed that people should be encouraged to report child sexual abuse without being in any way subject to shunning or bullying or being labelled a moser (or informer) and that all Rabbis should receive appropriate training. His written statement (DTB 250) concluded in this way:

“I regret that anything I have said or written in the past about matters of child sexual abuse which may have caused any victim or any family member of any victim to experience pain or suffering, I am very sorry if that’s the case.”

He also added an additional matter which was not in his written statement:

“As [of] today I am extremely sorry of what I wrote about Manny Waks. I really apologise for that publicly. Basically, I am very sorry for any of what my words could have caused hurt to anyone. That was never my intent to cause hurt to any person, and I sincerely apologise for that, and especially to child sexual abuse victims, which is a terrible and heinous crime, is compared to murder and has such an effect on the children as they grow up. I really sincerely apologise on behalf of myself, and I can say on behalf of – I believe all rabbis would have the same view, that’s basically my submission.”

  1. At DTB 251, after making his statement he was examined by Mr Strickland about the evidence he had given on 6 February 2015 about the AVL matter and his knowledge of the criminal law. It is important, I think, to bear in mind when considering this aspect of his evidence that Rabbi Feldman had read the press reports of his earlier evidence which had clearly stung him. At DTB 265 he asked if he could make a point and was given permission to do so by the presiding member of the commission. He said (in part):

“I would just like to say that I have been really defamed in the last two days by the papers in a serious way, both with regard to the Sun-Herald, that they said that I didn’t hold that it’s wrong to be able to touch a child; wrong, when I said clearly that it was very wrong touching, highly inappropriate, etc. What I said was I wasn’t 100 percent sure it was a crime: touching not fondling. They said – from all over the world, things that I hold that it’s fine, like, to fondle a child and it’s not wrong. It is total defamation.”

The presiding member sought to stop him making that statement by saying that he could take up issues of defamation with his lawyer. Notwithstanding this, he attempted to go on with this statement and referred to his concern that articles in the “Jewish News” might affect future witnesses before the presiding member again stopped him.

  1. With these matters in mind, at DTB 251 he gave evidence that he had only heard that the allegation against AVL involved fondling the genitals of a child “much later after he left the country”. He was asked the following questions:

“Q. If you knew or believed in July 2002 that [AVL] had fondled the genitals of a child indecently, that is with a sexual connotation or overtone, would you have known then that that was a crime?

A. Yes.

Q. When [AVL] had conversations with you and your father or you alone on July 24 or 25, 2002, did he tell you when he was going to leave Australia?

A. No.

Q. Did you know when he was going to leave Australia?

A. No.

…

Q. Have you ever tolerated any child sexual abuse in the Yeshiva Bondi or at the Yeshiva Gedolah?

A. Never.

Q. Have you ever discouraged any victim or alleged victim of child sexual abuse from reporting that abuse to the police?

A. Never.

Q. Do you have any problem or did you have any problem

with any victim or alleged victim from reporting the matter to the police?

A. No.

Q. Are you now more familiar with issues of child sexual abuse and mandatory reporting than you were in 2011?

A. Of course.”

  1. The evidence given by Rabbi Feldman on Monday 9 February 2015 was not the subject of any news report by any of the defendants, at least insofar as is in issue in these proceedings: cf Exhibit B.

Submissions of Counsel Assisting

  1. The written submissions of counsel assisting the Royal Commission for Case Study No. 22 run to some 129 pages. These were published and available to the public on 18 September 2015, the day following the hearing of oral submissions. They are reproduced at DTB tab 5. A summary, or perhaps compilation, of the 29 detailed findings contended for as available is at DTB 389-392.

  2. Concerning the complaint against AVL in July 2002, counsel assisting submitted (DTB 317) that it was available for the Commission to find that Rabbi Pinchus Feldman and Rabbi Yosef Feldman failed to tell key employees of Yeshiva College involved in responding to the complaint that AVL was thinking of leaving the country because of the complaint. Counsel pointed out that in fact he left the country less than 24 hours after being informed of the complaint against him on a return ticket which had been paid for by Yeshiva Gedolah. This was available finding F7. As a footnote to the published version of the written submissions states that the allegation was amended at the oral hearing on 17 September 2015 (DTB 426) to make clear that the return ticket had been “likely given to him when he travelled to Australia to study”.

  3. Findings were sought against Rabbi Yosef Feldman in relation to his handling of the complaint against AVL in the following terms:

“F8 As at 24 July 2002, Rabbi Yosef Feldman lacked understanding of:

Conduct amounting to child sexual abuse;

The criminal nature of child sexual abuse;

The obligations in New South Wales to report complaints of child sexual abuse to external authorities including the New South Wales Ombundsman.

F9 As at 24 July 2002, Rabbi Yosef Feldman was a director of Yeshiva College Limited which operated Yeshiva College, a director of STCA, which ran Yeshiva Bondi which had been Yeshiva Gedolah, a Rabbinical training college whose students were routinely involved in working with children. As a director and senior employee, Rabbi Yosef Feldman should have had an understanding of what conduct amounted to child sexual abuse and that child sexual abuse was a crime. Rabbi Feldman should have been aware of the statutory reporting obligations for responding to child sexual abuse.”

  1. Findings were also sought in relation to Rabbi Feldman’s views on child sexual abuse as expressed in the July 2011 emails (F11-F14). F11 in substance was a finding contended for by counsel assisting that Rabbi Feldman’s public statement on 26 July 2011, following the publication of his 21 to 25 July emails which had been “leaked” to the Australian Jewish News, to the effect he unequivocally accepted the 2010 Rabbinical Council of Victoria (“RCV”) resolution that there was a halachic obligation to report all abuse to the police, was not a true statement of his beliefs, but an exercise in public relations to seek to mitigate damage to his reputation.

  2. F12 was a finding contended for that as at 26 July 2011, Rabbi Feldman held a view that the prohibition of mesirah was relevant when considering whether or not to report allegations of sexual abuse to the authorities.

  3. F13 was a finding contended for that as at 26 July 2011, Rabbi Feldman was of the belief that allegations of child sexual abuse should be reported in the first instance to a Rabbi who should investigate the complaint to determine whether or not to report it to the authorities. A relevant consideration was whether the Rabbi assessed that the perpetrator had repented.

  4. F14 was a finding contended for that the Rabbi’s views were in part motivated by his friendship with David Cyprys, who was being investigated for allegations of historical sexual abuse. I interpolate he was later convicted and received a gaol sentence.

  5. Findings were sought in relation to Rabbi Feldman’s contact with AVB, a survivor of abuse at the hands of Rabbi Feldman’s friend, Daniel Hayman, in 2013. These are findings F15 to F17. In substance, the Rabbi contacted AVB, not to support him but to question why he had reported the abuse to the police rather than to a Rabbi. He made the approach because he was angry that his friend had been charged and might go to gaol. When he contacted AVB, he knew Daniel Hayman had abused AVB. As late as November 2013, Rabbi Feldman continued to hold the beliefs, the subject of F13.

  6. Additional findings were also sought in relation to Yeshiva Bondi’s response to the conviction and sentencing of Daniel Hayman. These also involved Rabbi Feldman. In particular, F20 sought a finding that as late as July 2014 he was of the opinion that rabbinical organisations should not encourage people to report all allegations of child sexual abuse to the authorities and he did not accept that there was a halachic obligation for them to do so.

  7. Counsel assisting the Royal Commission also submitted that the views articulated by Rabbi Yosef Feldman in his supplementary statement to the Royal Commission dated 6 February 2015 were not a true representation of his views on the issue of child sexual abuse, but an attempt to rehabilitate his public reputation. It was submitted that the views expressed by him in 2011, 2013, 2014 and at the public hearing on 6 February 2015, demonstrated that he often approaches the issue of child sexual abuse from the perpetrator’s perspective, rather than from the child’s perspective.

  8. In the body of the submissions detailed reference was made to the evidence concerning the 2002 complaint against AVL (at [193]-[201]; DTB 313-315). In relation to the apparent inconsistency between Rabbi Feldman’s evidence on 6 February 2015 and 9 February 2015, Counsel Assisting submitted:

“It is submitted that the certainty of his response to his counsel on this point cannot be reconciled with his earlier ambiguity and repeated assertions that he did not know much about the criminal nature of child sexual abuse in 2002. It is submitted that it is likely that his response was motivated by the public response to his evidence given at the Commission on an earlier date.

  1. It was also submitted (at [195]-[196]; DTB 313-4):

“In any event, Rabbi Yosef Feldman was not being asked about his knowledge about significant crimes only whether he knew that child sexual abuse was a crime.

…Rabbi Yosef Feldman was given many opportunities to accept the proposition that depending on what was massaged by AVL at the time, the conduct might amount to a crime; he resisted those propositions and argued that he did not understand the criminal nature of child sexual abuse in 2002.”

  1. Finally, in support of available findings F22 and F23 referred to in substance in the penultimate preceding paragraph, the following detailed submissions were made (DTB 329-330; [269]-[271]):

“Rabbi Josef Feldman said during questioning that he now accepts that all allegations of child sexual abuse, even historical allegations, should be reported to the authorities.

However, it is submitted that the evidence before the Royal Commission demonstrates that Rabbi Josef Feldman expressed opposite views in 2011, 2013 and 2014. It is submitted that the views expressed by Rabbi Josef Feldman at the public hearing about the consequences for paedophiles whose crimes were committed many years before and who had since ‘repented’ leads to a conclusion that the views set out in his statement of 6 February 2015 should be approached with some scepticism.

It is submitted that Rabbi Josef Feldman’s behaviour and the views expressed in his emails over the years are incapable of being rationalised with his insistencies that he believes that any allegation should be reported to the police immediately. It is submitted that the views set out by Rabbi Josef Feldman in his statement of 6 February 2015, should be seen as statements made to rehabilitate his reputation publically, rather than expression of his true beliefs on the appropriate and halachically obligated response to allegations of child sexual abuse.”

  1. It may be important to bear in mind that the submissions of counsel assisting (at DTB 319-320) recorded evidence that had been given by Rabbi Feldman that his motivation for the views expressed in the July 2011 emails was “to encourage the Jewish community to address its problems internally and not just leave it to others to deal with” (at [291]). It also recorded his evidence that his support for the adoption of the 2010 RCV resolution was to support its adoption “by the rabbinate and the broader Jewish community” (at [224]).

Exhibits E and F

  1. Exhibits E and F are virtually identical. Exhibit E was published in the Australian online at 12 a.m. on 19 September 2015. Exhibit F was published in the Weekend Australian newspaper for 19 and 20 September 2015. The only possible material difference between them is that the online publication had the following headline:

“Rabbi Josef Feldman accused of mixed messages on child abuse”

And the newspaper version:

“Rabbi’s ‘mixed messages on abuse’.”

There is no real difference in substance between them.

  1. Each article was of 12 paragraphs. The most relevant for present purposes are follows:

“One of the most senior religious figures of the Jewish ultra-orthodox movement in NSW, Rabbi Yosef Feldman, allegedly engaged in a disingenuous “public relations” exercise in urging sexual abuse victims to contact police as he privately pressured his flock not to report outside the community.

In a scathing submission to the child sex abuse royal commission released yesterday, counsel assisting, Maria Gerace said Rabbi Feldman refused to accept that Jewish organisations had a responsibility to report the sexual abuse of children to secular authorities, despite publically stating the opposite.

She said his public statements in 2011 supporting calls for rabbinical organisations to encourage victims to report claims to police were merely an attempt to mitigate damage to his reputation caused by the publication of emails attacking the victims of sexual abuse.

In explosive evidence to the royal commission in February this year, Rabbi Feldman, formerly the president of the Rabbinical Council of New South Wales, said Jewish leaders should not publically encourage victims to go to police because it fed media “hype” and caused “fake” victims to make up allegations.

Ms Gerace said a subsequent and supplementary submission to the commission by the rabbi in which he tried to distance himself from his evidence was not a true representation of his views but ‘an attempt to rehabilitate his public reputation’.

The views expressed by Rabbi Yosef Feldman in 2011, 2013, 2014 and at the public hearing (of the royal commission) demonstrate that he often approaches the issue of child sexual abuse from the perpetrators perspective rather than from the child’s perspective,” she said.

As at July 26, 2011, Rabbi Yosef Feldman held a view that allegations of child sexual abuse should in the first instance be reported to a rabbi, who should investigate the complaint and determine whether or not to report to the authorities.

Rabbi Yosef Feldman believed that a consideration for a rabbi in deciding whether or not to report an allegation was when the abuse was committed and whether the perpetrator had repented or changed.”

  1. The journalist recorded that the submissions were “scathing of the Yeshiva Centre in Sydney and its sister organisation in Melbourne, the Yeshivah Centre, for funding sexual abusers of children to flee Australia and hindering police investigations”. The article concluded with 3 paragraphs referring to Rush J’s decision in a civil claim for damages brought by the victims of an abuser at the Adass Israel School in Melbourne. The newsprint version, Exhibit F, was printed on the same page as a longer story by a different journalist reporting on Rush J’s decision at some length.

Exhibit G

  1. As I have said, the Royal Commission’s report on Case Study No. 22 was published in October 2016. Exhibit G was published in the Australian online at 12 a.m. 30 November 2016. It carried the headline:

“Royal Commission says Jewish leaders “failed” abused children.”

  1. A photograph of Rabbi Yosef Feldman appeared immediately under the headline. The balance of the article consisted of 8 paragraphs. The whole article is as follows:

“Children abused within ultra-orthodox Jewish communities in Sydney and Melbourne were failed by religious leaders who stridently or incorrectly applied religious principles to keep the abuse from police and the public.

The Royal Commission into Institutional Responses to Child Sexual Abuse has lambasted the leadership at Yeshiva Bondi and Yeshivah Melbourne, with a report released yesterday finding allegations prompted little, if any, actions and perpetrators were allowed to remain associated with the Chabad organisations.

The Commission found that there was strong evidence victims had been discouraged from reporting abuse because of the way halachic (Jewish law) principles were applied, including prohibitions on informing on other Jews to secular authorities.

It found Rabbi Yizchok David Groner, who led Melbourne’s Yeshivah Community until his death in 2008, had ignored multiple reports of abuse by paedophiles David Cyprys and [AVL], with other rabbis also publically discouraging victims from speaking out.

‘Criticism of those who spoke out was forceful’, the Commission said.

‘There was a marked absence of support of leadership for survivors of sexual abuse’.

It noted that neither he or his father, Rabbi Pinchus Feldman, had taken steps to inform anyone that a rabbinical student accused of molesting was thinking of leaving the country, saying that they didn’t believe an obligation existed to inform police.

The Commission singled out a formerly senior figure at Yeshiva Bondi, Rabbi Yosef Feldman, who resigned from his role as a director on Yeshiva’s Board of Management following his testimony.

The executive council of Australian Jewry and the New South Wales Jewish Board of Deputies said they would continue to seek changes to address a ‘systemic failure.’” (My emphasis)

  1. There was much controversy at the hearing about the obvious editing error resulting in the transposition of the paragraphs I have italicised. I am of the view that the ordinary reasonable reader, being of fair average intelligence would pick up the error immediately and reorganise the flow of the article in his or her own mind as he or she read on. At most a moment’s reflection may have been necessary.

Submissions on behalf of Rabbi Feldman

  1. Although neither Exhibits E or F, or any other press report in evidence, refer to the written submissions prepared on behalf of Rabbi Feldman by Mr Phillip Strickland SC, who appeared for him at the Royal Commission hearings, it is appropriate to summarise aspects of them to deal with Rabbi Feldman’s argument about fair report. Mr Strickland was apparently unavailable to appear before the Royal Commission in September 2015 and Rabbi Feldman was then represented by Mr Greg Smith SC.

  2. Mr Strickland’s submissions are dated 5 August 2015, run to some 50 pages, and take issue with, and seek to contradict, the findings adverse to Rabbi Yosef Feldman which counsel assisting contended were available. Mr Strickland’s submissions would have been published at the same time as the submissions of counsel assisting, probably on 18 September 2015, on the Royal Commission’s website. By way of general introductory matters, the submissions reminded the Commission of the Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 “standard” applicable to the making of adverse findings. Senior counsel argued that the personal views of Rabbi Feldman are not relevant to the matters to be investigated in the case study and in any event, the Commission should accept the Rabbi’s statement of 26 July 2011 of adherence to 2010 RCV statement that secular law must be observed, and that whatever his personal beliefs about halachic obligations, the Rabbi’s personal beliefs were not an impediment to reporting, investigating or responding to allegations and incidents of abuse.

  3. It was also argued that the Royal Commission should accept the content of Rabbi Feldman’s supplementary statement of 6 February 2015, particularly given the absence of evidence of the toleration, concealment or cover-up of instances of child sex abuse or the discouragement of any particular victim at Yeshiva Bondi or Yeshiva Gedolah.

  4. In relation to proposed findings F6 and F7 about AVL leaving the country, Mr Strickland submitted that the Rabbi did not know that he intended to leave the country, his flight was not funded to hinder any investigation, but was by way of an open return ticket paid for by the Rabbinical College at the time AVL was accepted as a student. As might be expected, cogent arguments were put forward for rejecting each of the findings contended for by counsel assisting. It is unnecessary to summarise these matters as they are not the subject of any article.

The Royal Commission’s findings about the role of a Rabbi and his influence in the community

  1. The Royal Commission made these important findings (at p 10; DTB 550):

“We heard from survivors, and family members of survivors, whose communities ostracised them partly because the communities regarded them as having committed a sin in communicating with secular authorities about other Jews against whom allegations of child sexual abuse had been made. The communities held this belief despite the clarification contained in the 2010 RCV resolution.

….

We were told that the responses of the Yeshiva Bondi and Yeshivah Melbourne leadership groups to the adverse experiences of survivors and their families ranged from inaction to enabling those adverse experiences. The responses were perhaps in part to protect the reputations of individuals or the institutions concerned.”

  1. The Commission found that repeated reports of child sexual abuse were made on behalf of survivors who were assured action would be taken, but these assurances were apparently not acted on. Perpetrators were permitted a continuing association with, presence, or employment at, the institutions (p 11; DTB 551).

  2. The Royal Commission made this finding (p 16-7; DTB 556-7):

“We are satisfied that the application of Jewish law (in particular the concepts of mesirah, moser and loshon horo) to communications about reporting of allegations of child sexual abuse to secular authorities – in particular police – caused significant concern, controversy and confusion among members of the Chabad-Lubavitch communities.

The evidence strongly suggests that, because of the way in which those concepts were applied some members of those communities were discouraged from reporting child sexual abuse (particularly to the police).”

  1. Communication within the community could involve lochon horo while communicating to the police was mesirah contravening the concept of arka’ot. Persons who engaged in this conduct would be perceived as sinners and therefore lose status in the community or perhaps be shunned. Survivors and their families could be treated as outcasts if it became known that they had reported the offences to secular authorities. This lowered the families yichus (pedigree), significantly lowering their standing and the prospects of their children making good marriages.

  2. By its resolution in 2010 the RCV, referred to in other evidence in this case, stated that the prohibitions of Mesirah and arka’ot (keeping disputes in house) did not apply to information about child sexual abuse and that it is a halachic obligation to report child sexual abuse. The 2010 RCV resolution did not bring about immediate change in attitudes (pp 9-10; DTB 549-550).

  3. The Royal Commission recorded that Rabbi Moshe David Gutnick is a senior judge of the Sydney Beth Din (the Rabbincal Court) (p 18; DTB 558). His evidence was that in modern society there was no doubt that in Jewish law sexual abuse of children was a heinous, horrendous crime equated with murder: “Mesirah does not apply. You don’t call your Rabbi you call the Police”. The Rabbi also said that the teaching of the Lubavitch Rebbe in the early 1980’s was that Jewish law required those who witnessed an assault to report the matter to the secular authorities. The Rebbe declared that “whoever does not report a crime becomes a partner to the crime” (p 19; DTB 559). Rabbi Gutnick was of the view that Rabbis who contend mesirah applies to complaints of child sexual abuse were engaged in a “gross misuse of rabbinic power”.

  4. Concerning the previously mentioned requirement of strict adherence -to the obligations of the practice of the Jewish faith within the Chabad-Lubavitch communities and the loss of standing of those who contravened their obligations under Jewish law, the Commissioners found (p 19; DTB 559):

“A risked loss of standing inside the closed Chabad-Lubavitch community is a fearsome driver for compliance with the principles of Jewish law as interpreted by the Rabbis.”

The Royal Commission’s findings about Rabbi Feldman’s understanding of child sexual abuse issues

  1. The Royal Commission dealt with Rabbi Yosef Feldman’s understanding of issues in AVL’s and other cases under the headings “Understanding AVL’s Conduct as Criminal”, “Understanding of Mandatory Reporting Obligations” and Jewish law obligations concerning reports of child sex abuse (at p 70; DTB 610).

  2. The Commissioners recorded Rabbi Yosef Feldman’s evidence as being:

  1. he did not recognise AVL’s conduct was a crime or it was possible that AVL would be charged with a criminal offence;

  2. he did not know much about sex abuse at all and “it didn’t enter into his mind the whole idea of what’s considered a legal crime or not; what should be reported to the police or not”;

  3. he had only recently learned of the serious criminal nature of child sex abuse;

  4. he understood the allegations involved AVL touching the genitals of an underage boy, but AVL assured him he did not actually do anything wrong. “I just laid with him. I may have massaged him, but not inappropriately”;

  5. Rabbi Yosef Feldman regarded the behaviour as both highly inappropriate and suggestive of being sexual in nature; and

  6. the conduct was wrong from a Jewish perspective, but not necessarily wrong from a legal perspective.

  1. Under the heading of “Understanding Mandatory Reporting Obligations” the Commissioners found that Rabbi Yosef Feldman was (p 71; DTB 611):

  1. He was unaware of mandatory reporting requirements, which had been in force in New South Wales since 1988;

  2. between 2002 and 2015 he did not take any formal training or study as to how to respond to allegations of child sexual abuse;

  3. he had met AVL in New York after he had been ordained, but never mentioned the complaint as he did not want to embarrass AVL; and

  4. despite his role as a director of Yeshiva College, and Dean of Yeshiva Geldola Rabbinical College, Rabbi Feldman was either ignorant or ill-informed about conduct amounting to child sexual abuse; the criminal nature of child sexual abuse; and mandatory reporting obligations.

  1. For the purpose of determining Rabbi Feldman’s views of the Jewish law obligations about reporting child sexual abuse allegations to secular authorities, the Royal Commission analysed the July 2011 emails (at pp 71-75; DTB 611-5). The Royal Commission found that Rabbi Feldman had argued that the Rabbinate should adopt a position consistent with his understanding of the view of Agudah Yisroel of America (a Haredi Jewish umbrella organisation) that all complaints should be first made to a Rabbi who should then determine whether to involve secular authorities. He questioned the need to report allegations to police immediately.

  2. Rabbi Feldman had asserted in evidence that he had raised the matter to provoke discussion amongst the Rabbinate. He was motivated to send the emails because of what was going on in the community which caused him hurt and upset. He thought a colleague, Rabbi Groner was being unfairly vilified and because allegations of child sexual abuse were being made against friends of his he was “wondering from the Jewish perspective if they were being treated properly” (p 72; DTB 612). He said the purpose of his emails was to encourage the Jewish community to address this problem internally and not leave it to others. He conceded that some of the views he expressed were halachically wrong and said that he no longer adhered to the views he had expressed.

  3. Rabbi Feldman told the Royal Commission that some of the emails had been leaked to the press on 25 or 26 July 2011, resulting in public discussion and criticism. The Rabbi’s statement to the Australian Jewish News was received in evidence. The statement is as follows (p 72; DTB 612):

“Over the past few days there has been an internal halachic debate amongst the rabbinate of Australia relating to the serious and reprehensible issues of child abuse and the appropriate response.

Notwithstanding the complex halachic nuances and varied the opinions, the rabbinate of New South Wales under my presidency has unanimously endorsed the attached resolution from 2010 on this matter (2010 RCV).

I would like to unequivocally publicise my support and encouragement of the adoption of that resolution within the New South Wales rabbinate and the wider jewish community.”

  1. Although he said before the Commission that the statement was genuine, he qualified that by saying (p 73; DTB 613):

“I did have issues with [the halachic obligation to report allegations of abuse even if the abuse had occurred a long time ago], as it can be seen. But I ultimately accepted that that’s the right way to go not withstanding my expressed views of issues with regard to that. It has always bothered me, but the right thing was nonetheless to be able to go to the police.”

Justification defence: imputation (g)

  1. Imputation (g) is in the following terms:

“(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.”

  1. The elements material to this imputation are:

  1. At the relevant time of the conduct the plaintiff was one of the most senior religious figures of the Jewish ultra-orthodox movement of NSW and was formerly the president of the Rabbinical Council of NSW.

  2. The plaintiff pressured his flock not to report child sexual abuse to the police.

  1. There is no issue as to element (i)

  2. Regarding element (ii), the evidence relied upon by the defendants in their submission that imputation (f) is substantially true, is the series of emails that were sent by the plaintiff in or around 2011. They say the emails support the proposition that the plaintiff pressured his flock not to report child sexual abuse to police. The defendant concedes that an essential component of element (ii) of imputation (f) is the scope of the word “flock” and whether an expanded view of its meaning would include the senior Rabbis emailed by the plaintiff as being in the plaintiff’s “flock”. The defendant acknowledges the plaintiff’s argument in this regard, accepting that in ordinary usage “flock” would mean a group of followers of a religion or religious leader. The plaintiff submits that the word “flock” means “congregation” and therefore would not include the senior Rabbis.

  3. The gravamen of the defendants submission asserts that the plaintiff in holding his very senior position as the president of the Rabbinical Council of NSW “pressured members of his flock” by trying to persuade other senior members of the Jewish community by emailing them and urging them to adopt a system where members “of his and (and other) congregations would be pressured not to report allegations of sexual abuse to police”. This submission proceeds on the premise that the “plaintiff’s flock” includes other senior members of the Jewish faith, and the unproven proposition that their influence would trickle down to day-to-day practitioners by virtue of their various positions and standing in the community. With respect, as I have ruled in another context, I do not accept the word “flock” in the context of imputation (f) would be understood by the ordinary reasonable reader other than in its usual meaning in the religious context of “congregation”. I do not accept that the “plaintiff’s flock” included the rabbinical recipients of the emails of July 2011 who were Rabbi Feldman’s senior colleagues. Furthermore, I am not persuaded that the phrase “pressured his flock” contemplated a situation whereby it was these senior colleagues who were pressured rather than the synagogue-attending Jewish laity.

  4. As I said when dealing with the fair report defence in relation to Exhibits E and F, I accept that Counsel Assisting the Royal Commission did not use the expression “his flock” either in writing or orally.

  5. It must also be borne in mind that the report of the Royal Commission is before me as part of the evidence in the case. Although admitted for the purpose of determining the fair summary defence in relation to Exhibit G, once in, it is in for all purposes under s 60 of the Evidence Act 1995 (NSW). The Royal Commission’s finding (at p. 70; DTB 619) that when considering the issue of child sexual abuse, Rabbi Feldman’s focus is on the perspective of the perpetrator, rather than the victim is consistent with the evidence before me as I have recorded above. The views recorded in his various emails of 2011, 2013 and 2014 are inconsistent with the view that his statement in support of 2010 RCV resolution was genuine. It is my finding based upon the evidence before me that Rabbi Feldman adheres to the view expressed in the 2011 emails. The finding of the Royal Commission (p 80; DTB 620) that an institution can only act through its senior members who shape the response of the institution to allegations and incidents of child sexual abuse have an impact upon the way their community thinks about those matters is no more than a statement of the common experience of life. Likewise, the view that the actions and views of senior members of a religion will have a direct bearing on whether child sexual abuse survivors come forward at all. Given the central position of the Rabbi in the Jewish ultra-orthodox community and the requirement of strict adherence to Jewish law, together with the shunning and reduction in status of those who contravene it, it is not hard to conclude as the Royal Commission did that Rabbi Feldman’s views were influential within his community and were capable of affecting the decision of a member of the community about whether to report incidents of child sexual abuse. In my judgment these same considerations, informing an inferential reasoning process, persuade me on the balance of probabilities that imputation (g) is made good.

Justification defence: imputation (h)

  1. Imputations (h) is in the following terms:

“(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.”

  1. The elements material to this imputation are:

  1. At the relevant time of the conduct the plaintiff was one of the most senior religious figures of the Jewish ultra-orthodox movement of NSW and was formerly the president of the Rabbinical Council of NSW.

  2. The plaintiff refused to accept that Jewish organisations had a responsibility to report the sexual abuse of children to secular authorities.

  1. There is no issue as to element (i).

  2. As to element (ii), the submissions of the defendant in respect of the substantial truth of imputation (h) are as set out below (DWS at 16):

“The plaintiff’s refusal to accept that Jewish organisations had a responsibility to report may be inferred from the plaintiff’s insistence in a contrary system in his emails. The plaintiff continued to advance these views even in 2013 (Exhibit DTB-28).

Further, the plaintiff’s conduct with respect to [AVL], his interrogation of AVB as to his motivations for reporting, his ongoing support for Hayman and Cyprys and his failure to encourage and support the addition[al] victim of Hayman to report Hayman’s abuse are manifestations of this attitude.”

  1. Exhibit DTB-28 is an email written in 2015 by the plaintiff which is relied upon to support the substantial truth of imputation (g). It must be said that the email is centrally focussed upon a specific exchange between the plaintiff and Rabbi Moshe Gutnick, Rabbi Feldman’s uncle, in relation to the conviction for child sexual abuse of Daniel Hayman. The tenor of the whole of the email, set out below, is that of Rabbi Feldman asking Rabbi Gutnick, effectively, “are you satisfied now?” The email is in the following terms:

“Dear U Moshe

Are you happy that your strong statement to musser [informing/the act of giving over] with an understanding and clear outcome for anyone knowing of the statement (and like most people not learning it like a Gemoro …) is to musser in all instances and therefore was most likely (or certainly could have been …) the cause for [Hayman] to be now jailed for something he did 25 years ago…?

My thoughts on the matter as detailed in my dialogue on failed messiah [a website] was that the idea of going to a Rabbi should be seriously considered mainly for such instances where the offence was committed decades ago as a young person and now the person has certainly changed ….

But you had to humiliate me publically for this great ’benefit‘ for the community and even your empty apology was that you were right to come out as you did but you’re sorry that I was hurt in the process…

[Wise people should be careful with your/their words]…

Do you still think that you’re still right to have had to publicly embarrass me and also to come out with your strong statement??? What has been the tachlis benefits so far besides this great first one! And if you really think so and that such situations like [Hayman’s] should be mussered … !!!??? let’s see you be sincere with your strong position and come out with a personal or [Organisation of Rabbis of Australasia] statement that [Hayman] in jail is a great outcome … and let’s see what our frume [A religious/observant Jew] community would think of you …!!!

I think that it’s about time that you sincerely apologise to me and admit that your coming out so strongly against me was because you had a personal vendetta against me that I won the debate with you on line that the Agudah held my suggested view and we see now… for a good reason…

It is these personal vendettas that you come out [with] in a terrible personal way when someone disagrees with you, that causes you your main downfalls. Even now with the Kashrus if not for your personal vendetta against M Gershovitz (who all he did was to ensure a present full time job!!!) and therefore insisting he doesn’t have the decent full time job with AIT, was the main issue that caused the breakdown of the talks and has been now causing this whole communal fiasco. Many realise this unfortunate middo of yours and therefore are adamant of you not being in control of communal interests.

The first steps should really be for you to sincerely apologise to me for being mevayesh me Borabim. I’m anyway moichel you belayv sholaym anyway and mainly because I don’t want you to suffer in this world or the next because I really do care for you but I think the acknowledgement of your wrongdoing and bakoshas mechilo is the right thing for you to do and I believe would get you more brochois [blessing/success/good luck] from Hashem in all your needs and interests.

Kol Tuv [All the best]!!” (Original punctuation)

  1. Exhibit 26 was a glossary of Hebrew terms, although it does not appear on the Exhibit, I take musser to be a variant of moiser, which means, in substance, informer. Musser, I think, is the verb to inform. Unfortunately, the remaining untranslated Hebrew words used in the email do not appear in Exhibit 26 and thus I am unable to translate it entirely. However, in my view the sense of the email is clear enough even without all of the translations.

  2. Rabbi Feldman’s upbraiding of Rabbi Gutnick over the Hayman (who was not actually gaoled) matter is certainly consistent with the findings I have made in relation to his approach to the reporting of child sexual abuse complaints to secular authorities in my reasons relating to imputation (g).

  3. My conclusion about the substantial truth of imputation (h) is also reinforced by the evidence relating to: the plaintiff’s handling of the AVL matter; his interrogation of AVB about the role played by the 2010 RCV resolution in motivating AVB to bring his complaints forward; his ongoing support for Hayman and Cyrpys and his failure to admonish other supporters of Hayman who made intemperate comments about the victims or the process on line.

  4. The reference to responsibility in what I have styled element (ii) to imputation (h) is a reference to an obligation. Given the qualifications that Rabbi Feldman expressed in evidence about the meaning of the 2010 RCV resolution together with his other evidence about concern for alleged perpetrators, considerations of repentance, and the assessment of the credibility of complaints, all of which are consistent with his upbraiding of Rabbi Gutnick, I am comfortably satisfied that Rabbi Feldman refused to accept that Jewish organisations had an obligation to report the sexual abuse of children to secular authorities. In my judgment Rabbi Feldman at best regarded reporting such allegations to secular authorities is only one way of handling them, and not the best way from the “Jewish perspective”.

Conclusions on liability

  1. I have not dealt with the asserted imputations that I rejected. They are imputations (c), (d) and (e), said to have been conveyed by Exhibit D and imputations (i) to (m) said to have been conveyed by Exhibit G. It is a highly abstract exercise to attempt to run the ruler of justification over imputations which have been rejected.

  2. The defendants do not rely upon justification in relation to imputation (c), (d) and (e). It is quite clear from his evidence at the Royal Commission and before me that Rabbi Feldman did regard those matters as “morally wrong” from a Jewish perspective.

  3. Nor am I satisfied that he was significantly involved in the cover-up of multiple acts of paedophilia; that he was significantly involved in endangering children by allowing perpetrators of child sex abuse to remain associated with the Chabad Organisation; that he was significantly involved in endangering children by covering-up multiple acts of paedophilia; or as I have said, that he so conducted himself as to warrant being singled out as the most egregious example of the failure of the leadership of the ultra-orthodox community to appropriately respond to allegations of child sexual abuse.

  4. The only matter which might be regarded as any kind of “cover-up” is the AVL matter. Even there, however, there was no cover-up. Mr Conway reported the matter not only to Rabbi Pinchus Feldman and Rabbi Yosef Feldman, but also to the relevant secular authorities. Rabbi Feldman was, through his reprehensible ignorance, guilty of acquiescing in AVL’s flight from the jurisdiction. However one assesses the AVL matter there is certainly no suggestion of any involvement in covering up multiple acts of paedophilia or by endangering children but at conduct.

  5. Although he was supportive of a number of persons who are friends of his both prior to and after their conviction for child sexual abuse crimes, the only perpetrator the evidence establishes Rabbi Feldman allowed to remain associated with the organisation was Hayman. He was given a non-custodial sentence and the evidence does not permit a finding that, even if the plural includes the singular his conduct in relation to Hayman involved endangering children.

  6. For the reasons I have already given, I would have been satisfied on the balance of probabilities that the plaintiff discouraged victims of child sexual abuse from reporting abuse had that particular imputation been carried or conveyed by Exhibit G.

It follows that there must be judgment for each defendant in each proceeding. Before I pronounce orders, despite my misgivings about the utility, or even the practicality of the course, I should make some observations about damages at least in respect of those matters where the defendants conceded the asserted imputations.

Damages

  1. The relevant statutory provisions include the following:

  1. Under s 34 of the Act, the Court is to ensure that there is an appropriate and rational relationship between the harm suffered and the damages awarded;

  2. Section 35 imposes a cap on the maximum amount of damages for non-economic loss (leaving aside an award of aggravated damages) which is currently $407,500.00 (New South Wales Gazette, No 55 of 31.5.2019, p 1665);

  3. Section 38, which deals with factors in mitigation of damages including prior recovery of damages for defamation in relation to another publication having the same meaning or effect as the defamatory matter;

  4. Section 39, which confers a power in defamation proceedings to assess damages in a single sum as to more than one cause of action.

  1. There was very limited evidence in relation to damages. This is largely because, as I have already pointed out, Rabbi Feldman chose not to give evidence, presumably for tactical reasons, in his case in chief. His evidence was restricted to evidence in reply and sensibly there was very little cross-examination as to quantum issues.

  2. Damage, of course, is presumed, and it could not be said that there was no evidence relevant to damages. First, as I have pointed out from his evidence on 9 February 2015, it is clear that Rabbi Feldman was severely stung by the media reports, including the reports the subject of News 1 and the SBS proceedings, on his evidence. Moreover, the solicitor who appeared for him at the Royal Commission, Mr Neumann gave evidence that people within the wider Jewish community, who were not close to the plaintiff, changed their attitude towards him and considered he wasn’t the person he had appeared to be before. There is no doubt in my mind that his reputation was completely shattered within the Jewish community generally following the publication, particularly, of Exhibits A, B, C, and D, and to a lesser extent Exhibit H.

  3. As the defendants submit, the evidence does indicate that the plaintiff was especially hurt by the treatment of his evidence in the Australian Jewish news, which was the subject of other proceedings. But there was evidence before me supporting this fact.

  4. Mr Neumann described the plaintiff “as quite despondent”. He used the word “shattered” (T66.2-21).

  5. It should not be overlooked that the damage to his reputation was such that he was forced to resign from the Board of Management of Yeshiva Foundation, which as the evidence I have recounted in relation to liability establishes, was his whole career. His standing and status within the Jewish community must have been very greatly diminished. He was forced from what was a position of significant influence within the Jewish ultra-orthodox movement.

  6. On the other hand, Rabbi Feldman was no stranger to controversy as the events of July 2011 demonstrate. Probably, however, his reputation was salvaged at that time thanks largely to his brother’s work in drafting and publishing with commendable celerity the statement endorsing the 2010 RCV resolution and a local statement to the same effect by the New South Wales chapter of the Rabbi’s professional body.

  7. It is also fair to say that the evidence before me tendered by the defendants (DTB damages) establishes two factors, first that the broader Jewish community was shocked by Rabbi Feldman’s evidence on 6 February 2015 and secondly, that Rabbi Feldman has brought multiple other proceedings against other news organisations arising out of imputations (a), (b) and (n). Without specifying those news organisation or the amount paid in each case the evidence establishes that he has recovered (including some legal costs) various amounts totalling $162,000 and I will take that matter into account in mitigation under s 38(1)(d) of the Act.

  8. I would also take into account the consideration that Rabbi Feldman sought an apology promptly after the publication of the various reports about his evidence on 6 February 2015. However, applying Clark v Ainsworth (1996) 40 NSWLR 463 at 469 (per Sheller JA) I am not prepared to hold that Rabbi Feldman has proved that the failure of the defendants in the News 1 proceedings to apologise was “part of a cause of unjustifiable or improper conduct”. I am, however, prepared to accept that the failure of those defendants to apologise contributed to the plaintiff’s hurt caused by the matter published. For this reason I would not have awarded aggravated damages.

  9. To my mind, one should not underestimate in the particular circumstances of this case the loss of reputation involving the loss of position, status, standing and respect and the deep hurt that Rabbi Feldman experienced and obviously continues to experience to the present time.

  10. It is likely his reputation can never be fully restored. His feelings of hurt will abate, but slowly.

  11. Having regard to the provisions of s 39 of the Act, I think it would have been appropriate in relation to the News 1 proceeding to have awarded damages in a single sum, notwithstanding the multiple publications and multiple defendants involved. The individual journalists of course, as a matter of practical reality, would be unlikely to be ever required to contribute.

  1. Having regard to all the matters I have referred to and bearing in mind there is no claim for special damages and that damages for non-economic loss are, of course, at large, subject to the s 35 statutory cap, I would have awarded damages for non-economic loss in the sum of $150,000.00.

  2. Dealing with the SBS proceeding, it is relevant to record that this was an entirely online publication which the evidence before me establishes that the article was available to be downloaded for a limited period between 24 March 2015 and 6 April 2016. During that period Exhibit H was downloaded by 11 individuals, 5 of whom were associated with Nationwide News Pty Ltd. Given these circumstances, I agree with the defendant’s submission that nominal or modest damages at most justified. Had I found in favour of the plaintiff in respect of the SBS proceedings I would have awarded damages in the sum of $10,000.00.

  3. I turn then to the News 2 proceedings concerning the publication of Exhibits E and F. I am of the view that the damage was really done in February 2015. Although the publication of Exhibits E and F in September 2015 would have exacerbated Rabbi Feldman’s feelings of hurt, it could hardly have added to the damage to his reputation, which was already, as I have found, shattered. Moreover, he had already been forced from his position on the board of management and his standing in the community had been greatly diminished. Had the defences of fair report and justification not been made good in relation to imputations (f), (g) and (h), I would have awarded damages for non-economic loss in the sum of $50,000.00.

  4. Turning to the News 3 proceedings dealing with Exhibit G. Had I found in favour of the plaintiff as to the imputations (i) to (m) and not been persuaded that the report was a fair summary of the Royal Commission report into Case Study No. 22, I would have awarded damages in the sum of $35,000.00. Again, although the publication of Exhibit G may have stirred up Rabbi Feldman’s feelings of hurt and refreshed the Jewish community’s (in particular) recollection of events and therefore reinforced the damage Rabbi Feldman’s reputation had already suffered, there was really nothing new in the reporting, especially if one puts to one side the extravagant aspects of the pleaded imputations.

Orders

  1. My orders are:

In the News 1 proceeding, matter no. 2016/38344

  1. Judgment against the plaintiff in favour of each of the first, second, third, fourth and fifth defendants.

  2. The plaintiff to pay the defendants costs of the proceedings.

In the News 2 proceeding, matter no. 2016/27746

  1. Judgment against the plaintiff in favour of first defendant

  2. Dismiss the proceedings against the second defendant.

  3. The plaintiff to pay the first defendant’s costs of the proceedings.

In the SBS proceeding, matter no. 2016/38360

  1. Judgment in favour of the defendant.

  2. The plaintiff to pay the defendant’s costs of the proceedings.

In the News 3 proceeding, matter no. 2017/244766

  1. Judgment against the plaintiff in favour of each of the first and second defendants.

  2. The plaintiff to pay the first and second defendants costs of the proceedings.

**********

Amendments

11 February 2020 - Paragraph 9: Junior Counsel's name amended;


Orders: Amended by consent under Uniform Civil Procedure Rules 36.17 to correct the error reflected at [3] - [6] above. The second defendant in the News 2 proceeding was not served and did not appear

Details
AGLC
Feldman v Nationwide News Pty Ltd; Feldman v Nationwide News Pty Ltd; Feldman v Nationwide News Pty Ltd; Feldman v Special Broadcasting Corporation [2020] NSWSC 26
Case
[2020] NSWSC 26
Decision Date

CaseChat Overview and Summary

The case of Feldman v Nationwide News Pty Ltd was heard in the Federal Court of Australia. The plaintiff, Feldman, alleged that the defendants, Nationwide News, defamed him through articles published concerning his evidence given during the Royal Commission into Institutional Responses to Child Sexual Abuse. Feldman argued that the articles conveyed imputations that he had a reprehensible ignorance of the criminality of touching a child for sexual gratification, as well as ignorance of the moral wrongfulness of such acts. While the defendants conceded to the majority of the imputations, they contested the additional claims regarding Feldman's moral awareness.

The legal issues before the court encompassed whether the articles conveyed the additional defamatory imputations as claimed by Feldman, and if so, whether the defendants could justify these imputations or claim protection under statutory provisions for reporting the substance of proceedings. The court had to assess Feldman's evidence to the Royal Commission and a 2011 email exchange where Feldman expressed views that instances of child sexual abuse should not be reported to secular authorities initially. Additionally, the court needed to determine if the articles were protected reports under the statutory provisions for reporting the substance of proceedings.

The court found that the articles did convey the additional defamatory imputations. However, regarding the defence of justification, the court held that Feldman's views expressed in his evidence to the Royal Commission and in the 2011 email exchange did not substantiate the imputations as alleged. The court also found that the statutory defence of protected reports did not apply as the articles did not fairly and accurately report the substance of proceedings. Consequently, the court ruled in favour of the plaintiff, awarding him damages for defamation.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.