Feldman v Nationwide News Pty Ltd

[2018] NSWSC 715

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Yosef Yitzchak Feldman v Nationwide News Pty Limited & Ors [2018] NSWSC 715
Hearing dates:	8 May 2018
Date of orders:	09 May 2018
Decision date:	09 May 2018
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	I admit the transcript of evidence taken before the Royal Commission as exhibit 1.
Catchwords:	DEFAMATION – Fair comment - factual basis for comment - matter published on privileged occasion – transcript tender from Royal Commission into Institutional Responses to Child Sexual Abuse - Royal Commissions Act 1923 (NSW) - abrogation of privilege against self‑incrimination - exceptions - Royal Commissions Act 1902 (Cth) - distinction drawn between State and Commonwealth legislation - transcript admitted into evidence for limited purpose
Legislation Cited:	Evidence Act 1995 (NSW) ss 128, 136; Defamation Act 2005 (NSW) s 29; Royal Commissions Act 1902 (Cth) ss 6A, 6DD; Royal Commissions Act 1912 (Cth); Royal Commissions Act 1923 (NSW) s 17
Cases Cited:	Chakravarti v Advertiser Newspapers (1998) 193 CLR 519; Hartmann v Commissioner of Police (1997) 191 A Crim R 141; Hatfield v TCN Channel 9 Pty Ltd [2010] 77; NSWLR 506; [2010] NSWCA 69; Hood v R (19997) 91 A Crim R 526; R v Bayeh [1999] NSWCCA 82; Sorby v the Commonwealth (1983) 152 CLR 281; [1983] HCA 10; Stephens v West Australian Newspapers Limited (1994) 182 CLR 211
Texts Cited:	Nil
Category:	Procedural and other rulings
Parties:	Yosef Yitzhak Feldman (Plaintiff) Nationwide News Pty Ltd (First Defendant) Special Broadcasting Service Corporation (Second Defendant)
Representation:	Counsel: Mr J Cohen (Plaintiff) Mr A T S Dawson SC with Ms L Barnett (Defendant)   Solicitors: Jacobs Legal (Plaintiff)
File Number(s):	2016/00038344; 2016/00038360; 2016/00277467;2016/00277467; 2017/00244766

EX TEMPORE Judgment (Revised)

1. I am concurrently hearing a set of four defamation proceedings brought by Rabbi Yosef Feldman against a number of defendants.  The defendants in three matters are entities or persons associated with the News Limited media.  The fourth proceedings are brought against the Special Broadcasting Service (SBS).  The plaintiff is represented by Mr Cohen of counsel and all of the defendants who have filed pleadings in the proceedings are represented by Mr Dawson of Senior Counsel with Ms Barnett of counsel.  All actions arise out of a series of reports made about evidence Rabbi Feldman gave before the Royal Commission into Institutional Responses to Child Sexual Abuse (“the Royal Commission”) chaired by McClellan JA.

2. The Royal Commission was constituted by letters patent issued by the Governor‑General under the Royal Commissions Act 1902 (Cth) (“the Commonwealth Act”). Some of the news reports impugned relate to the report of the Royal Commission in Inquiry Number 22 relating to the specific institution with which Rabbi Feldman was then associated.

3. Among the defences propounded in each proceeding is a defence of fair report. To make good that defence, Mr Dawson has tendered the transcript of the evidence given by Rabbi Feldman on 9 February and 6 May 2015. Mr Cohen has objected to the tender on the ground that admission of the evidence contravenes s 6DD of the Commonwealth Act.  Mr Dawson has argued that on its proper construction the provision does not exclude the evidence. 

4. I have had the benefit of careful and extensive argument in relation to the matter.  Without any disrespect to counsel, I will not summarise the argument as this is an oral judgment given during a continuing hearing. But it will be obvious from the reasons I am giving for my decision, I trust, that I have paid careful attention to the analysis provided in argument by learned counsel on either side of the record.

5. It is necessary, I think, to commence by setting out the relevant provisions of the legislation. Before setting out s 6DD, I will set out s 6A(2), which provides important statutory context. It is in the following terms:

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

(a) incriminate the person; or

(b) make the person liable to a penalty.

It is obvious that s 6A(2) abrogates what is generally referred to as the common law privilege against self‑incrimination. Provisions such as s 6A (first enacted by the Royal Commissions Act 1912 (Cth) (“the amending Act”) are familiar provisions in the many examples now of specific legislation which empower various Royal Commissions, commissions of inquiry and standing investigative bodies like, for instance, the Independent Commission Against Corruption.

6. Section 6DD of the Commonwealth Act, so far as currently material, is in the following terms:

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

(a) a statement or disclosure made by the person:

(i) in the course of giving evidence before a Commission; or

………………………..

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

Section 6A having abrogated the privilege, s 6DD provides what is sometimes referred to in some of the authorities to which I was referred as statutory protection against the loss of the privilege. It may also be thought of, in one sense, as providing a limited immunity to the person whose privilege was abrogated.

7. It is perhaps logical to record at this stage that to maintain his objection Mr Cohen relies upon a decision of the New South Wales Court of Appeal  in Hatfield v TCN Channel 9 Pty Ltd [2010] 77 NSWLR 506; [2010] NSWCA 69 (“Hatfield”), Young JA at 537 [154] - [155] (McColl JA and Sackville AJA agreeing). Young JA interpreted the cognate provision appearing in s 17(2) of the Royal Commissions Act 1923 (NSW) (“the State Act”), as meaning "in any way against that person's interest". His Honour accepted a submission that this meaning arose from the Court of Criminal Appeal decision in R v Bayeh [1999] NSWCCA 82 (“Bayeh”).  His Honour said the submission "must be correct".

8. I think it important to set out s 17(2) of the State Act. I observe that although the purpose of the provisions is apparently the same, the language is not identical. Having abrogated the privilege against self‑incrimination in subs (1) s 17(2) provides:

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

Section 17(3) goes on to make three express exceptions to the generality of s 17(2). It is not necessary to set them out.

9. I must say that I am not convinced that the legal meaning of s 6DD of the Commonwealth Act and s 17(2) of the State Act are the same or that they cover exactly the same territory.  It is quite obvious when looking at the State Act that the whole transcript of evidence before a Royal Commission may not be admissible against a person unless a s 17(3) exception applies. That literal meaning may not be entirely correct, as I will demonstrate by reference to another case under the State Act in a moment. However answers given by the person are not admissible against him under the State Act. On its face that would appear to cover all answers whether incriminating or otherwise against interest or not.

10. The Commonwealth Act is different.  The matter is not admissible against a natural person under the Commonwealth Act as a statement or disclosure made by the person in the course of giving evidence.  I think there is an important distinction here because the expression a statement or disclosure in its terms seems to more aptly relate to answers given which might tend to incriminate the person.  I accept the word statement might be capable of referring to any answer given in response to a question asked of the witness before a Royal Commissioner, however innocuous.  But the juxtaposition of statement with disclosure, even connected by the disjunctive ‘or’, seems to me, especially because of disclosure, to relate more comfortably to something a person was compelled to state against interest.  In my judgment, the composite expression relates to an answer given under compulsion, the effect of which may be to incriminate the person or expose the person to a civil penalty.  This, it seems to me, is the natural meaning of the phrase.

11. To the extent of the protection provided by s 6DD is to exclude from proceedings in the ordinary courts, or in tribunals, evidence of matters compulsorily disclosed before the Royal Commission which would not have been required to be disclosed in proceedings where the privilege applies; but cf s 128 Evidence Act 1995 (NSW) (“Evidence Act”).

12. It is convenient now to refer to the decision of the Court of Criminal Appeal in Hood v R (1997) 91 A Crim R 526 (“Hood”). The leading judgment was given by Smart J with whom Hunt CJ at CL and Ireland J substantially agreed, although it is important to record that their Honours reserved the question of the meaning of s 17(2) of the State Act.  Nonetheless, if I may say with respect, what Smart J said is worthy of note.  At 536 his Honour said:

“Royal Commissions are usually only appointed where there are matters of considerable public importance including apprehended public ills to be investigated or a particular possible injustice or possible acts of malefaction touching upon the administration of affairs of state and the ordinary powers of inquiry and investigation are regarded as insufficient. Thus privileges are abrogated and the compensatory protection conferred by statute is limited to answers which incriminate or tend to do so. [My emphasis.]”

13. It seems to me that although not expressly agreed by the other members of the Court, this passage, particularly the sentence I have emphasised, accords with the general approach taken to the construction of provisions like those under consideration in this case.  Those principles of construction were referred to by Cole JA in Hartmann v Commissioner of Police (1997) 191 A Crim R 141. Again his Honour was dealing with the State Act but what he had to say about the matter at 146 ‑ 147 is equally applicable to the Commonwealth Act.  Indeed his Honour drew down this approach to construction from a decision of the High Court in Sorby v the Commonwealth (1983) 152 CLR 281; [1983] HCA 10 (“Sorby”), concerned with the Commonwealth Act.

14. Effectively, the rules are that the provision abrogating the privilege is, consistently with the principle of legality, as narrowly or strictly construed as the language of the provision will permit.  On the other hand, the compensatory protection provision is given a liberal interpretation appropriate to the protective provisions in the statute "…purporting to protect a person from the consequences of the abrogation of the protection against self‑incrimination" (per Cole JA).

15. Notwithstanding that approach, it does seem to me, however, that the liberality of interpretation for the benefit of the individual has to be considered in the context of the actual language used by the parliament in enacting the provision.  Adopting the approach from Sorby, the construction afforded to s 6DD need be no more liberal than that necessary to protect a person from the consequences of the abrogation of the privilege. It is unnecessary that it extend to the whole of the evidence given before the Royal Commission, unless, of course, all of it is given under the relevant compulsion of law provided by s 6A(2). It has not been suggested that the evidence of Rabbi Feldman falls into that category.

16. There is yet another point which has been made by learned Senior Counsel, and that relates to the meaning of the phrase, "not admissible against the person".  That phrase commonly appears in provisions of this type.  I should say, the precise language is that certain things "are not admissible in evidence against a natural person in any civil or criminal proceedings in any court".  There is a question about what "against a person" means in this context, and of course, Young J in Hatfield gave that expression the wide meaning of "against the interests of any person". It seems to me, with respect, that that can only mean against the legitimate interests of the person in the context of the actual proceedings in question. 

17. I should also add in passing that, as I have said, Young JA considered that that interpretation arose out of the decision of the Court of Criminal Appeal in Bayeh. I had been provided with a copy of that decision and I have read it carefully more than once, and I need to say that I do not derive that meaning from what Grove J, with whom Kirby J agreed, said. Indeed, in that matter the evidence was tendered by the person who had given evidence before the Royal Commission into the New South Wales Police Force (“the Wood Commission”), and the ratio of the decision simply seems to be that, whatever the phrase means, it does not apply to a situation where the person choses to tender the material for his or her own forensic purpose. In such circumstances, the general rule that, once admitted, evidence is admitted for all purposes, applied. It was open to a sentencing judge to draw adverse inferences against the person who tendered the material, notwithstanding the provisions of s 17(2) of the State Act.

18. Young JA contemplated without deciding that there may be other avenues for admission of the evidence. His Honour said (at [156]), "[w]hether that material could be gotten into evidence in some other way is outside my consideration". This obviously admits of the possibility that there may be means by which the evidence before a Royal Commission could be received, including in certain cases, as Bayeh illustrates, upon tender by the person entitled to the benefit of the statute.

19. It seems to me that, looked at in its own context, s 6DD of the Commonwealth Act is concerned, by use of the expression "against a natural person in any civil or criminal proceedings", with the use of the compelled evidence to establish a civil liability or criminal responsibility in the person whose privilege was abrogated by s 6A.  It does not seem to me it has any wider meaning, although I accept that questions of liability and responsibility may arise in a variety of different contexts, which need not be discussed here.  That this is a correct approach to the interpretation of the Commonwealth Act garners support from the second reading speech when the Amending Act was introduced into the House of Representatives.  The then Attorney General for the Commonwealth, Mr W M Hughes, said the following:

"Another provision which I propose to insert in this bill is that no evidence given by a witness before a Royal Commission shall render him liable in subsequent civil or criminal proceedings." (Hansard, Wednesday, 24 July 2012, p 5). 

That approach, of course, is, as I have said, broadly consistent with what Smart J said about the scope of provisions of this type in Hood. 

20. Even if I am wrong in my opinion that the Commonwealth Act should be given a somewhat narrower interpretation or construction than that given to the State Act in Hatfield, obiter dictum, there is another consideration which leads me to the conclusion that this tender is not caught by s 6DD, and that is the nature of the purpose to which the evidence is to be put.

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

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

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

24. I wish to return to one point, which is referred to earlier, and that is to say, that although there has been no argument on the transcript page by page, it is not said that anything in the evidence given by Rabbi Feldman would expose him to criminal responsibility, civil liability or disciplinary penalty of any kind.

25. Given the construction I have given the provision, the transcript is properly admissible in evidence, but I will limit* the use to which that evidence can be put to the fair report defence and not as evidence of truth which might also go to the justification defence.

* This limitation was later expanded following an amendment of the pleadings

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Amendments

21 May 2018 - Catchwords: Royal Commissions Act Royal Commissions Act 1982 changed to Royal Commissions Act 1902.