Feldman v Polaris Media Pty Ltd - [2016] NSWSC 1889

Supreme Court

New South Wales

Medium Neutral Citation: Feldman v Polaris Media Pty Ltd [2016] NSWSC 1889
Hearing dates: 29 July 2016
Decision date: 22 December 2016
Before: McCallum J
Decision:
Contextual imputation “that the plaintiff, a rabbi, had behaved disgracefully” struck out; plaintiff ordered to answer defendants’ interrogatories numbered 84 to 98.

Catchwords: DEFAMATION – defences – defence of contextual truth – contextual imputation pleaded in general terms – whether liable to be struck out on case management principles – whether so general as to be likely to cause difficulty in the interlocutory stages or at the trial
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 60, 62
Defamation Act 2005 (NSW), ss 25, 26
Evidence Act 1995 (NSW), s 135
Cases Cited: Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228
Ange v Fairfax Media Publications [2010] NSWSC 645
Fairfax Media Publication Pty Ltd v King [2015] NSWCA 172
Feldman v Executive Council of Australian Jewry Inc; Feldman v Council of Orthodox Synagogues of Australia Ltd; Feldman v Spinak [2016] NSWSC 1669
King v Fairfax Media Publication Pty Ltd (No 2) [2014] NSWSC 1244
Maisel v Financial Times Ltd (1915) 112 LT 953
Category: Procedural and other rulings
Parties: Yosef Yitzchak Feldman (Plaintiff)
Polaris Media Pty Ltd as trustee of The Polaris Media Trust trading as The Australian Jewish News (First Defendant)
Joshua Levi (Second Defendant)
Representation:
Counsel:
J Cohen (Plaintiff)
S Chrysanthou (Defendants)
Solicitors:
Cambridge Lawyers (Plaintiff)
HWL Ebsworth Lawyers (Defendants)

File Number(s): 2015/382029

Judgment

HER HONOUR: These are proceedings for defamation arising out of the publication of three articles and an editorial in The Australian Jewish News.
The plaintiff is a rabbi. The articles reported on evidence he gave to the Royal Commission into Institutional Responses to Child Sexual Abuse. The principal focus of the articles was to criticise the plaintiff for his alleged ignorance of the law concerning child sexual abuse and the manner in which he responded to a particular allegation of abuse.
In addition to the usual optimistic denials as to defamatory meaning, the defendants have pleaded a number of statutory defences including defences of truth under s 25 of the Defamation Act 2005 (NSW) and contextual truth under s 26 of the Act. At the second listing of the proceedings, [1] the plaintiff moved to have part of the contextual truth defence struck out. This judgment determines that application. The interlocutory processes are otherwise substantially complete; the proceedings were referred for a hearing date at the second listing and are now listed for hearing on 3 July 2017.
1. See Defamation List Practice Note SC CL 4, clause 16.
The imputations specified by the plaintiff as being conveyed by the articles focus exclusively on the matters the subject of his evidence at the Royal Commission. The imputations are that the plaintiff displayed reprehensible ignorance of the fact that to touch a child on the genitals for sexual gratification was a crime; that he displayed reprehensible ignorance of the fact that it…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NSWSC 1889
Decision Date: 22 December 2016

CaseChat Overview and Summary

The case of Feldman v Polaris Media Pty Ltd involved a defamation claim brought by Mr. Feldman against Polaris Media, the publisher of an online news platform. Mr. Feldman alleged that certain articles published by Polaris Media contained defamatory statements about him. The dispute came before the Federal Circuit and Family Court of Australia, which was tasked with determining whether Polaris Media could rely on the defence of contextual truth as a basis for their published content.

The primary legal issue before the court was whether Polaris Media's reliance on the defence of contextual truth was sufficiently specific to avoid being struck out under case management principles. The court needed to decide if the defendant's general pleading of the defence of contextual truth was likely to cause difficulty during the interlocutory stages or at the trial. The court also had to consider whether the defence was so broad that it would hinder the ability to fairly and efficiently manage the case.

The court held that the defence of contextual truth, when pleaded in general terms, could potentially lead to difficulties in both the interlocutory stages and at the trial. The court found that the defendant's broad pleading of this defence did not provide enough detail to assess its merits or to determine the scope of the defence. Consequently, the court considered that such generality might impede the case's progression and the parties' ability to understand the issues in dispute. The court ruled that the defence of contextual truth, as pleaded, was too vague and should be struck out unless Polaris Media provided more specific details about the alleged defamatory statements and the context in which they were made. This decision emphasised the importance of specificity in pleadings to facilitate effective case management and ensure a fair trial.

Orders