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

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Feldman v Polaris Media Pty Ltd as Trustee of the Polaris Media Trust t/as The Australian Jewish News [2020] NSWCA 56
Hearing dates: 20 May 2019
Decision date: 01 April 2020
Before: White JA at [1]; Emmett AJA at [128]; Simpson AJA at [166]
Decision:
(1) Grant leave to the applicant to appeal from the orders of 23 July 2018.
(2) Direct that the proposed amended notice of appeal that is annexure “A” to the affidavit of Ljupka Subeska dated 10 May 2019, except paragraph 13, stand as the notice of appeal.
(3) Dismiss the appeal.
(4) Order that the appellant pay the respondents’ costs of the application for leave to appeal and of the appeal, and the costs of the respondents’ notice of motion of 21 February 2019.

Catchwords:
CIVIL PROCEDURE — Court of Appeal — Leave to appeal – whether appeal incompetent – notice of appeal – application filed out of time – where no application has been made for an extension of time or explanation given – no evidence appeal involves matter at issue of value of $100,000 or more

DEFAMATION — whether denial of procedural fairness – whether conclusions open to be drawn by primary judge in absence of cross-examination – whether appellant had adequate opportunity to explain his position – where trial judge did not notify the appellant of her doubts concerning his evidence

DEFAMATION — Defences — honest opinion — whether defamatory matter was statement of fact or opinion/comment – where matters of opinion intermingled with statements of fact – whether defamatory matter or defamatory meaning as found focus of inquiry

DEFAMATION — Defences — honest opinion – whether fairness or honesty of comment must be responsive to the defamatory meaning as found or the defamatory matter – whether comment or opinion based on proper material

DEFAMATION — Defences — fair report – whether defamatory matter a fair report where it is a substantially accurate report in fact – where not a substantially accurate report of the meaning conveyed by the report
DEFAMATION — Defences — statutory qualified privilege – whether failure to seek comment from the appellant was not reasonable – where Royal Commission proceedings were a matter of public interest – where evidence of the appellant was ongoing – where appellant contacted through a conduit and published a statement in same publication as appeared the defamatory matter
Legislation Cited: Defamation Act 2005 (NSW) ss 8, 25, 26, 29, 30, 31
Supreme Court Act 1970 (NSW) s 101(2)(r)
Uniform Civil Procedure Rules 2005 (NSW) rr 51.2, 51.9, 51.22, 51.41
Cases Cited: Boensch v Pascoe [2019] HCA 49
Browne v Dunn (1893) 6 R 67
Chakravarti v Advertising Newspapers Ltd (1998) 193 CLR 519; [1998] HCA 37
Channel Seven Adelaide Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60
Cummings v Fairfax Digital Australia and New Zealand Pty Ltd (2018) 99 NSWLR 173; [2018] NSWCA 325
Feldman v Polaris Media Pty Ltd as trustee of The Polaris Media Trust trading as The Australian Jewish News (No 2) [2018] NSWSC 1035
Feldman v Polaris Media Pty Ltd as trustee of The Polaris Media Trust trading as The Australian Jewish News (No 3) [2018] NSWSC 1201
Harbour Radio Pty Ltd v Ahmed (2015) 90 NSWLR 695; [2015] NSWCA 290
O’Brien v Australian Broadcasting Corporation [2016] NSWSC 1289
Category: Principal judgment
Parties: Yosef Yitzchak Feldman (Applicant)
Polaris Media Pty Ltd as trustee of The Polaris Media Trust t/as The Australian Jewish News (First Respondent)
Joshua Levi (Second Respondent)
Representation:
Counsel:
J Cohen (Applicant)
S Chrysanthou/N Olson (Respondents)
Solicitors:
Astoria Lawyers (Applicant)
HWL Ebsworth Lawyers (Respondents)

File Number(s): 2018/251066; 2019/51685
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law Division

Citation:

Feldman v Polaris Media Pty Ltd as trustee of The Polaris Media Trust trading as The Australian Jewish News (No 2) [2018] NSWSC 1035

Date of Decision:

23 July 2018

Before:

McCallum J

File Number(s):

2015/382029

Judgment

WHITE JA: The appellant, Rabbi Yosef Feldman, sued the respondents for defamation. The first respondent is the publisher of a newspaper called The Australian Jewish News. The second respondent (who has since died) was a journalist. Rabbi Feldman sued in respect of three articles and an editorial published in The Australian Jewish News. The first article was published on the website of The Australian Jewish News on 6 February 2015. The second article was published on 7 February 2015. The third article was published on 13 February 2015. The fourth publication sued on was an editorial published in the print edition of The Australian Jewish News on or about 13 February 2015.
The primary judge (McCallum J) gave judgment for the defendants (Feldman v Polaris Media Pty Ltd as trustee of The Polaris Media Trust trading as The Australian Jewish News (No. 2) [2018] NSWSC 1035).
The appellant has purportedly appealed as of right (although his appeal was filed out of time), or alternatively sought leave to appeal. The appeal required leave because the amount in issue was not shown to be more than $100,000. I would give leave to appeal, at least on the ground that the appeal raises an important issue in relation to the statutory defence of honest opinion. I also think there is a real question as to whether the defamatory imputations found were substantially true as the primary judge held. The matter was fully argued as on appeal.

Factual background

The immediate factual background to the publications was evidence given by the appellant to the Royal Commission into Institutional Responses to Child Sexual Abuse (“the Royal Commission” or “the Commission”). The first day on which the appellant gave evidence was on 6 February 2015. At the conclusion of that evidence he was under cross-examination. The first and second articles were published after the appellant’s first day of evidence.
The appellant gave further evidence before the Royal Commission on 9 February 2015.
On 6 February 2015 the appellant was questioned by counsel assisting about his response to a reported complaint made by a child against a rabbinical student identified in the Commission with the letters AVL in July 2002. The appellant gave evidence that for approximately 15 years (to 2015) he held the role of Rabbinical administrator of the Yeshiva Gedola in Bondi. The Yeshiva Gedola was a tertiary vocational school that provided education and training for young men wishing to be ordained as rabbis (RCT 673). AVL was one of the students. It was a practice in 2002 for students of the rabbinical college to be involved as assistant teachers at the Yeshiva Centre and to attend camps (RCT 685).
In July 2002 the appellant’s father, also a rabbi, told him that a complaint had been made that AVL had engaged in inappropriate behaviour with regard to children (RCT 687). A meeting was held between the appellant, his father and AVL on 24 July 2002. The appellant gave evidence before the Commission that at that meeting AVL was told that they had heard that there was a complaint of inappropriate behaviour with regard to children and that AVL should not have anything more to do with children, and they would see whether the complaints were verified or not. AVL maintained that he did not do anything. The appellant and his father were prepared to allow him to continue towards ordination. AVL had come to Sydney from New York. He asked whether he could leave and still obtain the ordination, but was told that ordination could not be given for people who had ceased to study (RCT 689).
After this meeting the appellant had another meeting with AVL. In the course of that meeting, AVL started telling the appellant what the allegations were and said “A bit of touching. Maybe I massaged him a bit or whatever. What’s the issue with that?” or something to that effect (RCT 697.37). The appellant’s opinion was that was “really inappropriate” (RCT 697). AVL told the appellant that he just lay down with a child and may have massaged him and there might have been a bit of touch (RCT 697-698). AVL said that he was lying with the child (not that he went to bed with him) and gave him a “massage or touched or that sort of thing” (RCT 698.39).
The appellant was then cross-examined as to whether what had been reported to him was a potential crime involving child abuse which he knew had to be reported to the police. He said:

“A.   I didn’t know whether at that time much of the seriousness and of the legal legalities of these issues and I didn’t know whether it’s a criminal matter, I didn’t know – I really didn’t know much about sex abuse at all or, you know, I was very unaware of that whole area. The whole thing came as a surprise to me. Basically he was reported and, you know, I didn’t know much about this whole area at all, to tell you the truth.
Q.   You recall thinking, don’t you, that what he did was highly inappropriate?
A.   In my opinion it was. I’m a very religious sort of a person and anything which is highly inappropriate to me is not necessarily highly inappropriate according to law.
Q.   You knew at the very least --
A. Or according to Jewish law what’s highly inappropriate is not necessarily highly inappropriate in the Criminal Code and in our legal system.
Q.   You knew at the very least that it could be a crime, didn’t you?
A.   Anything could be. I didn’t know that it is.” (RCT 699)

After further extensive questioning the appellant gave the following evidence:

“Q. So you knew on 24 July, when you had a conversation with [AVL], that the admission he had made to you of the physical contact, the laying down with him, could be a crime?
A. I don’t know what the Criminal Code is and what’s a crime and what’s not a crime. A lot of things could be a crime but I don’t think it is, and a lot of things isn’t – I didn’t really think in those terms. What can I tell you? I think in my terms. I did not think about – it didn’t enter into my mind the whole idea of what’s considered a legal crime or not; what should be reported to the police or not. It’s not something in those terms – I mainly deal with issues in the way in which I feel Jewish law would consider something as being proper or improper and I told him so. I did not think in the terms of what’s a crime and what’s not a crime legally.” (RCT 702)

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

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

He refused to accept that if someone lay down with a child and massaged the child that that could potentially be a crime, saying “It could potentially be something which is highly inappropriate. I do not know what a crime is from a legal society perspective.” (RCT 704-705) He accepted counsel assisting’s summary of his evidence as to what he had been told. First, there may have been contact between AVL and the child. Secondly, AVL had laid down with the child. Thirdly, that according to AVL, he may have massaged the child, but not inappropriately (RCT 706-707). Fourthly, he believed that AVL had massaged the child. Fifthly, he believed that such conduct was highly inappropriate.
The appellant denied knowing that the complaint involved allegations that might amount to sexual abuse (RCT 707-708). He denied understanding that the allegation was that AVL had touched the genitals of an underage boy. He said that he heard that allegation later (RCT 708). It was put to the appellant again that he knew that the allegation might amount to child sexual abuse (RCT 709.20). He answered:

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

It appears from the transcript that that perplexing answer was cut off when counsel asked the following question which was critical to the publications complained of:

“Q. In 2002 did you understand it was against the law for an adult to touch the genitals of another child?
A. I didn’t know that as a fact.” (RCT 709)

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

“Q.   Rabbi, I just want to be clear that you understood the question that I asked you before the break. In 2002, the time these conversations with [AVL], is your evidence that you did not know it was against the law, that is a crime, for an adult to touch the genitals of another child?
A.   The genitals I would have assumed is a crime. But massaging I wouldn’t have necessarily thought it’s a crime, and that’s what I understood at the time, lying and massaging is what took place, and I wouldn’t have thought that that would fall under the category of child sex abuse, whatever criminal aspects of it are.
Q.   So you understood in 2002 that the nature of a massage, depending on what was touched, could have amounted to a crime?
A.   As I said, it didn’t enter my mind it being a criminal sort of thing until – it could have also been, for example, if someone can be banned from kids or whatever, but I didn’t know that it would be a crime and I didn’t think about it. If I would have heard he touched the genitals then obviously that I would consider, as probably the criminal system would consider, it a crime. But, what took place, it didn’t enter my mind that it is a crime.
Q.   I asked you before the break, and I asked you this very question at line 30, page 6432 of the transcript, ‘In 2002 did you understand it was against the law for an adult to touch the genitals of another child,’ and you said, ‘I didn’t know that as a fact.’
A.   I still don’t – now I know as a fact it is. But then I didn’t know it as a fact, but I would have imagined that it is.” (RCT 710)

The first article

The first article was published online on 6 February 2015. It was headed “Rabbi Yossi Feldman, the RCNSW and The AJN”. The article stated:

“In 2011 the AJN called for Rabbi Yossi Feldman to be removed as president of the Rabbinical Council of NSW (RCNSW) after revealing that he had sent out emails saying people should report allegations of child abuse to a rabbi in the first instance and not the police. The rabbi would then determine what course of action to take.
Today [I] have learnt through the Royal Commission that Rabbi Feldman through you should report allegations of abuse to a rabbi before the proper authorities first, because a rabbi has common sense and can investigate ... even when time and again we now know through the commission that senior rabbis put the welfare of paedophiles above children and didn’t report them and even though Rabbi Feldman has admitted that even though he was director or a school he didn’t realise it was illegal to touch a child’s genitals.
It has also now been shown he was worried about a rabbinic statement urging reporting alleged paedophiles to the police because it might affect his friend, the now convicted paedophile, David Cyprys...” (AWF 117)

The article went on to refer to a statement that the Rabbinical Council was said to have published in 2011 accusing the Australian Jewish News of misrepresenting Rabbi Feldman’s position. The article asserted that the Australian Jewish News’ earlier stance had been shown to be correct.
The appellant pleaded that the first article conveyed the imputation that the appellant “... displayed reprehensible ignorance of the fact that to touch a child for sexual gratification on the genitals was a crime”.
The primary judge found that this imputation was conveyed. By notice of contention, the respondents take issue with that finding. The primary judge rejected the defence of fair report. The respondents also take issue with that finding. The primary judge upheld defences of honest opinion (s 31 of the Defamation Act 2005 (NSW)) (Judgment [41]-[116]). This made it unnecessary for her Honour to decide whether the defamatory imputation conveyed by the first article was substantially true. Had it been necessary to decide, the primary judge would have found that the defamatory imputation conveyed by the first article was substantially true (Judgment [163]).
Against the possibility that her Honour erred in those findings, her Honour found that the respondents were in any event entitled to succeed on the basis of s 26 of the Defamation Act (that the matter carried other imputations (contextual imputations) that were substantially true and the defamatory imputation did not further harm the appellant’s reputation because of the substantial truth of the contextual imputations (Judgment [177]-[191])).
The primary judge also addressed the respondents’ pleaded defence of statutory qualified privilege (Defamation Act, s 30) and noted that the defence of common law qualified privilege was not pressed. Her Honour would have rejected the defence of statutory qualified privilege in respect of the first and second articles, but would have upheld that defence in respect of the third and fourth articles (Judgment [293]-[331]).
The respondents’ notice of contention challenges her Honour’s rejection of the defence of statutory qualified privilege in respect of the first and second articles.

The second article

The second article was published on Saturday, 7 February 2015. It was reported under the heading “Royal Commission: Our darkest week”. The article stated:

“The Australian Jewish community has just witnessed one of its darkest weeks.
I have covered child abuse in the Jewish community for several years but even I didn’t understand the extent of the cover-ups, the lies, the ignorance and ridiculous actions of Rabbis in our community.
It’s time for us, as a community, to wake up and smell the roses.
• There are dozens of victims of child abuse in our community.
• Victims considered suicide, became addicted to drugs and some will never recover.
• Many victims have never, and probably will never, come forward.
• Victims came forward to Rabbis in Sydney and Melbourne in the 1980s.
• Sometimes, Rabbis did nothing.
• Sometimes, Rabbis tried to ‘fix’ child sexual abusers.
• And every time, Rabbis didn’t tell the police.
And in Sydney, which has been the focus of most of this week it was worse:
• One rabbi thought a victim was joking when he came forward.
• Another rabbi placed a young girl from Interstate in the home of convicted child sexual abuser Daniel ‘Gug’ Hayman and then told her she was lying when she claimed she was sexually assaulted.
• At one time an entire group of victims came forward to a rabbi, and was ignored.
• Yeshiva spiritual leader Rabbi Pinchus Feldman did not tell police he knew an alleged child sexual abuser was [planning] to leave the country because Rabbi Feldman ‘did not know there was any such obligation’.
• Rabbi Pinchus Feldman now accepts that his right-hand-man, Rabbi Baruch Lesches, knew of abuse allegations, but didn’t tell him.
• The head of Yeshiva’s Rabbinic School, Rabbi Yossi Feldman, did not know it was a crime for a teacher to touch the genitals of a child in 2002.
• Rabbi Yossi Feldman, at the age of 33, didn’t understand mandatory reporting laws when he was the director of a company that had a school.
• As recently as 2011 Rabbi Yossi Feldman said you ‘must’ go to rabbis to report abuse instead of the police.

• As recently as 2011 Rabbi Yossi Feldman urged the rabbis not to call on victims to go [to] the police because it would hurt his ‘friend’, and now convicted child sexual abuser, David Cyprys.
...” (AWF 1/119-120)

The appellant pleaded that this article conveyed the defamatory meaning:

“That he, although the head of a rabbinical college fundamentally concerned with the responsibilities of teachers, behaved shamefully in that:-
a. He displayed reprehensible ignorance of the fact that it was a crime for a teacher to touch a child sexually on the genitals.”

The primary judge found that the appellant contended that the second article conveyed only the imputation that “... the plaintiff had displayed reprehensible ignorance of the fact that it was a crime for a teacher to touch a child sexually on the genitals” (viz, not that in so doing he behaved shamefully). Her Honour found that that imputation was carried by the second article (Judgment [21]-[24]). By their notice of contention the respondents challenge that finding.
The primary judge upheld the statutory defence of honest opinion to the second article (Judgment [117]-[137]).
As with the first article, consideration of the defence of substantial truth did not arise, but would have been upheld had the defence of honest opinion not succeeded (Judgment [163]).
As with the first article, had it been necessary to decide, her Honour would have rejected the defence of statutory qualified privilege in respect of the second article and would have also rejected the defence of fair reporting. The respondents challenged that finding in their notice of contention. Her Honour would have upheld the defence that the article contained contextual imputations that were substantially true such that the defamatory imputation did not further harm the appellant’s reputation.
The third article was published on 13 February 2015. By this time the appellant had given further evidence in the Commission on 9 February 2015 and had completed that evidence. So far as his evidence on 9 February 2015 is material to the issues on this appeal, the appellant said in answer to questions from his counsel that it was not until much later that he heard that there were allegations involving AVL touching or fondling a child’s genitals, and that if he knew or believed in July 2002 that AVL had fondled the genitals of a child indecently he would have known that that was a crime (RCT 902).
The appellant also gave evidence as follows:

“THE PRESIDING MEMBER: So, Rabbi Feldman, to come back to the question that you were asked with respect to knowing that [AVL] was lying in a bed with a child - -
A.   Yes.
Q.   And massaging a part of the child’s body.
A.   Yes.
Q.   The question is: from your point of view did that cause you to think that potentially a crime may have been committed?
A.   As I said then, I wasn’t sure. I didn’t think in those terms because – I knew it’s highly inappropriate, and I said that because, you know, it’s just not a thing that’s done and it’s not a norm. People don’t lie down with kids - -
Q.   So you answer is you weren’t sure?
A.   I wasn’t sure.” (RCT 910)

Third article

The third article was headed “Rabbi Yossi Feldman urged leniency for abusers”. The article stated:

“Former president of the Rabbinical Council of NSW Rabbi Yossi Feldman gave testimony at the Royal Commission last Friday and on Monday that shocked the community and made headlines in the national press.
During questioning, Rabbi Feldman revealed that in 2002, when he was 33 years old and was the head of Yeshiva Sydney’s Rabbinical College, he wasn’t aware it was illegal for a man to touch a child’s genitals.
The council assisting the Royal Commission asked: ‘In 2002 did you understand it was against the law, for an adult to touch the genitals of another child’ and Rabbi Feldman responded ‘I didn’t know that as a fact’.
It came to light that an alleged abuser, known as AVL, had been accused of committing child sexual abuse. Rabbi Feldman then became aware that AVL was considering leaving the country before Yeshiva made the Department of Community Services or the police aware of the allegations.
Rabbi Feldman’s testimony was that he was aware that AVL had been lying down with a child and massaging him.
‘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,’ Rabbi Feldman said.
He was then asked to clarify further when it was put to him: ‘You knew in 2002, didn’t you, Rabbi, that if someone lay down with a child and massaged the child that could potentially be a crime’ and he answered ‘It could potentially be something which is highly inappropriate. I did not know what a crime is from a legal society perspective. As I say, in Japan, for example, I just heard yesterday that they allow child pornography videos. In Indonesia today they are killing people with guns and shooting them.’
Rabbi Feldman accepted that as a director of an incorporated entity responsible for running a school, he should have known more about crimes of child sexual abuse.
‘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.’
He was then questioned about an incident in 2011, when he put forward a view in an email chain that victims of child abuse should go to rabbis, not the police, so that rabbis could investigate the veracity of the claims and then determine what course of action should be taken. He suggested rabbis would make the right call as they tend to have ‘common sense’.
It was also revealed that Rabbi Feldman had urged his colleagues not to issue a statement urging victims to go to the police because it might impact on his ‘friend’, the now convicted child sexual abuser, David Cyprys, and that he considered such statements as PR.
He had further argued that too much media ‘hype’ about child abuse could lead ‘fake victims’ to come forward, and labelled Manny Waks, who was a victim of Cyprys, as a ‘phony attention seeker’.
During his testimony, Rabbi Feldman also said that if he could lobby government he would ask for leniency for abusers who have shown that they haven’t offended for 20 years since their last offence, and that he was unhappy that in 2013 Daniel ‘Gug’ Hayman was arrested, and later found guilty, of child sexual abuse that occurred in the 1980s.
‘I was worried he would end up in jail for many years,’ Rabbi Feldman said.
Rabbi Feldman gave testimony for six sessions over the course of two days. In the last session the counsel assisting the Royal Commission said, ‘I suggest to you that your evidence is unbelievable and not accurate.’
She also claimed that he did not give ‘full and true answers’ because he had stated that Hayman had not given money to Yeshiva ‘for many many years, besides one or two small donations’ but did not state that Hayman had given a donation at the time of his sentencing in 2014.
At the end of Feldman’s testimony he issued an apology and said he is ‘deeply sorry’ for the suffering of abuse victims.
I regret 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,’ he said.
He also said that he fully accepted allegations of abuse had to be taken to the police rather than rabbis and undertook to educate himself about child sexual abuse and issues surrounding it.” (AWF 121)

The appellant pleaded that the third article conveyed the following defamatory meanings:

“a)    He gave evidence that he was not aware in 2002 that for a man to touch a child on the genitals sexually was a crime and was therefore shockingly ignorant;
b)   the plaintiff failed to notify the Department of Corrective Services (DOCS) that a sex offender was about to leave the jurisdiction, in circumstances where he was obliged either morally or legally to notify DOCS;
c)   the plaintiff attempted to assist a child sex offender from evading justice.”

The primary judge found that the first imputation was conveyed, but that the second and third imputations were not (Judgment [28] and [33]). There is no appeal from the finding that the second and third imputations were not conveyed. The respondents challenge the finding that the first imputation was conveyed.
The primary judge rejected the defence of honest opinion in respect of the publication of defamatory matter in the third article. Her Honour found that a reader would have understood it to be asserted as fact that the appellant gave evidence that he was not aware in 2002 that for a man to touch a child’s on the genitals sexually was a crime. Her Honour held that the further element of the imputation that she found was conveyed, namely that the appellant was “shockingly ignorant” was not presented as opinion of the author but as an objective or widely held assessment of the appellant’s evidence (Judgment [139]).
The respondents by their notice of contention challenged this finding.
But for her Honour’s conclusion that the matter conveyed was a statement of fact and not opinion, her Honour would have accepted the statutory defence of honest opinion under s 31.
The primary judge found that the imputation alleged was substantially true (Judgment [154]-[162]).
As with the first and second articles, the primary judge upheld the contextual truth defence under s 26 in respect of the third article (Judgment [204]-[218], [280]-[282]). Her Honour found that she would have accepted the statutory qualified privilege defence in respect of the third article (Judgment [331]). Her Honour would also have rejected the fair report defence in respect of the third article were it necessary to do so (Judgment [291]). The respondents challenge this finding.

The editorial

The fourth publication on which the appellant sued was an editorial published on 13 February 2015 headed “Our community’s shame”. The editorial is quoted as an appendix to this judgment.
The appellant pleaded that the editorial conveyed a defamatory imputation as follows:

“That he, in giving evidence at the Royal Commission into Institutional Responses to Child Sexual Abuse concerning his attitudes to child sexual abuse in the Jewish community:
(a) The plaintiff was reprehensibly ignorant because he was not aware in 2002 that it was illegal for an adult to touch a child on the genitals for sexual gratification.”

As the primary judge observed, the imputation alleged arises from the third paragraph of the editorial which states that the appellant admitted that in 2002, even though he was director of a school, he was not aware it was illegal to touch a child’s genitals.
The primary judge was satisfied that that meaning was conveyed (Judgment [38]). The respondents challenged that finding.
The primary judge held that the defence of honest opinion was available in respect of the editorial and was satisfied. The appellant challenges that finding. Had it been necessary for the primary judge to address the defence that the imputation was substantially true, her Honour would have upheld that defence (Judgment [163]). Her Honour would have upheld the contextual truth defence in respect of the editorial and upheld the defence of statutory qualified privilege (Judgment [331]). Her Honour would have rejected the defence of fair report (Judgment [291]).
Ground 3 of the appellant’s notice of appeal asserted that he was denied procedural fairness. For the reasons given by Emmett AJA that ground should be rejected.

Consideration – the first article

The primary judge was correct to find that the first article conveyed the defamatory imputation that the appellant displayed reprehensible ignorance of the fact that to touch a child for sexual gratification on the genitals was a crime.
The first article did not say so in terms. It said that the appellant had admitted that he did not realise it was illegal to touch a child’s genitals, not that he did not realise it was illegal to touch a child’s genitals for sexual gratification.
The primary judge addressed the principle for determining what defamatory meaning is conveyed uncontroversially. Her Honour said:

“7 ... The principles to be applied in determining whether a particular defamatory imputation is conveyed are well known. The test is whether the imputation would have been conveyed to the ordinary reasonable reader, who is taken to be a fair-minded person of fair, average intelligence; a person not overly suspicious or avid for scandal but also not naive and who does read between the lines in light of his or her general knowledge and experience. Any forced or strained meaning is to be rejected. The ordinary reasonable reader is taken to read the whole of the article in question and to consider it as a whole.”

If the imputed statement is read without context, then it does not convey the alleged defamatory meaning. But the context of the statement is that senior rabbis had put the welfare of paedophiles above the safety of children and that the appellant was concerned about how a rabbinic statement urging the reporting of alleged paedophiles to the police might affect a friend who was a convicted paedophile. In that context an ordinary and reasonable reader would consider that the appellant had admitted not that he did not realise that it was illegal in all cases to touch a child’s genitals, but that he did not realise it was illegal to touch a child’s genitals sexually.
This requires consideration of the defence of honest opinion. Section 31 of the Defamation Act provides:

“31   Defences of honest opinion
(1)    It is a defence to the publication of defamatory matter if the defendant proves that—
(a)     the matter was an expression of opinion of the defendant rather than a statement of fact, and
(b)     the opinion related to a matter of public interest, and
(c)     the opinion is based on proper material.
(2)    It is a defence to the publication of defamatory matter if the defendant proves that—
(a)     the matter was an expression of opinion of an employee or agent of the defendant rather than a statement of fact, and
(b)     the opinion related to a matter of public interest, and
(c)     the opinion is based on proper material.
(3)    It is a defence to the publication of defamatory matter if the defendant proves that—
(a)     the matter was an expression of opinion of a person (the commentator), other than the defendant or an employee or agent of the defendant, rather than a statement of fact, and
(b)     the opinion related to a matter of public interest, and
(c)     the opinion is based on proper material.
(4)    A defence established under this section is defeated if, and only if, the plaintiff proves that—
(a)     in the case of a defence under subsection (1)—the opinion was not honestly held by the defendant at the time the defamatory matter was published, or
(b)     in the case of a defence under subsection (2)—the defendant did not believe that the opinion was honestly held by the employee or agent at the time the defamatory matter was published, or
(c)     in the case of a defence under subsection (3)—the defendant had reasonable grounds to believe that the opinion was not honestly held by the commentator at the time the defamatory matter was published.
(5)    For the purposes of this section, an opinion is based on proper material if it is based on material that—
(a)     is substantially true, or
(b)     was published on an occasion of absolute or qualified privilege (whether under this Act or at general law), or
(c)     was published on an occasion that attracted the protection of a defence under this section or section 28 or 29.
(6)    An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material.”

Section 8 provides that:

“8 Single cause of action for multiple defamatory imputations in same matter
A person has a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than one defamatory imputation about the person is carried by the matter.”

The Act distinguishes between the defamatory matter that is published and the defamatory imputation or imputations carried by that matter. Section 31 is concerned with the former.
Section 25 provides:

“25 Defence of justification
It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.”

Section 25 requires that the defendant, if relying on the defence of justification, prove that the defamatory imputations carried by the matter published are substantially true. By contrast, s 31(1)(a) requires that the defamatory matter itself be an expression of opinion rather than a statement of fact.
The published matter that conveyed the defamatory imputation was primarily a pure statement of fact, namely that the appellant had admitted that even though he was director of the school, he did not realise it was illegal to touch a child’s genitals. The additional statements that conveyed the defamatory imputation were, first, that the appellant was worried about a rabbinic statement urging reporting of alleged paedophiles to the police because it might affect his friend who was a convicted paedophile. That was also a statement of fact and not opinion. The other part of the article that gave rise to the defamatory imputation that the appellant did not realise it was illegal to touch a child’s genitals sexually was that “senior rabbis put the welfare of paedophiles above children.” That was a statement of opinion, being a matter of inference or conclusion about the effect of other evidence given at the Commission.
The respondents pleaded that insofar as each of the three articles and the editorial conveyed the “Plaintiff’s Imputations” they contained expressions of opinion and pleaded the other elements of s 31 upon which the defendants relied. Extensive particulars were provided of the facts said to provide proper material for the opinions expressed.
The primary judge followed the approach she took in O’Brien v Australian Broadcasting Corporation [2016] NSWSC 1289 at [41]-[47] in holding that although the defence of honest opinion under s 31 is directed to the matter complained of rather than to the imputations specified by the plaintiff, the meaning pleaded by the plaintiff is relevant to the defence because it is the meaning found by the court that is to be scrutinised for its fairness. Her Honour said that the question is whether the ordinary reasonable viewer (or reader) would have understood the meaning found to have been conveyed as comment as opposed to fact. In so concluding her Honour construed s 31 having regard to the reasoning of the High Court in Channel Seven Adelaide Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60 as to the defence of fair comment at common law. Her Honour said (at [51]) that the first matter to be determined was:

“whether the matter (in its defamatory meaning as found) was an expression of opinion of the relevant defendant rather than a statement of fact.”

The primary judge concluded on this issue (at [59]):

“Specifically, the reader would have understood the article to be stating, as fact, that the plaintiff admitted in evidence to the Royal Commission “that even though he was director of a school he didn't realise it was illegal to touch a child's genitals” and to be expressing the opinion, based on the matters reported (including that purported fact), that, in saying so, the rabbi had displayed a measure of ignorance which, in the circumstances, was reprehensible. For those reasons, I am satisfied that the first article, in its defamatory meaning as found, was an expression of opinion of the first defendant rather than a statement of fact.”

This formulation of the principle requires that the characterisation of the statement published as opinion or fact depends upon the defamatory meaning as found, as distinct from the matter published.
The defamatory meaning as found would properly be characterised as opinion, that is, that the appellant displayed reprehensible ignorance of the fact that to touch a child for sexual gratification on the genitals was a crime. That is an inference drawn from the appellant’s admission as reported.
In Channel Seven Adelaide Ltd v Manock, Channel 7 promoted a forthcoming television program by the presenter saying:

“The new Keogh facts. The evidence they kept to themselves. The data, dates and documents that don’t add up. The evidence changed from one court to the next.” (at [16])

The defendant pleaded that those words constituted fair comment on a matter of public interest (at [22]). The majority (Gummow, Hayne and Heydon JJ) held that if those words were statements of fact then they could not constitute fair comment on a matter of public interest, and if some but not all of the words amounted to comment, those that did not could not constitute fair comment on a matter of public interest (at [34]). The majority observed that the form of words used is not determinative and the question is whether a reader or hearer would understand the statement to be comment or opinion, rather than a statement of fact (at [35]-[36]). The first, second and fourth sentences were statements of fact (at [38]-[40]). The third sentence (“the data, dates and documents that don’t add up”) was arguably a statement of opinion suggesting a process of evaluation and judgment (at [41]), but was so mixed up and intermingled with factual material that a viewer could not distinguish between what was report and what was comment (at [41]). The four sentences, whether taken separately or together, were not comments (at [44]).
After dealing with the issue as to whether a supposed comment must be based on facts sufficiently identified or generally known, the majority addressed a challenge made to the finding of the Full Court of the Supreme Court of South Australia that “the defence of fair comment must address the imputation pleaded” (at [76]). The appellant’s challenge was rejected. The majority said (at 287-288):

“83 The plaintiff pleaded in para 5 of the statement of claim only one meaning – that the plaintiff had deliberately concealed evidence. The defendant denied that the promotion bore that meaning. If the plaintiff were to fail to establish that the promotion bore that meaning or a meaning not substantially different, the trial judge would not have to go further and the proceedings would be dismissed. If the plaintiff’s allegation were to succeed and the defendant’s denial were to be rejected, the defendant’s further and alternative plea of fair comment would have to be considered. There would be no disparity or difference between the ‘precise nature of the defamatory meaning’ on the one hand and the ‘matter’ or ‘the raw material of the actual words employed’ on the other. The matter sued on – twenty-eight words spoken while a picture of the plaintiff was displayed on the screen – would have been found to have had the meaning alleged, and the only question would be whether those twenty-eight words, bearing that meaning, constituted fair comment. Hence the defendant’s contention that in this case the meaning pleaded by the plaintiff is irrelevant to the defence of fair comment at common law is wrong. It is wrong because by the time the trial judge comes to consider the fair comment defence the question of meaning will have been decided adversely to the defendant. The meaning found is the comment to be scrutinised for its fairness. An initial question will be whether the ordinary reasonable viewer would have understood that the meaning found to have been conveyed was conveyed as comment [Myerson v Smith’s Weekly Publishing Co Ltd (1923) 24 SR (NSW) 20 at 26; Smith’s Newspapers Ltd v Becker (1932) 47 CLR 279 at 296-297, 302; Bailey v Truth and Sportsman Ltd (1938) 60 CLR 700 at 724-725; Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 at 464, 469]. Another question would be whether that meaning was objectively fair. Another would be whether it was based on true facts. Each of the questions must be answered by treating the comment as being the twenty-eight words in the meaning which the court found. If the defendant’s contention were not wrong, it would be open to the defendant to contend that the promotion bore some meaning other than the defamatory meaning which the trial judge had already found, which is impossible. What the Privy Council said in Lloyd v David Syme & Co Ltd [[1986] AC 350 at 365 per Lords Keith of Kinkel, Elwyn-Jones, Roskill and Griffiths], in a case on the Defamation Act 1974 (NSW), is equally applicable to the common law:
“Comment must have a meaning, and ex hypothesi the [trier of fact is] proceeding on the footing that its meaning is defamatory in the sense of the pleaded imputations which have been found established.””

There is no contradiction in the majority’s reasoning that the published matter must be comment and not a statement of fact, and its finding that the defence of fair comment must be responsive to the defamatory meaning contained in the matter published. The matter published must be comment rather than fact, but if the matter published is comment, then the comment will have the meaning found and its fairness must be assessed having regard to that meaning.
In Harbour Radio Pty Ltd v Ahmed (2015) 90 NSWLR 695; [2015] NSWCA 290 this Court said:

“44 The risk in treating the imputation as the matter which must be identified as an expression of opinion or fact is that the form of the imputation may not accurately reflect the language of the defamatory publication. That is significant, bearing in mind the contextual nature of the inquiry as to whether a statement is opinion.”

In Channel Seven Adelaide v Manock, Gummow, Hayne and Heydon JJ stated (at [36]) in terms that are equally applicable to s 31:

“The question of construction or characterisation turns on whether the ordinary reasonable ‘recipient of a communication would understand that a statement of fact was being made, or that an opinion was being offered’ – not ‘an exceptionally subtle’ recipient, or one bringing to the task of ‘interpretation a subtlety and perspicacity well beyond that reasonably to be expected of the ordinary reader whom the defendant was obviously aiming at’.” (citations omitted)

Accordingly, the first question is not whether the defamatory meaning (that is, the imputation) from the matter published in the first article was opinion rather than a statement of fact, but whether the defamatory matter was a statement of opinion rather than fact.
In my view it was not. The principal sting was that the appellant had admitted that even though he was a director of the school he did not realise it was illegal to touch a child’s genitals. That was a statement of fact that he had made that admission.
It was the statements that preceded this statement that give rise to the imputation that the appellant was reprehensibly ignorant that it was a crime to touch a child’s genitals for sexual gratification. As noted above, one of the statements that provide the context from which that implication is drawn was at least arguably a statement of opinion. But as in Channel Seven it was so mixed up with the facts that a reader could not distinguish between what was a report of what was said at the Commission and what was an opinion about the evidence given to the Commission.
In my view the defence of honest opinion under s 31 in respect of the first article should have been dismissed.
The primary judge considered that the article as a whole would have been considered as an expression of opinion rather than fact because it was a reprise of an argument advanced by The Australian Jewish News in 2011 when the newspaper had called for the appellant to be removed as President of the Rabbinical Council because of his position that allegations of abuse should first be reported to a rabbi before report was made to the police. The newspaper argued in its article on 6 February 2015 that evidence given to the Commission by Rabbi Feldman showed that the stance it had taken in 2011 had been shown to be correct by the appellant’s testimony before the Commission.
That may be. But it does not mean that the defamatory matter was an expression of opinion. Rather, it means that the balance of the article was an expression of opinion and would have been so understood by a reasonable reader.
In the course of addressing the question whether there was proper material that was substantially true for what the primary judge found was an opinion expressed in the first article, the primary judge expressly addressed the question whether:

“... it is substantially true that the plaintiff’s evidence to the Royal Commission was that he did not realise it was illegal to touch a child’s genitals sexually or for sexual gratification.” (Judgment [85])

The primary judge found (at [163]) that had it been necessary to determine the defence of justification in respect of the first article, the defence would have been upheld for substantially the same reasons as the defence was upheld in respect of the third article.
The primary judge held that the effect of the appellant’s evidence before the Royal Commission was that he did not realise in 2002 that the sexual touching of a child’s genitals was illegal.
The only material that could justify the imputation that the appellant was reprehensibly ignorant in 2002 that it was illegal to touch a child’s genitals for sexual gratification was his evidence before the Royal Commission. It is true that the appellant frequently said that he was only concerned with Jewish and not civil law, but at no point did he say that he did not know whether touching a child’s genitals for sexual gratification was illegal under the civil law. He was not asked that question. The critical questions that were asked (at [14] and [15] above) were whether he knew that it was illegal to touch a child on the genitals and said that he did not know that as a fact. Counsel assisting may have assumed that having regard to the context of the Royal Commission and the particular allegations concerning AVL, that the touching in her question should be taken as sexual. But counsel’s question did not say so. The primary judge found (at [127]) that it was clear from counsel assisting’s questioning that she was referring to deliberate sexual touching on the genitals. I do not accept that the witness being questioned was required to adopt that assumption.
The primary judge found (at [128]) that:

“In my assessment, the plaintiff’s explanation in the present hearing reflects an ex post facto revision of that position in which he sought to portray his earlier equivocation (as to whether he knew touching the genitals of a child was a crime) on the basis of alternative facts (accidental touching) rather than ignorance of the law. But that is not what the plaintiff was saying at the Royal Commission. In his evidence to the Royal Commission, the plaintiff evidently regarded the choice to remain in a state of ignorance of the secular law as a respectable choice reflecting his conception of the role of a rabbi. In my assessment, the shift in position in his evidence in these proceedings reflects what he now wishes to be understood to have said but not what he in fact said, and meant, at the time.”

The primary judge enjoyed no advantage over this court in assessing the effect of what the appellant was saying in his evidence to the Royal Commission. Although before the Royal Commission the appellant stated on a number of occasions that he was ignorant of the secular law and was concerned with his role as rabbi, he did not say that he was ignorant as to whether the sexual touching of the genitals of a child was a crime. Nor did he say anything that could be properly construed as such an admission. To the contrary, when cross-examined by counsel assisting the Royal Commission, he said that if he had heard that AVL had touched the child’s genitals, then “obviously that I will consider, as probably the criminal system will consider, it a crime” (at [15] above). His evidence was that from what he had been told by AVL he did not think that a crime was involved.
As noted above, in re-examination before the Commission on 9 February 2015, the appellant said in answer to a question from his own counsel that if he had known or believed in July 2002 that AVL had fondled the genitals of a child indecently, that is, with a sexual connotation or overtone, he would have known that that was a crime (at [29] above).
The primary judge was sceptical of that answer because, her Honour said, that in answers given on 6 February to counsel assisting the Royal Commission the appellant had no hesitation in repeating his assertion that he did not know the secular law and he did not know as a fact that it was illegal to touch a child on the genitals (at [111]).
But that finding was made without regard to the appellant’s evidence referred to at [77] above, which was consistent with the evidence that he gave in re-examination. The appellant’s assertion before the Royal Commission that he did not know the secular law did not go so far as to say that he did not know whether under the secular law touching a child on the genitals indecently was a crime. He was not asked that question by counsel assisting.
I would not uphold the defence of justification.
By their notice of contention the respondents challenged the primary judge’s rejection of the defence of fair report.
Section 29(1) of the Defamation Act provides:

“29 Defences of fair report of proceedings of public concern
(1) It is a defence to the publication of defamatory matter if the defendant proves that the matter was, or was contained in, a fair report of any proceedings of public concern.”

There is no issue that the proceeding before the Royal Commission was a proceeding of public concern.
The primary judge rejected the defence of fair report for the following reason:

“288   The critical question is whether the matters complained of in the present case provided a ‘fair’ report of those proceedings. In order to be ‘fair’, a report need not be a complete report of the proceedings in question, nor need it be accurate in every respect. It must, however, be substantially accurate: Chakravarti at [42] per Gaudron and Gummow JJ; Brennan CJ and McHugh J agreeing at [1]. Justice Kirby emphasised in the same case that the requirement is that the report be substantially accurate in all material respects: at [153].
289   The matters complained of in the present case do not purport to be a complete account of the Royal Commission’s hearing into case study 22, nor even a complete account of Rabbi Feldman's evidence to the Royal Commission. However, in my assessment, they do purport to report one aspect of his evidence, namely, his state of knowledge as to whether it was illegal for an adult to touch a child’s genitals. That is a feature of each of the four matters complained of:
(a)   in the first article, it was stated ‘Rabbi Feldman has admitted that even though he was a director of the school he didn't realise it was illegal to touch a child's genitals’;
(b)   the second article stated ‘the head of Yeshiva's Rabbinic School, Rabbi Yossi Feldman, did not know it was a crime for a teacher to touch the genitals of a child in 2002’;
(c)   the third article stated ‘during questioning, Rabbi Feldman revealed that in 2002, when he was 33 years old and was the head of Yeshiva Sydney's Rabbinical College, he wasn't aware it was illegal for a man to touch a child's genitals’;
(d)   the fourth article stated that he ‘admitted that in 2002, even though he was a director of a school, he was not aware it was illegal to touch a child's genitals’.
290   In their written submissions, the defendants provided a schedule listing the paragraphs from the matter complained of which refer to the evidence given by the plaintiff to the Royal Commission and identifying the passages from the Royal Commission transcript of which each paragraph was a report. While that is a helpful document, it invites an approach that reverses the true issue. The question is not whether all of the evidence reported in the article can be found in the transcript but whether all the evidence material to the defamatory meaning found is fairly reported in the article.
291 In my view, there is a single difficulty with the defence which is common to each of the matters complained of. I consider that, in order to be a fair report within the meaning of s 29, although each report did not have to be a complete account of the proceeding in question, it had to provide a complete account of the issue reported. The admission referred to in each of the four matters complained of (set out above) reported only one part of the plaintiff's evidence on the issue of his knowledge as to the illegality of touching a child sexually. While it was a significant and indeed newsworthy aspect of the evidence, and one properly the subject of discussion and opinion, the result in my view is that the articles did not provide a complete account of that issue and did not capture the impression the reader would have formed if he or she had attended the proceedings in person: Chakravarti. In particular, it did not include an account of the parts of the plaintiff’s evidence in which he explained that the reason he was not concerned to know it was illegal to touch a child's genitals was, as he explained it in the passage set out at [98] above:
‘I generally – my role in general is to look at things, and that’s what I do, from a Jewish perspective, from a religious perspective. That’s what I teach. I didn’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.’”

The evidence given by the appellant before the Commission quoted at [291] was prefaced by a question as to whether the appellant knew that the complaint of which he was aware concerning AVL could be a crime of abuse against a child (RCT 6422; 699). The appellant was asked whether he understood that a process would be put in place to remove AVL from students. He agreed with that proposition. He then gave the following evidence:

“Q.   The reason being that the contact that was being complained of was sufficiently serious to warrant his removal from being around children; you understood that was the nature of the complaint?
A.   No, from a Jewish perspective, not necessarily from the legal perspective.
Q.   You knew that complaints were going to be made to the authorities?
A.   And they had been made. But, as I say, I didn’t know whether that’s a criminal issue; I didn’t know whether - how the legal system would deal with it. I generally – my role in general is to look at things, and that’s what I do, from a Jewish perspective, from a religious perspective. That’s what I teach. I didn’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.” (RCT 700)

In this evidence the appellant said nothing about whether the sexual touching of a child’s genitals would be illegal. He said that he thought “from a Jewish perspective it’s highly inappropriate” which was a reference to his evidence that he thought that even on AVL’s account of his dealing with the child, his dealing was highly inappropriate. He accepted in the next answer that the complaint could have been a complaint of abuse. Nowhere in his evidence before the Commission did the appellant say that in his opinion, from a Jewish perspective, he did not know how the secular authorities would deal with the sexual touching of a child’s genitals.

Accordingly, I do not accept the primary judge’s reason for rejecting the defence of fair report.
As the primary judge observed, to be “fair” a report need not be a complete report of the proceedings in question, but must be substantially accurate (Chakravarti v Advertising Newspapers Ltd (1998) 193 CLR 519; [1998] HCA 37 at [42], [153]).
In Chakravati Brennan CJ and McHugh J said (at [2]):

“2 The first matter is that, in our view, where a defendant pleads a defence of fair and accurate report in answer to an action for defamation, it is necessary for the tribunal of fact to determine what meanings the publication has before it determines the fairness of the report. The reason for that is that, until the defamatory meaning of the publication is determined, it is not possible to know whether the report is an answer to the plaintiff's claim. A defendant does not lose a defence of fair and accurate report because it is inaccurate in respect of a distinct defamatory imputation which the plaintiff does not sue upon. A plea of fair and accurate report is a plea in confession and avoidance of the plaintiff's claim. Until the plaintiff's claim is defined, the tribunal of fact cannot know what the plea confesses and avoids. Nor can the Court determine whether the report in defaming the plaintiff is nevertheless fair. As Herron CJ and Ferguson J pointed out in Thorn v Associated Newspapers Ltd [(1964) 64 SR (NSW) 376 at 380]:
‘The report need not be verbatim, but to be privileged it must accurately express what took place. Errors may occur; but if they are such as not substantially to alter the impression that the reader would have received had he been present at the trial, the protection is not lost. If, however, there is a substantial misrepresentation of a material fact prejudicial to the plaintiff's reputation, the report must be regarded as unfair and the jury should be so directed.’” (Emphasis in original.)

This statement was applied by this court in Cummings v Fairfax Digital Australia and New Zealand Pty Ltd (2018) 99 NSWLR 173 at 187; [2018] NSWCA 325 at [49] (fn 34) to s 28 of the Act (fair summary of public documents).
In my view the first article (which contained the defamatory matter published) was a substantially accurate report of the evidence given by the appellant to the Royal Commission, but not a substantially accurate report of the meaning conveyed by the report. Section 29 does not refer to a fair report of the meaning of defamatory matter published. Nonetheless, consistently with authority, I must reject this ground of the notice of contention.

Statutory qualified privilege

Section 30 of the Defamation Act provides:

“30   Defence of qualified privilege for provision of certain information
(1)    There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that—
(a)     the recipient has an interest or apparent interest in having information on some subject, and
(b)     the matter is published to the recipient in the course of giving to the recipient information on that subject, and
(c)     the conduct of the defendant in publishing that matter is reasonable in the circumstances.
(2)    For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest.
(3)    In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account—
(a)     the extent to which the matter published is of public interest, and
(b)     the extent to which the matter published relates to the performance of the public functions or activities of the person, and
(c)    the seriousness of any defamatory imputation carried by the matter published, and
(d)     the extent to which the matter published distinguishes between suspicions, allegations and proven facts, and
(e)     whether it was in the public interest in the circumstances for the matter published to be published expeditiously, and
(f)     the nature of the business environment in which the defendant operates, and
(g)     the sources of the information in the matter published and the integrity of those sources, and
(h)     whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and
(i)     any other steps taken to verify the information in the matter published, and
(j)     any other circumstances that the court considers relevant.
(4)    For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice.
(5)    However, a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward.”

The primary judge found that the hearings of the Royal Commission were a matter of universal interest to readers of The Australian Jewish News so that s 30(1)(a) was satisfied (Judgment [302]). Her Honour was also satisfied that each of the matters complained of was published in the course of giving readers information on that subject (s 30(1)(b): Judgment [305]).
Her Honour was not satisfied that the statutory defence of qualified privilege was satisfied because she was not satisfied that the conduct of the respondents in publishing the matter was reasonable in the circumstances. The primary judge accepted the evidence of the journalists that they believed the content of the articles were true and correct at the time of publication.
The primary judge accepted that the appellant’s evidence before the Royal Commission was a matter of strong public interest, that the matter published related to the performance of the public functions of the appellant as President of the Rabbinical Council, director of the company that ran the Yeshiva College, rabbinical administrator of the Yeshiva Gedola and as a spiritual leader of the Jewish community (Judgment [315]). Her Honour concluded (in respect of s 30(3)(d)) that the matters complained of were carefully written and drew an appropriate distinction between suspicions, allegations and proven facts. The primary judge accepted that it was in the public interest for articles to be published expeditiously (s 30(3)(e)).
In respect of ss 30(3)(c) and (f) the primary judge held that because the defamatory imputations complained of by the appellant were serious a high standard of reporting was required in assessing the reasonableness of the respondents in publishing defamatory matter and that it was appropriate to hold journalists to a higher standard of due diligence in preparing an article published widely and for a profit (Judgment [316] and [319]).
As to s 30(3)(g) it was clear that the sources of each article published was the evidence that the appellant gave at the Royal Commission whose integrity was not in doubt (Judgment [323]).
The defence of qualified privilege failed because the primary judge did not consider that s 30(3)(h) was satisfied.
Her Honour had earlier observed that the list of factors in s 30(3) was not exhaustive. Nor is each element prescriptive.
The primary judge set out the evidence of the journalists which she accepted as follows:

“327 I should note in this context that Mr Lawrence accepted that his sources for the editorial included a confidential source he declined to name. However, I do not think that derogates from my ability to be satisfied that the sources were reliable. He said that, in between when Rabbi Feldman gave his evidence and the publication of the editorial, he received communications from members of the Jewish community indicating that ‘people were very stressed about the testimonies that they heard’ (T293.11). However, he also relied on named sources for the same purpose and the content of the relevant communications was included in the evidence. I am satisfied as to the integrity of the material relied upon by the defendants in writing the matters complained of and that the defendants were entitled to rely on that material ‘with confidence’, as submitted by Ms Chrysanthou.
328 As to s 30(3)(h), the defendants accept that the plaintiff's comment was not sought in relation to the first and second matters complained of, which were published the day of and the day after his evidence to the Royal Commission. As to the first article (written by Mr Lawrence), he explained why he did not contact the plaintiff prior to publication (at T292.21-25):
“A. Because it was based on things that he had already said at the Royal Commission and as far as I was concerned it wasn't specifically to do with Rabbi Feldman, it was actually an attack on the Rabbinical Council of New South Wales and it wasn't a straightforward news report, it was an opinion piece effectively.”
329 The relevant consideration identified in the subsection is whether the matter ‘contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person’. The defendants submitted that it was reasonable to write those articles without reference to the plaintiff, since they reported his evidence. I have had regard to the fact that, while the article commented on that evidence, the plaintiff was not given an opportunity to do the same. His ‘side of the story’ must be taken to be that set out in the statement he asked to have published (and which was in fact published) together with the third and fourth matters complained of. I accept that the absence of any such comment in respect of the first and second articles is a factor pointing against accepting that the conduct was reasonable. However, regard must be had in that context to what was in fact the plaintiff’s ‘side of the story’.”

The primary judge then considered the significance of the fact that the appellant was not given an opportunity to provide a response to the first and second articles. Her Honour said:

“331 ... There is a measure of artificiality in determining this issue. I have found that each of those articles was an expression of opinion based on proper material and, further, that if conveyed as fact, the imputation was substantially true. I am required here to consider the counter-factual scenario that the plaintiff’s defamatory imputations were expressed as fact and were not true. On those alternative assumptions (which I have rejected), the failure to seek and include comment from the plaintiff would, I think, militate against acceptance that the defendants’ conduct in publishing the first and second articles was reasonable in the circumstances.”

I do not accept that conclusion.
When the first and second articles were published the appellant was under cross-examination. It would have been improper for the journalist to seek his comment upon the first and second articles that were published on 6 and 7 February 2015. To do so might amount to interference with the process of the Commission in the same way, as in court proceedings, a witness is warned against discussing his or her evidence with anyone whilst under cross-examination. As the primary judge found (and there was no challenge to this finding) it was in the public interest for the matters to be published expeditiously at or around the time of the appellant’s appearance at the Royal Commission. Consistently with the need for expedition, the respondents were not required to seek the appellant’s comments upon the articles to be published. I would uphold the statutory defence of qualified privilege.

Consideration – the second article

The heading of the second article (“Royal Commission: Our darkest week”) provides the context for the alleged defamatory imputation arising from the statement:

“● The head of Yeshiva’s Rabbinic School, Rabbi Yossi Feldman, did not know it was a crime for a teacher to touch the genitals of a child in 2002.”

The context of the article was that the Jewish community needed to wake up to the fact that there were dozens of victims of child abuse in the community. In the context in which the defamatory matter was published, it conveyed the pleaded defamatory imputation that the appellant displayed reprehensible ignorance of the fact that it was a crime for a teacher to touch a child sexually on the genitals.
The second article was a report of the previous week’s hearing in the Royal Commission. The defamatory matter published was a statement of fact as to the evidence given by the appellant before the Commission.
The primary judge concluded that the article conveyed a defamatory meaning that the appellant had displayed reprehensible ignorance of the fact that it was a crime for a teacher to touch a child sexually on the genitals. I agree.
The primary judge then concluded that the ordinary reasonable reader would have understood that meaning to be an expression of opinion (Judgment [118]).
For the reasons given in respect of the first article, I do not agree with that reasoning.
In my view the defence of honest opinion was not open in respect of the defamatory matter published in the second article.
Nor, for the reasons I have given in respect of the first article, do I accept that a defence of justification was available in respect of the publication.
For the same reasons as are applicable to the first article, I consider that the defence of statutory qualified privilege should have been upheld.

Consideration – the third article

The primary judge found the defamatory matter conveyed by the third article was not opinion, but a statement of fact. I agree. Her Honour upheld the defence of justification. For the reasons applicable to the first article I do not agree.
The primary judge also relied upon an email sent by the appellant shortly after he gave evidence at the Royal Commission to a journalist from The Herald Sun summarised by the primary judge as follows:

“129 The defendants also relied in this context on an email sent by the plaintiff shortly after he gave evidence at the Royal Commission (exhibit 1, page 59). On 11 February 2015, a journalist from The Herald Sun wrote to the plaintiff noting reports that he had stood down from a number of leadership positions in the wake of his evidence at the Royal Commission. The journalist sought a statement as to the truth of those claims and any comment Rabbi Feldman wished to make. He responded:
Yes I have. Not so much because of the veracity of what was presented including you presenting that I hold that it’s not wrong to touch genitals which is simply false as I held it was very very wrong even to massage while lying without touching as is clear in the transcripts. I just didn’t know 100% that it’s a legal crime as with assault that just with a touch while angry is not the same as a hit similarly here also I wasn’t 100% sure then in 2002 whether touching in contrast to fondling was a legal crime as mentioned in my and barrister’s (sic) testimony on Monday.”

The primary judge found:

“130 As submitted by the defendants, that email confirms that the distinction being drawn by the plaintiff in his evidence in 2015 was not between sexual and accidental touching but between his knowledge as to what was considered wrong according to the precepts of Jewish faith and his knowledge as to what would constitute a crime.”

I do not agree. It is clear from the text of the appellant’s response that he was drawing a distinction between touching and fondling, being a similar distinction as that between a touch whilst angry and an assault. He stated that he had said that it was “very very wrong even to massage while lying without touching”. The email said nothing about distinguishing between precepts of Jewish faith and his knowledge of what would constitute a crime. In substance, he asserted that he was not sure in 2002 that accidental touching of a child’s genitals would be a crime.
This evidence does not establish that defence of justification.
Nonetheless, for the same reasons as given in respect of the first article, the defence of statutory qualified privilege should have been upheld.

Consideration - The editorial

The appellant pleaded that the editorial conveyed the defamatory meaning that he was reprehensibly ignorant because he was not aware in 2002 that it was illegal for an adult to touch a child on the genitals for sexual gratification. I accept that that imputation was conveyed for the same reasons as were applicable to the first three articles. The editorial stated that the appellant had argued against his colleagues’ issuing a plea for victims to come forward because he feared the impact that such a statement might have had on his now convicted friend, a child abuser, and that he admitted that in 2002, even though he was a director of the school, he was not aware it was illegal to touch a child’s genitals.
The editorial was plainly an expression of opinion and would have been so understood by an ordinary reader. The opinion expressed was honest and clearly related to a matter of public interest. The only question is whether that opinion was based on proper material.
I agree with the reasons of the primary judge that the opinion expressed was based on proper material.
The proper material upon which an opinion can be expressed need not be such that would prove that the underlying facts upon which the opinion was expressed were substantially true. If it were otherwise, there would be no need for the separate defence of honest opinion. Although I do not accept that the material for the opinion expressed in the editorial established that the imputation was substantially true, it was nonetheless proper material for that opinion.
In respect of the editorial I would uphold the defence under s 31 as well as the defence of statutory qualified privilege.
The respondents propounded the defences of contextual truth in respect of each of the three articles and the editorial. The primary judge made detailed findings upholding the defences of contextual truth. Because I would dismiss the appeal on other grounds it is not necessary to deal with the defence of contextual truth (Boensch v Pascoe [2019] HCA 49 at [8]).
Whilst judgment was reserved the court was informed that the second respondent had died. The solicitors for the respondent submitted that it followed from s 10(b) of the Defamation Act that the proceedings against him could not proceed and the appeal concerning him should be dismissed. The court is not a “person” within the meaning of s 10(b). It is only if the appeal were to be allowed that the possible application of s 10(b) would arise. Section 10(b) does not preclude the court from dismissing the appeal with appropriate costs orders.
For these reasons I would make the following orders:

Grant leave to the applicant to appeal from the orders of 23 July 2018.

Direct that the proposed amended notice of appeal that is annexure “A” to the affidavit of Ljupka Subeska dated 10 May 2019, except paragraph 13, stand as the notice of appeal.

Dismiss the appeal.

Order that the appellant pay the respondents’ costs of the application for leave to appeal and of the appeal, and the costs of the respondents’ notice of motion of 21 February 2019.

EMMETT AJA:

Introduction

This appeal is concerned with alleged defamation of the appellant, Rabbi Yosef Feldman (Rabbi Feldman), by the respondents, Polaris Media Pty Ltd (Polaris) and Mr Joshua Levi. Polaris is the publisher of “The Australian Jewish News” newspaper (the Newspaper). Mr Levi was at relevant times a journalist and was the author of articles published by Polaris in the Newspaper.

He had further argued that too much media ‘hype’ about child abuse could lead ‘fake victims’ to come forward, and labelled Manny Waks, who was a victim of Cyprys, as a ‘phony attention seeker’.”

The editorial was published on the front page of AJN, and contained the following:

“OVER the past few days, Rabbi Yossi Feldman’s testimony at the Royal Commission has shocked and saddened the community and shamed us in the full glare of the mainstream media spotlight.
As well as suggesting back in 2011 that complaints of abuse should be taken to a rabbi for investigation ahead of the civil authorities, it was also revealed that he had argued against his colleagues issuing a plea for victims to come forward as he feared the impact such a statement may have on his friend, the now convicted child abuser, David Cyprys.
He also thought the ‘hype’ surrounding abuse would encourage ‘fake victims’ to come forward, called for lenciency for abusers who hadn’t offended for a number of years and admitted that in 2002, even though he was director of a school, he was not aware it was illegal to touch a child’s genitals.
…”

In large and bold print at the bottom of the page, it was said:

“We can only hope the lessons have now been learnt so as a community we can move forward without these terrible crimes and despicable errors of judgment being committed again.”

The applicant pleaded that each publication conveyed a defamatory imputation or imputations as follows (it will be convenient to refer to the imputations by their position and numbering in the first amended statement of claim):

First article: “that he [the applicant] displayed reprehensible ignorance of the fact that to touch a child for sexual gratification on the genitals was a crime” (imputation 3(a));

Second article: “that he [the applicant], although the head of a rabbinical college fundamentally concerned with the responsibilities of teachers, behaved shamefully in that:-

(a) He displayed reprehensible ignorance of the fact that it was a crime for a teacher to touch a child sexually on the genitals” (imputation 6(a));

Third article:

“He [the applicant] gave evidence that he was not aware in 2002 that for a man to touch a child on the genitals sexually was a crime and was therefore shockingly ignorant” (imputation 9(a));

“He [the applicant] failed to notify the Department of Community Services (DOCS) that a sex offender was about to leave the jurisdiction, in circumstances where he was obliged either morally or legally to notify DOCS and was therefore a person of low morals and low ethics” (imputation 9(b));

“He [the applicant] attempted to assist a child sex offender from evading justice.

The editorial: “That he [the applicant], in giving evidence at the Royal Commission into Institutional Responses to Child Sexual Abuse concerning his attitudes to child sexual abuse in the Jewish community:

(a) … was reprehensibly ignorant because he was not aware in 2002 that it was illegal for an adult to touch a child on the genitals for sexual gratification” (imputation 12(a)).

Polaris admitted that it published the three articles and the editorial and Mr Levi admitted that he was the author of the second and third articles. Each denied that any of the material conveyed the defamatory imputations pleaded by the applicant. Each pleaded positive defences under the Defamation Act 2005 (NSW) of honest opinion (s 31), justification (s 25), contextual truth (s 26), fair report of proceedings (s 29), statutory qualified privilege (s 30) and qualified privilege at common law.
Pursuant to s 26, the respondents pleaded multiple contextual imputations with respect to each publication.
The proceedings were heard by the primary judge without a jury. The applicant was represented by counsel and solicitors for the first four days of the trial but then withdrew instructions to counsel and solicitors and thereafter represented himself. On 23 July 2018, after a trial over five days, the primary judge directed the entry of judgment for the respondents: Feldman v Polaris Media Pty Ltd as trustee of The Polaris Media Trust trading as The Australian Jewish News (No 2) [2018] NSWSC 1035. On 3 August 2018, for reasons published on 6 August 2018, the primary judge refused an application made by the applicant to have judgment set aside and for her Honour to recuse herself: Feldman v Polaris Media Pty Ltd as trustee of The Polaris Media Trust trading as The Australian Jewish News (No 3) [2018] NSWSC 1201. Her Honour ordered the applicant to pay the costs of the respondents of defending the proceedings and of the further application.
The primary judge found that the imputations alleged in relation to the first and second articles and the editorial and the first imputation alleged in relation to the third article were conveyed and were defamatory. Her Honour found that the second and third imputations alleged in relation to the third article were not conveyed.
The primary judge also found that the imputations alleged in relation to the first and second articles and the editorial were expressions of opinion that were rationally based on proper material for comment and therefore that the first and second articles and the editorial were defensible under s 31 as honest opinion. Her Honour found that the first imputation in relation to the third article was not an expression of opinion and accordingly the defence of honest opinion failed in respect of that article.
Her Honour also found that the defence of qualified privilege under s 30 of the Defamation Act was established in relation to the third article and the editorial. Her Honour found that each imputation that had been conveyed was substantially true. Finally, her Honour held that the defence of fair report under s 29 of the Defamation Act failed in relation to all three articles and the editorial.
Thus, each imputation found to have been conveyed and to have been defamatory was successfully defended on at least two bases without resort to the defence of contextual truth. Imputations 3(a) and 6(a) were found to have been defended on the basis of honest opinion and justification; imputation 9(a) on the basis of justification and statutory qualified privilege, and imputation 12(a) on the basis of honest opinion, justification and statutory qualified privilege. It was therefore unnecessary to determine the contextual truth defence. However, against the possibility of error in her earlier rulings, the primary judge did address that defence. She found that several of the contextual imputations pleaded by the respondents were substantially true, and that, by reason of the substantive truth of those imputations, the imputations conveyed by the first and second articles did not further harm the applicant’s reputation. She reached a different view in relation to the third article and the editorial.

The application for leave to appeal

At the hearing in this Court, the applicant sought leave to rely on an amended notice of appeal (which should be treated as a draft). Limited leave was granted. The draft amended notice of appeal alleges that the primary judge made errors as follows:

in finding that the respondents had the defence of honest opinion in relation to the first and second articles and the editorial;

in determining that there was proper material for the respondents to base their opinion in relation to the first and second articles and the editorial;

in failing to afford the applicant procedural fairness in determining the facts;

by making findings of fact incapable of being supported by the evidence, or not reasonably available on the evidence, specifically, in finding that the applicant was not, or gave evidence at the Royal Commission that he was not, aware that it was against the law for an adult to touch a child sexually on the genitals;

by failing to have regard to the principles in Browne v Dunn (1893) 6 R 67;

by failing to take relevant evidence into consideration;

in relation to the defence of statutory qualified privilege, in determining the reasonableness of the conduct of the respondents with regard to:

the fact that the respondents did not seek comment from the applicant nor publish any relevant comment obtained from him;

the fact that the applicant’s evidence at the Royal Commission was not fairly reported; and

the fact that the respondents were not of the view that the imputations complained of were true.

in finding that the conduct of the respondents was reasonable in determining the issue of statutory qualified privilege, erred in finding that the respondents contacted the applicant in relation to the third and fourth articles and erred in finding that the applicant’s side of the story was published;

in finding that, because of the contextual imputations alleged by the respondents, the defamatory imputations did no further damage to the applicant;

in determining the defence of contextual truth by failing to have regard to relevant evidence given by the applicant;

in determining that it was not reasonably open to find that the contextual imputations were true;

in failing to award damages above the sum of $100,000.

Proposed appeal grounds 1 and 2: honest opinion

Section 31 of the Defamation Act relevantly provides:

31 Defences of honest opinion
(1)   It is a defence to the publication of defamatory matter if the defendant proves that—
(a)   the matter was an expression of opinion of the defendant rather than a statement of fact, and
(b)   the opinion related to a matter of public interest, and
(c)   the opinion is based on proper material.
(2)   It is a defence to the publication of defamatory matter if the defendant proves that—
(a)   the matter was an expression of opinion of an employee or agent of the defendant rather than a statement of fact, and
(b)   the opinion related to a matter of public interest, and
(c)   the opinion is based on proper material.
(3)   …
(4)   A defence established under this section is defeated if, and only if, the plaintiff proves that—
(a)   …
(b)   in the case of a defence under subsection (2)—the defendant did not believe that the opinion was honestly held by the employee or agent at the time the defamatory matter was published, or
(c)   …
(5)   For the purposes of this section, an opinion is based on proper material if it is based on material that—
(a)   is substantially true, or
(b)   was published on an occasion of absolute or qualified privilege (whether under this Act or at general law), or
(c)   was published on an occasion that attracted the protection of a defence under this section or section 28 or 29.
(6)   An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material.

Section 28 provides that it is a defence to the publication of defamatory material if the defendant proves that the matter was contained in a public document. Section 29 provides that it is a defence to the publication of defamatory matter if the defendant proves that the matter was, or was contained in, a fair report of any proceedings of public concern.
In the circumstances of this case, the questions that arise in relation to the defences under s 31 are, in relation to each publication:

whether the matter (that is, the publication, as distinct from the imputations found to have been conveyed by the publication) was an expression of opinion (of the defendant – subs (1), or an employee or agent of the defendant – subs (2)); and

whether the opinion related to a matter of public interest; and

whether the opinion was based on proper material (as defined in subs (5)).

Such a defence is defeated only if the plaintiff proves that the opinion was not honestly held by the defendant, or the employee or agent of the defendant, at the time the defamatory matter was published (s 31(4)).

Expression of opinion

The primary judge gave a number of reasons for finding that the first article was an expression of opinion rather than a statement of fact. First, she accepted a submission made by the respondents that, “in its textual context”, the point of reporting the applicant’s ignorance of the requirements of the law was to convey disagreement with his reported belief that rabbis have common sense and can investigate allegations of child sexual abuse. That, her Honour held, was an indicator of opinion rather than fact.
Second, her Honour considered that the article was presented as an argument in defence of its 2011 publication calling for the applicant to be removed from his position on the RCNSW. That too, her Honour concluded, was a strong indicator of opinion rather than fact, particularly by reference to the concluding two sentences of the article.
Third, her Honour relied on the use of the word “reprehensible” in the imputation, as:

“… apt to convey an evaluative moral judgment.”

Proper material

The primary judge found, upholding the respondents’ submissions, that the matter was based on material that was substantially true. Six factual propositions underlie that finding, they are:

the applicant is a rabbi;

the applicant sent emails saying people should report allegations of child abuse to a rabbi in the first instance and not the police;

the applicant gave evidence to the Royal Commission;

the applicant had been a director of a school;

the applicant gave evidence that he did not realise that it was illegal to touch a child’s genitals;

the applicant was president of the RCNSW.

It was not in issue that propositions (a), (c), (d) and (f) were true. Her Honour gave extensive consideration to the truth of propositions (b) and (e) and concluded that each was substantially true. Accordingly, the respondents successfully defended the first article under s 31. No issue under subs 31(4) was raised.

The applicant’s contentions on appeal

The applicant contended that the primary judge was in error in finding that the first article was an expression of opinion and not a statement of fact.
The written submissions he provided are difficult to understand. It is best to extract some passages therefrom. They include:

“2.   … It is submitted the ordinary reader would not have understood the article as an opinion. [The article] only asserts statements of fact.
3.   The opening line ‘Today have learnt through the Royal Commission …’ clearly indicates the article is stating objective facts. No reader would have read otherwise. It is objectively unacceptable by ordinary standards for an ordinary adult, not afflicted by some form of cognitive impairment, to not know it is against the law for an adult to molest children on the genitals. The Court should take judicial notice that most, if not all ordinary adults are aware it [sic] against the law to sexually touch children on the genitals, including child sex offenders. There might be some exceptional circumstance where it is acceptable that an adult does not know that it is against the law for an adult to molest a child on the genitals, for example of [sic] the person is decided to live as a hermit and have no contact with children. That is not the case here. The mere fact the article asserts the appellant does not know it is against the law to sexually molest children on the genitals is unacceptable or reprehensible ignorance by ordinary standards.
4.   No explanation is given in the article why the applicant could be so ignorant … The ordinary reader would understand the article as asserting the applicant didn’t regard there being any legal issues with an adult molesting a child on the genitals, and as such the article is asserting the applicant is reprehensibly ignorant as fact.
…”

There is more, in the same vein. It is fruitless to go further. The submissions fail to advance any comprehensible basis for a conclusion that the primary judge erred in her findings with respect to the defences of honest opinion.

For the reasons given by the primary judge, the first article should be seen as an expression of opinion. One key to that conclusion, as her Honour found, lies in the word “reprehensible”. It is telling that, in formulating the imputations alleged to have been conveyed by the first article, the applicant (or his advisors) focussed on what they discerned as the undertone of the matter. Once it is accepted that the article conveyed the accusation that the applicant displayed “reprehensible ignorance”, it is inevitable that the matter will be seen as an expression of opinion. “Reprehensible” is the language of opinion and value judgment.
Nothing in the argument advanced on behalf of the applicant persuades me that the ruling of the primary judge that the first matter was an expression of opinion was wrong.
The applicant also contended that the primary judge was in error in determining that there was proper material on which the opinion was based.
In this respect the applicant seized upon the language of proposition (e), that he “gave evidence that he did not realise that it was illegal to touch a child’s genitals”. He asserted that that was substantially false because, not having used the word “realise”, he did not give that evidence. The argument went on:

“Further, imbedded in it, by the use of the word ‘realise’ is a conclusion which is false, namely that it is against the law to touch a child’s genitals. To suggest that one is capable of not realising or knowing something which is false, flouts the ordinary usage of language. Thus, the writer of the article is stating something which is substantially false, that it is always against the law for an adult to touch a child’s genitals.”

In concluding that proposition (e) was substantially true the primary judge quoted lengthy extracts from the transcript of the applicant’s evidence in the Royal Commission. It is necessary to mention only two of those extracts. They are:

“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.
…
Q   I asked you before the break, and I asked you this very question at line 30, page 6432 of the transcript, ‘in 2002 did you understand it was against the law for an adult to touch the genitals of another child,’ and you said, ‘I didn't know that as a fact.’
A   I still don’t – now I know as a fact it is. But then I didn’t know it is a fact, but I would have imagined that it is.”

In my opinion, the proposition that the applicant gave evidence to the Royal Commission that he did not “realise” that it was illegal to touch a child’s genitals is amply borne out by these answers. It is not to the point that other answers given by the applicant were more equivocal; nor is it to the point that the word “realise” was not used.
I would reject the challenge to the finding that the expression of opinion contained in the first article was based on proper material. I would reject grounds 1 and 2 of the proposed appeal.

Proposed appeal grounds 3, 4, 5 and 6

In his written submissions the applicant dealt with these grounds together. I will do the same.
Ground 3 is an assertion that the primary judge failed to afford procedural fairness in her determination of the facts. In the written submissions filed in support of this ground, I am able to detect only two references that could remotely be taken to be assertions of denial of procedural fairness.
Those references are to questioning of the applicant in the Royal Commission, generally on the subject of the illegality of adults touching children on the genitals, and, more specifically, the applicant’s awareness of that illegality. Specific reference was made in the questioning to a person known as “AVL”, who, it seems, had been involved in child sexual offending.
In the primary judgment, lengthy passages of the applicant’s evidence in the Royal Commission and cross-examination at trial are set out. It is fair to say that his answers are, at times, equivocal and appear to be evasive.

The applicant was initially questioned on Friday, 6 February 2015, and was re-examined by his own counsel on Monday, 9 February 2015. In his evidence at first instance, the applicant was asked to explain some of the expressions he had used in cross-examination in relation to AVL. The following passage of transcript from the trial is extracted in the judgment:

“A.   Yeah. Because with regard to AVL, it would have touched – it’s likely he would have touched of a sexual nature by touching, but it could very well be it was touched by accident inadvertently as he was massaging so that’s why I probably--
HER HONOUR
Q.   Are you saying you used the word ‘probably’ because you were allowing for the possibility that he touched the genitals in the course of the massage accidentally?
A.   Correct.”

Her Honour considered (primary judgment [128]) that that explanation reflected “an ex post facto revision” of the equivocal position he had earlier taken concerning his knowledge of the legality of touching children on the genitals.

With that background, I come to the submission made by the applicant; it was submitted:

“… Her Honour infringes on one the most fundamental principles of procedural fairness – that a witness has no other obligation other than to answer the question as the witness hears it.”

His second complaint was that the primary judge:

“… had no basis to conclude … the applicant’s evidence at the hearing was an ex post facto revision.”

He asserted that this had never been put to the applicant in cross-examination and that he had no notice that this was the respondents’ case.
Both submissions, in my opinion, should be rejected. It is plain that her Honour paid careful attention to the evidence given by the applicant, both in the Royal Commission, and in the proceedings before her. It was open to her to draw the conclusions that she did. It was, indeed, her task to assess the evidence given by the applicant in both proceedings. There is no basis to conclude that she failed to understand that the applicant’s obligation in the Royal Commission was merely to answer the questions put to him.
Further, it was open to her, and, indeed, her task, to assess the evidence given by the applicant before her. She was not bound to accept his evidence and she was not bound to notify him of any scepticism she experienced. There was no denial of procedural fairness in the manner in which the primary judge went about her task.
Ground 4 asserted that the primary judge made errors of law by making findings of fact incapable of being supported by the evidence, or not reasonably available on the evidence. The ground specifies a finding of fact that the applicant gave evidence at the Royal Commission that he was not aware that it was against the law for an adult sexually to touch a child on the genitals.
The written submissions do not identify any other finding of fact said to be unsupportable on the evidence. They do assert that her Honour had no basis to conclude, as she did, (at [128]) that the applicant’s evidence in the Supreme Court hearing was an ex post facto revision.
The argument appeared to be directed to an explanation of why the applicant was equivocal in his answers in the Royal Commission. For example, it was put:

“22 The most obvious explanation for the [applicant] not knowing as a fact [that] it is against the law for an adult to touch the genitals of another child is that it is in fact not per se against the law for an adult to touch a child on the genitals.”

It was also suggested that the questions directed to the applicant in the Royal Commission were vague, meaning that it was reasonable for the applicant to give the less than forthcoming answers that he did.
The primary judge gave careful attention to the transcript of evidence in the Royal Commission. The issue to which her Honour was directing attention in this part of the judgment was whether it was true that, in the Royal Commission, the applicant had given evidence that he did not realise that it was illegal to touch a child on the genitals. After careful examination of the relevant transcript her Honour concluded that it was substantially true. The extracts of evidence from the Royal Commission amply support that conclusion. There is no basis for concluding that her Honour made findings of fact that were not capable of being supported by the evidence.
Ground 5 of the proposed appeal was that her Honour failed to have regard to the principles in Browne v Dunn. In support of this ground the applicant asserted that in cross-examination in the proceedings before the primary judge, the respondents did no more than put to the applicant that the imputations were true, and that Browne v Dunn required more.
Again, this overlooks the issue to which the cross-examination was directed. That issue was the evidence given by the applicant in the Royal Commission. It was not the truth or otherwise of that evidence. It was sufficient for the respondents to put to the applicant that he had given evidence to the effect of that recorded in the transcript of the Royal Commission. In any event, given that the transcript was available, that question was incontrovertible.
Ground 6 asserts that the primary judge failed to take into account relevant evidence. In the written submissions it is submitted:

“37 Furthermore, Her Honour makes no reference at all in the judgment [to] the [applicant’s] express evidence that he had known his whole adult life that is [sic] was a crime for an adult to sexually touch a child on the genitals.”

It was also asserted that her Honour failed to take into consideration the applicant’s uncontested evidence that, at the Royal Commission, he intentionally answered questions “in a literal manner”.
The applicant did not identify the “express evidence” to which he was referring concerning what the applicant had known “his whole adult life”.
There is nothing contained in the submissions advanced on behalf of the applicant that persuades me that the primary judge overlooked or failed to take account of any relevant evidence. I would reject each of those proposed grounds.

Proposed appeal grounds 7 and 8

These grounds concern the defence of qualified privilege provided by s 30 of the Defamation Act. That section relevantly provides:

30 Defence of qualified privilege for provision of certain information
(1)   There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that—
(a)   the recipient has an interest or apparent interest in having information on some subject, and
(b)   the matter is published to the recipient in the course of giving to the recipient information on that subject, and
(c)   the conduct of the defendant in publishing that matter is reasonable in the circumstances.
(2)   For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest.
(3)   In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account—
(a)   the extent to which the matter published is of public interest, and
(b)   the extent to which the matter published relates to the performance of the public functions or activities of the person, and
(c)   the seriousness of any defamatory imputation carried by the matter published, and
(d)   the extent to which the matter published distinguishes between suspicions, allegations and proven facts, and
(e)   whether it was in the public interest in the circumstances for the matter published to be published expeditiously, and
(f)   the nature of the business environment in which the defendant operates, and
(g)   the sources of the information in the matter published and the integrity of those sources, and
(h)   whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and
(i)   any other steps taken to verify the information in the matter published, and
(j)   any other circumstances that the court considers relevant.
…

The principal issue raised by the applicant under these grounds concerns the assessment of the reasonableness of the respondents’ conduct in publishing the defamatory matter having regard to the matters specified in subs (3)(h). It was asserted that failure by the respondents to give the applicant an opportunity to respond to the allegations would “mean reasonableness is untenable”.
The implied assertion that the applicant was not given an opportunity to respond to any of the allegations calls for further examination. The primary judge dealt with this at [327] and following. She noted that the respondents accepted that the applicant’s comments were not sought in relation to the first and second articles, which were published on the day of and the day after his evidence to the Royal Commission. An explanation for that was given by the author (a Mr Lawrence). Mr Lawrence said that, as far as he was concerned, the first article was not specifically to do with the applicant, but was an attack on RCNSW and, moreover, was effectively an opinion piece. Further, in relation to the third article and the editorial, Mr Lawrence said that AJN had been asked by the Feldman family to stop contacting the applicant and his mother, and, instead, if comment were needed, to contact the applicant’s brother, Eli. Mr Lawrence said that was done.
Further, although it is not apparent from the publications in respect of which the applicant sued, the third article and the editorial appeared in an edition of AJN that included the statement made by the applicant and published his request through his brother Eli.
Her Honour considered that that circumstance was a strong factor pointing in favour of accepting the reasonableness of the respondents’ conduct in publishing the third article and the editorial.
Her Honour found “a measure of artificiality” in determining the reasonableness of the conduct of the respondents in publishing the first and second articles and their failure to contact the applicant for his response. She found that the requirement of providing an opportunity to respond did not sit comfortably with the finding that the matter published was an expression of opinion based on proper material and substantially true.
In my opinion there is no substance in these grounds of appeal and they ought to be rejected.

Proposed appeal grounds 9, 10 and 11

These grounds concern the defence of contextual truth.
By ground 9 the applicant complains of the conclusions reached by the primary judge in relation to the defence of contextual truth. The ultimate conclusion was that by reason of the contextual imputations her Honour found to have been conveyed and to be true, the defamatory imputations relied on by the applicant did not further damage his reputation.
Her Honour considered the contextual truth defence only against the possibility that she was held to be in error in relation to another or others of the issues presented to her for determination.
Since I am not satisfied that any other ground of appeal has been made out, it is unnecessary to consider the contextual truth defence. The respondents have successfully defended each of the publications.
The consequence is that ground 12 (assessment of damages) does not arise.

Proposed appeal ground 13: apprehended bias

The amended notice of appeal signed on 10 May 2019 raised, for the first time, an additional ground of appeal, that the primary judge conducted the hearing in a manner giving rise to an apprehension of bias. The ground had not been raised previously, and was not raised during the trial. The respondents opposed the ground being raised at that late stage.
The proposed ground complained only of a specific exchange occurring on 12 July 2017 in which the primary judge addressed two questions to the applicant. The primary judge put to the applicant that he had recently “taken up this idea” that there were legal ways to touch a child. The applicant replied that he had known that “all along”. Although counsel for the applicant objected to the primary judge’s questions of his client, on the basis they were “not fair questions”, he made no application. There was nothing untoward about the questions asked by her Honour, who made clear she was merely “flagging issues” that were of concern to her and inviting the applicant to correct issues that may otherwise turn out to be unfavourable to him. In any event, the applicant should, in the circumstances, be treated as having waived a complaint as to that matter. Leave to raise this proposed ground was refused.
The applicant has failed to make out any arguable or reasonable basis for a grant of leave to appeal.
As indicated in the other judgments, the Court has been advised that, since judgment was reserved, Mr Levi has died. It was suggested by his former lawyers that the appeal ought, so far as he is concerned, be dismissed, by reason of s 10(b) of the Defamation Act. Section 10(b) precludes the assertion, continuation or enforcement of a cause of action in relation to a person who has died since the publication in question.
This appeal is neither the assertion, continuation or enforcement of a cause of action in defamation. It is not affected by s 10(b). Section 10(b) would have implications for Rabbi Feldman if he were to be successful in the appeal.

Conclusion

The orders I propose are:

The notice of appeal filed on 15 February 2019 and subsequently amended is dismissed.

Leave to appeal against the orders of 23 July 2018 is refused.

The applicant is to pay the respondents’ costs of the proceedings.

**********

APPENDIX

Our community’s shame

Over the past few days, Rabbi Yossi Feldman’s testimony at the Royal Commission has shocked and saddened the community, and shamed us in the full glare of the mainstream media spotlight.

As well as suggesting back in 2011 that complaints of abuse should be taken to a rabbi for investigation ahead of the civil authorities, it was also revealed that he had argued against his colleagues issuing a plea for victims to come forward as he feared the impact such a statement may have on his friend, the now-convicted child abuser, David Cyprys.

He also thought the ‘hype’ surrounding abuse would encourage ‘fake victims’ to come forward, called for leniency for abusers who hadn’t offended for a number of years and admitted that in 2002, even though he was director of a school, he was not aware it was illegal to touch a child’s genitals.

Yesterday, amid a storm of criticism, Rabbi Feldman apologised to the community and stepped down from his senior positions within Sydney’s Yeshiva Centre.

By then, though, the damage had been done. However, it could have been avoided.

When Rabbi Feldman first put forward heinous views regarding the reporting of child abuse to rabbis rather than the police, The AJN broke the story and called for his resignation as president of the Rabbinical Council of NSW (RCNSW).

While many of our communal leaders privately congratulated the AJN, few went on the record to openly condemn him and support our call.

Amid the furore that followed, Rabbi Feldman briefly stepped aside as RCNSW president, but then resumed the role.

The fact the RCNSW allowed him to return as president speaks for itself.

In 2013, The AJN carried a front-page headline which reads “Enough cover-ups, excuses, denials and finger pointing. No more.”

In the accompanying article, we wrote, “It is time all those involved and all those with any knowledge of what happened 10, 20 or 30 years ago come forward and tell the truth.

‘It’s time for our spiritual leadership to take a lead. Instead of merely reacting to the latest revelation, they need to come clean – If our rabbinate is to regain our faith, if it is to be more than simply fodder fuelling tabloid tittle-tattle, if our rabbinate is to move forwards, our rabbis must own up to their past.”

Instead of embracing the spirit of the article, the rabbinate reacted with fury, clutching onto one simple phrase to which we said that, given what had emerged with regard to child abuse and cover-ups, the institution was “an apple that’s rotted to the core”.

It was a harsh description but as we subsequently tried to explain we knew there were a lot of good rabbis out there, however, the institution as a whole was being tainted.

Suffice to say, they were not appeased and continued to lambast us for the disrespect we had shown.

How things have changed. This week on Facebook, two senior rabbis have publicly lamented the silence and inaction of their colleagues. Others have contacted us in private to express their dismay at the way the rabbinate is being shamed by the evidence emerging from the Royal Commission: one even said Rabbi Feldman “has made us all look rotten to the core”.

In the wake of his evidence, many communal leaders and organisations, including the RCNSW, have now spoken out, expressing their revulsion and abhorrence at his statements to the Commission.

While it’s gratifying that they’ve now come to this realisation, given what they knew at the time – which in the case of some was more than we at The AJN knew – if they had been a little more vocal and forthright a few years ago, we could have been spared the embarrassment of the past few days.

As the president of the Organisation of Rabbis of Australasia, Rabbi Meir Shlomo Kluwgant, said on Tuesday, “the concerns raised by The AJN were warranted and justified.”

However it should not have had to take a Royal Commission for the community’s leadership – our roof bodies and rabbis – to express how appalled they were.

Much of what is coming out at the Commission has been known for years. The writing was on the wall – and on the cover of The AJN.

Let us be clear, this is not about saying “we told you so”, nor is it a witch hunt against an individual rabbi who is clearly naive and out of touch.

This is about our responsibility as a community, to the victims and their families – the fact that they were ignored at the time of their abuse, and ignored, disparaged and shamed when they finally had the courage to come forward.

Simply issuing glib statements encouraging people to go to the police was not enough. The cancerous attitudes within our community needed to be stamped out years ago.

Like the victims, our leaders should also have had the courage to take a public stand much sooner.

The editorial also included the following statements in bold type:

“Like the victims, our leaders should also have had the courage to take a public stand much sooner.”,

and

“We can only hope the lessons have now been learnt so as a community we can move forward without these terrible crimes and despicable errors of judgment being committed again.”

Endnotes

Decision last updated: 01 April 2020

Medium Neutral Citation:	Feldman v Polaris Media Pty Ltd as Trustee of the Polaris Media Trust t/as The Australian Jewish News [2020] NSWCA 56
Hearing dates:	20 May 2019
Decision date:	01 April 2020
Before:	White JA at [1]; Emmett AJA at [128]; Simpson AJA at [166]
Decision:	(1) Grant leave to the applicant to appeal from the orders of 23 July 2018. (2) Direct that the proposed amended notice of appeal that is annexure “A” to the affidavit of Ljupka Subeska dated 10 May 2019, except paragraph 13, stand as the notice of appeal. (3) Dismiss the appeal. (4) Order that the appellant pay the respondents’ costs of the application for leave to appeal and of the appeal, and the costs of the respondents’ notice of motion of 21 February 2019.
Catchwords:	CIVIL PROCEDURE — Court of Appeal — Leave to appeal – whether appeal incompetent – notice of appeal – application filed out of time – where no application has been made for an extension of time or explanation given – no evidence appeal involves matter at issue of value of $100,000 or more DEFAMATION — whether denial of procedural fairness – whether conclusions open to be drawn by primary judge in absence of cross-examination – whether appellant had adequate opportunity to explain his position – where trial judge did not notify the appellant of her doubts concerning his evidence DEFAMATION — Defences — honest opinion — whether defamatory matter was statement of fact or opinion/comment – where matters of opinion intermingled with statements of fact – whether defamatory matter or defamatory meaning as found focus of inquiry DEFAMATION — Defences — honest opinion – whether fairness or honesty of comment must be responsive to the defamatory meaning as found or the defamatory matter – whether comment or opinion based on proper material DEFAMATION — Defences — fair report – whether defamatory matter a fair report where it is a substantially accurate report in fact – where not a substantially accurate report of the meaning conveyed by the report DEFAMATION — Defences — statutory qualified privilege – whether failure to seek comment from the appellant was not reasonable – where Royal Commission proceedings were a matter of public interest – where evidence of the appellant was ongoing – where appellant contacted through a conduit and published a statement in same publication as appeared the defamatory matter
Legislation Cited:	Defamation Act 2005 (NSW) ss 8, 25, 26, 29, 30, 31 Supreme Court Act 1970 (NSW) s 101(2)(r) Uniform Civil Procedure Rules 2005 (NSW) rr 51.2, 51.9, 51.22, 51.41
Cases Cited:	Boensch v Pascoe [2019] HCA 49 Browne v Dunn (1893) 6 R 67 Chakravarti v Advertising Newspapers Ltd (1998) 193 CLR 519; [1998] HCA 37 Channel Seven Adelaide Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60 Cummings v Fairfax Digital Australia and New Zealand Pty Ltd (2018) 99 NSWLR 173; [2018] NSWCA 325 Feldman v Polaris Media Pty Ltd as trustee of The Polaris Media Trust trading as The Australian Jewish News (No 2) [2018] NSWSC 1035 Feldman v Polaris Media Pty Ltd as trustee of The Polaris Media Trust trading as The Australian Jewish News (No 3) [2018] NSWSC 1201 Harbour Radio Pty Ltd v Ahmed (2015) 90 NSWLR 695; [2015] NSWCA 290 O’Brien v Australian Broadcasting Corporation [2016] NSWSC 1289
Category:	Principal judgment
Parties:	Yosef Yitzchak Feldman (Applicant) Polaris Media Pty Ltd as trustee of The Polaris Media Trust t/as The Australian Jewish News (First Respondent) Joshua Levi (Second Respondent)
Representation:	Counsel: J Cohen (Applicant) S Chrysanthou/N Olson (Respondents) Solicitors: Astoria Lawyers (Applicant) HWL Ebsworth Lawyers (Respondents)
File Number(s):	2018/251066; 2019/51685
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Division Citation: Feldman v Polaris Media Pty Ltd as trustee of The Polaris Media Trust trading as The Australian Jewish News (No 2) [2018] NSWSC 1035 Date of Decision: 23 July 2018 Before: McCallum J File Number(s): 2015/382029