Feldman v Polaris Media Pty Ltd as Trustee of the Polaris Media Trust t/as the Australian Jewish News

The Court of Appeal of New South Wales considered an application for leave to appeal and an appeal by the applicant, Feldman, against orders made by the primary judge in defamation proceedings brought against the respondent, Polaris Media Pty Ltd as Trustee of the Polaris Media Trust trading as the Australian Jewish News. The dispute concerned publications made by the respondent.

The Court was required to determine several legal issues, including whether the appeal was incompetent due to the notice of appeal being filed out of time without an application for an extension or explanation, and whether the appeal involved a matter of sufficient value to grant leave. Further issues related to defamation law, specifically whether the applicant was denied procedural fairness, whether the primary judge's conclusions were open to be drawn in the absence of cross-examination, and whether the applicant had an adequate opportunity to explain his position. The Court also considered the defences of honest opinion and fair report, including whether the defamatory matter constituted a statement of fact or opinion, whether the opinion was based on proper material, and whether the report was substantially accurate. Finally, the Court examined the defence of statutory qualified privilege, including the reasonableness of failing to seek comment from the applicant.

The Court granted leave to appeal, noting that the appeal involved matters of public interest and that the applicant had been contacted through a conduit and published a statement. However, the Court ultimately dismissed the appeal. The reasoning involved a detailed analysis of the primary judge's findings in relation to the defences of honest opinion and fair report, and the application of the principles of procedural fairness. The Court found that the primary judge's conclusions were open to be drawn and that the applicant had not been denied procedural fairness.

The Court ordered that leave to appeal be granted, that the proposed amended notice of appeal, with one exception, stand as the notice of appeal, and that the appeal be dismissed. The appellant was ordered to pay the respondents’ costs of the application for leave to appeal and of the appeal, as well as the costs of the respondents’ notice of motion.