Feldman v Polaris Media Pty Ltd as trustee of the Polaris Media Trust Trading As the Australian Jewish News (No 2) - [2018] NSWSC 1035

Supreme Court

New South Wales

Amendment notes

Medium Neutral 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
Hearing dates: 10, 11, 12, 13, 14 July 2017
Decision date: 23 July 2018
Jurisdiction: Common Law
Before: McCallum J
Decision:
Judgment for the defendants

Catchwords:
DEFAMATION – defences – defence of honest opinion – publication of articles concerning evidence given by a rabbi to the Royal Commission into Institutional Responses to Child Sexual Abuse – articles attributing rabbi with reprehensible ignorance of the fact that to touch a child for sexual gratification on the genitals was a crime – whether conveyed as opinion or fact – whether any opinion was based on proper material – defence of justification – consideration of effect of rabbi’s evidence to the Royal Commission – defence of contextual truth – where defence required to be determined only in case of appeal – whether necessary to determine the truth of serious contextual imputations – appropriateness of determining defence on alternative assumptions – defence of fair report – consideration of principle that report does not have to be a complete account of the proceedings of public concern – whether report must nonetheless be a complete account of the evidence on the topic reported – defence of statutory qualified privilege – publication of articles concerning hearings before the Royal Commission – consideration of requirement that the conduct of the defendants in publishing the information was reasonable in the circumstances
JUDGMENTS – where defendants pleaded multiple defences – success on two defences obviating the need to determine remaining defences – consideration of requirement that the judge should ordinarily determine all factual questions in the proceedings
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
Crimes Act 1900 (NSW), ss 61M, 61N
Defamation Act 2005 (NSW), ss 25, 26, 29, 30, 31
Uniform Civil Procedure Rules 2005 (NSW), r 15.28(2)(a)
Cases Cited: Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228
Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354
Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30
Bickel v John Fairfax & Sons Ltd (1981) 2 NSWLR 474
Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 1091
Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; [1998] HCA 37
Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60
Cheikho v Nationwide News Pty Ltd (No 5) [2016] NSWSC 29
Cush v Dillon (2011) 243 CLR 298; [2011] HCA 30
Eades v Director of Public Prosecutions (NSW) (2010) 77 NSWLR 173; [2010] NSWCA 241
Fairfax Digital Australia & New Zealand Pty Ltd v Kazal [2018] NSWCA 77
Greek Herald Pty Ltd v Nikolopoulos (2001) 54 NSWLR 165; [2002] NSWCA 41
Gulic v Boral Transport Ltd [2016] NSWCA 269
Hanrahan v Ainsworth (1990) 22 NSWLR 73
O'Brien v Australian Broadcasting Corporation [2016] NSWSC 1289
O'Brien v Australian Broadcasting Corporation [2017] NSWCA 338
Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57
Sleiman Investments Pty Ltd as trustee for the Sleiman Family Trust v Deputy Commissioner [2017] NSWCA 81
Category: Principal judgment
Parties: Yosef Yitzchak Feldman (Plaintiff)
Polaris Media Pty Ltd as trustee of The Polaris Media Trust trading as The Australian Jewish News (First Defendant)
Joshua Levi (Second Defendant)
Representation:
Counsel:
J Cohen (Plaintiff)
S T Chrysanthou with N G Olson (Defendants)
Solicitors:
Cambridge Lawyers (Plaintiff)
HWL Ebsworth Lawyers (Defendants)

File Number(s): 2015/382029
Publication restriction: None

Judgment

HER HONOUR: This is an action for defamation brought by Rabbi Yosef (“Yossi”) Feldman arising out of the publication of a series of articles in The Australian Jewish News.
The articles were published in February 2015. The newspaper had written about Rabbi Feldman before, including calling for his resignation as President of the Rabbinical Council of New South Wales in July 2011 after it was revealed that he had written to other members of the Council urging the view that allegations of child sexual abuse should first be investigated by rabbis before being reported to secular authorities and that such complaints could in some instances more appropriately be addressed within the Jewish community than by police.
In February 2015, Rabbi Feldman gave evidence to the Royal Commission into Institutional Responses to Child Sexual Abuse during which he was questioned as to his views and understanding of allegations of child sexual abuse in the context of his handling of a particular complaint. The articles sued on in these proceedings reported on that evidence and reprised the criticisms of the earlier publications.
The first defendant is the publisher of The Australian Jewish News. It admits publishing each of the four articles sued on in the present action. The second defendant, Mr Joshua Levi, is a journalist. He admits that he wrote the second and third articles sued on and is therefore liable as a publisher of those articles.
The defendants deny that the articles conveyed the defamatory imputations specified by Rabbi Feldman and further plead positive defences of honest opinion, justification, contextual truth, fair report and statutory qualified privilege.
The proceedings were heard without a jury. Mr Cohen of counsel appeared for Rabbi Feldman for the first four days of the trial but his instructions and those of his instructing solicitor were then withdrawn by the plaintiff, who thereafter represented himself. Accordingly, the Court did not have the benefit of closing submissions in the plaintiff’s case presented by a lawyer.

Defamatory meaning

It is appropriate to begin by determining the issue of defamatory meaning. 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.

Defamatory meaning of the first article

The first matter complained of is an article published on Friday, 6 February 2015 under the headline "Rabbi Yossi Feldman, the RCNSW and the AJN."
The reference to the RCNSW is a reference to the Rabbinical Council of New South Wales. The reference to the AJN is a reference to The Australian Jewish News. The article was published on the day on which Rabbi Feldman gave evidence to the Royal Commission. The central message of the article was to remind readers that the newspaper had previously called for Rabbi Feldman’s removal as President of the Rabbinical Council, only to be condemned by the Council at that time. Although constructed with subtlety, the clear implication of the article was that, in light of the evidence given by the rabbi to the Royal Commission, the Rabbinical Council ought to have heeded the call.
The article opened with the following paragraphs:

“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 have learnt [sic] through the Royal Commission that Rabbi Feldman thought 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 of 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 …”

The article then set out in full a statement issued by the Rabbinical Council of New South Wales at the time of the earlier article, which condemned “the false and defamatory summary judgements that have been made by the media”; unreservedly and emphatically condemned all forms of child abuse; encouraged victims to report directly to the police and relevant authorities and distanced the Council from “the distorted representation of Rabbi Yosef Feldman's views as reported in the AJN”.
The article concluded as follows:

"So the RCNSW stood by their man and condemned the AJN. Under pressure, Rabbi Feldman did step aside briefly as the President… but subsequently resumed in the role.”

The plaintiff contends that the first article carried the following defamatory imputation:

"that the plaintiff displayed reprehensible ignorance of the fact that to touch a child for sexual gratification on the genitals was a crime."

The defendants deny that imputation was carried by the article. They submitted that the article did not report that the plaintiff in fact did not know it was a crime to touch a child's genitals but rather only reported that that was the evidence he gave at the Royal Commission. I do not accept that submission. The article referred to the matter stated in evidence by Rabbi Feldman as something he had “admitted”, which clearly suggested he was acknowledging actual ignorance of the matter referred to.
Separately, the defendants noted that the article does not include the words “for sexual gratification” which appear in the imputation. That is true. However, the focus of the article was a discussion of shortcomings in institutional responses to “child abuse” which had put “the welfare of paedophiles above children”. I have no doubt that the ordinary reasonable reader would have taken the article to be referring to an admission as to a lack of knowledge concerning the illegality of touching a child's genitals in a sexual way.
Finally, the defendants submitted that the article did not say that the rabbi's ignorance was “reprehensible”. Rather, so it was submitted, the rabbi’s admission was reported as an argument against relying on rabbis to deal with allegations of sexual abuse. Ms Chrysanthou, who appears with Mr Olson for the defendants, submitted that, while the reader might hold the view that that measure of ignorance was reprehensible, that was not what the article was saying.
It is true that the article does not, in terms, characterise the rabbi’s admitted ignorance as “reprehensible”. There is some force in the defendants’ argument that the point of the article is not to condemn the ignorance in itself but to point to it as a matter demonstrating why rabbis are not suited to the task of assessing whether to report allegations of child sexual abuse to secular authorities. However, that point is made in the context of the reminder to readers that the newspaper had previously called for Rabbi Feldman's removal as President of the Rabbinical Council over his views on this very issue. The point being made was that the very person propounding the argument that rabbis have common sense and can investigate allegations of child sexual abuse had admitted ignorance of the very knowledge one would need in order to perform that task. The implication is that, in that context, the plaintiff’s professed ignorance warranted condemnation and that the newspaper’s earlier call for his removal as President of the Rabbinical Council was vindicated by this latest evidence.
On balance, while I can see the force of the defendants’ argument, I am satisfied that the plaintiff’s imputation is carried by the first article.

Defamatory meaning of the second article

The second matter complained of is an article published on Saturday, 7 February 2015 under the headline “Royal Commission: Our darkest week”. The opening paragraph of the article repeated that the Australian Jewish community had just witnessed one of its darkest weeks. The author, Mr Levi, stated:

“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.”

The article then listed a series of facts or assertions about the plight of victims of child sexual abuse and the inadequacy of the response of spiritual leaders. The list included the following four statements concerning the plaintiff:

“●   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 sex abuser, David Cyprus."

The plaintiff contends that the second article conveyed the following imputation defamatory of him:

“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.”

The defendants submitted that the imputation is not conveyed for substantially the same reasons as in respect of the first article. First, it was submitted that the article reported the evidence given by the plaintiff at the Royal Commission, “not necessarily that these were his actual beliefs”. I do not think there is any substance in that argument. The statements set out in the list of bullet points, including the four points concerning the plaintiff set out above, were described as “just some of the unbelievable revelations that came out this week”. The overall tenor of the article was to expose the true position in respect of matters previously poorly understood. I have no doubt that the ordinary reasonable reader would take the article to be attributing the plaintiff with in fact having the knowledge or beliefs set out.
Secondly, the defendants submitted that the qualification in the imputation (to touch a child “sexually”) is not a qualification that appears in the article and that it cannot legitimately be implied. I do not accept that submission. The article is about child sexual abuse and would clearly be understood in that way by the ordinary reasonable reader.
I am satisfied that the imputation complained of by the plaintiff is carried by the second article.

Defamatory meaning of the third article

The third matter complained of is an article published on Friday, 13 February 2015 under the headline “Rabbi Yossi Feldman urged leniency for abusers”. The article presented a more comprehensive summary of the evidence given by Rabbi Feldman to the Royal Commission.
Rabbi Feldman contends that the third article conveys the following defamatory imputations:

“(a)   the plaintiff 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 defendants submitted that the first imputation is not conveyed, for the reasons given in relation to the first and second articles. I do not accept that submission. In this article, the condemnation of the plaintiff’s evidence is more strident. The article opens with the following paragraphs:

“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 2001, 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 counsel 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’.”

The reference to evidence that “shocked the community” is clearly linked to the matter reported in the following sentence, that the rabbi “revealed” that he “wasn’t aware it was illegal for a man to touch a child’s genitals”. In my view, the ordinary reasonable reader would understand the article to be suggesting that the plaintiff was in fact ignorant of the matter reported and that his ignorance was shocking. I am satisfied that imputation (a) is conveyed by the third article.
Imputations (b) and (c) are alleged to arise from the following part of the matter complained of in particular (which of course must be read in the context of the whole):

“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.”

As submitted by the defendants, there is no suggestion anywhere in the third article that the plaintiff attempted to assist the person referred to as AVL to leave Australia and evade justice. In my view, imputation (c) could only be derived from an overly suspicious reading of the matter complained of. It would not have been conveyed to the ordinary reasonable reader.
As to imputation (b) (that the plaintiff failed to notify DOCS that a sex offender was about to leave the jurisdiction), the defendants submitted that this imputation is not conveyed because the article faithfully reports the plaintiff's evidence that, in effect, he did not believe that AVL was a sex offender at the time AVL left Australia. While those views are attributed to the rabbi, the implication is that his assessment was wrong and that the conduct that had been reported to him did amount to sexual offending.
However, I do not think the article conveys the further element of the imputation that the plaintiff failed to notify DOCS in circumstances where he was obliged to do so. All that is conveyed in the relevant paragraph is that the plaintiff became aware that AVL was considering leaving the country before Yeshiva reported the allegations. That is where the matter is left. There is no discussion of what the plaintiff did or did not do thereafter. The article does not report that AVL in fact left Australia; only that he was “considering leaving the country”. In my view, as with imputation (c), imputation (b) could only be derived from a forced or strained or overly suspicious reading of the matter complained of.
For those reasons, I am satisfied that the plaintiff’s action insofar as it is based on imputations (b) and (c) must fail.

Defamatory meaning of the editorial

The fourth matter complained of is an editorial published on the front page of The Australian Jewish News on Friday, 13 February 2015 under the headline "Our community’s shame". The editorial opens with the statement:

“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.”

The editorial repeated the theme of the first article, reminding readers that The Australian Jewish News had previously been condemned for calling for Rabbi Feldman's resignation as President of the Rabbinical Council after revelations of his email exchanges suggesting that complaints of abuse should be taken to a rabbi for investigation ahead of civil authorities.
The plaintiff pleads only a single imputation in respect of the editorial, as follows:

"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."

That imputation is drawn from the third paragraph of the editorial, which states:

“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.”

The defendants submitted that the ordinary reasonable reader would not understand those words as conveying the meaning relied upon by the plaintiff, for the reasons given in relation to the first and second articles. For the reasons given in respect of my findings above, I am satisfied that the ordinary reasonable reader would understand the editorial to convey the meaning specified. The tenor of the article (including the strong headline) is one of condemnation of the matters listed in the extract set out above.

Conclusion as to defamatory meaning

The defendants accepted that, if the plaintiff’s imputations were found to have been carried, they were defamatory.
On the strength of the findings recorded above, the matters complained of conveyed only what the defendants termed the “reprehensible ignorance” imputations (imputations 3(a), 6(a), 9(a) and 12(a) in the Amended Statement of Claim) and it is necessary to consider the defences pleaded by the defendants only in respect of those imputations. However, in case my conclusion as to the other two imputations relied upon in respect of the third matter complained of (imputations 9(b) and (c)) is wrong, I will also indicate what my conclusions would have been as to the defences on the assumption that those imputations were also conveyed.

Defence of honest opinion

It is appropriate to consider the defence of honest opinion first, for the reasons I explained in O'Brien v Australian Broadcasting Corporation [2016] NSWSC 1289 at [41]-[47].
The defence invokes s 31 of the Defamation Act 2005 (NSW), which 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.”

As to the element specified in s 31(1)(a), although attention is invited to “the matter” in determining whether there was an expression of opinion rather than a statement of fact, I have understood the section to require consideration of that question through the lens of the defamatory meaning held to have been conveyed. That is the approach I took in O'Brien at [45]-[46], as follows (footnotes omitted):

“Both the defence of fair comment at common law and the defence of honest opinion under s 31 of the Defamation Act are directed to the matter complained of (rather than to the imputations specified by the plaintiff, as in the case of the defences under ss 25 and 26 of the Defamation Act). However, as explained by the High Court in Channel Seven Adelaide Ltd v Manock, the meaning pleaded by the plaintiff is relevant to the defence, not least because it is the meaning found by the court that is to be scrutinised for its fairness. On that basis I accept that, as occurred in Ahmed, a question to be posed for the tribunal of fact is whether the ordinary reasonable viewer would have understood the meaning found to have been conveyed as comment as opposed to fact.
However, that is not to say that the form of the imputation is determinative. The care to be taken in that respect was emphasised in Ahmed at [44], where the Court said:
‘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.’”

Although the task focusses on the meaning found, the context in which that meaning was conveyed must also be considered. In O'Brien, I said at [50]:

“As explained in Ahmed in the passage cited above, the form of the imputation must not be permitted to hijack that task. One aspect of that consideration is to recognise that an opinion and its factual premise can logically be combined within the one statement. In proceedings for defamation, an imputation specified in a pleading will often combine a defamatory attribution and a factual assertion on which it is based. A defence of comment would not necessarily fail by reason of the inclusion of a factual component in the imputation. The critical question is whether the defamatory sense of the matter complained of was conveyed as an expression of opinion rather than an assertion of fact.”

It is tempting to draw comfort from the fact that my determination of the defences of fair comment and honest opinion in that case was upheld on appeal: O'Brien v Australian Broadcasting Corporation [2017] NSWCA 338 at [169]-[170] per McColl JA, Macfarlan and Leeming JJA agreeing at [210] and [227]. However, the Court was not required to consider the correctness of the approach set out above, so in truth I am here doing no more than invoking the false comfort of citing myself.
The element specified in s 31(1)(c) is that the opinion is based on proper material. Upon analysis, the consideration of that element involves two steps: identification of the material on which the opinion is based and determination as to whether that material is “proper material” within the meaning of the statute.
The defence in the present case included lengthy particulars of the alleged proper material. The provision of such particulars is a requirement of r 15.28(2)(a) of the Uniform Civil Procedure Rules 2005 (NSW), and is necessary to put a plaintiff on notice of a defendant’s case, but I do not think such particulars are necessarily to be treated as determinative. The correct approach was explained by Hunt J in Bickel v John Fairfax & Sons Ltd (1981) 2 NSWLR 474, where his Honour said that the material upon which a comment is based is that upon which it purports to be based (at 492A):

“in the sense of that which the ordinary reader would have understood from the matter complained of to have been intended by the author to be considered as the basis of his comment.”

In the present case, with respect, the defendants’ approach appears to have been to trawl each article for all facts truly stated and, for completeness, to put all of that material forward as potential proper material. I do not think that approach relieves me of the task of forming my own view as to the material stated within each matter complained of on which any opinion purports to be based. In making that assessment, it is of course necessary (as a matter of procedural fairness) to remain within the scope of the particulars provided. It is probably also necessary to be satisfied that the proper material so identified is the entire basis for the opinion, as I held in Cheikho v Nationwide News Pty Ltd (No 5) [2016] NSWSC 29 at [53]-[55].
It has been suggested that there is a further requirement of the defence, being a requirement of reasonableness: see Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 1091 at [118]. The basis for that contention is that the section provides that the opinion must be “based on” proper material. In Carolan, the plaintiff submitted that it could not be enough to satisfy that requirement if the opinion in question was based on facts which bore an insufficient relationship to the opinion expressed. It was submitted that there must be a sufficient rational connection between the facts and the opinion to sustain the conclusion that the opinion was “based on” the facts.
As I noted in Carolan at [119], that is a requirement clearly recognised by the High Court in Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60 in respect of the defence of fair comment at common law. However, it was not necessary in Carolan to determine whether it was also a requirement of the statutory defence. For abundance of caution, I have proceeded in the present case on the assumption (without deciding the issue) that, for a defence under s 31 of the Defamation Act to succeed, while the opinion itself can be unreasonable and even offensive, it must be one capable of being rationally based on the proper material identified.
Applying those principles, it is necessary to determine as to each article:

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

whether the opinion related to a matter of public interest;

the material stated in the article on which the opinion purports to be based;

whether that material is “proper material”;

whether the opinion is capable of being rationally based on the proper material identified.

That the opinions, if they were opinions, related to matters of public interest must be regarded as uncontroversial in this case. It is the matters identified in (a), (c), (d) and (e) which require consideration.

Defence of honest opinion to the first article

In respect of the first matter complained of, the defamatory meaning found is “that the plaintiff displayed reprehensible ignorance of the fact that to touch a child for sexual gratification on the genitals was a crime”.

Opinion or fact?

In submitting that meaning would have been understood as an expression of opinion, the defendants relied on the introductory words of the article "Rabbi Feldman thought you should report allegations of abuse to a rabbi before the proper authorities first, because a rabbi has common sense and can investigate… even though…" The matters following the words “even though” are clearly presented argumentatively as reasons one would not entrust the reporting of allegations of abuse to rabbis in favour of the proper authorities. The defendants submitted that, in its textual context, the point of reporting the plaintiff's ignorance was to convey disagreement with his reported belief that rabbis have common sense and can investigate. That is certainly an indicator of opinion rather than fact.
Further, while this was not a matter relied upon by the defendants, it is also significant, in my view, that the whole piece is presented as an argument in defence of the position taken by The Australian Jewish News in 2011, when the newspaper called for the plaintiff to be removed as President of the Rabbinical Council. The article concludes with the words:

“So the RCNSW stood by their man and condemned the AJN.
Under pressure, Rabbi Feldman did step aside briefly as the president…but subsequently resumed in the role."

The article would thus be understood as a reprise of the argument that the plaintiff should have resigned, which is a strong indicator of opinion rather than fact.
The adoption of the term “reprehensible” in the imputation is also significant, in my view. It is a word apt to convey an evaluative moral judgment, which suggests an expression of opinion rather than a statement fact.
In my assessment, this is a case of the kind described in the extract from O'Brien at [50] set out above, where an opinion and a factual premise are combined within the one defamatory meaning. I am satisfied that the ordinary reasonable reader would have understood the article to purport to present a factual account of the evidence given by the plaintiff to the Royal Commission together with an expression of the newspaper’s opinion regarding what was revealed by that evidence in the context of the reiteration of the earlier call for the plaintiff to be removed as President of the Rabbinical Council.
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.

Identification of the material on which the opinion purports to be based

The next task is to make a determination as to the material on which that opinion purports to be based. The defendants provided the following particulars of the material stated in the first article which is alleged to be proper material:

“(a)   the Plaintiff is a rabbi;
(b)   the Plaintiff sent emails saying people should report allegations of child abuse to a rabbi in the first instance and not the police;
(c)   the Plaintiff gave evidence to the Royal Commission;
(d)   the Plaintiff had been the director of a school;
(e)   the Plaintiff gave evidence that he did not realise that it was illegal to touch a child's genitals;
(f)   the Plaintiff was the President of the RCNSW;
(g)   the RCNSW issued a statement about the Plaintiff's conduct;
(h)   the Plaintiff stepped aside briefly as President of the RCNSW and then returned.”

Each of those propositions is stated in terms in the article, apart from (c), which is clearly conveyed by the references to the hearing before the Royal Commission in combination with a photograph depicting Rabbi Feldman apparently sitting in the witness box.
In my assessment, the ordinary reader would have understood the opinion to be purportedly based on the information set out in particulars (a) to (f) set out above. I do not think particulars (g) and (h) would have been understood as part of the purported basis for the opinion.

Whether the material identified is proper material

The next task is to determine whether the material on which the opinion purports to be based is “proper material” within the meaning of the Defamation Act. Section 31(5) of the Act defines “proper material” as follows:

“(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.”

While the defence as pleaded relied on each limb of that definition, the defendants’ closing submissions rested primarily on the contention that each of the particulars was proper material because it was substantially true. The submissions also contended that, to the extent that the material on which the opinion was based was the evidence given by the plaintiff to the Royal Commission, it was proper material because it was published on an occasion of absolute privilege.
Particulars (a), (c), (d) and (f) are uncontroversial and were each established to be substantially true (references to the relevant evidence were provided in a schedule to the defendants’ written submissions). It is necessary to give closer consideration to particulars (b) and (e).

Proper material – the plaintiff’s emails

Particular (b) is that the plaintiff sent emails saying people should report allegations of child sexual abuse to a rabbi in the first instance and not the police. The relevant email exchange was included in the defendants’ tender bundle (exhibit 1). The emails were written mainly in English but include a number of phrases in Hebrew, most of which were explained by the plaintiff in his evidence in these proceedings.
The exchange began with an email dated 21 July 2011 from the plaintiff to a large number of rabbis who were members of the Rabbinical Council. The subject line of the email was “Din Toiroh”, which means the law of Torah.
It is important to explain the opening line of the email, which was “Toiroh hee velilmoid unee tzorich”. The plaintiff gave evidence about the meaning of that phrase (T29.19-49). I note that the transcript records his evidence as follows:

“Q. What does it literally mean firstly?
A. Literally it means this is toiroh, which is law, Jewish law, velilnoid unee tzorch and tulern id surich need.

Based on my own notes taken during the hearing, I think there is a transcription error in the first sentence of the answer and that it should read:

A. Literally it means this is toiroh, which is law, Jewish law, velilnoid unee tzorich and to learn I tzorich need.

So, “Jewish law to learn I need” (the plaintiff later added that it means I need to learn or I need to understand: T321.15-20). The plaintiff’s answer explaining that phrase continued (T29.21-49):

A.   In other words you say that expression when you want to find out about very controversial issue and the fact that you're bringing it up is because you have to know what the Jewish perspective is even though it's very controversial to talk about it. And the gimarick is used, for example, with respect to have had sexual relations, for example. What's permitted, what's not permitted and everything else. So to the extent that someone went under a bed to know what you know, not actually to see anything because that's also forbidden but the reality is sometimes since it's law and you have to learn how to apply it. So that's why you bring up issues, even if it's very controversial because you have to learn what the issue is.
Q.    You need to go to the heart of the matter; is that right?
A.    That's right.
Q.    What is your understanding in relation to that concept in relation to bringing up taboo matters?
A.    Yeah, in other words it's not something that - there's nothing out of the realm of the Torah because it's supposed to guide every aspect of our lives and even if it's a matter like child abuse, that sort of thing, which is very sensitive and it's sensitive to be able to argue a point, and a devil's advocate point because as I've seen, once I did such a think suddenly it became like I'm a protector of paedophiles or something because I'm trying to bring out the point and just to understand Jewish law. So it's a very controversial issue and that's when you bring it in and basically when you want to learn about something. You want to hear what people have to think. You want to hear what Rabbis have to say, what teachers have to say so you bring that expression. It's, in fact, part of our Torah, part of our instruction of Jewish life and that's why I have to know about it and I have to learn about it to know what would be the Jewish perspective.”

That was an important aspect of the plaintiff’s case, as he emphasised in his closing submissions. As I understood his position, the plaintiff contends that, in the email, he was not expressing a personal view but was seeking to test and discuss his understanding of the way in which allegations of child sexual abuse should be addressed according to Jewish law.

Rather than attempt to summarise the balance of the email, it is appropriate to set it out in full. Phrases in Hebrew in the original are here italicised and explained in square brackets in accordance with my understanding based on the evidence and aided by a glossary of translations prepared by the defendants (MFI 5). The spelling of some phrases differs in different places. In this judgment, all spelling and punctuation is as in the original:

“Toiroh hee velilmoid unee tzorich! [I need to learn Jewish law]. I really don’t understand why as soon as something of serious loshon horo [degrading people, whether true or false] is heard about someone of even child molestation should we immediately go to the secular authorities. It is ossur [forbidden] to be mekabail loshoin horo [to say or receive negative talk] and one must investigate first the veracity of the tayno [allegation], albeit as a matter of urgency, as Rabbi Groner I’m sure would have done at the time and dealt with it ul pee Toiroh [according to Torah] in the way he felt would be the most effective for all concerned. Why can’t we as a Jewish community deal with it which could include publicising bifnim [within the Jewish community], sanctions etc (in a way that won’t go against the law) which could be a lot more effective than the Goyim [secular authorities]…According to the goyim there’s limits in what can be publicised, in the punishments that can be imposed to the extent that there are paedophiles out there that are repeat offenders…I think that we are once again shirking our responsibilities to be powerful Jewish leaders like Rabbi Groner was. WHERE IS OUR GEOIN YAAKOIV [Jewish Pride]??? I personally feel that if we as a Jewish leadership can’t deal with this and other issues bifnim [internally] we are showing ourselves to be impotent and a Chilul Hashem [profanement of God’s name] in that sense with all the flow on effects that lessens even more so Kovoid haToiroh veHarabonim [the honour of the Torah and the rabbis] in our communities. We should be able to stand strong and say that YES, Toiroh [Jewish law] does enable us to deal with all issues without reverting to the goyim [secular authorites] unless in the unlikely event that Toiroh law can’t be enforced as we’re living in a secular state. Let’s be aware of our G-d given koichois [strengths] and be proud and enforce them. Vunehhee veaynaynu kachagovim [literally, we in our eyes are like grasshoppers, understood to mean if you look at yourself in a low way, that’s how others will look at you] and therefore vechain hovinu veaynayhem [not in the glossary]. If we believe and are strong with our position even the goyim would respect and support us…I await comment from all!”

One of the recipients, Rabbi Moshe Gutnick, sent a response addressed only to Rabbi Feldman and the executive of the Organisation of Rabbis of Australia (not all of the recipients of the original email) of Australia stating (in summary) that it was the "rabbinic consensus around the world" that matters of sexual abuse must be handed over to the police, just as one would expect an allegation of murder to be handed over to the police. He stated this was understood to be the position "even in a perfect world" and proceeded to remark that experience had shown that "we do not handle it properly internally", citing examples. He said the "bottom line" was that matters of sexual abuse must immediately be reported to the police under the law of the land and that that does not diminish “gaon Yaakov” (Jewish pride).
Rabbi Feldman responded arguing that it is "much easier to slander someone with sexual abuse" and reiterating the proposition that "one should first have to immediately report to a Rov mumche [expert Rabbi] who can be appointed for these issues to see whether it's justified to be reported and if that Rov [Rabbi] can't immediately investigate then give it over to another one and even if justified we as a Jewish community could be able to be seen to have a stronger approach to deal with it than the Goyim [secular authorities]…”
On 24 July 2011, Rabbi Feldman sent a further email to the larger group of many rabbis reiterating the points made in his original email and arguing "that one would be even considered a Moiser [informer] and a Roidef [a person seeking to kill or cause serious harm to another] if one initially reports to the police as I'll explain". The burden of the argument that followed was that, as a person reported for child sexual abuse "could likely go to jail and… a pedophile [sic] would most likely be raped by other inmates with full intercourse", therefore “someone facilitating that would certainly be considered a Roidef”.
Rabbi Gutnick again responded in the strongest terms, beginning by questioning why this had “gone from a discussion amongst the executive to 65 recipients” and saying “as you have put your views out so widely I must, with respect, be crystal clear”. And clear he was:

"You are wrong! Your attitude has been that of many Rabbonim and the church, and the result has been countless innocent victims. Anything other than going to the police does not protect the victims."

Rabbi Feldman responded to the same recipients with what he said would be his “last public email response” (it was not), again reiterating his view:

"It should be crystal clear that on the basis of the psak [decision] of the Moetses Gedolei Hatoiroh of America any alleged abuse would need to be first discussed with a Rov and for him to investigate and to seriously deal with the issue etc and only after receiving reshus [approval/permission] from a Rov, taking everything mentioned earlier into consideration, can one then proceed to go to the authorities.”

The following day, he sent a lengthier version of the same email to the ORA executive "for further dialogue".
Rabbi Gutnick again responded in the strongest terms:

“Yossi you are wrong. I am sorry to be so harsh but I must because this is such a serious issue and I do not think you grasp the gravity of what you are saying. Your understanding of paedophilia is wrong. Your understanding of abuse is wrong. Your understanding of Mesira [reporting crimes to the civil authorities] is wrong. Rabbonim from all around the world, greater than all on this forum put together, including Rav Elyashiv, have ruled you are wrong. What you are espousing as well as being wrong is a chilul Hashem [profanement of God’s name]. If your view gets to the public the repercussions would be horrendous. Stop already. You are even wrong about Agudas Yisroel. I present here their position. I believe this should bring the discussion to an end.”

It did not. Rabbi Feldman continued to send emails which clearly contended for the correctness of his view. The debate stopped only after the emails were leaked to The Australian Jewish News. An email was then sent to the newspaper, ostensibly from the plaintiff, attaching a statement “clarifying [his] personal position”. The statement announced the plaintiff’s “support and encouragement” of the adoption of the Rabbinical Council of Victoria’s Resolution Condemning and Combating Child Abuse, a copy of which was included in the email. That statement, among other things, affirmed the position of the Rabbinical Council of Victoria that prohibitions of mesirah (reporting crimes to the civil authorities) and arka’ot (adjudication in civil courts) did not apply in cases of abuse. The statement said “in fact, it is halachically obligatory to make such reports”.
The plaintiff said in evidence in these proceedings that the email was in fact written by his brother. He said he would have told his brother to send out the statement but may not have seen the wording (T164.48-165.32).
As already noted, the plaintiff explains that exchange as halachic debate with his fellow rabbis. It will be necessary to return to that issue in the context of the contextual truth defence. For present purposes, the issue is whether it is substantially true that the plaintiff sent emails saying people should report allegations of child abuse to a Rabbi in the first instance and not the police. That is a matter to be determined objectively by reference to the language of the emails.
The opening words of the email must of course be taken into account in making that determination. As explained above, the translation of those words indicates that the plaintiff was seeking to have an open discussion as to the proper understanding of Jewish law. However, that is not inconsistent with his having put forward a positive argument. He plainly did, and with some force, even in the face of Rabbi Gutnick’s cogently explained rebuke. In my view, the exchanges summarised above make plain that the plaintiff was putting forward a positive argument that people should report allegations of child abuse to a rabbi in the first instance and not the police. I am satisfied that particular (b) is substantially true.

Proper material – the plaintiff’s evidence to the Royal Commission

Particular (e) is that the plaintiff gave evidence that he did not realise that it was illegal to touch a child's genitals. Before considering whether that proposition is substantially true, it is necessary to explain two complexities and my approach to those issues.
First, the article does not expressly refer to sexual touching. It states: “and even though Rabbi Feldman has admitted that even though he was a director of a school he didn’t realise it was illegal to touch a child’s genitals.” However, as Ms Chrysanthou is fond of reminding the Court, context is everything. In my assessment, the ordinary reader would have understood the newspaper to be asserting, as fact, that the plaintiff didn’t realise it was illegal to touch a child’s genitals sexually or for sexual gratification. The article is clearly concerned with unlawful sexual contact with children. No sensible reader would take it otherwise. Accordingly, it is necessary to consider 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.
Secondly, throughout the plaintiff’s evidence, there was a measure of vagueness (in both questions and answers) when reference was made to “touching”. In many if not most instances, references to touching probably did not refer to touching the genitals. Certainly, except where the question or answer expressly stated otherwise, the plaintiff appears to have been referring to touching other than touching on the genitals.
The first question addressed in closing submissions was whether it was in fact unlawful in 2002 to touch a child’s genitals. Ms Chrysanthou addressed that issue by reference to the offence of aggravated indecent assault contrary to s 61M of the Crimes Act 1900 (NSW) as in force at that time. However, it is enough to refer to the offence of committing an act of indecency contrary to s 61N. That section provided that a person who committed an act of indecency with or towards a person under the age of 16 years was liable to imprisonment for 2 years. As stated by Basten JA in Eades v Director of Public Prosecutions (NSW) (2010) 77 NSWLR 173; [2010] NSWCA 241 at [7], it is well-established that “identification of an act as indecent is an objective question determined by reference to the standards of decency held by right-thinking members of the community”.
Based on the plaintiff’s evidence in these proceedings, I understood his case to be that touching a child on the genitals is not necessarily illegal because there are innocent exceptions. Examples given by the plaintiff’s counsel were the case of changing a nappy, medical examination or an accidental touch such as when a child sits on an adult’s lap. An example given by the plaintiff in evidence was the case of when “other parts of [a person’s] body” touches another person (T26.1, T252.16). That approach was reflected in the plaintiff’s answer to interrogatory 27.5 (exhibit 1, page 74) where he said “It is not as a fact against the law for an adult to touch a child’s genitals” (the answer is non-responsive and appears to reflect a misapprehension of the question but the import of the answer is clear).
It may be accepted, in principle, that not every occasion of physical contact with a child’s genitals is a criminal act. However, for the reasons already explained, I am approaching this issue on the basis that the proposition stated in the article would have been understood by the reader to be an assertion that the rabbi’s evidence related to sexual touching of a child’s genitals. That was clearly illegal in 2002 (and still is).
The more difficult question is whether it was the effect of the plaintiff’s evidence that he did not realise that fact. The plaintiff gave evidence to the Royal Commission during the public hearing concerning “case study 22”. His evidence was given over two days, on Friday 6 February 2015 and Monday 9 February 2015. The whole of the transcript of the plaintiff’s evidence to the Royal Commission was tendered as exhibit B. However, as the first article was published on 6 February 2015, I consider that it is only the first day’s evidence that is relevant for the purpose of the defence of honest opinion to that article (that is not a distinction drawn in the defendants’ particulars. In case I am wrong in confining my attention to the first day, I have also considered the position having regard to the evidence given on the second day).
The events about which the plaintiff was questioned took place in July 2002. At that time, the plaintiff was the rabbinical administrator of the Yeshiva Gedola, a tertiary vocational school providing education and training for young men wishing to be ordained as rabbis (Royal Commission transcript reference C6396.28, C6407.38). The plaintiff still held that position at the time he gave evidence in 2015. As at July 2002, he had also been a director of Yeshiva College Ltd, which operated a school called Yeshiva College for children between kindergarten and year 10. It was the practice for rabbinical students from Yeshiva Gedola to be involved as assistant teachers of children at Yeshiva College, which sometimes involved attending camps with the children (C6408.1).
The events about which the plaintiff was questioned concerned an allegation of “inappropriate behaviour with regard to children” made in July 2002 against one of the plaintiff’s rabbinical students (referred to in the Royal Commission as “AVL”) after he had attended a camp with some children from Yeshiva College. The Royal Commission’s “case study 22” was concerned (among other things) with Yeshiva’s response to that allegation.
The plaintiff was questioned first by Ms Gerace, counsel assisting the Royal Commission. He gave evidence that, after hearing from his father of an allegation against AVL of “inappropriate behaviour with regard to children”, he spoke to AVL in person. He agreed that AVL had told him “he just lay down with the child and may have massaged him” and that there “might have been a bit of touch” (C6420.45-C6421.4). At that stage, it is clear that the plaintiff was not referring to touching on the genitals. However, he did not otherwise expand upon what kind of touching he understood AVL to have admitted, apart from accepting that he regarded it as conduct that was inappropriate according to Jewish law.
The questioning then turned to his appreciation of the possibility that a complaint might be made to the police (C6422). While it is difficult to be certain (having only the transcript and no other documents concerning the relevant case study), those questions appear to have been asked in the context of a suggestion that the plaintiff knew AVL was considering leaving Australia after learning of the complaint against him and that the plaintiff failed to take appropriate steps to bring that to the attention of authorities.
For the most part, the plaintiff maintained that, although he thought AVL’s conduct was “highly inappropriate” according to Jewish law, he did not know it was illegal.
The plaintiff repeatedly drew that distinction. When first asked whether he knew that one possible result of the matter being reported was that a complaint would be made to the police, he said (C6422.20-27):

“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.”

He agreed that he thought what AVL did was highly inappropriate, but added: “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” or “in the Criminal Code and in our legal system” (C6422.31-38).
When asked whether he knew that complaints were going to be made to the authorities, he said (C6423.21-29):

“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.”

Expanding upon that issue, he explained that the “Jewish religious perspective” as to homosexuality is different from that of “society’s perspective” (C6424.18-21). He also said that there were “new discussions” about incest as being “something which should be fine” (C6424.32-34). He said he did not know whether it was illegal to hit children (C6422.45-6423.1) or when someone can sue and be sued according to “civil law” (C6426.40-42).
When asked whether he knew that what AVL had admitted to him (“the physical contact, the laying down with him”) could be a crime, the plaintiff said (C6425.33-45):

“I don’t know what the Criminal Code is and what’s a crime and what’s not a crime. A lot of things could be a crime but I don’t think it is, and a lot of things isn’t – I didn’t really think in those terms. What can I tell you? I think in my terms. I did not think about – it didn’t enter into my mind the whole idea of what’s considered a legal crime or not; what should be reported to the police or not. It’s not something in those terms - I mainly deal with issues in the way in which I feel Jewish law would consider something as being proper or improper, and I knew from a Jewish law perspective this was highly improper and I told him so. I did not think in the terms of what’s a crime and what’s not a crime legally.”

As already noted, there was a measure of vagueness in the evidence as to precisely what the plaintiff understood from what he had been told in July 2002 concerning AVL’s conduct. Shortly before the morning adjournment, there was the following exchange (at C6431.4-13):

“Q But your understanding was that the allegations involving [AVL] were that he touched the genitals of an underage boy?
A I heard later. I don't think I heard at the time. If I would have heard that, then I would have probably thought that even from a criminal code that would probably be already something which is criminal. But, just the touching and massaging in itself, I only heard of that at that stage. I think I only found out about anything further much later on, not at that time.”

The plaintiff again accepted, however, that he understood that what was being reported to him was contact that he considered highly inappropriate (C6431.28).
He was then questioned as to whether he made notes of the conversation. He said he does not usually make notes but keeps everything in his mind. The questioning continued (C6432.17-28):

“Q Even though you have had a conversation with someone who has told you something has occurred that you, firstly, consider is highly appropriate and, secondly, which you know might amount to child sexual abuse?
A Child sexual abuse – when you say "child sexual", I'm not talking about from a legal perspective; I'm talking from a Jewish perspective it was highly inappropriate. I didn't know what the legal code or code legally would be in that regard. Whenever you mention "child sexual abuse" I hope you are not referring to the criminal act of child sexual abuse. I hope you are referring to the act of child sexual abuse…” [emphasis added].

Then came the critical exchange:

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” [emphasis added].

The Commissioners then took a short adjournment, following which the questioning resumed as follows (at C432.46-6433.46):

“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 had touched the genitals then obviously that I would consider, as probably the criminal system would consider, it a crime. But, what took place, it didn't enter my mind that it is a crime.
Q I asked you before the break, and I asked you this very question 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.
Q Do you think that as the director of an incorporated entity responsible for running a school you should have known about crimes of child sexual abuse and what contact may result in abuse occurring?
A In general, yes, I would think a director should. But in this case I became a director under my father. I was happy to help out, and my father asked me to be a director. But I wasn't at all involved in day-to-day management and I relied mainly on my father and everything. I just became a director as a help rather than something that I initiated myself to become a director of. So I do agree with you that in general a director of a children's organisation should certainly know all of the legal ramifications of being involved, but I relied on my father in that regard” [emphasis added].

Referring to the passages in italics above, the defendants submitted that the plaintiff answered the same question three times, twice saying that he did not know it was criminal for an adult to touch the genitals of a child and once saying that he would have imagined it was a crime but that he did not know it "as a fact". However, the first answer relied upon did not refer unequivocally to touching on the genitals. In fairness, it should also be observed that, in addition to the answers relied upon by the defendants (those in italics), the plaintiff also gave the answer at [105] above, “the genitals I would have assumed is a crime.” But even without that answer, the plaintiff did say he did not know it was criminal for an adult to touch the genitals of a child and later reiterated that answer, saying he would have imagined it was a crime but that he did not know it "as a fact".
In re-examination at the Royal Commission on 9 February 2015, there was the following exchange between the plaintiff and his counsel (at C6637.1-17):

“Q I want to ask you some questions about the incident in relation to [AVL] in July 2002. When did you first hear those allegations involving [AVL] involved a fondling of the genitals of a child or children?
A The fondling I only heard much later; much later after he left the country.
Q When did you first hear that there were allegations involving [AVL] involving either the touching or the fondling of a child's genitals?
A Also much later.
Q If you knew or believed in July 2002 that [AVL] had fondled the genitals of a child indecently, that is with a sexual connotation or overtone, would you have known then that that was a crime?
A Yes.”

As already noted, the re-examination was after publication of the first matter complained of and so, I would think, must be excluded from consideration of the substantial truth of particular (e) so far as the defence of honest opinion to the first article is concerned. However, I have concluded that the position is the same even taking account of that later evidence (which must in any event be the approach in considering the proper material for the purpose of the defence to the third and fourth publications).
The sum effect of the exchanges on 6 February 2015 was that the plaintiff appeared to be drawing a distinction between what he would have “probably thought”, assumed, considered or imagined might be criminal and what he knew for a fact. For convenience, the relevant statements are repeated below:

[as to AVL touching the genitals of an underage boy] “If I would have heard that, then I would have probably thought that even from a criminal code that would probably be already something which is criminal”;
[as to conduct which you know might amount to child sexual abuse] “I didn't know what the legal code or code legally would be in that regard”;
[In 2002 did you understand it was against the law for an adult to touch the genitals of another child?] “I didn't know that as a fact”;
[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?] “The genitals I would have assumed is a crime”;
[as to whether the nature of a massage, depending on what was touched, could have amounted to a crime] “If I would have heard he had touched the genitals then obviously that I would consider, as probably the criminal system would consider, it a crime”;
[when the question was repeated: In 2002 did you understand it was against the law for an adult to touch the genitals of another child?] “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 re-examination on 9 February 2015 by the plaintiff’s own counsel, the plaintiff appeared to abandon any hesitation in stating what he had known to be the law, in the following question and answer:

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

I would regard the answer given in re-examination with some scepticism. In the answers given on 6 February to counsel assisting the Royal Commission, the plaintiff had no hesitation in repeating the assertion that he did not know the secular law and, in particular, that he did not know as a fact that it was illegal to touch a child on the genitals. He was clear about that; indeed, he seemed to be making something of a point of it. The principal message, taking the evidence as a whole, was that, as a rabbi, he was concerned only with what was right or wrong according to Jewish law and that he had no concern with matters secular.
If any sense can be made of the answer given in re-examination, it is that the plaintiff saw fit to draw a distinction between touching and fondling the genitals of a child. He claimed (in re-examination) to have known that fondling the genitals of a child indecently was a crime, but had earlier twice said that, in 2002, he did not know for a fact that “it was against the law for an adult to touch the genitals of another child”.
Based on the evidence given on 6 February 2015 alone, I am satisfied that it was substantially true to say that Rabbi Feldman gave evidence that in 2002 he did not realise that it was illegal to touch a child's genitals in the sense that he was not aware whether the secular law would regard that to be a crime. In re-examination on 9 February 2015, the plaintiff appeared to resile from that position to some extent. However, the burden of the evidence taken as a whole was to claim ignorance as to what was unlawful according to secular law, as opposed to Jewish law.
I am satisfied that particular (e) is substantially true.

Whether the opinion is capable of being rationally based on the proper material identified

I am also satisfied that the opinion is capable of being rationally based on the proper material identified. The plaintiff’s evidence was capable of being understood in a way that revealed an attitude bordering on disdain for victims of child sexual abuse and disdain for the rule of law. As President of the Rabbinical Council, he had urged the view that allegations of child sexual abuse should first be reported to rabbis to determine whether they should be reported to police. And yet he professed to have been ignorant, at a time when he himself was responsible for 400 to 500 children, of the very law one would need to understand in order to perform that function without circumventing the due process of the law. His evidence was also capable of being understood in a way that would bring shame on the Jewish faith, as Rabbi Gutnick had presciently foreseen: “If your view gets to the public the repercussions would be horrendous.” In that context, the proper material amply supported the opinion that the plaintiff’s professed ignorance was reprehensible.
For those reasons, I am satisfied that the defamatory sense of the first article was an expression of opinion of the first defendant rather than a statement of fact; that the opinion related to a matter of public interest and that it was based on proper material stated in the article. It follows that the defence of honest opinion is made out in respect of the first article.

Defence of honest opinion to the second article

The second matter complained of was published under the by-line of the second defendant, Joshua Levi. The defamatory meaning I have found conveyed is 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.

Opinion or fact?

I am satisfied that the ordinary reasonable reader would have understood that meaning to be an expression of the opinion of Mr Levi and the newspaper, for the following reasons.
The article was written in the first person and opened with the language of an opinion piece:

"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."

After a list of bullet points presented as facts, Mr Levi continued "and these are just some of the unbelievable revelations that came out this week. This was a horrific week for the Australian Jewish community…"
In my assessment, the personal tone of the discussion and the fact that it opened with observations expressed in the first person would have indicated to the reader that the relevant observations were intended as expressions of opinion rather than fact. I am satisfied that the ordinary reasonable reader would have understood the article’s condemnation of the plaintiff’s ignorance to be an expression of opinion on the part of the author and the newspaper.

Identification of the material on which the opinion purports to be based

The next task is to make a determination as to the material on which that opinion purports to be based. As for the first article, the defendants provided particulars of the alleged proper material. However, in the case of the second article, the particulars were not all drawn exactly from the article but in some respects paraphrased its contents. In my view, the material on which the ordinary reader would have understood the opinion expressed in the second article to be purportedly based would be the four bullet points concerning the plaintiff set out in the article. Those statements (set out above) are repeated here for convenience:

“●   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 sex abuser, David Cyprys."

Whether the material identified is proper material

As to the first bullet point, it is uncontroversial that the plaintiff was the head of Yeshiva's Rabbinic School. The more difficult proposition is whether it was true to say that he did not know it was a crime for a teacher to touch the genitals of a child in 2002. That is a slightly different question from the issue considered above in respect of particular (e) (relied upon as proper material stated in the first article), which was concerned with the effect of the plaintiff’s evidence before the Royal Commission (that is, whether he gave evidence that he did not realise that it was illegal to touch a child's genitals). The question at this point concerns not the evidence the plaintiff gave before the Royal Commission but his actual state of knowledge.
I have been troubled by one aspect of this issue. It is possible that, in 2002, the plaintiff did comprehend the obvious unlawfulness of touching a child sexually on the genitals but that, in his evidence before the Royal Commission in 2015, he was taking a technical or intellectual point professing ignorance of the precise content of the law in order to protect himself and Yeshiva against the suggested criticism of their response to the allegation made against AVL. However, that is not the explanation put forward by the plaintiff in these proceedings for the answers he gave in his evidence before the Royal Commission, nor was that explanation put to him in cross-examination. Accordingly, as a matter of procedural fairness, I am required to put that theory to one side. The appropriate course is to take the plaintiff’s evidence at face value in accordance with the analysis set out above.
As already noted, an aspect of the plaintiff's argument on this issue was the proposition that, depending upon the circumstances, it is not necessarily an offence for an adult to touch a child's genitals, for example in the case of medical examination or a parent changing a child’s nappy. While that is undoubtedly correct, it is necessary to consider the issue in the present case in the context of the examination set out above. The plaintiff was being questioned at the Royal Commission into Institutional Responses to Child Sexual Abuse. The questions concerned the conduct of a Rabbinical student towards a child at a camp at which the Rabbinical student was in a position of authority over the child. As the plaintiff was at pains to point out during his evidence before the Royal Commission, he contends that he did not know, in 2002, that it had been alleged that AVL had touched the child on the genitals. However, the point is that, in the questions asked by counsel assisting concerning whether the plaintiff knew in 2002 that it was a crime for a person to touch another child's genitals, it was plain from the context that she was referring to sexual touching. Any suggestion that she was referring to any kind of authorised touching (such as for the purpose of medical examination or to change a nappy) may be dismissed as fanciful.
In his evidence in these proceedings, the plaintiff endeavoured to explain his equivocation in his evidence to the Royal Commission on that basis, that is, by reference to the possibility of accidental touching. He was asked to explain his use of the expression “probably thought” in the answer given to the Royal Commission that, if he had heard in 2002 that AVL touched the boy’s genitals, he would have "probably thought" that would “probably already be something which is criminal”. He said (T18.6-16):

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.

In his closing submissions, the plaintiff repeated that explanation. I do not accept it. It was clear from Ms Gerace’s questioning that she was referring to deliberate sexual touching on the genitals. The plaintiff’s position when he gave evidence before the Royal Commission was that, when he first heard of the complaint against AVL in 2002, he did not know there was touching on the genitals but that, even if he had known that in 2002, he still would not have known for a fact that that was a crime. He acknowledged that he would have “probably thought” or assumed or considered or imagined that it was, but he insisted that he did not know it as a fact. As made plain in his evidence in these proceedings, he saw nothing wrong with that. I understood that to be because his position was that, as a rabbi, his concern was the teachings of Jewish law. He did not characterise his lack of knowledge of the secular law as ignorance in any pejorative sense; it was rather something that he regarded to be of no concern to him as a rabbi.
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 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."

“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.”

For that reason, had it been necessary to determine the defences of fair report, I would have rejected those defences.

Statutory qualified privilege

The defendants pleaded defences of both statutory and common law qualified privilege but the defence at common law was not pressed (T470.25).
Section 30 of the Defamation Act provides:

“(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.”

Interest or apparent interest

As to the first element, the defendants acknowledged the principle stated by Hunt J in Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 40B-D (referring to the statutory defence under s 22 of the 1974 Act) that the recipient’s “interest” must be “not simply a matter of curiosity, but a matter of substance apart from its mere quality as news...the interest must be definite; it may be direct or indirect but it must not be vague or insubstantial”. That statement was cited with approval by the Privy Council in Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 359D. In my view, it reflects the proper approach to the defence under the 2005 Act.
The defendants noted that The Australian Jewish News is a weekly newspaper that has been in print for over 120 years and now has an online presence. Mr Lawrence, the editor, gave evidence that the newspaper is directed to and read by the Jewish community in Australia (as its name would suggest): T278.15-43.
For the purpose of identifying a relevant “interest”, the defendants relied on the same events that prompted the plaintiff’s email exchange with his fellow rabbis. In July 2011, Manny Waks (the man the plaintiff later labelled a “phony attention seeker”) went public with allegations that, over 20 years earlier, he had repeatedly been molested when he was a student of the Yeshiva College in Melbourne (exhibit 1, page 7AAA). The article quoted Mr Waks stating that he was seeking “justice and closure, both for myself and other victims”. The article pointed to a culture of secrecy and reluctance to report allegations, saying:

“While some alleged victims of sex abuse at Yeshivah College have made statements to police, Mr Waks says there are many others, some of whom he knows personally. ‘The main reason for the silence is the culture in this segment of the Jewish community to keep these types of issues quiet: it’s my understanding a lot of these victims haven’t even told their wives’.”

Mr Lawrence gave evidence that, since that time, The Australian Jewish News has frequently reported on the topic of child sexual abuse (T291.3-9). An example was the powerful article published in March 2013 under the banner of a whole-frontpage headline, “Enough. Cover-ups, excuses, denial and finger pointing. No more. It’s time for those in the know to come forward to help tackle the tragedy of child abuse” (exhibit 1, tab 41, pp 252-254).
The defendants contended that the Royal Commission’s case study 22 attracted particular public interest. Mr Levi gave evidence that it was effectively the only topic of discussion in the Jewish community at the time. He said the Royal Commission had indicated that the live-stream of case study 22 was the most watched of all the Royal Commission's case studies, even including the evidence given by Cardinal George Pell (T351.30-35).
As noted by the defendants, the plaintiff was a prominent figure within the Jewish community at the time of the publications. He was then the spiritual leader of the South Sydney Synagogue, a position he had held for 22 years (T52.3-9). The defendants’ evidence was that the Yeshiva Centre, which was run by the plaintiff’s father with his assistance, was “a hub of the Jewish community” at the time: T283.15-20 (Mr Lawrence); T340.16-21 (Mr Levi).
A further significant consideration in my view is that the whole object of the Royal Commission was to investigate and report upon the intractable problem of institutional responses to allegations of child sexual abuse. It is not inappropriate in this context to take judicial notice of the terms of reference of the Royal Commission (published in its final report). The opening recital of the terms of reference was “whereas all children deserve a safe and happy childhood.” The first item in the list of particular matters the Commissioners were required and authorised to inquire into was:

“what institutions and governments should do to better protect children against child sexual abuse and related matters in institutional contexts in the future”.

I do not think it is an exaggeration to say that the hearings of the Royal Commission, being concerned with the protection of children against an insidious source of extreme harm, were a matter of universal interest in the relevant sense. I am satisfied that the readers of The Australian Jewish News had an interest in having information on the subject of the plaintiff’s evidence before the Royal Commission.
The defendants also relied on the existence of an “apparent interest”. Section 30(2) of the Defamation Act provides that 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.
Mr Lawrence, the editor of the newspaper, and Mr Levi, the second defendant, each gave evidence of their belief that readers would have an interest in knowing about the evidence given by the plaintiff at the Royal Commission, especially in the context of the fact that his views about reporting allegations of child sexual abuse had previously been reported in the newspaper (T288.44-289.8; T297.6-10; T351.30-35). It follows from my conclusion explained above as to the existence of an actual interest that I am satisfied those beliefs were held on reasonable grounds.
For those reasons, I am also satisfied that the readers had an apparent interest in having information on the subject of the plaintiff’s evidence before the Royal Commission. I am further satisfied that each of the matters complained of was published in the course of giving readers information on that subject.

Whether the defendants’ conduct was reasonable in the circumstances

As already noted, Mr Lawrence and Mr Levi both gave evidence. Each was an impressive witness.
Mr Lawrence wrote the first article. He explained the circumstances in which he did so (T287.19-29):

“Q. What was the purpose of writing this article?
A. This was, I believe, on the first day that Yossie gave evidence. In the wake of his testimony, we received a statement from the Rabbinic Council of New South Wales, which upset me somewhat, I should say, because it basically, in my mind, whitewashed the statement they had put out in 2011 in which they had basically exonerated Yossie Feldman and condemned us a newspaper for reporting the content of emails and saying, I can't remember the exact details, it will be somewhere in here, but I think he said that we'd probably quoted him out of context, and it was, to use an expression that's been used in Court already, a Hilal Hashem, a desecration of God's name, and it basically accused us of stooping to the level of a tabloid newspaper, and basically, they stood by their man in 2011.
Q. You have been criticised for the 2011‑‑
A. We have been heavily criticised by the Rabbinical Council of New South Wales. Then, as a result of his testimony in 2015, on the first day, they were putting out a statement basically saying how shocked they were of what they'd heard, and how regrettable it was, but they made no reference to the fact that four years earlier, when we had first alerted them to what was going on, they had blamed us, and that exonerated him. And I thought it was important for the community to remember that this wasn't just about Yossie Feldman and Yossie's evidence, but there were a number of leaders within the community who, in 2011 and subsequently, had tried to sweep certain attitudes under the carpet. And my feeling was that, if they had spoken out earlier, we could have avoided a lot of the embarrassment that took place at the Royal Commission.”

He gave a similar explanation for the editorial, which he also wrote (T296.35-297.4).
Mr Lawrence had listened to the plaintiff’s evidence (and that of other leaders in the Jewish community) that week through the Royal Commission’s live streaming and had also looked at the transcripts published each night, which were freely available to journalists (T287.31-49).
Mr Levi wrote the second article. He had attended the hearing in person on 6 February 2015 and found the plaintiff’s evidence “very surprising”. Asked what made an impression, having sat in the hearing room that day, he said (at T354.10-16):

“I think that first day was when he said he wasn't - he wasn't aware that it was illegal to touch a child, touch a child's genitals and there were several other I guess comments that he made that surprised a lot of people. I believe made national media headlines that day so I guess inside the Court room you don't really get much of a reaction so I don't - I think that when you go…”

After confirming he was there in person, he continued (at T354.21-23):

“So then when I went home and then turned on the news or looked at Facebook or, you know, suddenly you realise that it wasn't just surprising to you but that everyone found this surprising.”

As to the third article, also written by Mr Levi, he gave the following evidence (at T360.11-19):

“Q. When you call it one of the Jewish community's darkest weeks, what information were you relying on to say that?
A. The national headlines, the fact that we had all these revelations about Rabbis that did things that wouldn't have been seen as correct. The fact that victims explained what happened and I mean the context of this article is that from 2011, 2015 victims such as Manny Waks were being, I guess, targeted you could say, as that person and this week for the first time the community understood what we, the paper knew, that there were dozens of victims and until this week people didn't really understand that and I think it became a week where people actually understood this wasn't one person for teshuva, this was an issue in the community.”

Each journalist gave evidence, which I have no hesitation in accepting, that he believed that the content of the articles was true and correct at the time of publication (T288.18-39; T296.11-17: T368.10-20).
Section 30(3) of the Defamation Act provides a non-exhaustive list of factors that may be taken into account in determining whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, as follows:

“(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.”

For the reasons already explained, I consider that the evidence of a spiritual leader before the Royal Commission was a matter of strong public interest within the meaning of s 30(3)(a).
As to s 30(3)(b), the defendants submitted that the matters complained of related to the plaintiff’s public functions as the President of the Rabbinical Council, as a director of the company that ran the Yeshiva College, as the rabbinical administrator of the Yeshiva Gedola and in his capacity as a spiritual leader of the Jewish community. Those are powerful considerations in favour of public scrutiny and discussion of the plaintiff’s evidence before the Royal Commission. The defendants also relied in this context on evidence in the proceedings as to the plaintiff’s role in “the 2013 kosher or kashrut dispute” but I have not found it necessary to have regard to that evidence.
As to s 30(3)(c), the defamatory imputations complained of by the plaintiff are serious. That is a factor that warrants imposing a high standard of reporting in assessing whether the conduct of the defendants in publishing defamatory matter about the plaintiff was reasonable.
As to s 30(3)(d), in my assessment, the matters complained of are carefully written and draw an appropriate distinction between suspicions, allegations and proven facts.
As to s 30(3)(e), the defendants submitted that, having regard to the nature of the evidence given by the plaintiff at the Royal Commission, it was in the public interest for the matters complained of to be published expeditiously, at or around the time of his appearance at the Royal Commission. I agree.
Section 30(3)(f) calls attention to the nature of the business environment in which the defendants operate. It may be accepted that newspapers engage in the publication of news as a business. I consider that to be a factor that informs the standard of reasonableness to be demanded. For the purpose of s 30, it is appropriate to hold journalists to a high standard of due diligence in the preparation of an article published widely and for profit.
However, it is also relevant in that context to have regard to the particular business environment in which the particular newspaper operates. The defendants’ evidence has persuaded me that The Australian Jewish News is a serious newspaper which approaches the business of reporting news of interest to the Jewish community imposing a high standard of journalistic fairness on itself. Mr Lawrence described the newspaper as a "community newspaper” that was “not out just to print scandal” (T286.39). He had, on an earlier occasion, declined to report a salacious story (my description) about Rabbi Feldman’s personal life on that basis (Rabbi Feldman later cross-examined Mr Levi to the effect that there was a different reason for not publishing that story but that cross-examination did not persuade me of any impropriety).
The newspaper’s journalists (at least the two who gave evidence) are intelligent and well-educated. Mr Lawrence has been the editor of the newspaper since November 2009 and is an experienced journalist. He has post-graduate qualifications in radio journalism and received the Bachelor of Arts in PPE (Philosophy, Politics and Economics) degree from Queen's College, Oxford: T277.11-278.13. Mr Levi is also an experienced journalist: T338.43-44.
Further, at the time of publication of the matters complained of, both journalists had a considerable amount of background knowledge of the plaintiff, his family and the positions he had held, including the information obtained for the purpose of the articles written in 2011 about the plaintiff’s emails: T279.9-286.34.
As to s 30(3)(g), as noted by the defendants, the sources of each article were, self-evidently, the evidence the plaintiff gave at the Royal Commission, the plaintiff’s emails from 2011 (which Mr Levi arranged to have translated: T342.11-23), the statements made by the Rabbinical Council of NSW in 2011 and on 6 February 2015 (exhibit 1, tab 32, page 52AB), other evidence adduced before the Royal Commission in the same week about child sexual abuse in the Jewish community (T356.1-7; 356.46-357.22), comments by people in the Jewish community reacting to the evidence (exhibit 1, tab 32, tab 33, tab 34, pp 52A-58) and the plaintiff’s email of 11 February 2015 (exhibit 1, tab 35, page 59; T288.1-39, 293.4-50, 412.39-48).
Both witnesses gave a lengthy account in evidence of the reliance they placed on those sources for each article they wrote. Mr Lawrence, as editor, also satisfied himself as to the reliability of the sources for the two articles written by Mr Levi.
Ms Chrysanthou submitted that none of those sources was unreliable and that they did not require corroboration. I agree. The principal source for the articles was the plaintiff’s own words. As remarked by Mr Lawrence in one of the extracts set out above, the plaintiff “said what he said” (T328.39).
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.
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.”

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”.

That is revealed by the evidence concerning the third article and the editorial, in respect of which the newspaper did seek comment through the plaintiff’s brother. Mr Lawrence explained that the Feldman family had previously asked the newspaper to stop contacting the plaintiff and his mother in relation to stories and instead was asked that if ever comment was needed for a story regarding them, to contact the plaintiff’s brother, Eli. That is what Mr Lawrence did (T294.13-24). The third and fourth articles appeared in an edition of the newspaper that included the plaintiff’s full statement published at his request, through Eli (exhibit 1, tab 34, pp 58A-58B; tab 40, page 203). As already noted, the plaintiff said that statement was probably written by Eli but had been approved by him. It made the glib assertion, which is difficult to reconcile with the evidence the plaintiff had given, that he supported the position adopted by the Rabbinical Council of Victoria as to the requirement to report allegations of child sexual abuse. In any event, the inclusion of that statement in the newspaper is a strong factor pointing in favour of accepting that the defendants’ conduct in publishing the third article and the editorial was reasonable.
It is necessary to consider the significance of the fact that the plaintiff was not given an opportunity to provide that response at the time of publication of the first and second articles. 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.
As to the third and fourth articles, all of the relevant considerations point in favour of finding that the conduct was reasonable and I am satisfied that it was.

Malice

The plaintiff’s amended reply contends that the publication of each of the matters complained of was occasioned by malice. The particulars pleaded in support of that allegation are:

that the defendants intentionally failed to report the plaintiff’s evidence fairly;

that they recklessly failed to report his evidence fairly, or

that they failed to refer to the fact that Rabbi Moshe Gutnick had given AVL semicha after he left Australia.

As submitted by the defendants, the relevance of the last particular is obscure. It may have been directed to the suggestion that the newspaper was biased against the plaintiff and in favour of Rabbi Gutnick. Mr Cohen cross-examined Mr Lawrence about the fact that, in the second article, other rabbis whose conduct was the subject of censure in the same article were not named whereas the plaintiff was. Mr Lawrence explained that approach on the basis that Rabbi Feldman was a rabbi of prominence who held positions of authority in the Jewish community. However, he accepted that, if one of the other rabbis referred to in the article was Rabbi Moshe Gutnick, “yes, perhaps we were at fault. If he was the rabbi referred to there then perhaps we should have named him as well” (T304.24-26). It was noted in re-examination that some of those other rabbis had been named in other articles that week. Mr Levi also gave evidence about the fact that Rabbi Feldman was named whereas others were not. The effect of his evidence (at T363.1) was that “anybody who hadn't testified yet but was due to give evidence” was not named until they had the opportunity to explain their position in evidence.
In any event, the evidence before me was that the defendants were not aware at the time of publication of the fact that Rabbi Moshe Gutnick had given AVL semicha after he left Australia: T299.1-6; T394.19-29; T421.5-24. Particular (c) is not established.
The defendants noted recklessness and lack of belief in the truth of the imputations are by themselves insufficient to prove malice: Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at [76] per Gaudron, McHugh, and Gummow JJ; Cush v Dillon (2011) 243 CLR 298; [2011] HCA 30 at [27]-[28] per Gummow, Hayne, and Bell JJ. The establishment of malice requires proof that the defendants were actuated by an improper motive, which would require proof that the defendants intentionally failed to report the plaintiff’s evidence fairly.
The defendants submitted (and I accept) that that is a serious allegation requiring cogent proof: Hanrahan v Ainsworth (1990) 22 NSWLR 73 at 91 per Kirby P (Mahoney JA agreeing) but there is no need to invoke that principle in the present case. In my assessment, there is simply no proof whatsoever that the defendants were actuated by malice or that they deliberately misrepresented the plaintiff’s evidence at the Royal Commission.
Mr Lawrence was cross-examined by Mr Cohen as to his alleged selectivity in reporting the evidence, in the following exchange (at T328.23-42):

“Q. What I'm putting to you, what I'm putting to you is a conscious decision, you've already said in your evidence yesterday, the effect of your evidence yesterday was you made a conscious decision--
A. To do what?
Q. To put those other states that we talked about before being those statements where you say, where Rabbi Feldman says he wasn't aware for it to be against the law for an adult to touch a child's genitals and you decided that this wasn't relevant to that?
A. If you're saying did I make a conscious decision to write sentences that formed an article that would appear in the newspaper that were based on fact, yes, because that's my job and that's what I do every week. Did I make a conscious decision to select certain statements that depict Yossie Feldman in a negative light, no.
Q. I'm putting to you that you in fact did.
A. Well I think I just said no. As I said before, I think Yossie said what he said and he didn't need any help from us in conveying the reaction that people had about what he said, people were watching it themselves, people were writing to us themselves.”

Mr Levi explained his motive for writing the articles as follows (T373.33-46):

“A. The motive was to try and explain to the community that this was not about one victim on one mission, that it was something we all need to understand is an issue. We need to address it, we need to stop blaming victims and we need to move forward and in fact that's why at the end of Rabbi Gutnick's quote which is about how parents now need to consider what would they do if it was their kid, thanks, you've just got to move forward and we've got to solve this and we can't fix the past but we can stop it happening again.
Q. As far as you're concerned, in those, there was probably three editions that covered the Royal Commission although there was some later editions as well, did you go out of your way to point the finger at Rabbi Feldman in contrast to any of the other Rabbis that were named as having behaved inappropriately in relation to child sex abuse?
A. No, I think he certainly got more coverage at times because of some of his comments. But we had no intention, made no attempt to go out that way.”

Mr Levi was cross-examined on the issue of malice both by Mr Cohen and by the plaintiff himself, after Mr Cohen’s instructions were withdrawn. The plaintiff cross-examined Mr Levi as to the alleged selectivity in reporting the evidence (based on the fact that his articles reported only the plaintiff’s answer that he did not know as a fact that it was illegal to touch a child’s genitals and omitted the plaintiff’s other answers to the effect that he would have probably believed, imagined or assumed that touching the genitals was a crime). The burden of the questioning was that Mr Levi must have appreciated that his articles conveyed the impression that the plaintiff condoned child sexual abuse, as exemplified in the following exchange (at T439.25-38):

“Q. Do you agree that a normal reader would read what you wrote as though I have a normal reader reading those points, just that line and the way you brought it in a few articles that I don't believe it's illegal to touch a child's genitals, do you believe a normal reader would believe that I held that it's fine to fondle a child's genitals and it's fine to generally molest a child? Do you believe a normal reader would believe that?
A. I don't know the legal definition, but I would think that a teacher touching a child's genitals would probably be a form of molestation or some child sexual
HER HONOUR
Q. Would be taken by the reader to be?
A. Yeah, and I would say generally if a teacher touched a child's penis at a camp then he's probably molested that child.”

The cross-examination concluded with the following exchange (at T441.45-442.3):

“Q. Don't you think it would have made a difference in the minds of normal readers if you would have brought that statement [that he thought it probably would be a crime or imagined or assumed it to be a crime as he said later in his evidence]?
A. No, because you addressed the same question at the Royal Commission many times and answered many different ways but in each time you say you didn't know it was a fact. So we went to the most direct response to quote it with a question and the answer.
Q. I would like to suggest that you are lying and you did it out of malice to me, correct or incorrect?
A. Incorrect.”

In my assessment, the cross-examination of Mr Levi by the plaintiff revealed a difficulty that pervaded the entire claim. The simple reality is that Rabbi Feldman’s stubborn insistence, in evidence at the Royal Commission, that he did not know “as a fact” that it was a crime to touch the genitals of a child was bizarre. In the context of his published urging of the proposition that allegations of child sexual abuse must be reported first to rabbis, not police, it reflected very poorly on his attitude to allegations of child sexual abuse. To the ordinary observer, the expected answer to the question, “In 2002 did you understand it was against the law for an adult to touch the genitals of another child?” when asked in the context of an inquiry into institutional responses to allegations of child sexual abuse would be “of course”. But the plaintiff’s response was, “I didn't know that as a fact”.
The plaintiff’s cross-examination of Mr Levi on that topic revealed as much about the plaintiff’s attitudes as Mr Levi’s. In suggesting that Mr Levi’s selection of that evidence as a matter worthy of report revealed malice towards the plaintiff, the plaintiff revealed that he still did not appreciate how surprising his evidence at the Royal Commission must have been to people listening to that evidence.
I am not persuaded that the defendants were actuated by any improper motive. On the contrary, the evidence has persuaded me that they acted with the highest journalistic integrity and entirely in accordance with the purpose contemplated as the basis for the defence.
For those reasons, had it been necessary to determine the defence of qualified privilege, I would have upheld that defence in respect of each of the matters complained of.

Conclusion

As already indicated, I accept that a judge should ordinarily decide all factual issues. However, I do not think it is helpful or even possible in the present case to proceed to assess damages. The number of permutations on which, theoretically, an appeal might succeed is large. To obviate any need for the matter to be remitted in the event of a successful appeal, it would be necessary to make a correspondingly large number of hypothetical assessments, in each case assuming premises I have rejected. The utility of undertaking such an exercise may be doubted.
The consequence of my findings as to the defences of honest opinion and justification is that there must be judgment in favour of the defendants.

*****

Amendments

02 August 2018 - Typo in paras [26], [164], [280]: "Corrective" replaced with "Community"

13 March 2020 - Duplicate para number removed at [280]

Decision last updated: 13 March 2020

Medium Neutral 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
Hearing dates:	10, 11, 12, 13, 14 July 2017
Decision date:	23 July 2018
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Judgment for the defendants
Catchwords:	DEFAMATION – defences – defence of honest opinion – publication of articles concerning evidence given by a rabbi to the Royal Commission into Institutional Responses to Child Sexual Abuse – articles attributing rabbi with reprehensible ignorance of the fact that to touch a child for sexual gratification on the genitals was a crime – whether conveyed as opinion or fact – whether any opinion was based on proper material – defence of justification – consideration of effect of rabbi’s evidence to the Royal Commission – defence of contextual truth – where defence required to be determined only in case of appeal – whether necessary to determine the truth of serious contextual imputations – appropriateness of determining defence on alternative assumptions – defence of fair report – consideration of principle that report does not have to be a complete account of the proceedings of public concern – whether report must nonetheless be a complete account of the evidence on the topic reported – defence of statutory qualified privilege – publication of articles concerning hearings before the Royal Commission – consideration of requirement that the conduct of the defendants in publishing the information was reasonable in the circumstances JUDGMENTS – where defendants pleaded multiple defences – success on two defences obviating the need to determine remaining defences – consideration of requirement that the judge should ordinarily determine all factual questions in the proceedings
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A Crimes Act 1900 (NSW), ss 61M, 61N Defamation Act 2005 (NSW), ss 25, 26, 29, 30, 31 Uniform Civil Procedure Rules 2005 (NSW), r 15.28(2)(a)
Cases Cited:	Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228 Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 Bickel v John Fairfax & Sons Ltd (1981) 2 NSWLR 474 Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 1091 Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; [1998] HCA 37 Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60 Cheikho v Nationwide News Pty Ltd (No 5) [2016] NSWSC 29 Cush v Dillon (2011) 243 CLR 298; [2011] HCA 30 Eades v Director of Public Prosecutions (NSW) (2010) 77 NSWLR 173; [2010] NSWCA 241 Fairfax Digital Australia & New Zealand Pty Ltd v Kazal [2018] NSWCA 77 Greek Herald Pty Ltd v Nikolopoulos (2001) 54 NSWLR 165; [2002] NSWCA 41 Gulic v Boral Transport Ltd [2016] NSWCA 269 Hanrahan v Ainsworth (1990) 22 NSWLR 73 O'Brien v Australian Broadcasting Corporation [2016] NSWSC 1289 O'Brien v Australian Broadcasting Corporation [2017] NSWCA 338 Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 Sleiman Investments Pty Ltd as trustee for the Sleiman Family Trust v Deputy Commissioner [2017] NSWCA 81
Category:	Principal judgment
Parties:	Yosef Yitzchak Feldman (Plaintiff) Polaris Media Pty Ltd as trustee of The Polaris Media Trust trading as The Australian Jewish News (First Defendant) Joshua Levi (Second Defendant)
Representation:	Counsel: J Cohen (Plaintiff) S T Chrysanthou with N G Olson (Defendants) Solicitors: Cambridge Lawyers (Plaintiff) HWL Ebsworth Lawyers (Defendants)
File Number(s):	2015/382029
Publication restriction:	None