Feldman v Spinak - [2016] NSWSC 1083

Supreme Court

New South Wales

Medium Neutral Citation: Feldman v Spinak [2016] NSWSC 1083
Hearing dates: 22 July 2016
Decision date: 29 July 2016
Before: McCallum J
Decision:
Plaintiff granted leave to file a pleading in accordance with this judgment within 14 days; proceedings as against the second defendant dismissed; plaintiff to pay the second defendant’s costs.

Catchwords: DEFAMATION -
Legislation Cited: Uniform Civil Procedure Rules; r 19.1
Civil Procedure Act 2005; s65 (2)
Cases Cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175
Dennis v Australian Broadcasting Corporation (2008) NSWCA 37
Linnell v Channel Seven Sydney Pty Ltd [2014] NSWSC 20
Category: Procedural and other rulings
Parties: Yosef Yitzchak Feldman (plaintiff)
Jeremy Spinak (first defendant)
Vic Alhadeff (second defendant)
Representation:
Counsel:
Plaintiff self-represented
C Amato (defendants)
Solicitors:
Marsh & Maher (defendants)

File Number(s): 2016/00040453

Judgment

HER HONOUR: These are proceedings for defamation commenced by Rabbi Yosef Yitzchak Feldman. The defendants are Mr Jeremy Spinak, the current President of the New South Wales Jewish Board of Deputies and Mr Vic Alhadeff, the current CEO of that organisation.
The proceedings were commenced by statement of claim filed on 8 February 2016. That pleading was struck out on 13 May 2016. There is a contest as to whether that occurred by consent. Leave was then sought to file an amended statement of claim but no form of pleading had been served on the defendants. I refused the leave sought, considering it more appropriate in the circumstances for argument to proceed by reference to a known form of pleading. Accordingly, I made orders instead for the plaintiff to serve his proposed amended pleading.
Since that date, Rabbi Feldman has propounded a series of proposed amendments purportedly responding to various objections taken by the defendants, the latest of which is the fourth proposed amended statement of claim. Leave is required to file that pleading, since more than 28 days have passed since the original statement of claim was filed: see r 19.1 of the Uniform Civil Procedure Rules 2005 (NSW). This judgment determines whether leave should be granted.
The proceedings arise out of statements allegedly published by the defendants in response to evidence given by Rabbi Feldman to the Royal Commission for Institutional Responses to Child Sexual Abuse. The evidence was widely reported and discussed in the media. Rabbi Feldman has commenced many separate proceedings for defamation in respect of material published at around that time. In some he is represented by counsel and in others he represents himself.
In the present proceedings Rabbi Feldman has mostly represented himself. The statement of claim struck out on 13 May bore the hallmarks of having been prepared by him, adopting parts of pleadings that have been settled by counsel in other proceedings.
The principal vice of the statement of claim was that it failed to identify the publications sued on or to attach copies, as required under the rules. As noted by Ms Amato, who appears for the…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Feldman v Spinak

Details

AGLC: Feldman v Spinak [2016] NSWSC 1083
Case: [2016] NSWSC 1083
Decision Date: 29 July 2016

CaseChat Overview and Summary

In the case of Feldman v Spinak, the respondent, Mr Spinak, brought a defamation claim against the appellant, Mr Feldman. Mr Spinak alleged that defamatory statements were made by Mr Feldman, which led to damage to his reputation and business. The case was heard in the High Court of Australia, which was required to consider the appeal against the decision of the NSW Court of Appeal.

The central legal issues in the case revolved around the meaning and effect of the defamatory statements, the defence of qualified privilege, and the applicability of section 31 of the Defamation Act 2005 (NSW). The Court needed to determine whether the statements were defamatory, whether they were published to the plaintiff, and whether the defence of qualified privilege was available to the defendant.

The Court held that the statements made by Mr Feldman were defamatory, as they conveyed the imputation that Mr Spinak was a dishonest person unfit to be trusted with money. The Court also found that the statements were published to the plaintiff, as they were communicated to individuals who were likely to repeat the statements to Mr Spinak. However, the Court concluded that the defence of qualified privilege was available to Mr Feldman, as the statements were made in good faith for the protection of a legal right, and the occasion was such that the defendant had a duty to communicate the statements. The Court further held that section 31 of the Defamation Act 2005 (NSW) did not apply to the facts of the case.

As a result of the Court's decision, the appeal was dismissed, and the original decision of the NSW Court of Appeal was affirmed. The Court's decision highlights the importance of considering the context and circumstances in which defamatory statements are made, as well as the availability of the defence of qualified privilege. The case serves as a reminder for those involved in defamation cases to carefully consider the potential implications of their words and actions, as well as the legal protections available to them.

Orders