Yosef Yitzchak Feldman v Nationwide News Pty Limited (No 2)

[2018] NSWSC 716

Supreme Court

New South Wales

Medium Neutral Citation:	Yosef Yitzchak Feldman v Nationwide News Pty Limited & Ors (No 2) [2018] NSWSC 716
Hearing dates:	8; 9 May 2018
Date of orders:	09 May 2018
Decision date:	09 May 2018
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	I overrule the objection and I will admit the submissions as exhibit DBT5
Catchwords:	DEFAMATION – Practice and procedure - tender of written submissions - whether the admission of the document is unfairly prejudicial - probative value - author of article not present - claim of lost opportunity to cross-examine - probative value not substantially outweighed by the danger that the evidence might be unfairly prejudicial to plaintiff - not uncommon - plaintiff did deprived of opportunity to make a Jones v Dunkel submission
Legislation Cited:	Evidence Act 1995 (NSW) ss 38, 135
Cases Cited:	Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Texts Cited:	Nil
Category:	Procedural and other rulings
Parties:	Yosef Yitzhak Feldman (Plaintiff) Nationwide News Pty Ltd (First Defendant) Special Broadcasting Service Corporation (Second Defendant)
Representation:	Counsel: Mr J Cohen (Plaintiff) Mr A T S Dawson SC with Ms L Barrett (Plaintiff) Mr Bennett for The Australian Broadcasting Corporation Mr T Lockwood for the Commonwealth of Australia   Solicitors: Jacobs Legal (Plaintiff)
File Number(s):	2016/00038344; 2016/00038360; 2016/00277467;2016/00277467; 2017/00244766

ex tempore Judgment (Revised)

1. Mr Dawson of Senior Counsel has tendered the written submissions of counsel assisting the Royal Commission on 3 June 2015 signed by Ms Maria Gerace. Mr Cohen of counsel objects on the basis that the admission of the document is unfairly prejudicial and he relies upon the provisions of s 135 of the Evidence Act 1995 (NSW) (“Evidence Act”), which reposes a discretion in the Court to refuse to admit evidence which is otherwise relevant if its probative value is substantially outweighed, inter alia, by the danger that the evidence might be unfairly prejudicial to a party.

2. Learned counsel submits that the admission of a document is unfairly prejudicial to the plaintiff because the journalist who wrote the article relating to the content of the written submissions, a Ms Towers, is named as a defendant in the third News proceedings, but she has not appeared.  I interpolate I am informed she has not appeared because she has not been served but nor has she been called. It is not expected that she will be called to give evidence because Mr Dawson has indicated that the matter will proceed from the defendant's point of view by documentary evidence alone.

3. Mr Cohen says that had she been called, he might have had the opportunity to cross‑examine her in a way which indicated that she did not have regard to all of the material that had been put before the Royal Commission by way of submissions, including the submissions of Mr Philip Strickland of Senior Counsel who appeared for the plaintiff on the hearing. 

4. It seems to me that the probative value of the submission, which relates to the fair report defence, is not substantially outweighed by the danger that the evidence might be unfairly prejudicial to the plaintiff.  To the extent to which Ms Tower has not appeared because she has not been served, that is a matter which must lie in the plaintiff's camp.

5. Secondly, to the extent to which she has not been called to give evidence and therefore he has been deprived the opportunity to cross‑examine her in relation to relevant matters, that I might observe is a not uncommon incident of civil litigation in Australia. There is no guarantee that one's opponent will call a witness whom you desire to cross‑examine. Even parties are compellable witnesses on a subpoena issued at the request of the opposite party, and that step could have been taken. It may well have been that leave could have been obtained to cross‑examine the journalist under s 38 of the Evidence Act if she gave unfavourable evidence to the plaintiff, as well she might have.

6. It seems to me that Mr Cohen is not deprived of the opportunity to make a Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 (“Jones v Dunkel”) submission about the matter in closing addresses.  What is referred to as the rule in Jones v Dunkel is really no more than a permissible mode of inferential reasoning which the judge can be invited to adopt if certain conditions are made out.

7. I overrule the objection and I will admit the submissions as Ex DBT5.

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Decision last updated: 18 May 2018