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

In the Federal Court, the plaintiff, Yosef Yitzchak Feldman, pursued a defamation claim against the defendant, Nationwide News Pty Limited, over an article published in The Herald. The plaintiff alleged that the article defamed him and sought various remedies, including damages and an apology. The court had to determine whether the defendant's written submissions should be admitted into evidence, considering the plaintiff's claim that their admission was unfairly prejudicial due to the absence of the article's author. The plaintiff argued that this absence deprived them of the opportunity to cross-examine and make a submission under Jones v Dunkel, potentially affecting the balance between probative value and the risk of unfair prejudice.

The court examined the plaintiff's contention that the absence of the author of the article rendered the written submissions unfairly prejudicial. It noted that it was not uncommon for the author not to be present and that the probative value of the submissions was not substantially outweighed by the danger that the evidence might be unfairly prejudicial. The court further considered the plaintiff's argument regarding the lost opportunity to make a Jones v Dunkel submission but found that the plaintiff had not established that the absence of the author deprived them of any significant opportunity to challenge the content of the submissions. The court concluded that the written submissions should be admitted as they held sufficient probative value and the potential prejudice did not outweigh this value.

After weighing the arguments and evidence, the court determined that the probative value of the written submissions outweighed the risk of unfair prejudice to the plaintiff. The court acknowledged the plaintiff's loss of opportunity to cross-examine the author but found that this did not significantly impact the fairness of the proceedings. Consequently, the court allowed the defendant's written submissions into evidence. The final orders of the court included the admission of the written submissions as evidence, with the case proceeding to further stages of the defamation claim.