Feldman v Nationwide News Pty Ltd & Ors; Feldman v Nationwide News Pty Ltd & Ors; Feldman v Nationwide News Pty Ltd & Ors; Feldman v Special Broadcasting Corporation

1. [1]

   These four proceedings claiming damages for defamation were heard together, with evidence in one standing as evidence in the others, insofar as relevant to the others. The plaintiff in each is Rabbi Yosef Feldman. Each proceeding arises from the publication at various times between 6 February 2015 and 30 November 2016 of one or more print-news and online articles reporting on: Rabbi Feldman’s evidence given to the Royal Commission into Institutional Responses to Child Sexual Abuse (“the Royal Commission”) on 6 February 2015; the publication of the submissions of Counsel Assisting on the Royal Commission’s website on 18 September 2015; and the publication of the Royal Commission’s report on this part of its investigation (Case Study No. 22) in October 2016. There are eight articles in all, spread across the four proceedings.

The proceedings

1. [2]

   The first proceeding is 2016/38344. There are five defendants. The first defendant was Nationwide News Pty Ltd; the second The Herald and Weekly Times Pty Ltd; and the third to fifth are three journalists who wrote the various articles. This proceeding was referred to at the hearing as the “News 1” proceeding. Four news articles in different publications are complained of. Not strictly in chronological order, they are Exhibits A, B, C and D referred to below.

2. [3]

   The second proceeding is no. 2016/277467. The first defendant is Nationwide News Pty Ltd and the second defendant, a journalist. This proceeding relates to two articles published on 19 September 2015 which are Exhibits E and F below. This proceeding was referred to as the “News 2” proceeding at the hearing.

3. [4]

   The third proceeding is no. 2016/38360 and the sole defendant is the Special Broadcasting Service Corporation (SBS). The proceeding arises out of one article published online on 6 February 2015 which is Exhibit H referred to below.

4. [5]

   The fourth proceeding is 2017/244766. The first defendant is Nationwide News Pty Ltd and the second the journalist who is the fourth defendant in the News 1 proceedings (who was not served and did not appear). This proceeding was referred to at the hearing as the “News 3” proceeding. The matter complained of is an article published on 30 November 2016, reporting on the report in Case Study No. 22. These proceedings are referred to as the News 3 proceeding. The article is Exhibit G below.

5. [6]

   In due course I will dismiss the proceedings against the journalist who is the fourth defendant in the News 1 proceeding and the second defendant in the News 3 proceeding.

6. [7]

   For the reasons expressed below I have decided that Rabbi Feldman has not made good any of his claims of defamation. Without in any way seeking to qualify my reasons I think it apposite to observe that the central matter complained of amounts to no more than the media accurately reporting Rabbi Feldman’s own words chosen by him to explain himself in evidence he gave before the Royal Commission. They were not taken out of context.

Imputations

1. [8]

   The articles in question (Exhibits A to H) are listed in this paragraph. It will be obvious that the series of articles were not tendered in strict chronological order. This was a function of the order of commencement of the four separate proceedings and choices made by counsel. Nothing much turns on the chronology, but it may make sense to deal with the articles in order of publication. The chronology of publication is: C, H, A, D, B, E, F and G. The articles are:

2. [9]

   In their written submissions, Mr ATS Dawson SC and Ms L Barnett grouped the imputations relied on in respect of each matter into the following categories. I did not understand Mr Cohen of counsel who appeared for Rabbi Feldman on all but the last day of hearing nor Rabbi Feldman himself, who was self-represented on the last day, to take issue with this convenient organisation of the matter.

3. [10]

   Exhibits A, B, C and D are said to convey imputations (a) and (b):

4. [11]

   Exhibit D is said also to convey imputations (c), (d) and (e):

5. [12]

   Exhibits E and F are said to convey imputations (f), (g) and (h):

6. [13]

   Exhibit G is said to convey imputations (i) to (m):

7. [14]

   Exhibit H is said to convey imputation (n):

Meaning and other issues

1. [15]

   Mr ATS Dawson SC, who appears for the defendants with Ms L Barnett, for the defendants accepts that each of Exhibits A, B, C and D would convey to the ordinary reasonable reader imputation (a) or alternatively imputation (b). (Written submissions, 16/05/18 pp7-10)

2. [16]

   Counsel for the defendants dispute that Exhibit D would convey either of imputation (c), (d), or (e) to the ordinary reasonable reader.

3. [17]

   Counsel accept that Exhibits E and F would convey imputations (f), (g) and (h).

4. [18]

   Counsel for the defendants say that the imputations asserted to arise from Exhibit G are “strained and forced” and on that basis submit that imputations (i), (j), (k), (l), (m) would not be conveyed to the ordinary reasonable reader.

5. [19]

   Finally counsel for the defendants accept that the SBS article, Exhibit H, would convey imputation (n).

6. [20]

   The defendants also rely on the defences of justification, fair summary of a public document and fair report of proceedings of public concern under ss 25, 28 and 29 of the Defamation Act 2005 (NSW) (“the Act”). Fair summary is relied on in relation to Exhibit G. Fair report is advanced as a defence to each of the other articles (Exhibits A,B ,C ,D ,E ,F and H). Justification is advanced in respect of all imputations which may be found to have been conveyed except imputations (c), (d) and (e) said to arise from Exhibit D.

7. [21]

   Issues as to damages include the question of mitigation under s 38(1)(c)-(e) of the Act.

Factual matrix

1. [22]

   All of the articles complained of by the plaintiff are reports of aspects of the proceedings of the Royal Commission. It is convenient therefore to set out that material now as it provides the matrix from which the issues arise. I propose to provide background by setting out matters found by the Royal Commission in its report on Case Study No. 22. The manner in which the matter was conducted before me makes it important to know something of the origins and beliefs of the so-called ultra-orthodox Jewish movement of which the plaintiff is an adherent and some aspects of Jewish law which shape attitudes within that part of the Jewish community. There are various sources available in the evidence but as these matters are dealt with by the Royal Commission in the report I have found that a convenient reference point. Little if any of this is in dispute.

2. [23]

   It is also appropriate to say something of the case of child sexual abuse allegations made against a rabbinical student referred to as AVL. This is because it was during his examination about that matter that Rabbi Feldman gave the evidence the subject of Exhibits A, B, C, D and H. Again, the report of the Royal Commission is a convenient and reliable source.

3. [24]

   I will then set out my summary of Rabbi Feldman’s evidence to the Royal Commission on 6 February 2015 relevant for present purposes to Exhibits A, B, C, D and H; the submissions of counsel assisting and those of Mr Strickland SC, who appeared for Rabbi Feldman before the Royal Commission, for the purpose of Exhibits E and F; and that part of the report of the Royal Commission relevant to Exhibit G. During this narrative I will intersperse the articles as appropriate.

The Royal Commission’s report of Case Study No. 22

1. [25]

   The report of the Royal Commission was admitted as Exhibit DTB 7. “DTB” is an initialism for the Defendants’ Tender Bundle. The bundle is a single volume and I will refer to it in this judgment simply as DTB followed by the relevant page number/s. The Commissioners who conducted this part of the inquiry were Justice Jennifer Coate (presiding), Mr Robert Fitzgerald AM, and Mr Andrew Murray. The scope of the case study is set out in pages 6 to 7 (DTB 546). An Executive Summary is provided (DTB 548).

The Chabad-Lubavitch Movement and relevant concepts of Jewish law

1. [26]

   The Chabad-Lubavitch Movement is explained and described in the following terms (p 8; DTB 548):

2. [27]

   “Chabad” is an amalgam derived from the Hebrew words for wisdom, comprehension and knowledge. The movement was founded in the village of Lubavitch, within the borders of modern-day Ukraine, 250 years ago. (p 12; DTB 552)

3. [28]

   In modern times the movement is based in New York. Its American leader known as “the Rebbe” is highly influential. There was significant expansion of the movement after the Second World War. The Rebbe dispatched emissaries known as Shluchim worldwide to encourage adherence to the precepts of ultra-orthodox Judaism (p 13; DTB 553). The Shluchim enjoyed significant status and influence in the communities “because they had been chosen by the revered Rebbe”. The faithful in Chabad-Lubavitch communities are required to strictly adhere to the obligations of the practice of the orthodox Jewish faith: modesty and gender segregation; daily prayers; dedication to Jewish study; and outreach to bring non-orthodox Jews closer to God. Members are expected to marry within the community only. The communities are insular with a limited level of engagement with the secular community and many parents limit their children’s exposure to the secular world through television, newspapers and other media.

4. [29]

   The Rabbi plays a fundamental role in guiding and leading their community, particularly in respect of the application of Jewish law (Halocho) to daily life (p 14; DTB 554). The community looks to the Rabbi for authoritative guidance and leadership. If the Rabbi is a Shluchim he has greater authority. It is not unusual for community members to seek guidance from a Rabbi about making any important life decision.

5. [30]

   The Commissioners made this finding about the influence of the Rabbi (p 14; DTB 554):

6. [31]

   Halachic conduct is of particular importance to members of the community and there is a focus upon whether conduct “is, or is not, halachically permitted” (p 15; DTB 555). Publicly calling for institutions within the community to be accountable for errors or failures or saying something negative against a senior Rabbi are considered grave sins (p 16; DTB 556). The punishment is “shunning”, or exclusion from the normal interactions within the community.

7. [32]

   Concerning the previously mentioned requirement of strict adherence to the obligations of the practice of the Jewish faith within the Chabad-Lubavitch communities and the loss of standing of those who contravened their obligations under Jewish law, the Commissioners found (p 19; DTB 559).

8. [33]

   A number of concepts of Jewish law relevant to the case study are set out (at p 9; DBT 549). These are referred to as “Halachic” concepts. I will not set them all out. There is a requirement that disputes between Jews be resolved by Jewish rather than secular law referred to as arka’ot. Mesirah prohibits a Jew from informing on another Jew to secular authority. Moser is a term of contempt applied to a Jew who has committed Mesirah. Loshon horo is the act of gossiping about another Jew or a Jewish institution, even when what is said is objectively true. Some of these concepts have grown up in response to discrimination against the Jewish people by secular authorities in Europe in centuries past. There has been tension about the continuing relevance of these concepts in contemporary Australia in relation to child sexual abuse. The Royal Commission observes that “there is a tension in the evidence as to whether that controversy has been genuine or whether some members have misused the concepts to limit communication about, and publication of incidents of, child sexual abuse in the Yeshivah Melbourne and Yeshiva Bondi communities” (p 9; DTB 549).

Yeshiva Bondi

1. [34]

   Yeshiva Bondi was established in 1956. At relevant times it has conducted a day school and the Yeshiva Gedolah Rabbinical College. The Rabbinical College is a vocational training school for young men aged between 20 and 22 years of age who are seeking ordination (semicha) as Rabbis. The students assist as volunteers at the day school (p 25; DTB 565).

2. [35]

   Rabbi Pinchus Feldman is the Dean and spiritual leader of Yeshiva Bondi. He is a Schluchim of the Rebbe.

3. [36]

   Rabbi Yosef Feldman is described by the Commissioners as follows (p 26; DTB 566):

4. [37]

   As Rabbinical administrator, Rabbi Feldman said he relied heavily upon his father for guidance and advice. His assumption was that Rabbi Pinchus Feldman would bring all matters of importance to his attention.

5. [38]

   Rabbi Yosef Feldman also held the position of President of the Rabbinical Council of New South Wales. When he gave his evidence, Rabbi Feldman was also the Rabbi of Southern Sydney Synagogue at Allawah in New South Wales.

Royal Commission findings about the AVL matter

1. [39]

   The Royal Commission sets out detail about the complaint made against rabbinical student AVL in July 2002 (p 66; DTB 606). This event provided much of the content for the examination of Rabbi Feldman by counsel assisting. The allegation made against AVL was that he touched a young male school student’s genitals and attempted to force the boy to touch his during a school camp on 12 July 2002. The complainant was a student under AVL’s care in his capacity as a volunteer at the day school. The complaint was brought to the attention of Rabbi Pinchus Feldman and Rabbi Yosef Feldman by the head of the primary school, a Mr Conway. I interpolate that the Royal Commission made no criticism of Mr Conway’s handling of the complaint. Indeed it found that he properly documented the complaint and reported the allegations to the relevant authorities. I should also record that when it was reported to him, Rabbi Pinchus Feldman directed that AVL was to be stood down from duties at the school until investigations were complete.

2. [40]

   Rabbi Pinchus Feldman and Rabbi Yosef Feldman met with AVL on the afternoon of 24 July 2002. The Royal Commission recorded in its report that Rabbi Yosef Feldman said that the only information he had received was that the complaint concerned “inappropriate behaviour with regard to children”. He also understood that the complaint was to be reported to police. He had limited recollection of the content of his meeting with AVL. Rabbi Yosef Feldman recalled that AVL denied any wrongdoing and that AVL spoke of leaving Australia and returning to his home in the United States. Rabbi Pinchus Feldman told AVL that he would not be given a semicha (ordination) unless he completed his studies at the rabbinical college.

3. [41]

   Rabbi Yosef Feldman gave evidence that after the meeting with Rabbi Pinchus Feldman, he met privately with AVL who told him that semicha was not so important to him. AVL admitted to Rabbi Yosef Feldman that he had lain with and massaged a child. Rabbi Yosef Feldman said at the time of this conversation he suspected that AVL might have been thinking of leaving Australia. He did not take any steps to inform anyone that AVL was contemplating leaving Australia. AVL left Australia soon after the meeting and returned to New York.

4. [42]

   Rabbi Yosef Feldman said he did not discover until after AVL had left that the complaint was to the effect that AVL had touched the child’s genitals. He said he thought that that conduct was probably a criminal offence (p 68; DTB 608).

5. [43]

   The Royal Commission found that the complaint about AVL concerned conduct which Rabbi Yosef Feldman (and from a Jewish perspective) regarded as “wrong, very wrong” (p 69; DTB 608), although, he did not know whether the conduct would constitute a secular crime. He did perceive that there could be civil or criminal ramifications arising from the complaint.

Rabbi Feldman’s evidence of 6 February 2015

1. [44]

   Rabbi Feldman gave evidence at the Royal Commission on 6 and 9 February 2015. The transcript of evidence is found behind DTB tabs 3 and 4 respectively (Exhibits DTB 3 and 4). I repeat that the articles the subject of the News 1 and SBS proceedings were written about the evidence of 6 February 2015. The News 2 proceeding reported on the written submissions of Counsel Assisting the Royal Commission, Ms Gerace (Tab 15). And the News 3 proceeding, the report of the Commission of October 2016 (Tab 7). The page numbers I will adopt are those in the DTB which are less cumbersome than the Commission’s page numbers.

2. [45]

   The evidence which was reported principally concerned what Rabbi Feldman said about his conversations with the alleged offender the rabbinical student, AVL. Rabbi Feldman confirmed an allegation had been made of inappropriate touching of a schoolboy attending the camp which was being investigated by Mr Conway, head of the school. He said when the matter was reported to Rabbi Feldman and his father, they had a meeting with AVL on the day following the complaint, that is on 24 July 2002. After the meeting, Rabbi Feldman had a private conversation with AVL.

3. [46]

   Rabbi Feldman said at meeting, his father said “We’ve heard that there’s inappropriate behaviour with regard to children and on that basis AVL really shouldn’t have anything more to do with children.” Rabbi Feldman said that they didn’t have an issue with him continuing his rabbinical studies while they saw whether the complaints were verified or not (DTB 26). AVL denied doing anything at the meeting. Rabbi Feldman said that if AVL was exonerated, the College would be happy to give him the semicha.

4. [47]

   AVL asked “what if I leave Australia?” and Rabbi Pinchus Feldman replied saying that “It’s not our decision what you decide to do in life … but the one thing we can tell you is if you leave you will not be getting semicha from us” (DTB 27). Rabbi Feldman agreed that his father was “certainly” not going to stop him from leaving. The Rabbinical College pays for the tickets of the overseas students to attend to study in Australia. Only in exceptional cases do they not pay (DTB 28). “The college usually pays a return ticket because they know that the student will want to go back home at the completion of the course” (DTB 29). Rabbi Feldman confirmed he had had another conversation with AVL (DTB 31) after the meeting with his father ended.

5. [48]

   Rabbi Feldman regarded AVL as “extended family” (DTB 34). He was a nephew of the wife of an uncle of the Rabbi. The Rabbi gave this evidence:

6. [49]

   The Rabbi said that AVL told him (at DTB 35):

7. [50]

   At DTB 36, the Rabbi agreed that he knew, probably from Mr Conway, that the complaints were about to be reported to the authorities. When asked whether he knew that one of the things that might occur is that a complaint would be made to the police, he said:

8. [51]

   When asked whether he recalled thinking that “what he did was highly inappropriate” the Rabbi said:

9. [52]

   When asked whether he knew that at the very least that it could be a crime he replied “Anything could be. I didn’t know that it is”.

10. [53]

    Counsel persisted asking whether he knew “It could be a crime of abuse against a child”. The Rabbi answered:

11. [54]

    The Rabbi understood that AVL would not be permitted to work with children and he was asked whether the reason for that was because the matter complained of “was sufficiently serious to warrant his removal”. The Rabbi answered:

12. [55]

    In response to further questions, Rabbi Feldman said that he knew that the complaints had been made but he said he didn’t know whether they raised a criminal issue, nor did he know whether or how the legal system would deal with the issue. He said:

13. [56]

    The Rabbi agreed that, from what his father had said that he knew that the complaint could have been child abuse (at DTB 37-38). He was asked:

14. [57]

    At DTB 39, Rabbi Feldman gave the following evidence:

15. [58]

    At DTB 45, the Rabbi gave this evidence:

16. [59]

    At DTB 46, the Rabbi gave evidence that he did not take any notes of these conversations with AVL because “it’s not my style”. He was challenged about that answer as follows:

17. [60]

    After that last question, the morning adjournment was taken. When the evidence resumed, counsel assisting asked (DTB 47):

18. [61]

    He explained his position by saying that he was not at all involved in day to day management and he relied on his father. He became a director to help. He added:

19. [62]

    From DTB 57 on there is a long passage of cross-examination on the emails of July 2011 (DTB tabs 8-17) relating to what Jewish law required about reporting child sex abuse matters to the police (“the July 2011 emails”). On any reading of his emails Rabbi Feldman was propounding the premise that Jewish law required a complaint of child sex abuse to be made to the Rabbi rather than the police. It is unnecessary to descend into the detail of the argument for present purposes. The Rabbi could then investigate the circumstances before deciding whether secular authorities should be involved. A circumstance telling against their involvement was whether the perpetrator had sincerely repented.

20. [63]

    Rabbi Moshe David Gutnick was one of Rabbi Feldman’s correspondents. Rabbi Gutnick is a distinguished scholar and a judge of the Sydney Beth Din or Rabbinical Court. It is clear from their report (p 18; DTB 558) that the commissioners conducting the case study were impressed with and accepted his evidence. It is fair to say that Rabbi Gutnick expressed his disagreement with Rabbi Feldman’s view of the requirements of Jewish law in very strong terms. When cross-examined about Rabbi Gutnick’s opposing view (at DTB 92-3) Rabbi Feldman said he didn’t think that Rabbi Gutnick was addressing his “halachic issue”. He continued:

21. [64]

    Because of the argument mounted by and on behalf of Rabbi Feldman about the scope of the fair report defence it is necessary to set out some of his evidence from the second day of hearing (9 February 2015) even though this post-dates the publication of Exhibits A, B, C, D and H. I will set out that evidence after dealing with articles complained of. It will be recalled that Exhibits E and F concern counsel’s submission and Exhibit G, the Royal Commission’s report into Case Study No. 22.

Exhibit C

1. [65]

   I propose to deal with the articles in chronological order rather than in the order in which they were introduced into evidence.

2. [66]

   The first article in time is Exhibit C published on the Herald Sun online on 6 February 2015 at 7:06 PM. Including the headline (and a photograph of Rabbi Feldman) the article consists of 23 paragraphs. The headline is as follows:

3. [67]

   The opening seven paragraphs are as appears below:

4. [68]

   The article continued, recording that Rabbi Feldman was a director of the Yeshiva Corporation from about the age of 25 and that he gave evidence that he didn’t consider sexual abuse to be a common problem, his belief was that its prevalence (presumably in the wider community) was about “5 to 10 per cent”. The article went on to record that the exposure of Rabbi Feldman’s views expressed in the 2011 emails “sparked wide-spread outrage”. One of his 2011 emails was quoted. That email concluded with the words “I feel that if we as a Jewish leadership can’t deal with this and other issues bif nim (internally) were are showing ourselves to be impotent”. The article concluded by informing readers “the hearing continues”.

Exhibit H

1. [69]

   Exhibit H was published online by SBS News on the evening of 6 February 2015. The headline is “Rabbi feared friend would be jailed”. It then consisted of 20 short paragraphs. The first 11 paragraphs relate to the headline which concerns Rabbi Feldman’s fears for his friend David Cyrpys and emails he sent to Rabbi Moshe Gutnick about that matter. No imputations are said to arise out of that material. Exhibit H is said only to convey imputation (n), dealing with the same alleged ignorance of the law as imputations (a) and (b). There is also a reference to the July 2011 emails and then a reference to the 2002 investigation into the conduct of AVL. The article continues:

Exhibit A

1. [70]

   Exhibit A was published on the Australian on online at 12:00 a.m. on 7 February 2015. The headline was “Rabbi in the dark on abuse law.” The article carried a photograph of Rabbi Feldman and a further 15 paragraphs. The matter relevant to the pleaded imputations contained within the article is as follows:

Exhibit D

1. [71]

   Exhibit D was published in the Herald Sun Newspaper on 7 Saturday February 2015 on page 25. The article carried the following headline in bold large type:

2. [72]

   The article was written by the same journalist as Exhibit C. Unsurprisingly it is very similar in content to Exhibit C but not the same. Additional matters are complained of. In particular it is said to convey imputations (c),(d), and (e) as set out above. The first four paragraphs read:

3. [73]

   Like Exhibit C, the article went on to summarise Rabbi Feldman’s evidence about the prevalence of child sexual abuse which he did not believe “was very common” as well as his previously stated views that child sexual abuse should in the first instance be reported to a Rabbi, and only passed onto the police if the Rabbi was in no doubt about the truth of the complaint. Reference was made to the response to Rabbi Feldman’s July 2011 emails. No complaint is made about how these matters are reported and the article concludes with the statement “the hearing continues”.

Exhibit B

1. [74]

   Exhibit B was reported in the Daily Telegraph on-line on 11 February 2015 at 11:52 p.m., which carried a photograph of Rabbi Feldman with the headline:

2. [75]

   The article commenced as follows:

3. [76]

   The article then quoted Rabbi Feldman’s statement apologising to persons “who may have been embarrassed or ashamed of my views, words, understandings, recordings or emails about child sexual abuse or any other matter”. It also reported the statement of the Yeshiva Centre thanking Rabbi Feldman “for his years of selfless dedication to the Centre”. The article continued:

4. [77]

   The article concluded with disapproving comments over Rabbi Feldman’s evidence from the President and Chief Executive of the New South Wales Jewish Board of Deputies.

Rabbi Feldman’s evidence of 9 February 2015

1. [78]

   When the hearing resumed on 9 February 2015, the Rabbi was cross-examined about the other matters referred to in the report of the Commission concerning convicted perpetrators David Cyprys and Daniel Hayman, who were friends of Rabbi Feldman occurring in 2013 and 2014 and his contact with a survivor Manny Waks (who apparently prefers to eschew the statutory anonymity available to him) (DTB 249).

2. [79]

   When examined by his own counsel, Mr Strickland SC, Rabbi Feldman was permitted to read from his own further statement of 6 February 2015 at DTB 2 (which was exhibit 22-25 in the inquiry). He stated that he had been affected by the evidence of the victims of sexual abuse. He felt deeply sorry for their suffering and he expressed deep sorrow “for the pain that they have experienced as a result of the vilification and abuse from the community for having reported or publicised that abuse”. He agreed that it is obligatory, without qualification, to immediately report all allegations of sexual abuse to the police. He agreed that people should be encouraged to report child sexual abuse without being in any way subject to shunning or bullying or being labelled a moser (or informer) and that all Rabbis should receive appropriate training. His written statement (DTB 250) concluded in this way:

3. [80]

   At DTB 251, after making his statement he was examined by Mr Strickland about the evidence he had given on 6 February 2015 about the AVL matter and his knowledge of the criminal law. It is important, I think, to bear in mind when considering this aspect of his evidence that Rabbi Feldman had read the press reports of his earlier evidence which had clearly stung him. At DTB 265 he asked if he could make a point and was given permission to do so by the presiding member of the commission. He said (in part):

4. [81]

   With these matters in mind, at DTB 251 he gave evidence that he had only heard that the allegation against AVL involved fondling the genitals of a child “much later after he left the country”. He was asked the following questions:

5. [82]

   The evidence given by Rabbi Feldman on Monday 9 February 2015 was not the subject of any news report by any of the defendants, at least insofar as is in issue in these proceedings: cf Exhibit B.

Submissions of Counsel Assisting

1. [83]

   The written submissions of counsel assisting the Royal Commission for Case Study No. 22 run to some 129 pages. These were published and available to the public on 18 September 2015, the day following the hearing of oral submissions. They are reproduced at DTB tab 5. A summary, or perhaps compilation, of the 29 detailed findings contended for as available is at DTB 389-392.

2. [84]

   Concerning the complaint against AVL in July 2002, counsel assisting submitted (DTB 317) that it was available for the Commission to find that Rabbi Pinchus Feldman and Rabbi Yosef Feldman failed to tell key employees of Yeshiva College involved in responding to the complaint that AVL was thinking of leaving the country because of the complaint. Counsel pointed out that in fact he left the country less than 24 hours after being informed of the complaint against him on a return ticket which had been paid for by Yeshiva Gedolah. This was available finding F7. As a footnote to the published version of the written submissions states that the allegation was amended at the oral hearing on 17 September 2015 (DTB 426) to make clear that the return ticket had been “likely given to him when he travelled to Australia to study”.

3. [85]

   Findings were sought against Rabbi Yosef Feldman in relation to his handling of the complaint against AVL in the following terms:

4. [86]

   Findings were also sought in relation to Rabbi Feldman’s views on child sexual abuse as expressed in the July 2011 emails (F11-F14). F11 in substance was a finding contended for by counsel assisting that Rabbi Feldman’s public statement on 26 July 2011, following the publication of his 21 to 25 July emails which had been “leaked” to the Australian Jewish News, to the effect he unequivocally accepted the 2010 Rabbinical Council of Victoria (“RCV”) resolution that there was a halachic obligation to report all abuse to the police, was not a true statement of his beliefs, but an exercise in public relations to seek to mitigate damage to his reputation.

5. [87]

   F12 was a finding contended for that as at 26 July 2011, Rabbi Feldman held a view that the prohibition of mesirah was relevant when considering whether or not to report allegations of sexual abuse to the authorities.

6. [88]

   F13 was a finding contended for that as at 26 July 2011, Rabbi Feldman was of the belief that allegations of child sexual abuse should be reported in the first instance to a Rabbi who should investigate the complaint to determine whether or not to report it to the authorities. A relevant consideration was whether the Rabbi assessed that the perpetrator had repented.

7. [89]

   F14 was a finding contended for that the Rabbi’s views were in part motivated by his friendship with David Cyprys, who was being investigated for allegations of historical sexual abuse. I interpolate he was later convicted and received a gaol sentence.

8. [90]

   Findings were sought in relation to Rabbi Feldman’s contact with AVB, a survivor of abuse at the hands of Rabbi Feldman’s friend, Daniel Hayman, in 2013. These are findings F15 to F17. In substance, the Rabbi contacted AVB, not to support him but to question why he had reported the abuse to the police rather than to a Rabbi. He made the approach because he was angry that his friend had been charged and might go to gaol. When he contacted AVB, he knew Daniel Hayman had abused AVB. As late as November 2013, Rabbi Feldman continued to hold the beliefs, the subject of F13.

9. [91]

   Additional findings were also sought in relation to Yeshiva Bondi’s response to the conviction and sentencing of Daniel Hayman. These also involved Rabbi Feldman. In particular, F20 sought a finding that as late as July 2014 he was of the opinion that rabbinical organisations should not encourage people to report all allegations of child sexual abuse to the authorities and he did not accept that there was a halachic obligation for them to do so.

10. [92]

    Counsel assisting the Royal Commission also submitted that the views articulated by Rabbi Yosef Feldman in his supplementary statement to the Royal Commission dated 6 February 2015 were not a true representation of his views on the issue of child sexual abuse, but an attempt to rehabilitate his public reputation. It was submitted that the views expressed by him in 2011, 2013, 2014 and at the public hearing on 6 February 2015, demonstrated that he often approaches the issue of child sexual abuse from the perpetrator’s perspective, rather than from the child’s perspective.

11. [93]

    In the body of the submissions detailed reference was made to the evidence concerning the 2002 complaint against AVL (at [193]-[201]; DTB 313-315). In relation to the apparent inconsistency between Rabbi Feldman’s evidence on 6 February 2015 and 9 February 2015, Counsel Assisting submitted:

12. [94]

    It was also submitted (at [195]-[196]; DTB 313-4):

13. [95]

    Finally, in support of available findings F22 and F23 referred to in substance in the penultimate preceding paragraph, the following detailed submissions were made (DTB 329-330; [269]-[271]):

14. [96]

    It may be important to bear in mind that the submissions of counsel assisting (at DTB 319-320) recorded evidence that had been given by Rabbi Feldman that his motivation for the views expressed in the July 2011 emails was “to encourage the Jewish community to address its problems internally and not just leave it to others to deal with” (at [291]). It also recorded his evidence that his support for the adoption of the 2010 RCV resolution was to support its adoption “by the rabbinate and the broader Jewish community” (at [224]).

Exhibits E and F

1. [97]

   Exhibits E and F are virtually identical. Exhibit E was published in the Australian online at 12 a.m. on 19 September 2015. Exhibit F was published in the Weekend Australian newspaper for 19 and 20 September 2015. The only possible material difference between them is that the online publication had the following headline:

2. [98]

   Each article was of 12 paragraphs. The most relevant for present purposes are follows:

3. [99]

   The journalist recorded that the submissions were “scathing of the Yeshiva Centre in Sydney and its sister organisation in Melbourne, the Yeshivah Centre, for funding sexual abusers of children to flee Australia and hindering police investigations”. The article concluded with 3 paragraphs referring to Rush J’s decision in a civil claim for damages brought by the victims of an abuser at the Adass Israel School in Melbourne. The newsprint version, Exhibit F, was printed on the same page as a longer story by a different journalist reporting on Rush J’s decision at some length.

Exhibit G

1. [100]

   As I have said, the Royal Commission’s report on Case Study No. 22 was published in October 2016. Exhibit G was published in the Australian online at 12 a.m. 30 November 2016. It carried the headline:

2. [101]

   A photograph of Rabbi Yosef Feldman appeared immediately under the headline. The balance of the article consisted of 8 paragraphs. The whole article is as follows:

3. [102]

   There was much controversy at the hearing about the obvious editing error resulting in the transposition of the paragraphs I have italicised. I am of the view that the ordinary reasonable reader, being of fair average intelligence would pick up the error immediately and reorganise the flow of the article in his or her own mind as he or she read on. At most a moment’s reflection may have been necessary.

Submissions on behalf of Rabbi Feldman

1. [103]

   Although neither Exhibits E or F, or any other press report in evidence, refer to the written submissions prepared on behalf of Rabbi Feldman by Mr Phillip Strickland SC, who appeared for him at the Royal Commission hearings, it is appropriate to summarise aspects of them to deal with Rabbi Feldman’s argument about fair report. Mr Strickland was apparently unavailable to appear before the Royal Commission in September 2015 and Rabbi Feldman was then represented by Mr Greg Smith SC.

2. [104]

   Mr Strickland’s submissions are dated 5 August 2015, run to some 50 pages, and take issue with, and seek to contradict, the findings adverse to Rabbi Yosef Feldman which counsel assisting contended were available. Mr Strickland’s submissions would have been published at the same time as the submissions of counsel assisting, probably on 18 September 2015, on the Royal Commission’s website. By way of general introductory matters, the submissions reminded the Commission of the Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 “standard” applicable to the making of adverse findings. Senior counsel argued that the personal views of Rabbi Feldman are not relevant to the matters to be investigated in the case study and in any event, the Commission should accept the Rabbi’s statement of 26 July 2011 of adherence to 2010 RCV statement that secular law must be observed, and that whatever his personal beliefs about halachic obligations, the Rabbi’s personal beliefs were not an impediment to reporting, investigating or responding to allegations and incidents of abuse.

3. [105]

   It was also argued that the Royal Commission should accept the content of Rabbi Feldman’s supplementary statement of 6 February 2015, particularly given the absence of evidence of the toleration, concealment or cover-up of instances of child sex abuse or the discouragement of any particular victim at Yeshiva Bondi or Yeshiva Gedolah.

4. [106]

   In relation to proposed findings F6 and F7 about AVL leaving the country, Mr Strickland submitted that the Rabbi did not know that he intended to leave the country, his flight was not funded to hinder any investigation, but was by way of an open return ticket paid for by the Rabbinical College at the time AVL was accepted as a student. As might be expected, cogent arguments were put forward for rejecting each of the findings contended for by counsel assisting. It is unnecessary to summarise these matters as they are not the subject of any article.

The Royal Commission’s findings about the role of a Rabbi and his influence in the community

1. [107]

   The Royal Commission made these important findings (at p 10; DTB 550):

2. [108]

   The Commission found that repeated reports of child sexual abuse were made on behalf of survivors who were assured action would be taken, but these assurances were apparently not acted on. Perpetrators were permitted a continuing association with, presence, or employment at, the institutions (p 11; DTB 551).

3. [109]

   The Royal Commission made this finding (p 16-7; DTB 556-7):

4. [110]

   Communication within the community could involve lochon horo while communicating to the police was mesirah contravening the concept of arka’ot. Persons who engaged in this conduct would be perceived as sinners and therefore lose status in the community or perhaps be shunned. Survivors and their families could be treated as outcasts if it became known that they had reported the offences to secular authorities. This lowered the families yichus (pedigree), significantly lowering their standing and the prospects of their children making good marriages.

5. [111]

   By its resolution in 2010 the RCV, referred to in other evidence in this case, stated that the prohibitions of Mesirah and arka’ot (keeping disputes in house) did not apply to information about child sexual abuse and that it is a halachic obligation to report child sexual abuse. The 2010 RCV resolution did not bring about immediate change in attitudes (pp 9-10; DTB 549-550).

6. [112]

   The Royal Commission recorded that Rabbi Moshe David Gutnick is a senior judge of the Sydney Beth Din (the Rabbincal Court) (p 18; DTB 558). His evidence was that in modern society there was no doubt that in Jewish law sexual abuse of children was a heinous, horrendous crime equated with murder: “Mesirah does not apply. You don’t call your Rabbi you call the Police”. The Rabbi also said that the teaching of the Lubavitch Rebbe in the early 1980’s was that Jewish law required those who witnessed an assault to report the matter to the secular authorities. The Rebbe declared that “whoever does not report a crime becomes a partner to the crime” (p 19; DTB 559). Rabbi Gutnick was of the view that Rabbis who contend mesirah applies to complaints of child sexual abuse were engaged in a “gross misuse of rabbinic power”.

7. [113]

   Concerning the previously mentioned requirement of strict adherence -to the obligations of the practice of the Jewish faith within the Chabad-Lubavitch communities and the loss of standing of those who contravened their obligations under Jewish law, the Commissioners found (p 19; DTB 559):

The Royal Commission’s findings about Rabbi Feldman’s understanding of child sexual abuse issues

1. [114]

   The Royal Commission dealt with Rabbi Yosef Feldman’s understanding of issues in AVL’s and other cases under the headings “Understanding AVL’s Conduct as Criminal”, “Understanding of Mandatory Reporting Obligations” and Jewish law obligations concerning reports of child sex abuse (at p 70; DTB 610).

2. [115]

   The Commissioners recorded Rabbi Yosef Feldman’s evidence as being:

   1. (1)

      he did not recognise AVL’s conduct was a crime or it was possible that AVL would be charged with a criminal offence;

   2. (2)

      he did not know much about sex abuse at all and “it didn’t enter into his mind the whole idea of what’s considered a legal crime or not; what should be reported to the police or not”;

   3. (3)

      he had only recently learned of the serious criminal nature of child sex abuse;

   4. (4)

      he understood the allegations involved AVL touching the genitals of an underage boy, but AVL assured him he did not actually do anything wrong. “I just laid with him. I may have massaged him, but not inappropriately”;

   5. (5)

      Rabbi Yosef Feldman regarded the behaviour as both highly inappropriate and suggestive of being sexual in nature; and

   6. (6)

      the conduct was wrong from a Jewish perspective, but not necessarily wrong from a legal perspective.

3. [116]

   Under the heading of “Understanding Mandatory Reporting Obligations” the Commissioners found that Rabbi Yosef Feldman was (p 71; DTB 611):

   1. (1)

      He was unaware of mandatory reporting requirements, which had been in force in New South Wales since 1988;

   2. (2)

      between 2002 and 2015 he did not take any formal training or study as to how to respond to allegations of child sexual abuse;

   3. (3)

      he had met AVL in New York after he had been ordained, but never mentioned the complaint as he did not want to embarrass AVL; and

   4. (4)

      despite his role as a director of Yeshiva College, and Dean of Yeshiva Geldola Rabbinical College, Rabbi Feldman was either ignorant or ill-informed about conduct amounting to child sexual abuse; the criminal nature of child sexual abuse; and mandatory reporting obligations.

4. [117]

   For the purpose of determining Rabbi Feldman’s views of the Jewish law obligations about reporting child sexual abuse allegations to secular authorities, the Royal Commission analysed the July 2011 emails (at pp 71-75; DTB 611-5). The Royal Commission found that Rabbi Feldman had argued that the Rabbinate should adopt a position consistent with his understanding of the view of Agudah Yisroel of America (a Haredi Jewish umbrella organisation) that all complaints should be first made to a Rabbi who should then determine whether to involve secular authorities. He questioned the need to report allegations to police immediately.

5. [118]

   Rabbi Feldman had asserted in evidence that he had raised the matter to provoke discussion amongst the Rabbinate. He was motivated to send the emails because of what was going on in the community which caused him hurt and upset. He thought a colleague, Rabbi Groner was being unfairly vilified and because allegations of child sexual abuse were being made against friends of his he was “wondering from the Jewish perspective if they were being treated properly” (p 72; DTB 612). He said the purpose of his emails was to encourage the Jewish community to address this problem internally and not leave it to others. He conceded that some of the views he expressed were halachically wrong and said that he no longer adhered to the views he had expressed.

6. [119]

   Rabbi Feldman told the Royal Commission that some of the emails had been leaked to the press on 25 or 26 July 2011, resulting in public discussion and criticism. The Rabbi’s statement to the Australian Jewish News was received in evidence. The statement is as follows (p 72; DTB 612):

7. [120]

   Although he said before the Commission that the statement was genuine, he qualified that by saying (p 73; DTB 613):

8. [121]

   The Commission, however, noted there was other evidence which called into question Rabbi Feldman’s position on the reporting of child sexual abuse. On the very next day, 27 July 2001, he had written to Rabbi Gutnick expressing concern that the Beth Din was going to issue a public statement “to report abuse” because he was concerned that his friend Cyprys was having his life ruined “for no good reason” even though he had done teshuva (repentance). Rabbi Kluwgant replied, copying Rabbi Gutnick, telling Rabbi Feldman to “back off” and stating that Jewish leaders must not be seen in any way to support the covering up of such crimes and it was wrong to say people should go to the Rabbi before the police. On the same day Rabbi Feldman replied to Rabbi Kluwgant, maintaining that “if in doubt [the matter] should be first determined by a Rabbi who would also do his utmost not just for the victim but also keeping in mind messiro in any grey area that the authorities in conjunction with an expert wouldn’t consider” (p 73; DTB 613).

9. [122]

   He explained his view that there was a grey area from a halachic perspective. The example he gave was of historical sexual abuse where the perpetrator had done teshuvo [i.e. repented]. In those circumstances he would not be happy to follow the secular law. Although he told the Commissioners that secular law came first, even if he did not consider it to be good law, the Commissioners made what must be regarded as adverse findings concerning Rabbi Feldman’s view of this matter (page 74-75; DTB 614-615).

10. [123]

    The Royal Commission was satisfied that Rabbi Yosef Feldman expressed similar views in the 25-25 July 2011 emails and the emails of 27 July 2011. These views included that (pp 74-75; DTB 614-615):

11. [124]

    The Royal Commission dealt with (at p 75; DTB 615) the charging of another of Rabbi Feldman’s friends, Hayman, in relation to child sexual assault committed against underage teenage boys from Yeshiva Bondi. On 4 November 2013, Rabbi Yosef Feldman again emailed colleagues, in particular asking whether Rabbi Gutnick was “happy that your strong statement to musser in all instances” may result in Hayman going to jail for a crime committed 25 years earlier. He repeated his belief that in historical child sex abuse, the Rabbi should consider whether the person accused had certainly changed, had repented and was unlikely to reoffend (see paragraph [299] below for an extract of the email).

12. [125]

    On 6 November 2013, he called and emailed the principal complainant against Hayman, AVB. The Rabbi asked the complainant whether the Rabbinical Council’s statement was a contributing factor for AVB to have known that it was halachically essential for child sexual abuse to be reported. He asked AVB whether Hayman’s conviction and imprisonment would heal emotional damage caused. AVB asked who had informed Rabbi Feldman of his involvement, to which the Rabbi replied that if he named his informants it would be loshon horo.

13. [126]

    On 12 May 2014, Rabbi Feldman sent Hayman an email expressing his support for Hayman in relation to his prosecution, saying “May God grant you a real victory in all respects”. Rabbi Feldman was copied into group emails from supporters of Hayman, but did not speak up about the position of the victims lest he got “vilified”. When a recipient described the discussion as shameful, Rabbi Feldman said nothing.

14. [127]

    Hayman received a suspended sentence on 10 June 2014. The following day the fact was reported in the Australian Jewish News which applauded the survivors who had come forward. Hayman wrote to Rabbi Feldman criticising Rabbi Gutnick, calling him a disgrace to the Sydney Rabbinate and questioning his status as a Lubavitcher. The Commissioners found this cast doubt upon the statement of Rabbi Feldman that he had repented. Rabbi Feldman told Hayman about his admonition to Rabbi Kluwgant and said he would not disagree with Hayman about Rabbi Gutnick. Hayman’s family were honoured guests and sponsors at an event on 1 July 2014 which AVB thought inappropriate. Rabbi Feldman observed that Hayman was a very significant donor.

The Royal Commission’s conclusions about Rabbi Feldman’s attitudes

1. [128]

   The Royal Commission concluded that when considering the issue of child sexual abuse, the Rabbi’s focus is on the perspective of the perpetrator rather than of the victim. He is of the view that conviction of a repentant perpetrator would be productive of some unfairness and he was concerned by the possibility of false accusation (at p 79; DTB 619).

2. [129]

   The Royal Commission recorded that in his supplementary written statement dated 6 February 2015, Rabbi Feldman had said that he agreed without qualification that it is obligatory under Jewish law to report all allegations of sexual abuse to the police; the obligation arises whenever sexual abuse is alleged to have occurred and whatever the form of the abuse; and he believes that after reporting incidents of sexual abuse no survivor should be subjected to shunning or bullying or being labelled a moser (p 79; DTB 619).

3. [130]

   He accepted that some in the Jewish community would be sceptical that the statement was a genuine reflection of his views. The Commissioners recorded that he had expressed very different views in 2011, 2013 and 2014. They accepted his position could have changed. They found his evidence perplexing and difficult to follow. The Commissioners recorded a submission (by Mr Strickland SC) on behalf of the Rabbi that he was entitled to hold his personal views, but the issue is whether those views were an impediment to reporting, investigating or responding to allegations in an instance of abuse.

4. [131]

   The Commissioners found that an institution can only act through its senior members. Their views shape the response of the institution to allegations and incidents of child sexual abuse and impact on the way their community thinks about those matters. The actions and views of those senior members have a direct bearing on whether survivors may come forward at all (p 80; DTB 620).

5. [132]

   The Commissioners reiterated the special position of authority a Rabbi exerts over “the people who congregate in the Synagogue” and noted that “it is common within the movement for significant decisions to be run past the Rabbi. In some cases, the Rabbi will make the decision for the individual” (p 80; DTB 620). The Commissioners said:

6. [133]

   The Royal Commission’s finding as to the situation as at the date of publication of their report was that “the evidence as to any steps Yeshiva Bondi has taken in implementing child protection measures is unclear”.

Defamatory meaning

1. [134]

   A cause of action in defamation “is fundamentally an action to vindicate a man’s reputation on some point as to which he has been falsely defamed”: Associated Newspapers Ltd v Dingle [1964] AC 371 per Lord Radcliffe at [346]; Fairfax Digital Australia & New Zealand Pty Ltd v Kazal (2018) 97 NSWLR 547; [2018] NSWCA 77 per McColl JA at [6]. In this State, today, the law relating to the tort of defamation is informed by the provisions of the Act which applies to the extent its terms expressly or by necessary implication displace the previous general law: s 5 of the Act.

2. [135]

   Whether a person has been actionably defamed in modern defamation law centres on whether allegedly defamatory matter has conveyed a defamatory imputation in relation to that person. This is the defamatory meaning of the matter. McColl JA addressed this issue in Kazal (at [6] and [16]-[18]) in the following way:

3. [136]

   The test for defamatory meaning is well-known and depends on whether the alleged imputation would have been conveyed to the ordinary reasonable reader. I accept the argument of counsel for the defendants, which in this regard was not disputed, based on Lewis v Daily Telegraph Ltd [1964] AC 234; Farquar v Bottom [1980] 2 NSWLR 380, Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158; [1998] NSWSC 4, and Charleston v News Group Newspapers Ltd [1995] 2 AC 65 that the ordinary reasonable reader has the following attributes. He or she:

   1. (1)

      is of fair, average intelligence, experience and education;

   2. (2)

      is fair minded;

   3. (3)

      is neither perverse, morbid not suspicious of mind, nor avid for scandal;

   4. (4)

      does not live in an ivory tower, but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs;

   5. (5)

      does not search for strained or forced meanings; and

   6. (6)

      reads the entire matter complained of and considers the context as a whole.

4. [137]

   The ordinary reasonable reader of a serious publication will examine it more cautiously and critically then perhaps the viewer of a more sensationalised current affairs program: Skuse v Granada Television ltd [1986] EMLR 278 (CA) at 286; Amalgamated Television Services Pty Ltd v Marsden at 165-166.

5. [138]

   Only the defamatory meaning of Exhibits D and G are disputed. I deal first with that issue before turning to the specific defences (under ss 25, 28 and 29 of the Act) which the defendants contend apply in relation to the respective articles.

6. [139]

   Exhibit D is The Herald Sun article published February 7 2015 under the title ‘Rabbi out of touch’ (see [71] above). As stated at [15] above, the defendants accept imputations (a) and (b) are carried. The question is whether imputations (c), (d), and (e) would be understood as having been conveyed.

7. [140]

   Imputations (c), (d), and (e) are for convenience set out again below:

8. [141]

   The plaintiff’s argument emphasises the distinction between two states of mind. First, a belief that conduct is morally wrong, and, secondly a belief that conduct is illegal or against the law.

9. [142]

   The plaintiff relies upon the opening substantial paragraph of Exhibit D to make good his submission. That paragraph reads as follows:

10. [143]

    In his analysis of the meaning of the word “wrong”, the plaintiff submits (PWS at p 6):

11. [144]

    I accept that the essential feature of each of the alternative imputations (c), (d) and (e) is the idea that Rabbi Feldman was ignorant of how ‘morally wrong’ it was for an adult to sexually touch the genitals of a child. To this extent the plaintiff argues that the ordinary reasonable reader would understand the article to convey the idea of moral wrongfulness as distinct from legal wrongfulness which the defendants accept as being conveyed by this article as pleaded in imputations (a) and (b).

12. [145]

    The ordinary reasonable reader is taken to read the article as a whole and in its complete context. This is uncontroversial. The plaintiff submits that the ordinary reasonable reader, in the light of reading the paragraph would be left with the impression that Rabbi Feldman was ignorant of the moral wrongfulness of child sex abuse.

13. [146]

    Even if the plaintiff’s argument is accepted, namely that there is some uncertainty regarding the connotations in relation to the word ‘wrong’ in that paragraph, this does not in my view, suggest that the ordinary reasonable reader would stop short of reading the whole article. There is nothing material submitted to suggest the ordinary reasonable reader would focus principally upon the phrasing in the opening paragraph as governing the meaning of the whole article.

14. [147]

    As the defendants submit, and as I accept, important context from which meaning is derived is provided by the immediately succeeding and subsequent paragraphs. These paragraphs make clear that unlawfulness, or legal wrongfulness is the meaning conveyed. This is especially clear from the specific reference to the Rabbi’s ignorance of the ‘law’ concerning child sex abuse. This is also apparent from the quote from his evidence:

15. [148]

    Indeed, the paragraph immediately following the opening paragraph reads:

16. [149]

    That paragraph contextualises the references to “wrongfulness” as references to legal, not moral, concepts.

17. [150]

    There is no reference to, or any suggestion of, the Rabbi being ignorant of the ‘moral wrongfulness’ of child sex abuse.

18. [151]

    I accept that “wrong”, like most words, may bear shades of meaning depending upon the context in which it appears. I accept that it may, in context mean morally rather than legally wrong. I also accept, perhaps in this area especially, there will be a large intersection between what is legally and morally wrong. But when Exhibit D is read as a whole, including the quote from Rabbi Feldman’s evidence before the Royal Commission, I am not of the view that the ordinary reasonable reader of the article, would not read Exhibit D as conveying imputations (c), (d) and (e) and I therefore reject the argument that these imputations carry.

19. [152]

    Exhibit G is the article by The Australian online, published 12AM November 30 2016 and titled “Royal commission says Jewish leaders ‘failed’ abused children”.

20. [153]

    As is pleaded the plaintiff says the following imputations are conveyed by the article:

21. [154]

    It will be recalled that Exhibit G is a news report summarising the Royal Commission’s report into Case Study No. 22. The article contains 10 substantive paragraphs. The crux of the article is the report of the finding that the collective Jewish ‘leadership’ at Yeshivah Melbourne and Yeshiva Sydney failed victims of child abuse.

22. [155]

    The defendants point out that several perpetrators of sexual abuse are individually named in the article and that Rabbi Feldman is reported as having been “singled out” by the Royal Commission. In this respect the article reports that that the Royal Commission found that neither the plaintiff nor his father had taken steps to inform anyone, meaning in context relevant authorities, that a rabbinical student (AVL) accused of molestation was thinking of leaving the country.

23. [156]

    In the absence of particulars, the defendants say they anticipate that the headline, photograph of Rabbi Yosef Feldman and the first five paragraphs of text would be relied upon to convey imputations (i), (j), (k) and (l).

24. [157]

    In his written submissions the plaintiff says (at p 8 [18]) that the ordinary reasonable reader, not avid for scandal, is entitled to a degree of loose thinking in circumstances where the article has “clearly invited the reader to speculate and draw inference”. The plaintiff referred to John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 201 ALR 77 and Amalgamated Television Services v Marsden in support of this proposition and summarises these authorities by submitting that “the ordinary reader pays greater attention to headlines, photos etc”.

25. [158]

    The plaintiff accepts that the imputations pleaded in respect of Exhibit G may give rise to ambiguity concerning the specific imputations conveyed, submitting at (PWS p 9 [18]):

26. [159]

    With respect to the plaintiff’s submissions I am not convinced that Exhibit G can be said as a matter of fact to be vague, or unclear, such that it invites loose thinking. The article is objective, factual and does not make assertions that are not based upon referred sources.

27. [160]

    To this extent the article takes a considered approach to the subject matter. Specifically regarding imputation (i) and (l), I would not accept the position that the article invites an ordinary reasonable reader of the Australian newspaper to understand that in particular the plaintiff was significantly involved in the cover up of multiple acts of paedophilia.

28. [161]

    Taken at its highest, the plaintiff’s submission supposes that because Rabbi Feldman is photographed in the article (leaving the Royal Commission) and because he is the last-named “person in the article”, that cumulatively, this impresses upon the ordinary reader a heightened significance of the role played by Rabbi Feldman in context of the summary of the Royal Commission’s views on the collective failure of the Jewish leadership as reported in the article. The submission that flows from this initial proposition, the plaintiff says, is the insinuation (p 9 [21]): “that all of the failings of the Jewish leadership when expressed [generally] refer to him [Rabbi Feldman]”. The plaintiff says the ordinary reasonable reader would be “entitled” to draw this inference.

29. [162]

    There is a single reference to Rabbi Feldman’s actions in relation to his and his father’s failure to notify anyone that an accused rabbinical student (AVL) was planning to leave the country. Even if this single instance were taken to be a significant involvement in a cover up, the article does not make express reference to any other conduct of Rabbi Feldman which one might consider, even in a broad sense, to be a cover up of paedophilia or sexual abuse. To this extent the gravamen of the respective asserted imputations, namely that multiple acts of paedophilia were covered up by Rabbi Feldman, is not conveyed and as such imputation (i) and (l) do not carry.

30. [163]

    In respect of (j) and (k), I accept the submission of the defendants that if carried these two imputations would equate the collective failing of the Jewish leadership with Rabbi Feldman. I have set out above the features of the article which the plaintiff says would impart this imputation to the ordinary reasonable reader. While I accept these features are present in the article, I do not accept in the light of the analytical, rigorous and factual approach taken in the content and form of the article, that the ordinary reasonable reader would without a strained or forced approach understand the article to convey this meaning. I do not accept that (j) and (k) are carried.

31. [164]

    Lastly regarding Exhibit G is imputation (m), I accept generally that the first component of the imputation would be understood as being conveyed by the ordinary reader, namely that the plaintiff conducted himself so as to warrant being singled out by the Royal Commission. However, I am not so persuaded regarding the second component. I cannot accept that an ordinary reasonable reader would understand the article as conveying the imputation that the plaintiff was “the most egregious example of the failure of the ultra-orthodox community”. I accept the defendants’ submission that the inclusion of the findings made against Rabbi Groner, demonstrates that the article would not convey to the ordinary reader that Rabbi Feldman in particular was singled out as the most egregious example of the failure of the Jewish leadership.

32. [165]

    The article separately sets out the Royal Commission’s findings against Rabbi Groner and his “serious failings” in handling sex abuse complaints. The article makes clear that Rabbi Groner was from Melbourne, and that he ignored multiple complaints of child sexual abuse, in particular, against two persons now convicted of multiple counts of child sexual abuse offences. None of this, or anything like it, is said against or about Rabbi Feldman. If anything, the criticisms of specific conduct by named leaders are more likely to implicate Rabbi Groner in egregious failure than Rabbi Feldman.

33. [166]

    None of the asserted imputations focus upon what the report identifies as the collective failure of the leadership in both cities, i.e. the insistence upon the primacy of applying Jewish law, rather than secular law, when dealing with allegations of child sexual abuse within the broader Jewish community. In particular: discouraging complainants from taking their complaints to the police, at least in the first instance, so they may be dealt with in-house; in fact taking little or no action to investigate the allegations; and permitting alleged perpetrators to remain associated with the ultra-orthodox community. It is in these respects that the article focuses upon implicating the collective Jewish leadership as a whole. But these reported adverse findings do not support or underpin the imputations for which the plaintiff contends.

34. [167]

    I am not persuaded that imputation (m), that Rabbi Feldman is the most egregious example of the failure of the Jewish leadership, would be understood by the ordinary reasonable reader of the article. In coming to this view I have had regard to the ordinary meaning of the italicised phrase as the worst example of extraordinarily bad misconduct. This wording alone, which is inextricably linked to the purported sting of the imputation, imposes a markedly specific and onerous meaning. This particular meaning would have to be understood by the ordinary reasonable reader as referring to Rabbi Feldman in the light of the article read as a whole, in order for the imputation to have been conveyed.

35. [168]

    I do not accept the ordinary reasonable reader of the Australian newspaper would understand Exhibit G as conveying the imputation (m), namely that Rabbi Feldman was the most egregious example of the failings of the Jewish leadership. I therefore do not accept imputation (m) has been conveyed by the article.

36. [169]

    Because I have found that none of the imputations said to have been conveyed by Exhibit G have been made good. It follows from this that the News 3 proceedings must fail and I will make orders in that regard in due course.

Defences

1. [170]

   These findings on the contested imputations leave in play the following:

   1. (1)

      Imputations (a) and (b) affecting Exhibits A, B, C and D;

   2. (2)

      Imputations (f), (g) and (h) affecting Exhibits E and F; and

   3. (3)

      Imputation (n) affecting Exhibit H.

2. [171]

   A question arises as to whether I should make contingent findings in relation to the defences propounded in answer to the asserted imputations I have rejected lest the matter go on appeal. I appreciate that the general practice suggests that first instance judges should decide all issues litigated to facilitate an unsuccessful litigant’s statutory right of appeal, the work of the Court of Appeal, and to avoid, if possible, the need for a re-trial in the event that a subsequent appeal is successful.

3. [172]

   I have rejected imputations (c), (d) and (e) affecting Exhibit D and imputations (i), (j), (k), (l) and (m) affecting Exhibit G. In a case like the present where there are four sets of proceedings heard together involving eight publications and fourteen possible imputations, a serious question arises about whether a duty to make all possible contingent findings referrable to arguments that have been rejected can be meaningfully discharged. I am no mathematician, but there must be a multiplier effect influencing the multiplicity of outcomes which might follow when one has regard to the various permutations of some but not other matters being upheld on appeal.

4. [173]

   I note, for example, in DC v New South Wales [2016] NSWCA 198; [2016] Aust. Torts Reports 82 – 295, albeit a personal injuries case, Basten JA thought it would have been preferable for the primary judge not to have dealt with questions relating to the assessment of damages because “[t]hat assessment was replete with difficulties” (at [153]). His Honour set out those difficulties at [154] to [155]. In essence, his Honour referred to the complexity of the exercise, having regard to the many possible factual permutations informing issues of causation, the nature and extent of the psychiatric injury, and like issues.

5. [174]

   I have been careful to ensure the avoidance of any influence by the judgment of McCallum J (as her Honour then was) in Feldman v Polaris Media Pty Ltd as Trustee of the Polaris Media Trading t/as The Australian Jewish News (No 2) [2018] NSWSC 1035 and the decisions of fact made in that case which I understand arose out of the same factual matrix as the case at hand. However, I observe her Honour departed (at [34]) from the usual practice of assessing damages on a contingent basis because “the number of permutations on which theoretically, an appeal might succeed is large”. Her Honour went on to write of the necessity of making “a correspondingly large number of hypothetical assessments, in each case assuming premises I have rejected”.

6. [175]

   I regard these authorities as apposite. They indicate that the preferred practice should not be invariably applied, especially when the exercise will involve a very high degree of artificiality. However despite the difficulties involved I will do my best to follow the usual practice.

7. [176]

   Turning to the defences of justification, fair summary of a public document and fair report of proceedings of public concern as pleaded by the defendants under ss 25, 28 and 29 of the Act, it is necessary to keep firmly in mind the overriding objects and purposes of the Act and its respective provisions.

8. [177]

   As provided for in s 3, the objects of the Act seek to both ensure “that the law of defamation does not place unreasonable limits on freedom of expression…in particular, on the publication and discussion of matters of public interest and importance,” and also to provide “effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter”. Section 3 is set out below. Also set out is s 6, which explains the interaction of the common law with the Act. In short, the Act will not affect the operation of the general law in relation to the tort of defamation except to the extent that the Act provides otherwise:

Defence of fair report of proceedings of public concern

1. [178]

   It is convenient now to turn to the defence of fair report of proceedings of public concern under s 29 of the Act, which is also a complete defence.

2. [179]

   Section 29(1) of the Act provides that:

3. [180]

   Proceedings of public concern are defined in s 29(4). Relevantly under s 29(4)(f) such proceedings include: “any proceedings in public of an inquiry held under the law of any country or under the authority of the government of any country”.

4. [181]

   It is a common law right to publish fair and accurate reports of public proceedings which inter alia is supported by the principle of the open administration of justice. The defendant drew my attention to Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52 in which Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ stated at [15] :

5. [182]

   It is well settled that to be fair and accurate, a report does not need to be a complete report of the proceedings in question. Nor need it be accurate in every respect. It must, however, be substantially accurate. The question whether it is substantially accurate is a question of fact to be determined on the evidence: Manobendro Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; [1998] HCA 37 (“Chakravarti”) per Gaudron and Gummow JJ at [42], with whom Brennan CJ and McHugh J agreed.

6. [183]

   The parties referred me to Thom v Associated Newspapers Ltd (1964) 64 SR (NSW) 376 at 380 per Herron CJ, Sugerman and Ferguson JJ and Anderson v Nationwide News Pty Ltd (1970) 72 SR (NSW) 313 at 318 per Asprey JA JA in support of the proposition that a report is “fair” if it is substantially accurate..

7. [184]

   In Thom v Associated Newspapers Ltd, their Honours concluded that a fair and accurate report does not need to be accurate in every word for word (at 380):

8. [185]

   The defence of fair report will be lost if, and only if, there is a substantial misrepresentation of a material fact prejudicial to a plaintiff’s reputation. To this effect Brennan CJ and McHugh J at [3] in Chakravarti relied upon the statement by Asprey JA in Anderson v Nationwide News Pty Ltd which concluded:

9. [186]

   Brennan CJ and McHugh J said in Chakravarti (at [2]):

General submissions in relation to Exhibits A, B, C, D and H

1. [187]

   The defendants rely not only on the transcript of evidence given on 6 February 2015, but also on the audio visual recording of that evidence, selections from which were played in open court (Exhibit 25). Mr Cohen of Counsel did not take the opportunity afforded him to play any additional selections during the hearing.

2. [188]

   The defendants submit that the whole of that material which I have summarised above when compared with each of Exhibits A, B, C, D and H should satisfy me that the defence has been made good, even accepting that, given the nature of the conceded available imputations affecting the character and reputation of a religious leader, the discharge of the onus of proof lying on the defendants requires cogent proofs in accordance with the principle expressed in Briginshaw v Briginshaw.

3. [189]

   The plaintiff argues that none of the articles are in fact “reports” because they contain the writer’s own inference, deductions and constructions. It also seems to be argued that the reports cannot be fair and accurate as they do not refer to the countervailing evidence given on 9 February and in the case of Exhibits E and F, the countervailing submissions of counsel representing Rabbi Feldman.

4. [190]

   As is developed perhaps more fully below when dealing with the defence of justification, the gravamen of imputations (a), (b) and (n) is that Rabbi Feldman was reprehensibly ignorant that it was against the law for an adult to sexually touch the genitals of a child. There is no issue before me that it is against the law for an adult to sexually touch the genitals of a child, nor could there be. The question is really whether the matter carrying those conceded imputations are fair and accurate reports of the proceedings of the Royal Commission on 6 February 2015 conveying to readers of the various publications that Rabbi Feldman was reprehensibly ignorant of that consideration without the attraction of liability for defamation which may ordinarily follow.

5. [191]

   I should also say that at times, when he was appearing for Rabbi Feldman, Mr J Cohen of counsel appeared to argue that the reports were not fair because the questioning by counsel assisting, in Mr Cohen’s submission, were either not fair, illogical, syntactically flawed or tainted by an erroneous statement of the law. This argument was directed in particular to the critical question and answer recorded at DTB 46 ([59] above), repeated at DTB 47 ([60] above) which were so widely reported in the press. In my judgment this is not to the point; it was not for the journalists to grade the fairness, skill, knowledge or even grammar of counsel. The journalists’ task was to accurately report what actually transpired in the hearing room on the topics the subject of their reports.

Recapitulation of Rabbi Feldman’s evidence

1. [192]

   I have summarised Rabbi Feldman’s evidence of 6 February 2015 in quite some detail above at [44]-[64]. The evidence which underpins the various permutations of the central imputation is extracted at [59] above. I will repeat it for convenience:

2. [193]

   It is also important to bear in mind that after an adjournment had been taken, the question was asked again. Presumably on reflection, counsel assisting wanted to make sure that Rabbi Feldman had clearly understood the question, given his somewhat surprising answer. After some talking around the issue, Rabbi Feldman confirmed his earlier answer. In fact he reinforced it by saying:

3. [194]

   He accepted that a director of an incorporated entity responsible for running a school should have had relevant knowledge about the content of crimes of child sexual abuse.

4. [195]

   Although the critical question and answer highlight Rabbi Feldman’s apparent ignorance, it was also clear from considering his evidence as a whole that Rabbi Feldman was astute to separate a “Jewish perspective” from “the legal perspective”. For instance, he emphasised (see [51] above):

Exhibit C and fair report

1. [196]

   Looking at Rabbi Feldman’s evidence as a whole, not just the “I didn’t know that as a fact” answer, and considering Exhibit C as a whole (see [67] above), including the headline and the photograph, I am persuaded that, as serious a thing as it is to say of a senior religious leader, Exhibit C is a fair and accurate report of Rabbi Feldman’s evidence on the state of his knowledge about the important question of child sexual abuse laws. In particular it is a fair and accurate report of his evidence that he ignorant of whether it is against the law to sexually touch the genitals of a child.

2. [197]

   In the language of Brennan CJ and McHugh J from Chakravarti, Exhibit C conveyed to the reasonable ordinary reader, imputation (a) (and for that matter, in the alternative, imputation (b)), but the legal consequences of that matter are avoided by the consideration that it is a fair and accurate report of the evidence given by Rabbi Feldman before the Royal Commission on 6 February 2015.

Exhibit H and fair report

1. [198]

   It will be borne in mind that imputation (n) said to be conveyed by Exhibit H is substantially the same as the alternatives (a) and (b). Imputation (n) is in the following terms:

Exhibit A and fair report

1. [199]

   Exhibit A (see [70] above) is said to convey the alternative imputations (a) and (b). If anything Exhibit A provides a more detailed summary of Rabbi Feldman’s evidence material to the asserted imputations including:

Exhibit D and fair report

1. [200]

   It will be recalled that I have rejected the plaintiff’s case that Exhibit D, in addition to imputations (a) and its alternative (b) conveyed imputations (c), (d) and (e). I record now that had I accepted the plaintiff’s argument, I would not have been persuaded that to that extent Exhibit D was a fair and accurate report of the evidence before the Royal Commission on 6 February 2015. On the contrary, the summary of the evidence I have provided above, I think, more than amply demonstrates that Rabbi Feldman was clearly of the view that sexual touching of children on the genitals or otherwise was morally wrong. He said it was “wrong, very wrong” ([55] above; DTB 37-38).

2. [201]

   However, considering the question through the prism of imputations (a) or (b), I am of a different view. I am satisfied that the article does fairly and accurately convey Rabbi Feldman’s ignorance of child sexual abuse laws and in particular his failure to inform himself of them. I accept the imputation, as conceded, that this state of affairs would be regarded reprehensible by the ordinary, reasonable reader in a senior religious leader occupying the positions occupied by Rabbi Feldman at the material times.

3. [202]

   The article accurately records Rabbi Feldman’s evidence “obviously I knew I had certain obligations. I didn’t know what they were. I relied on my father”, which in my judgment was fairly representative of the evidence he gave in relation to mandatory reporting laws and child sex abuse laws generally. Moreover, it accurately recorded his, “I didn’t know that as a fact” evidence.

4. [203]

   I am satisfied that Exhibit D, as I have determined its meaning would be understood by the ordinary, reasonable reader, is a fair and accurate report of Rabbi Feldman’s evidence of 6 February 2015.

Exhibit B and fair report

1. [204]

   Exhibit B (see [74]-[77] above) perhaps falls into a slightly different category. It was published on 11 February 2015 after Rabbi Feldman had given evidence on both 6 and 9 February 2015. It may be said that the main thrust of the article was to report the circumstances of Rabbi Feldman’s resignation from the Board of Management of the Yeshiva Centre in Bondi. As part of those circumstances, the article reported, accurately, aspects of Rabbi Feldman’s evidence on 6 February 2015 including admitting “not knowing in 2002 it was illegal for an adult to touch a child’s genitals”. It was not argued by the plaintiff that the broader subject matter of Exhibit B took it outside the scope of “a fair report of any proceedings of public concern”. However given the plaintiff’s general submissions I will deal with that question.

2. [205]

   The question of the circumstances in which the fair report defence will inure where the report is “co-mingled” with extraneous material was considered in Curistan v Times Newspapers Limited [2008] EWCA Civ 432; [2008] 3 All ER 923. Arden LJ (as her Ladyship then was) said (at [5]):

3. [206]

   At [90] Laws LJ said:

4. [207]

   Lord Phillips of Worth Matravers CJ (at [94]-[95]) identified the relevant questions as including:

5. [208]

   In the present case there is no question about the ascertainment of meaning or meaning itself. For relevant purposes meaning is conceded. On the other hand, the first three questions are of use. That part of the article which details Rabbi Feldman’s evidence, effectively the first sentence of the second substantive paragraph, accurately summarised his evidence and is a fair recounting of it. The ordinary reasonable reader would appreciate in context by reference to the first substantive paragraph that that is the substance of the evidence he gave. Although the second sentence in the second substantive paragraph contains a report of comment by “senior members of the Jewish Community” there is no real co-mingling of that matter with the “privileged” matter. The whole report is essentially factual, recounting what happened to Rabbi Feldman’s position and why. There is no editorialising on the part of the journalist concerned.

6. [209]

   It is only the first sentence of the second substantive paragraph that conveys the asserted imputations. I am persuaded that that matter is a fair and accurate report of the evidence of Rabbi Feldman at the Royal Commission as I have recounted above.

7. [210]

   In coming to this conclusion I appreciate that when he gave evidence on 9 February 2015 Rabbi Feldman, in effect by implication, sought to retract the controversial evidence when examined by his own counsel Mr Strickland SC ( [80] above). I do not regard it as necessary to the accuracy of the report that his retraction should be referred to. The article accurately recorded his 6 February evidence which had initiated the furore that lead to his resignation. The main thrust, as I have said, of Exhibit B was the report of his resignation. Reference to his 6 February evidence was necessary to explain the circumstances of it to the reader. I think it not irrelevant that no complaint is made about any other aspect of the reporting. The report was not inaccurate or unfair in the relevant sense by its omission of Rabbi Feldman’s attempted retraction.

Exhibits E and F and fair report

1. [211]

   For convenience, I repeat that the defendants accept that Exhibits E and F convey imputations (f), (g) and (h). They are:

2. [212]

   The plaintiff submitted that the account appeared to be derived from the oral submissions of 17 September 2015. I am satisfied that this is not correct. The second substantive paragraph of the article refers to the submission having been “released yesterday”. This is consistent with evidence given by Mr Neumann who was the solicitor who represented Rabbi Feldman before the Royal Commission (T60.50-61.5) and is consistent with the comments of the presiding member recorded at the foot of DTB 465. To the extent to which the plaintiff submitted that the report was not fair because it did not record the competing submissions made on his behalf in writing by Mr Strickland or in person by Mr Smith (see [103]-[106] above), I accept the submission of counsel for the defendant that this misunderstands the scope of the fair report defence. In Cook v Alexander [1974] 1 QB 279 Lord Denning MR rejected the proposition that for a report of Parliament to be fair and accurate, there needed to be a precis of the whole proceedings or debate. His Lordship said:

3. [213]

   It is not necessary that the report be fair to any particular person. I accept that the requirement of fairness is a requirement of accuracy, fairly reporting the proceedings so far as they are covered.

4. [214]

   With a possible exception of the statement “he privately pressured his flock not to report outside the community” it cannot be seriously argued that the report was not a fair and accurate report of the submissions of counsel assisting. A comparison of the content of Exhibits E and F (see [97]) with the submissions of counsel assisting summarised at [83]-[96] amply demonstrates in my judgment that the report is an entirely fair account of counsel assisting’s argument. It was a central tenet of counsel’s argument made more than once that the views expressed by Rabbi Feldman in 2011, 2013, 2014 and at the public hearing of the Royal Commission demonstrated that his public acceptance of the 2010 RCV resolution and his questioning of the basis for that resolution in Jewish law was disingenuous. In particular counsel submitted that Rabbi Feldman’s reaffirmation of that support on 9 February 2015, as Exhibit E and F report, “was not a true representation of his views”, but “an attempt to rehabilitate his public reputation”. That impression would have come through strongly to a reasonable ordinary reader considering the written submissions, which had been published online, for himself or herself.

5. [215]

   In truth, as the second substantive paragraph of the article makes clear, it was submitted that the Rabbi should not be accepted as sincere in his protestations of support for what is the established position of the Jewish community.

6. [216]

   The imputations (f), (g) and (h) are virtually drawn directly from the express language of Exhibits E and F, which in turn are solidly based upon the written submissions of counsel assisting, which I have summarised. There can be no question that in substance Exhibits E and F are an accurate report of that part of the proceedings. The articles appear to be based on and summarise the findings contended for by counsel assisting at F11, F12, F22, F23, F20, F13 and F7.

7. [217]

   Part of the criticism made is that the responding submissions of Mr Strickland were not referred to and accordingly the report of the submissions was not a fair one. I reiterate that it was not necessary for the article to report other submissions. I point out, for what it’s worth, that eight counsel appeared, including counsel assisting, representing various interested persons for all or part of the public hearings in Case Study No. 22. Eight counsel appeared on 17 September 2015 to make oral submissions. It is not necessary that the whole of the proceedings be reported before s 29 is engaged.

8. [218]

   I return then to the one exception I mentioned at the start of this section of this section of the judgment. That relates to imputation (g) and the expression “pressured his flock not to report child sexual abuse to the police”. Counsel assisting did not use the expression “his flock” either in writing or orally. Moreover, as I make clear below in relation to the justification defence the reasonable ordinary reader would understand the expression “his flock” as used in Exhibits E and F to refer to the lay members of a religious congregation rather than the rabbinate, the priesthood, the ministry or the like.

9. [219]

   I accept as has been submitted by the defendants that in the case of a senior religious figure, which Rabbi Feldman was, other, perhaps subordinate, religious personnel may be justly referred to as the leader’s flock. But that is not the ordinary meaning of the expression.

10. [220]

    Nor do I think it appropriate to regard the July 2011 emails as aptly being captured by the expression “pressured his flock”. Rabbi Feldman’s correspondents were, like him, senior rabbis within the ultra-orthodox community whom he was seeking to persuade to his point of view rather than “pressuring” them to comply with his view.

11. [221]

    Not every inaccuracy in a report of proceedings deprives the report of the benefit of the defence. As the Court said in Thom (see at [184] above):

12. [222]

    Applying this test, I am of the view that the disputed expression does not depart from the accuracy of the report. As the fourth substantive paragraph of the report demonstrates, in his evidence at the Royal Commission, Rabbi Feldman expressed the view that Jewish leaders should not publically encourage victims to go to police. Victims, of course, are part of the flock. Counsel assisting contended for a finding that this was Rabbi Feldman’s view see [86], [87], [89], [90] and [91] above. Moreover, the reference in the submissions set out at [94]-[96] above and in particular the reference to the wider Jewish community show that counsel assisting was contending, rightly or wrongly, that Rabbi Feldman was seeking to discourage Jewish laypeople from reporting complaints of abuse to the police rather than the Rabbi. Indeed, the whole tenor of the written submissions in this regard, is that the Rabbi should not be accepted as genuine when he professes his support for and adherence to the 2010 RCV resolution. That is to say, that the Rabbi’s protestations in that regard cannot be accepted at face value. If this is so, it is legitimate to understand counsel assisting as saying, as she did in terms, that he adhered to his previous view of halachic obligations that these complaints be dealt with in the first instance by the Rabbi. This could only occur if that view was expressed to the congregation, backed by the authority of a senior Rabbi.

Exhibit G and fair summary of a public document

1. [223]

   Exhibit G is set out above at [100]-[101] above and is certainly a succinct document compared to the report it summarises.

2. [224]

   Section 28 of the Act provides, relevantly, that “it is a defence of the publication of defamatory matter if a defendant proves that the matter was contained in:

3. [225]

   I accept the submission of counsel for the defendants that the requirements of fairness for the purpose of s 28 are informed by the principles articulated in the authorities discussed in relation to the defence of fair report of proceedings of public concern. Dealing with the cognate provision under the 1974 Act in Macquarie Radio Network Pty Ltd v Arthur Dent [2007] NSWCA 261, Beazley JA (as her Honour then was), with whom Mason P agreed said, at [70]-[71]:

4. [226]

   The defence may be defeated if the plaintiff proves that the defamatory matter was not published honestly for the information of the public: s 28(3) of the 2005 Act.

5. [227]

   There’s no question, of course, that Exhibit G purports to be nothing more or less than a summary of the Royal Commission’s report into Case Study No. 22. It does not purport to be a full or comprehensive report on all of the contents of that comparatively voluminous publication. Nor need it be, as the authorities referred to in relation to fair report make clear. It is a matter for the publisher or reporter to decide what part or parts of the Royal Commission’s report should be reported in the press. I am of the view that the statement of Lord Denning MR from Cook v Alexander has equal application. Provided the defendants demonstrate that their report on that part of the publication which they have selected has summarised it fairly and faithfully the “privilege” will be available.

6. [228]

   Clearly the journalist has concentrated upon those aspects of the findings of the Royal Commission which deal with the failings of the Yeshiva leadership in both Melbourne and Sydney. Those failings relate to the way in which halachic principles were applied by Yeshivah Melbourne and Yeshiva Bondi.

7. [229]

   As I have summarised at [107]-[113] above, these findings included ostracising survivors and their family members if they communicated with secular authorities about other Jews against whom allegations of child sexual abuse had been made. Further, the failings were:

8. [230]

   It was fair to say that the Royal Commission had singled out Rabbi Feldman for criticism. I have summarised the findings about Rabbi Feldman in relation to various matters above from [114] to [133] above. The statement that Rabbi Feldman resigned from his role as a director on Yeshiva Bondi’s board of management is perhaps extraneous to the Royal Commission’s report, but it is, as I have discussed in relation to Exhibit B factually accurate. This degree of co-mingling does not detract from the fairness or accuracy of the summary. Moreover, the fact that Rabbi Feldman and his father, Rabbi Pinchus Feldman failed to inform anyone that AVL was thinking of leaving the country because they did not believe that had an obligation to inform the police is an accurate and restrained summary of the Royal Commission’s views about that matter. In particular as I point out at [115]-[116] above, the Royal Commission was very critical of Rabbi Feldman’s handling of the AVL matter. They singled him out by stating he was either ignorant or ill-informed about conduct amounting to child sex abuse, the criminal nature of child sexual abuse, and mandatory reporting obligations: see [123] and [132] above.

9. [231]

   There is difficulty in applying the s 28 defence to Exhibit G in circumstances where I have rejected each of the asserted imputations said to have been conveyed by it. The difficulty arises from the consideration discussed by Brennan CJ and McHugh J in Chakravarti as discussed above. As the defence is an aspect of confession and avoidance, a defendant need only deal with imputations actually made good by the plaintiff. To that extent then, these findings in a sense are contingent. But I wish to say it is impossible to, even on a contingent basis, assess such an extravagant asserted imputation as imputation (m). There is nothing in the factual and restrained account contained in Exhibit G that would support the extravagant pleading that Rabbi Feldman was singled out as the most egregious example of the failure of the leadership of the ultra-orthodox community to appropriately respond to allegations of child sexual abuse. Having said that, the criticisms I have summarised above are certainly scathing, especially for a senior religious leader. To that extent and to the extent to which they are reflected in Exhibit G, I am satisfied that the defendants have made good the s 28 defence.

Defence of justification s 25

1. [232]

   As I have accepted the defendants’ defences under ss 28 and 29 of the Act, strictly speaking it is unnecessary to decide whether justification runs. However as it was fully argued it is appropriate to deal with it.

2. [233]

   Section 25 of the Act sets out the defence of justification. It provides that it is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.

3. [234]

   Section 25 is read with s 6(2) in mind. It will be recalled that it maintains the common law except to the extent the Act, expressly or by necessary implication, provides otherwise. As is the case at common law, so too under s 25, proof by a defendant that the defamatory imputations carried by the matter published are substantially true is a complete defence.

4. [235]

   As McColl JA said in Kazal at [16] the “defence of truth under s 25 enshrines the common law concept of justification throughout Australia.” To this extent, while the defence of justification focuses on the truth of the imputations, the proper approach in accordance with common law authorities is to consider the propositions contained in the imputation in context, construing the matter complained of as a whole: Greek Herald Pty Ltd v Nikolopoulous (2002) 54 NSWLR 165; [2002] NSWCA 41 at [26] per Mason P (Wood CJ at CL agreeing at [31]).

5. [236]

   If the defendants are to prove the complete defence of justification they must establish that every material part of the imputation carried is true: Howden v Truth & Sportsman Ltd (1937) 58 CLR 416; [1937] HCA 74 per Starke J (at 419) Dixon J (at 420) and Evatt J (at 424-425). This does not require that the defendant prove the truth of every detail of the defamatory words, rather the defence of substantial truth is concerned with meeting the “sting” of the defamation as was said by Gillard AJA (at 274) (Winneke ACJ generally agreeing; and Warren AJA agreeing) in Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161.

6. [237]

   Imputation (a) is in the following terms:

7. [238]

   The defendants accept that the imputation is carried by each of Exhibits A, B, C and D.

8. [239]

   The elements of this imputation are that:

9. [240]

   In respect of element (i) there is no issue that at all relevant times it was against the law for an adult to sexually touch the genitals of a child.

10. [241]

    As to element (ii) it is submitted by the defendant that the defendant was reprehensibly ignorant of this fact. In support of this finding, reliance is placed upon the following: the plaintiff’s background including his experience and training; the plaintiff’s views expressed during his oral evidence in these proceedings; emails that were sent to the journalist, Shannon Deery, the fifth defendant in News 1 proceeding (Ex DTB-34); and the evidence from the plaintiff regarding AVL.

11. [242]

    For easier reference I will re-iterate some facts already referred to in other contexts. It should be borne in mind that Rabbi Feldman did not give evidence during his case in chief. He chose to give evidence only in reply.

12. [243]

    Rabbi Feldman has been a Rabbi since 1989 (T195.5-19). From 4 November 1996 until February 2015 he was a director of Sydney Talmudical College Association (“STCA”). STCA controls the Yeshiva Gedolah rabbinical training college. It also runs the Yeshiva training centre, which is the NSW Chabad Headquarters (T363.35-50). It is not in issue that the plaintiff was the Rabbinical Administrator of the Yeshiva Gedolah (T240.8-10). That role involved taking care of the administrative arrangements for the students of the Yeshiva Gedolah, supervising the rabbinical students and placing those students in work placements to assist with their training.

13. [244]

    It is not in dispute that the plaintiff was also a director of Yeshiva College Limited which ran two schools catering for children: Yeshiva College and Yeshiva Bondi (T241.20-13). It is submitted by the defendants that despite the positions held by the plaintiff prior to February 6 2015, Rabbi Feldman had not undertaken any training, education or courses of study in relation to:

    1. (1)

       Mandatory reporting obligations in NSW;

    2. (2)

       The nature and incidence of child sexual abuse;

    3. (3)

       The law relating to child sexual abuse;

    4. (4)

       How to recognise child sexual abuse; or

    5. (5)

       How to appropriately respond to allegations that might amount to child sexual abuse.

14. [245]

    The plaintiff gave evidence under cross-examination by Mr Dawson SC that he had not taken any steps whatsoever at all relevant times prior to February 2015 to inform himself of what acts or conduct could constitute criminal offences against students if such conduct was perpetrated by teachers (T242.15):

15. [246]

    The defendants submit that Rabbi Feldman was a mandatory reporter under s 27(b) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Care Act”). This submission is undoubtedly correct. It is not in dispute that the plaintiff held a management position at Yeshiva, namely, a directorship which included duties relevant under the Care Act involving the direct responsibility for the provision of welfare and education to children. His duties at the rabbinical college involved the provision of services to children inasmuch as the students were directed to provide voluntary services to the school.

16. [247]

    It is the contention of the defendants that it was reprehensible for the plaintiff not to have undertaken training, or to have taken steps to acquire requisite knowledge in relation to child sex abuse laws. This is particularly so on the basis of the plaintiff’s position, his responsibilities and the level of access that was available to the teachers and rabbinical students to the students at the College. The plaintiff accepted in cross-examination that he was unacceptably oblivious to these matters conceding that, given the positions that he held, it was reprehensible for him to have been so ignorant (T248.46-49).

17. [248]

    It is not disputed that in 2002, AVL was a rabbinical student at the Yeshiva Gedolah under the supervision of the plaintiff. This was accepted by the plaintiff in these proceedings (T240.35):

18. [249]

    It is also not in dispute that on July 24 2002 the plaintiff received a report that a complaint had been made that AVL had inappropriately touched a student. The student attended Yeshiva College and had been on camp when he was touched by AVL, who was at the camp in his capacity as a rabbinical student of the Yeshiva Gedolah (T243.20-27T). As I have indicated earlier in these reasons the complaint made to Mr Conway was that AVL had fondled the boy’s genitals.

19. [250]

    It is not disputed that Rabbi Feldman was aware that a complaint had been made about AVL’s conduct in relation to a young boy of 13 or 14 years old. As has been dealt with elsewhere, and according to his evidence before me Rabbi Feldman believed the complaint concerned AVL lying down next to the student and massaging him. It was also apparent to Rabbi Feldman that Mr Conway, as required by law, was in the process of reporting the complaint to secular authorities. And in this context, AVL told him and Rabbi Pinchus Feldman he was considering leaving Australia to avoid legal process (T260.19-21T). The only step taken to avoid or discourage AVL leaving Australia was tell him that he would not be ordained if he did so (T268.21-23). The following evidence is pertinent (T257.10):

20. [251]

    The plaintiff shed further light in respect of how he perceived the complaint directed at AVL, articulating that he had not thought about the complaint in terms of its legal ramifications, and while conceding that he believed “with regard to AVL” that there was a 99% chance that it was sexual, this did not mean the misconduct was illegal (T258.20):

21. [252]

    The plaintiff had conceded (T254.14), as he had before the Royal Commission, that he later learnt that AVL sexually molested the student in question, by “sexually fondling his genitals” thereby supporting his original view at the time of hearing the complaint, that there was a “99% chance of it” being “sexual touching”. Notwithstanding his impression that AVL’s touching of the boy was likely to have a sexual connotation Rabbi Feldman took no steps to inform secular authorities of his stated intention to leave the country, thus at least acquiescing in his flight.

22. [253]

    Curiously, Rabbi Feldman speculated that there is a chance that AVL could be committing further offences overseas. Rabbi Feldman visited AVL in New York after he was ordained. He said that he still believes AVL could be sexually dangerous to children stating at (T371.10): “For all I know he’s raping kids now somewhere in America”.

23. [254]

    Notwithstanding the plaintiff’s view about AVL - which was likely informed by his understanding of the sexual molestation that occurred in Australia - the plaintiff took no steps to inform authorities in the USA about the danger that AVL may pose of committing a sexual crime. He stated in evidence (T371.15):

24. [255]

    In his emails to Shannon Deery, the plaintiff frankly acknowledges that he did not know whether touching genitals is definitively a crime. In Exhibit DTB-34 the plaintiff articulates that while his view was that it could have been criminal, he did not know this as a fact because he had not seen the criminal code. This email evidence accords with the testimony Rabbi Feldman during these proceedings (at T240-260). And provides significant insight into the plaintiff’s ignorance of the law in relation to child sex abuse.

25. [256]

    Rabbi Feldman was somewhat forthright about his belief about AVL’s misconduct. He went into some detail about whether the misconduct alleged was illegal or not.

26. [257]

    I have formed a view that the plaintiff was forthright and earnest in his evidence before me. I formed the impression he was sincere in his views even if he held them somewhat inflexibly. He also struck me as a person who relished what he might have regarded as the cut and thrust of intellectual debate, sometimes for its own sake. He struck me as very intelligent and eager to take on the cross-examiner in their exchange which he regarded as a dialogue, if not an opportunity for discourse, rather than a forensic examination. I had the impression that he felt there was no proposition that could be put that he could not talk his way around. For these reasons I formed the view that the opinions he expressed were firmly held and not easily susceptible to change by persuasion.

27. [258]

    His evidence that he did not know as fact that sexually touching the genitals of a schoolboy under the perpetrator’s care was illegal was a true expression of the state of his knowledge at least on 6 February 2015. And for a person in his profession with his qualifications, intellectual attributes and great responsibilities in the Jewish ultra-orthodox community his ignorance of that matter and of his responsibilities as a mandatory reporter was reprehensible.

28. [259]

    This being so I find element (ii) of imputation (a) going to the sting of the imputation is substantially true. On this basis and in respect of my evaluation of all the evidence, I find that the plaintiff was reprehensibly ignorant as to whether it was against the law for an adult to sexually touch the genitals of a child. For clarity I find that both elements of imputation (a) are substantially true, namely:

    1. (1)

       It was against the law for an adult to sexually touch the genitals of a child; and

    2. (2)

       The plaintiff was reprehensibly ignorant of this fact.

Justification defence: imputation (b) and (n)

1. [260]

   It will be recalled that these imputations are in the following terms:

2. [261]

   Imputation (b) is conceded to have been conveyed by each of Exhibits A, B, C and D, in the alternative to (a). Imputation (n) is said to have been conveyed by the SBS article Exhibit H.

3. [262]

   Both imputations (b) and (n) contain the following material elements amounting to the sting of the imputation:

   1. (1)

      It was against the law for an adult to sexually touch the genitals of a child;

   2. (2)

      The plaintiff displayed reprehensible ignorance of this fact.

4. [263]

   There is no issue as to element (i)

5. [264]

   With regard to element (ii) I accept the submission of the defendants that the overwhelming impression gained by the hypothetical person present in the Royal Commission hearing room on 6 February 2015 would have been that the plaintiff was generally ignorant about matters relating to child sexual abuse, including the secular law relating to child sexual abuse and his obligations in respect of mandatory reporting. This is demonstrated repeatedly throughout Exhibit 25. I have summarised his evidence above.

6. [265]

   The plaintiff gave evidence (at T220.34-42) that the Australian newspaper was correct to report that in his evidence he said that he did not know at the time of the AVL complained that it was illegal for an adult to touch the genitals of a child. This is elicited in evidence in the following exchange (T220.40):

7. [266]

   These imputations, i.e. (b) in the alternative to (a), and (n), are of course concerned with what a person present in the hearing room would have made of Rabbi Feldman’s evidence before the Royal Commission on 6 February 2015. In this regard I rely on the summary of that evidence I have provided above and the impression I formed from viewing Exhibit 25 in addition to his concession in evidence before me.

8. [267]

   Regarding element (ii) I find that it is substantially true that the plaintiff displayed reprehensible ignorance of the fact that it was illegal to sexually touch the genitals of a child.

Justification defence: imputation (f)

1. [268]

   Imputation (f) is in the following terms:

2. [269]

   It will be recalled that this imputation and imputations (g) and (h) are said to have been carried by the publication of Exhibits E and F reporting on the written submission of counsel assisting.

3. [270]

   The substantial truth of the imputation will be established if the Court is satisfied that the plaintiff’s statement (Exhibit DTB-18; p 211) was a disingenuous “public relations” exercise, the statement being the one given by Rabbi Feldman to the Australian Jewish News on 26 July 2011, after his July 2011 emails to the contrary were leaked, endorsing the 2010 RCV resolution. It will be recalled that counsel assisting made strong submissions about this topic which were accepted by the Royal Commission in its report on Case Study No. 22.

4. [271]

   The elements of this imputation are:

   1. (1)

      At the relevant time of the conduct the plaintiff was one of the most senior religious figures of the Jewish ultra-orthodox movement of NSW and was formerly the president of the Rabbinical Council of NSW; and

   2. (2)

      The plaintiff engaged in a disingenuous “public relations” exercise in urging sexual abuse victims to contact police.

5. [272]

   There is no issue as to element (i)

6. [273]

   Regarding element (ii), there are several factors supporting the proposition that the plaintiff’s statement was a disingenuous public relations exercise. The defendants argue (17/05/18; p 14) that he effectively admitted in his evidence at (T297.45-297.47T) that he “wasn’t too excited to come out with [it] but I was basically forced to”. The plaintiff accepts that he didn’t draft the statement, but that he did approve it.

7. [274]

   The sting of this imputation is that Rabbi Feldman’s endorsement was an insincere attempt to persuade the Jewish community and the wider public that notwithstanding what he had written in private to his senior colleagues, which was directly contrary to 2010 RCV resolution, he in fact adhered to the resolution for the sole purpose of attempting to restore his reputation after his true views had been leaked to the Jewish press.

8. [275]

   I am satisfied that this imputation is substantially true.

9. [276]

   It is not in issue that the statement was sent following the leak of the July 2011 emails in which Rabbi Feldman had argued strongly, in the teeth of the trenchant opposition of his senior colleagues, that the 2010 RCV resolution was contrary to Jewish law which should be adhered to so complaints of child sexual abuse should, at least in the first instance be handled by the Rabbi in-house without reference to secular authorities. Rabbi Feldman’s statement is in the following terms (DTB-712A):

10. [277]

    I am satisfied that for the purposes of element (ii) the statement and accompanying email are consistent with a public relations exercise. The plaintiff concedes as much at (T304.20-21) and (T323.17-19). Notwithstanding this finding, it does not automatically follow, but it may, that I would conclude that the statement was disingenuous to the extent that it urged sexual abuse victims to contact police.

11. [278]

    The defendant says that the statement is 26 July 2011 is disingenuous. They say the inconsistent view of the plaintiff supports this submission, and contradicts the principal purpose of the resolution and statement. This is supported by paragraph [5] which states in cases of abuse it is obligatory to make criminal reports to civil [secular] authorities. This view, the defendants say, is irreconcilable with the approach proffered by the plaintiff not only in the days preceding the issue of the statement but in the days, and indeed years, following, as detailed in his evidence to the Royal Commission.

12. [279]

    Rabbi Feldman’s contrary argument essentially is that the views he expressed in the July 2011 emails were propounded for the purpose of encouraging debate among his senior colleagues to better elucidate what it was about Jewish law which justified the resolution. He argues he unreserved accepts that the resolution conforms with Jewish law.

13. [280]

    The plaintiff’s emails of July 2011 are in evidence as Exhibit DTB 8 to 16; and DTB 20 to 23. He was also cross-examined about these topics at great length. I mean no disrespect to the cross-examiner who was skilful, but Rabbi Feldman was a difficult witness because of his keenness to engage with and attempt to control the “debate”. I will not attempt to summarise the evidence. However, there were aspects of it which can usefully be set out.

14. [281]

    Part of Rabbi Feldman’s motivation for generating the debate is because he questioned the view that complaints of child abuse should go to secular authorities (T302.15). Part of his reasoning for questioning that approach was his concern about what would happen to people who were gaoled for child sexual abuse offences. He was concerned about the irreparable damage to reputation and the risk of being raped in gaol (T302.20-35). He accepted that he had propounded the view that a warning to a child molester was “a way to deal with it” (T305.25). He said:

15. [282]

    He also said that people should treat those accused of child sexual offences as if they were a close family member (T308.10). And the question was “how would you handle the allegation if it was made against your son or father or brother” (T308.15). However, he said that by 26 July 2011, he had decided that views he had expressed were “just suggestions and brought to discussion” (T308.45). He maintained that he had entertained the idea that complaints about child sexual abuse should go to a Rabbi and not to secular authorities, “but I didn’t agree to the idea”, at least no now, anyway (T309.5).

16. [283]

    He said of the approach of Rabbi Groner, who was the rabbinical leader of Yeshiva Melbourne for many years before his death (309.10T):

17. [284]

    Rabbi Feldman explained his statement to Australian Jewish News in the following way at (T322.8-323.25):

18. [285]

    And from T323.50 to T324.16:

19. [286]

    From this evidence and especially from Rabbi Feldman’s long exposition on the true meaning of the 2010 RCV resolution one can readily see, in my opinion, that he does not believe that all allegations of child sexual abuse should be reported to secular authorities. It’s quite plain that only some should be. And those that should be are complaints based upon “credible” evidence and, so far as historical sexual abuse is concerned, those where the perpetrator has not repented. It is also apparent the he considered that it is the Rabbi who decides what is credible and who has repented.

20. [287]

    Moreover, reading the July 2011 emails objectively, considering his conduct in relation to David Cyprys in 2011, his interrogation of AVB in 2014 and his continued support for his friend Hayman to the point of “feting” him at a function after his conviction, persuade me that Rabbi Feldman adhered to the view that complaints of child sexual abuse arising from the Jewish community should be dealt with, at least in the first instance, in-house by the Rabbi and not by secular authorities. In short, the evidence before me satisfies me that imputation (f) has been established as substantially true. I do not accept Rabbi Feldman’s protestations to the contrary.

Justification defence: imputation (g)

1. [288]

   Imputation (g) is in the following terms:

2. [289]

   The elements material to this imputation are:

   1. (1)

      At the relevant time of the conduct the plaintiff was one of the most senior religious figures of the Jewish ultra-orthodox movement of NSW and was formerly the president of the Rabbinical Council of NSW.

   2. (2)

      The plaintiff pressured his flock not to report child sexual abuse to the police.

3. [290]

   There is no issue as to element (i)

4. [291]

   Regarding element (ii), the evidence relied upon by the defendants in their submission that imputation (f) is substantially true, is the series of emails that were sent by the plaintiff in or around 2011. They say the emails support the proposition that the plaintiff pressured his flock not to report child sexual abuse to police. The defendant concedes that an essential component of element (ii) of imputation (f) is the scope of the word “flock” and whether an expanded view of its meaning would include the senior Rabbis emailed by the plaintiff as being in the plaintiff’s “flock”. The defendant acknowledges the plaintiff’s argument in this regard, accepting that in ordinary usage “flock” would mean a group of followers of a religion or religious leader. The plaintiff submits that the word “flock” means “congregation” and therefore would not include the senior Rabbis.

5. [292]

   The gravamen of the defendants submission asserts that the plaintiff in holding his very senior position as the president of the Rabbinical Council of NSW “pressured members of his flock” by trying to persuade other senior members of the Jewish community by emailing them and urging them to adopt a system where members “of his and (and other) congregations would be pressured not to report allegations of sexual abuse to police”. This submission proceeds on the premise that the “plaintiff’s flock” includes other senior members of the Jewish faith, and the unproven proposition that their influence would trickle down to day-to-day practitioners by virtue of their various positions and standing in the community. With respect, as I have ruled in another context, I do not accept the word “flock” in the context of imputation (f) would be understood by the ordinary reasonable reader other than in its usual meaning in the religious context of “congregation”. I do not accept that the “plaintiff’s flock” included the rabbinical recipients of the emails of July 2011 who were Rabbi Feldman’s senior colleagues. Furthermore, I am not persuaded that the phrase “pressured his flock” contemplated a situation whereby it was these senior colleagues who were pressured rather than the synagogue-attending Jewish laity.

6. [293]

   As I said when dealing with the fair report defence in relation to Exhibits E and F, I accept that Counsel Assisting the Royal Commission did not use the expression “his flock” either in writing or orally.

7. [294]

   It must also be borne in mind that the report of the Royal Commission is before me as part of the evidence in the case. Although admitted for the purpose of determining the fair summary defence in relation to Exhibit G, once in, it is in for all purposes under s 60 of the Evidence Act 1995 (NSW). The Royal Commission’s finding (at p. 70; DTB 619) that when considering the issue of child sexual abuse, Rabbi Feldman’s focus is on the perspective of the perpetrator, rather than the victim is consistent with the evidence before me as I have recorded above. The views recorded in his various emails of 2011, 2013 and 2014 are inconsistent with the view that his statement in support of 2010 RCV resolution was genuine. It is my finding based upon the evidence before me that Rabbi Feldman adheres to the view expressed in the 2011 emails. The finding of the Royal Commission (p 80; DTB 620) that an institution can only act through its senior members who shape the response of the institution to allegations and incidents of child sexual abuse have an impact upon the way their community thinks about those matters is no more than a statement of the common experience of life. Likewise, the view that the actions and views of senior members of a religion will have a direct bearing on whether child sexual abuse survivors come forward at all. Given the central position of the Rabbi in the Jewish ultra-orthodox community and the requirement of strict adherence to Jewish law, together with the shunning and reduction in status of those who contravene it, it is not hard to conclude as the Royal Commission did that Rabbi Feldman’s views were influential within his community and were capable of affecting the decision of a member of the community about whether to report incidents of child sexual abuse. In my judgment these same considerations, informing an inferential reasoning process, persuade me on the balance of probabilities that imputation (g) is made good.

Justification defence: imputation (h)

1. [295]

   Imputations (h) is in the following terms:

2. [296]

   The elements material to this imputation are:

   1. (1)

      At the relevant time of the conduct the plaintiff was one of the most senior religious figures of the Jewish ultra-orthodox movement of NSW and was formerly the president of the Rabbinical Council of NSW.

   2. (2)

      The plaintiff refused to accept that Jewish organisations had a responsibility to report the sexual abuse of children to secular authorities.

3. [297]

   There is no issue as to element (i).

4. [298]

   As to element (ii), the submissions of the defendant in respect of the substantial truth of imputation (h) are as set out below (DWS at 16):

5. [299]

   Exhibit DTB-28 is an email written in 2015 by the plaintiff which is relied upon to support the substantial truth of imputation (g). It must be said that the email is centrally focussed upon a specific exchange between the plaintiff and Rabbi Moshe Gutnick, Rabbi Feldman’s uncle, in relation to the conviction for child sexual abuse of Daniel Hayman. The tenor of the whole of the email, set out below, is that of Rabbi Feldman asking Rabbi Gutnick, effectively, “are you satisfied now?” The email is in the following terms:

6. [300]

   Exhibit 26 was a glossary of Hebrew terms, although it does not appear on the Exhibit, I take musser to be a variant of moiser, which means, in substance, informer. Musser, I think, is the verb to inform. Unfortunately, the remaining untranslated Hebrew words used in the email do not appear in Exhibit 26 and thus I am unable to translate it entirely. However, in my view the sense of the email is clear enough even without all of the translations.

7. [301]

   Rabbi Feldman’s upbraiding of Rabbi Gutnick over the Hayman (who was not actually gaoled) matter is certainly consistent with the findings I have made in relation to his approach to the reporting of child sexual abuse complaints to secular authorities in my reasons relating to imputation (g).

8. [302]

   My conclusion about the substantial truth of imputation (h) is also reinforced by the evidence relating to: the plaintiff’s handling of the AVL matter; his interrogation of AVB about the role played by the 2010 RCV resolution in motivating AVB to bring his complaints forward; his ongoing support for Hayman and Cyrpys and his failure to admonish other supporters of Hayman who made intemperate comments about the victims or the process on line.

9. [303]

   The reference to responsibility in what I have styled element (ii) to imputation (h) is a reference to an obligation. Given the qualifications that Rabbi Feldman expressed in evidence about the meaning of the 2010 RCV resolution together with his other evidence about concern for alleged perpetrators, considerations of repentance, and the assessment of the credibility of complaints, all of which are consistent with his upbraiding of Rabbi Gutnick, I am comfortably satisfied that Rabbi Feldman refused to accept that Jewish organisations had an obligation to report the sexual abuse of children to secular authorities. In my judgment Rabbi Feldman at best regarded reporting such allegations to secular authorities is only one way of handling them, and not the best way from the “Jewish perspective”.

Conclusions on liability

1. [304]

   I have not dealt with the asserted imputations that I rejected. They are imputations (c), (d) and (e), said to have been conveyed by Exhibit D and imputations (i) to (m) said to have been conveyed by Exhibit G. It is a highly abstract exercise to attempt to run the ruler of justification over imputations which have been rejected.

2. [305]

   The defendants do not rely upon justification in relation to imputation (c), (d) and (e). It is quite clear from his evidence at the Royal Commission and before me that Rabbi Feldman did regard those matters as “morally wrong” from a Jewish perspective.

3. [306]

   Nor am I satisfied that he was significantly involved in the cover-up of multiple acts of paedophilia; that he was significantly involved in endangering children by allowing perpetrators of child sex abuse to remain associated with the Chabad Organisation; that he was significantly involved in endangering children by covering-up multiple acts of paedophilia; or as I have said, that he so conducted himself as to warrant being singled out as the most egregious example of the failure of the leadership of the ultra-orthodox community to appropriately respond to allegations of child sexual abuse.

4. [307]

   The only matter which might be regarded as any kind of “cover-up” is the AVL matter. Even there, however, there was no cover-up. Mr Conway reported the matter not only to Rabbi Pinchus Feldman and Rabbi Yosef Feldman, but also to the relevant secular authorities. Rabbi Feldman was, through his reprehensible ignorance, guilty of acquiescing in AVL’s flight from the jurisdiction. However one assesses the AVL matter there is certainly no suggestion of any involvement in covering up multiple acts of paedophilia or by endangering children but at conduct.

5. [308]

   Although he was supportive of a number of persons who are friends of his both prior to and after their conviction for child sexual abuse crimes, the only perpetrator the evidence establishes Rabbi Feldman allowed to remain associated with the organisation was Hayman. He was given a non-custodial sentence and the evidence does not permit a finding that, even if the plural includes the singular his conduct in relation to Hayman involved endangering children.

6. [309]

   For the reasons I have already given, I would have been satisfied on the balance of probabilities that the plaintiff discouraged victims of child sexual abuse from reporting abuse had that particular imputation been carried or conveyed by Exhibit G.

Damages

1. [310]

   The relevant statutory provisions include the following:

   1. (1)

      Under s 34 of the Act, the Court is to ensure that there is an appropriate and rational relationship between the harm suffered and the damages awarded;

   2. (2)

      Section 35 imposes a cap on the maximum amount of damages for non-economic loss (leaving aside an award of aggravated damages) which is currently $407,500.00 (New South Wales Gazette, No 55 of 31.5.2019, p 1665);

   3. (3)

      Section 38, which deals with factors in mitigation of damages including prior recovery of damages for defamation in relation to another publication having the same meaning or effect as the defamatory matter;

   4. (4)

      Section 39, which confers a power in defamation proceedings to assess damages in a single sum as to more than one cause of action.

2. [311]

   There was very limited evidence in relation to damages. This is largely because, as I have already pointed out, Rabbi Feldman chose not to give evidence, presumably for tactical reasons, in his case in chief. His evidence was restricted to evidence in reply and sensibly there was very little cross-examination as to quantum issues.

3. [312]

   Damage, of course, is presumed, and it could not be said that there was no evidence relevant to damages. First, as I have pointed out from his evidence on 9 February 2015, it is clear that Rabbi Feldman was severely stung by the media reports, including the reports the subject of News 1 and the SBS proceedings, on his evidence. Moreover, the solicitor who appeared for him at the Royal Commission, Mr Neumann gave evidence that people within the wider Jewish community, who were not close to the plaintiff, changed their attitude towards him and considered he wasn’t the person he had appeared to be before. There is no doubt in my mind that his reputation was completely shattered within the Jewish community generally following the publication, particularly, of Exhibits A, B, C, and D, and to a lesser extent Exhibit H.

4. [313]

   As the defendants submit, the evidence does indicate that the plaintiff was especially hurt by the treatment of his evidence in the Australian Jewish news, which was the subject of other proceedings. But there was evidence before me supporting this fact.

5. [314]

   Mr Neumann described the plaintiff “as quite despondent”. He used the word “shattered” (T66.2-21).

6. [315]

   It should not be overlooked that the damage to his reputation was such that he was forced to resign from the Board of Management of Yeshiva Foundation, which as the evidence I have recounted in relation to liability establishes, was his whole career. His standing and status within the Jewish community must have been very greatly diminished. He was forced from what was a position of significant influence within the Jewish ultra-orthodox movement.

7. [316]

   On the other hand, Rabbi Feldman was no stranger to controversy as the events of July 2011 demonstrate. Probably, however, his reputation was salvaged at that time thanks largely to his brother’s work in drafting and publishing with commendable celerity the statement endorsing the 2010 RCV resolution and a local statement to the same effect by the New South Wales chapter of the Rabbi’s professional body.

8. [317]

   It is also fair to say that the evidence before me tendered by the defendants (DTB damages) establishes two factors, first that the broader Jewish community was shocked by Rabbi Feldman’s evidence on 6 February 2015 and secondly, that Rabbi Feldman has brought multiple other proceedings against other news organisations arising out of imputations (a), (b) and (n). Without specifying those news organisation or the amount paid in each case the evidence establishes that he has recovered (including some legal costs) various amounts totalling $162,000 and I will take that matter into account in mitigation under s 38(1)(d) of the Act.

9. [318]

   I would also take into account the consideration that Rabbi Feldman sought an apology promptly after the publication of the various reports about his evidence on 6 February 2015. However, applying Clark v Ainsworth (1996) 40 NSWLR 463 at 469 (per Sheller JA) I am not prepared to hold that Rabbi Feldman has proved that the failure of the defendants in the News 1 proceedings to apologise was “part of a cause of unjustifiable or improper conduct”. I am, however, prepared to accept that the failure of those defendants to apologise contributed to the plaintiff’s hurt caused by the matter published. For this reason I would not have awarded aggravated damages.

10. [319]

    To my mind, one should not underestimate in the particular circumstances of this case the loss of reputation involving the loss of position, status, standing and respect and the deep hurt that Rabbi Feldman experienced and obviously continues to experience to the present time.

11. [320]

    It is likely his reputation can never be fully restored. His feelings of hurt will abate, but slowly.

12. [321]

    Having regard to the provisions of s 39 of the Act, I think it would have been appropriate in relation to the News 1 proceeding to have awarded damages in a single sum, notwithstanding the multiple publications and multiple defendants involved. The individual journalists of course, as a matter of practical reality, would be unlikely to be ever required to contribute.

13. [322]

    Having regard to all the matters I have referred to and bearing in mind there is no claim for special damages and that damages for non-economic loss are, of course, at large, subject to the s 35 statutory cap, I would have awarded damages for non-economic loss in the sum of $150,000.00.

14. [323]

    Dealing with the SBS proceeding, it is relevant to record that this was an entirely online publication which the evidence before me establishes that the article was available to be downloaded for a limited period between 24 March 2015 and 6 April 2016. During that period Exhibit H was downloaded by 11 individuals, 5 of whom were associated with Nationwide News Pty Ltd. Given these circumstances, I agree with the defendant’s submission that nominal or modest damages at most justified. Had I found in favour of the plaintiff in respect of the SBS proceedings I would have awarded damages in the sum of $10,000.00.

15. [324]

    I turn then to the News 2 proceedings concerning the publication of Exhibits E and F. I am of the view that the damage was really done in February 2015. Although the publication of Exhibits E and F in September 2015 would have exacerbated Rabbi Feldman’s feelings of hurt, it could hardly have added to the damage to his reputation, which was already, as I have found, shattered. Moreover, he had already been forced from his position on the board of management and his standing in the community had been greatly diminished. Had the defences of fair report and justification not been made good in relation to imputations (f), (g) and (h), I would have awarded damages for non-economic loss in the sum of $50,000.00.

16. [325]

    Turning to the News 3 proceedings dealing with Exhibit G. Had I found in favour of the plaintiff as to the imputations (i) to (m) and not been persuaded that the report was a fair summary of the Royal Commission report into Case Study No. 22, I would have awarded damages in the sum of $35,000.00. Again, although the publication of Exhibit G may have stirred up Rabbi Feldman’s feelings of hurt and refreshed the Jewish community’s (in particular) recollection of events and therefore reinforced the damage Rabbi Feldman’s reputation had already suffered, there was really nothing new in the reporting, especially if one puts to one side the extravagant aspects of the pleaded imputations.

Orders

1. [326]

   My orders are:

   1. (1)

      Judgment against the plaintiff in favour of each of the first, second, third, fourth and fifth defendants.

   2. (2)

      The plaintiff to pay the defendants costs of the proceedings.

   3. (1)

      Judgment against the plaintiff in favour of first defendant

   4. (2)

      Dismiss the proceedings against the second defendant.

   5. (3)

      The plaintiff to pay the first defendant’s costs of the proceedings.

   6. (1)

      Judgment in favour of the defendant.

   7. (2)

      The plaintiff to pay the defendant’s costs of the proceedings.

   8. (1)

      Judgment against the plaintiff in favour of each of the first and second defendants.

   9. (2)

      The plaintiff to pay the first and second defendants costs of the proceedings.