Feldman v Nationwide News Pty Ltd

1. [1]

   BELL P:

Introduction

1. [2]

   As is well known, the Royal Commission attracted enormous public interest with corresponding press and media coverage.

2. [3]

   A principal focus of the cross examination of the appellant in the Royal Commission was a reported complaint made by a child in July 2002 against a rabbinical student identified in the Commission with the letters AVL. For about 15 years until 2015, the appellant had held the role of Rabbinical Administrator of the Yeshiva Gedola in Bondi which was a tertiary vocational school that provided education and training for young men wishing to be ordained as rabbis. AVL was one of the students. It was a practice in 2002 for students of the rabbinical college to be involved as assistant teachers at the Yeshiva Centre and to attend camps. In 2002, the appellant had learnt from his father, also a rabbi, that a complaint had been made that AVL had engaged in inappropriate behaviour with regard to children.

3. [4]

   I adopt the following overview of the appellant’s evidence in the Royal Commission from the judgment of White JA in Feldman v Polaris Media Pty Ltd as Trustee of the Polaris Media Trust t/as The Australian Jewish News [2020] NSWCA 56 at [7]–[13], which were separate defamation proceedings brought by Rabbi Feldman against the Australian Jewish News in relation to his evidence at the Royal Commission. It was that same evidence that was the subject of the reporting and matters complained of in the present proceedings. References to RCT are to the transcript of the appellant’s evidence before the Royal Commission:

4. [5]

   After this last answer, the following exchange occurred:

5. [6]

   The Commission then took a short adjournment. Counsel assisting returned to this question as follows:

6. [7]

   On 17 September 2015, oral submissions were made in the Royal Commission in relation to the appellant’s evidence and Case Study No 22 more generally.

7. [8]

   In October 2016, the Royal Commission released its report into Case Study No 22.

The reporting

1. [9]

   Following the appellant’s evidence to the Royal Commission in February 2015, the further oral submissions on Case Study No 22 in September 2015, and the release of the report into Case Study No 22 in October 2016, reporting occurred which gave rise to four sets of defamation proceedings brought in the Supreme Court of New South Wales by the appellant against various media organisations and individual journalists. These proceedings were heard together by Campbell J (the primary judge) over eight days from May to August of 2018.

2. [10]

   Three of the sets of proceedings were brought against Nationwide News Pty Ltd (Nationwide News) and various individual journalists. The first of these proceedings was also brought against Herald and Weekly Times Pty Ltd. These sets of proceedings were described in the judgment under appeal as the News 1, News 2 and News 3 proceedings respectively. They corresponded chronologically to the reporting on each of the three events referred to in [1], [7] and [8] above.

3. [11]

   The News 1 proceedings concerned the following publications:

4. [12]

   The News 2 proceedings concerned the following publications:

5. [13]

   The News 3 proceeding concerned the following publication:

6. [14]

   The fourth set of proceedings concerned the online reporting by the Special Broadcasting Service Corporation (SBS) of the evidence given by the appellant on 6 February 2015, under the heading “Rabbi feared friend would be jailed” (Annexure H (731555, pdf)).

7. [15]

   The primary judge dismissed each set of proceedings (Feldman v Nationwide News Pty Ltd [2020] NSWSC 26 (the primary judgment)) and a single appeal has been brought from those dismissals. No appeal has been brought against the judgments in favour of the individual journalists who were defendants in the proceedings at first instance.

8. [16]

   The Nationwide News defendants and SBS were jointly represented by counsel at first instance and continued to be jointly represented on appeal.

The imputations

1. [17]

   It was accepted at first instance that each of the four News 1 publications conveyed the following imputations:

2. [18]

   It was also contended that the fourth of the News 1 publications conveyed the following additional imputations:

3. [19]

   It was accepted that the SBS publication, which also related to the appellant’s evidence on 6 February 2015, conveyed the imputation that the appellant displayed “reprehensible ignorance of the fact that it was against the law for an adult to sexually touch the genitals of a child” (imputation (n)).

4. [20]

   It was accepted that the News 2 publications conveyed the following imputations:

5. [21]

   In relation to the News 3 publication, the primary judge rejected the appellant’s case that it conveyed five imputations that had been identified and to which I will return when considering the specific ground of appeal relating to this publication: see [171]–[184] below.

The defences

1. [22]

   The respondents successfully raised “fair report” defences pursuant to s 29(1) of the Defamation Act 2005 (NSW) (the Act) in respect of each of the publications in relation to which defamatory imputations were either accepted or found to be conveyed.

2. [23]

   In addition, the primary judge held, on a contingent basis, that the respondents would have made good the defence of justification in relation to the News 1 and News 2 publications, and the SBS publication.

3. [24]

   In relation to the News 3 publication of 30 November 2016, the primary judge held, on a contingent basis (because he found that the publication did not carry the imputations for which the appellant contended), that the publication would have attracted the “fair summary of, or fair extract from, a public document” defence pursuant to s 28(1)(b) of the Act: primary judgment at [231].

The issues on appeal

1. [25]

   The issues raised by the Further Amended Notice of Appeal (Notice of Appeal) can be divided into two broad groups:

2. [26]

   The general issues are as follows:

3. [27]

   The specific issues included challenges to the rejection of imputations, challenges to findings of fair report and fair summary of a public document, and challenges to findings and contingent findings that the imputations carried were substantially true, such that the publications were justified.

4. [28]

   The Notice of Appeal also included ground 7 which asserted that the primary judge “misconstrued the s 25 defence of justification in finding that something less or other than substantial truth is capable of establishing a s 25 defence”. No written or oral submissions were advanced, however, in support of this ground and in those circumstances it must be taken to have been abandoned.

5. [29]

   Ground 8 of the Notice of Appeal which asserted an unspecified contravention of s 91 of the Evidence Act 1995 (NSW) was expressly abandoned at the hearing of the appeal.

Refusal to recuse for apprehended bias (ground 12)

1. [30]

   As noted at [26] above, on the third day of the trial, the primary judge rejected an application made by the appellant that he disqualify himself from hearing the matter for alleged apprehended bias.

2. [31]

   The primary judge published detailed reasons for his refusal to recuse himself in a judgment delivered on 16 May 2018: Feldman v Nationwide News Pty Ltd (No 4) [2018] NSWSC 682 (the recusal judgment). At [2], the primary judge identified three matters which he understood to found the application for recusal. These were that:

3. [32]

   When pressed by the primary judge to identify how it was contended that a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question that the judge was required to decide within the Ebner test (see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (Ebner)), counsel for the appellant, Mr Cohen, said he could not think of an answer to that question. After being offered some time to consider the matter, Mr Cohen offered the vaguest of responses — “I might have made an application to an amendment to another statement of claim that could have a critical effect”, quoted by the primary judge in the recusal judgment at [3]. After a further adjournment, the primary judge was informed by Mr Cohen that he did not intend to make any more submissions on the recusal application.

4. [33]

   Notwithstanding the unsatisfactory way in which Mr Cohen prosecuted the recusal application, the primary judge delivered commendably thorough reasons for not recusing himself.

5. [34]

   As to the issue of a raised voice, the primary judge said at [12]–[14] of the recusal judgment:

6. [35]

   Far from giving rise to any apprehension, his Honour’s conduct in apologising to counsel for having raised his voice was a model of judicial balance and propriety. The background to the exchange arose from the fact that the appellant’s counsel had resisted an application by Mr Dawson SC on behalf of the respondents for the appellant to provide a translation of some Hebrew words he had used in an email or emails that he had authored, and which were or were to be placed in evidence. Mr Dawson had evidently anticipated that the appellant would be giving evidence in chief in the proceedings (a not unusual matter to expect in a defamation case) and had been proposing to ask the appellant the meaning of these words. When it became clear that the appellant was not going to give evidence in chief, Mr Dawson had made an application that the appellant provide a translation. This was resisted.

7. [36]

   Parties in proceedings before the Supreme Court fall under an obligation pursuant to s 56 of the Civil Procedure Act 2005 (NSW) to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Mr Cohen accepted on the hearing of the appeal that the primary judge could have ordered the appellant to offer a translation in answer to interrogatories. Mr Cohen also did not challenge the primary judge’s description of Mr Cohen having become “defiantly unco-operative” in resisting Mr Dawson’s application cf SZUON v Minister for Immigration and Border Protection [2018] FCA 705 at [4]–[5].

8. [37]

   In all of these circumstances, one can well understand the primary judge, engaged in the hearing of a complex trial of four related sets of proceedings, becoming impatient. Even so, his Honour properly recognised that he should not have raised his voice in the way he evidently did, and appropriately acknowledged this very soon thereafter. As the primary judge said at [20] of the recusal judgment:

9. [38]

   As to the second of the matters that had been relied upon, namely the primary judge’s refusal of Mr Dawson’s application that the appellant provide a translation of some Hebrew words in a document he had authored, the primary judge recorded at [16] of his recusal judgment that “I am at a complete loss to understand how anyone could understand my refusal of Mr Dawson’s application in the light of Mr Cohen’s opposition, let alone a fair-minded lay observer, displayed partiality to the defendant”. I quite agree. The statement made by the primary judge to Mr Dawson that he had “better get a translator” was not evidence of any partiality on the judge’s part, but simply the articulation of the fact that he was not going to accede to the application that the appellant himself supply the translation.

10. [39]

    As to the third matter, namely the alleged “heated exchange”, this arose in the context of an application on behalf of the appellant to review evidence which had been admitted the previous day. The primary judge held at [18]–[19] of the recusal judgment, in a finding that was not challenged, that he did:

11. [40]

    The appellant’s submissions in relation to this ground of appeal really fell into two categories. It was first put in [41] of those submissions that some 13 matters exemplified the “crystallisation” of “any apprehension of bias”, but all but two matters identified in the appellant’s submissions were abandoned in oral argument. Those matters were not matters which formed the basis of the application made to the primary judge to recuse himself but, rather, related to matters that occurred after the judge’s refusal to recuse himself. The two remaining matters were:

12. [41]

    It seems that these two matters were advanced by the appellant as some evidence of the fact that there was actual bias. This argument is fundamentally misconceived. If the matters are advanced in support of an allegation of “apprehended bias”, the possibility that a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the relevant question is not to be assessed with the benefit of hindsight, but at the time of the event or events said to give rise to that possibility in the first place. See, for example, Ebner at [7]–[9] and [33].

13. [42]

    Moreover, even putting this objection to one side, the appellant’s decision to give evidence in reply and not in chief was his own forensic choice. There was no evidence led to explain that choice and the fact that it was made says nothing as to whether there were grounds by reference to which the primary judge should have disqualified himself for apprehended bias on day three of the trial.

14. [43]

    Further, the fact that the primary judge ultimately rejected the appellant’s case for a variety of reasons does not and cannot demonstrate actual or apprehended bias. In Mohareb v Kelso (No 2) [2018] NSWCA 246 at [15], this Court said that:

15. [44]

    The appellant also asserted in [41] of his written submissions on appeal that Ebner “was not relevant in the circumstances nor was the suggested ‘second step’ in Ebner necessary.” During the hearing of the appeal, this surprising submission was modified. It was submitted that “[i]t's not quite the case that the Ebner test is not applicable … on a practical level of practically it was misapplied.” Mr Cohen accepted that he was misguided in what he put to the primary judge in relation to the Ebner test and did not articulate any coherent criticism of the primary judge’s application of Ebner.

16. [45]

    As already noted, the attack on the primary judge’s refusal to recuse himself for apprehended bias must be assessed by reference to the arguments made at the time of the application for recusal. In this context, [42] and [43] of the appellant’s submissions contended that:

17. [46]

    In the course of oral submissions, Mr Cohen expressly withdrew the references in these paragraphs to the primary judge doing things to “punish” the appellant and his counsel, and to aspects of his Honour’s conduct amounting to “retaliation”. It was appropriate that these submissions be withdrawn. They were consistent with a case of actual bias which was never raised, and while it is to Mr Cohen’s credit that they were withdrawn, it is very difficult to understand how they could have been put responsibly in the first place.

18. [47]

    Once the submissions were amended in the way described above, [42] and [43] of the appellant’s submissions did little more than repeat the matters that had been put to, and dealt with, by the primary judge. No submission was advanced either in writing or orally as to why the primary judge’s reasoning in his recusal judgment was flawed.

19. [48]

    This ground of appeal must be dismissed.

Admission of transcript and video from the Royal Commission into evidence (ground 1)

1. [49]

   In the course of the trial, objection was taken on behalf of the appellant to the tender, by the respondents, of the transcript of the appellant’s evidence given at the Royal Commission on 6 and 9 February 2015. This tender was objected to on the basis that it contravened s 6DD of the Royal Commissions Act 1902 (Cth) (the Royal Commissions Act).

2. [50]

   A later tender of the video of that evidence was also objected to, albeit on different grounds, although it was ultimately accepted in this Court that, had the objection to the tender of the transcript been upheld, an objection to the tender of the video could and would also have been sustained on the same basis, albeit that an objection to the tender of the video on that ground was not formally made. Objection to the video’s tender on other grounds was not the subject of challenge on appeal.

3. [51]

   The appellant did not have the option to refuse to answer questions which may have incriminated him before the Royal Commission. Section 6A(2) of the Royal Commissions Act provides that:

4. [52]

   Section 6DD, which was introduced in substance by the Royal Commissions Act 1912 (Cth) (the 1912 Act) but put into its current form by the Royal Commissions and Other Legislation Amendment Act 2001 (Cth), relevantly provides that:

5. [53]

   The interesting and very important question of construction raised on appeal is whether s 6DD proscribes the use of evidence given on compulsion in a Royal Commission defensively — that is, in the context of the present case, in order to sustain a defence of fair report in later defamation proceedings.

6. [54]

   There is no doubt that criminal or civil proceedings could not have been brought against the appellant by reference to the evidence he gave in the Royal Commission.

7. [55]

   There is also no doubt that the question raised at [53] above would be answered “no” had the chapeau to s 6DD(1) in terms read “[t]he following are not admissible in evidence against a natural person in any civil or criminal proceedings against that person in any court …” But can it be interpreted that way?

8. [56]

   The primary judge held that it could be and, consequently, rejected the objection to the admission into evidence of the transcript of the appellant’s evidence before the Royal Commission: see Feldman v Nationwide News Pty Ltd [2018] NSWSC 715. His Honour’s reasons for so holding were subsequently endorsed by Jagot J in Herron v HarperCollins Publishers Australia Pty Ltd [2020] FCA 805 at [23] (Herron).

9. [57]

   The appellant submitted that the primary judge erred in rejecting his objection to the tender of the transcript of his evidence in the Royal Commission for the following reasons:

10. [58]

    The primary judge concluded (at [19]) that:

11. [59]

    In reaching this conclusion, the primary judge drew heavily on the Second Reading Speech which accompanied the introduction of s 6DD in its original form in 1912. As shall be seen, the section has been amended a number of times subsequent to its introduction, but with no material alterations bearing on the question that was before the primary judge and which is now before this Court. The relevant portion of the Second Reading Speech is considered further at [80] below.

12. [60]

    In reaching his conclusion, the primary judge declined to follow the reasoning of Young JA (with whom Sackville AJA agreed) in Hatfield v TCN Channel Nine Pty Ltd (2010) 77 NSWLR 506; [2010] NSWCA 69 (Hatfield) in relation to a similar provision, namely s 17(2) of the Royal Commissions Act 1923 (NSW), which provided that:

13. [61]

    Young JA, purporting to apply R v Bayeh [1999] NSWCCA 82 (Bayeh), held that “against” meant “in any way against that person's interest.” This, the appellant submitted, would preclude the admission of the transcript from the Royal Commission to found a fair report defence. Such a defence, it was contended, was obviously against the appellant’s interests.

14. [62]

    The primary judge (at [17]–[20]) considered that this aspect of the decision in Hatfield was obiter, and that Bayeh did not in any way support Young JA’s construction. Jagot J was of the same view in Herron.

15. [63]

    The heart of the primary judge’s reasoning was contained at [21]–[23] as follows:

16. [64]

    By s 2(1) of the Acts Interpretation Act 1901 (Cth) and subject to any contrary intention, that Act applies to the interpretation of the Royal Commissions Act.

17. [65]

    By s 15AA of the Acts Interpretation Act, the interpretation to be given to s 6DD of the Royal Commissions Act is “the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act)”. This interpretation is “to be preferred to each other interpretation.”

18. [66]

    Section 15AB of the Acts Interpretation Act then provides:

19. [67]

    Section 15AB(2)(f) of the Acts Interpretation Act provides that the material that may be considered, in accordance with that subsection, in the interpretation of a provision of an Act includes “the speech made to a House of the Parliament by a Minister on the occasion of the moving by that Minister of a motion that the Bill containing the provision be read a second time in that House”.

20. [68]

    The various materials listed in s 15AB(2) are not, however, exhaustive. This follows from: the reference in s 15AB(1) to “any material not forming part of the Act”; the fact that s 15AB(2) is prefaced with the words “[w]ithout limiting the generality of subsection (1)”; and the use of the word “includes” in s 15AB(2).

21. [69]

    The Royal Commissions Act does not indicate any express intention that it should be construed other than in accordance with the approach indicated by the Acts Interpretation Act. The starting point, therefore, is to identify the interpretation that would best achieve the purpose or object of the Act. The purpose of a statutory provision is to be determined objectively. It may be inferred from the text and structure of the Act, and by appropriate reference to extrinsic material: Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10 at [44].

22. [70]

    In the present case, the extrinsic material exposed by the legislative history leading to the 1912 Act is a source of particular elucidation.

23. [71]

    The Royal Commissions Act was the 12th statute passed in the second year of the Commonwealth Parliament. Section 6 of that Act provided that:

24. [72]

    In the year preceding the passage of the Royal Commissions Act, the New South Wales legislature had passed the Royal Commissioners Evidence Act 1901 (NSW), with the long title “An Act to consolidate the law relating to the taking of Evidence by Commissioners under the Great Seal”.

25. [73]

    In 1905, the Lands Commission (Witnesses) Act 1905 (NSW) (the 1905 NSW Act) was passed which, by s 1, was to be “construed with the Lands Commission Act 1905, the Lands Commission (Amendment ) Act 1905 , and the Royal Commissioners Evidence Act 1901.” Section 2 of the 1905 NSW Act read as follows:

26. [74]

    Section 3 was expressed in the following terms:

27. [75]

    Provisions such as ss 2 and 3 of the 1905 NSW Act appeared in a number of statutes enacted by the Parliament of the United Kingdom during the second half of the 19th century: see, for example, Trades Union Commission Act 1867, 30 Vict, c 8, s 4; and, particularly, the Metropolitan Board (Commission) Act 1888, 51 Vict, c 6, s 4 and the Special Commission Act 1888, 51 & 52 Vict, c 35, s 10 (together, the British Acts). The High Court in X v Australian Prudential Regulation Authority (2007) 226 CLR 630; [2007] HCA 4 at [44]–[45] (X v APRA) drew a connection between the British Acts and the provision which became s 6DD of the Royal Commissions Act, albeit that s 6DD did not find its way into that Act as originally enacted in 1902.

28. [76]

    A similar but not identical provision to ss 2 and 3 of the 1905 NSW Act and their equivalents in the British Acts had also been introduced in Canada in 1889. Thus, by An Act to make further provision respecting inquiries concerning Public Matters 1889, 52 Vict, c 33 (Canada), the operative Act respecting inquiries concerning Public Matters 1868, 31 Vict, c 38 (Canada); Revised Statutes of Canada, c 114 was amended to insert a new s 3 as follows:

29. [77]

    As noted above, the Royal Commissions Act did not, as originally enacted in 1902, contain a provision equivalent to any of those that gave protection in subsequent proceedings to a witness who had given evidence in a Royal Commission or statutory commission of inquiry. The Royal Commissions Act was, however, amended a decade later by the 1912 Act. Liability on summary conviction under s 6 of the Act was replaced by “guilt of an offence”, with the resultant penalty increased from “Fifty” to “Five hundred pounds”.

30. [78]

    Most significantly for present purposes, however, s 6DD was introduced, providing that:

31. [79]

    An obvious similarity may be seen between the language of s 6DD and s 2 of the 1905 NSW Act. The 1912 Act did not, however, contain any provision equivalent to s 3 of the 1905 NSW Act, or its progenitors in the British Acts.

32. [80]

    In delivering the Second Reading Speech in support of the 1912 Act (House of Representatives, Parliamentary Debates (Hansard), 24 July 1912 at 1181), however, the then Attorney-General, W M Hughes, said:

33. [81]

    The introduction of s 6DD brought the Royal Commissions Act broadly into line with the 1905 NSW Act and the British and Canadian Acts. As a provision affording a measure of protection to witnesses, it may be viewed as a provision that supplied a degree of amelioration to what was otherwise seen as very “drastic” legislation, the terms of which gained a measure of international prominence in the year following the enactment of the 1912 Act in W Harrison Moore’s article “Executive Commissions of Inquiry” (1913) 13 Columbia Law Review 500 at 508–509.

34. [82]

    In X v APRA at [45], the plurality observed that the occasion for provisions such as those contained in the British Acts and s 6DD of the Royal Commissions Act:

35. [83]

    Obviously, the Canadian provision set out at [76] above was concerned with the use of evidence given in a Royal Commission not being used against the person who had given it in a subsequent criminal proceeding where that person was being prosecuted. In that Act, the reference to evidence being inadmissible “against” a witness was plainly being used in the sense of evidence which was being sought to be used to establish a person’s criminal liability. To this extent, it is clear that the Canadian provision was designed to operate in the same way as contemplated by Attorney-General Hughes in respect of its cognate, s 6DD, namely that it was designed to preclude the use of Royal Commission evidence to establish liability.

36. [84]

    Section 6DD, if interpreted in the manner contemplated by Attorney-General Hughes, namely as a protection against criminal or civil prosecution, may also be seen to be functionally equivalent to ss 2 and 3 of the 1905 NSW Act and similar or analogue provisions in the British Acts. That the provisions of the 1905 NSW Act were intended to operate only where a witness in a Royal Commission was the subject of proceedings brought against him or her is given powerful support by the opening words of s 3(2) of that Act:

37. [85]

    Before turning to examine judicial consideration of s 6DD and its counterparts, it may be noted that various State statutes contain or have contained similar provisions to s 6DD of the Royal Commissions Act: see, for example, s 37(3) of the Independent Commission Against Corruption Act 1988 (NSW); s 23 of the Special Commissions of Inquiry Act 1983 (NSW); s 40 of the Inquiries Act 2014 (Vic); s 14A of the Commissions of Inquiry Act 1950 (Qld); s 20 of the Royal Commissions Act 1968 (WA); s 16 of the Royal Commissions Act 1917 (SA); s 13 of the Inquiries Act 1945 (NT); and s 24(3) of the Royal Commissions Act 1991 (ACT).

38. [86]

    Section 6DD and its counterparts may be contrasted, for example, with provisions of now-repealed statutes, such as s 30 of the Evidence Act 1928 (Vic) which made it plain that compelled evidence was not “admissible in evidence in any proceedings civil or criminal against [the witness], [and may] not be made the ground of any prosecution action or suit against him”.

39. [87]

    Section 6DD was the subject of early attention by the High Court, but not in a way that bore upon the question of interpretation raised in the current proceedings. In Colonial Sugar Refining Co Ltd v Attorney-General (Cth) (1912) 15 CLR 182; [1912] HCA 94, the High Court considered the constitutionality of various provisions of the Royal Commissions Act including s 6DD, the question being whether a Commonwealth Act could affect the admissibility of evidence in a State court exercising non-federal jurisdiction. At 195–196, Griffiths CJ noted that:

40. [88]

    Section 6DD underwent a number of relatively minor amendments: in 1982, by the Statute Law (Miscellaneous Amendments) Act (No. 1) 1982 (Cth); in 2001, by the Royal Commissions and Other Legislation Amendment Act 2001 (Cth); and in 2018 by the Prime Minister and Cabinet Legislation Amendment (2017 Measures No. 1) Act 2018 (Cth). The most recent of these Acts effected a minor amendment to s 6DD(1)(a) which is not material to the question which arises in the current case.

41. [89]

    The impact of the 1982 amendments was considered by the High Court in Giannarelli v The Queen (1983) 154 CLR 212; [1983] HCA 41, but again not in any way touching upon the question currently before this Court. The effect of the subsequent 2001 amendments (see [52] above) was also not material to the question under consideration in the present case.

42. [90]

    The observations of Attorney-General Hughes in the Second Reading Speech in relation to the 1912 Act strongly support the interpretation of s 6DD favoured by the primary judge. So too does a consideration of the legislative history of the section.

43. [91]

    As I have sought to demonstrate, s 6DD has its origins in provisions designed to ensure that answers compelled by royal commissions or public commissions of inquiry could not be used against the person giving those answers in a way that would expose him or her to liability, whether criminal or civil. The protection was a trade-off for compelling candour in such commissions, protecting a witness not only from prosecution for any criminal offences he or she may have committed, but also from suits for a civil penalty or indeed actions for defamation as a result of any answers given under compulsion at a Royal Commission (and see, now, s 27(2)(b) of the Act and its state analogues, providing absolute privilege for a matter published in the course of proceedings of, inter alia, a Royal Commission).

44. [92]

    In this context, counsel for the respondents drew attention to the speech of Senator J H Keating when the Royal Commissions Bill was being debated in the Senate (Senate, Parliamentary Debates (Hansard), 14 August 1912 at 2105) which included the following observations:

45. [93]

    By way of contrast, one finds no support in the legislative history for the proposition that s 6DD was designed to preclude the availability of a fair report defence for the purposes of the law of defamation. As was pointed out in Hood v The Queen (1997) 91 A Crim R 526 at 536, royal commissions historically have been called in relation and/or in response to events of great public interest. It would be passing strange if both the Commonwealth and state legislatures intended, by a side wind, to eliminate by s 6DD and its cognate state counterparts an important element of the law of defamation, and one which recognises the importance and encourages the fair report of evidence given at such commissions.

46. [94]

    As with both the primary judge and Jagot J in Herron, I do not consider that Hatfield is persuasive or dictates that the primary judge erred in admitting the transcript of the appellant’s testimony at the Royal Commission.

47. [95]

    Hatfield treated the issue in a single paragraph (at [154]) as follows:

48. [96]

    As to that paragraph, the following matters may be observed. First, the issue was evidently raised in reply and so necessarily was not the subject of any argument or exploration in argument. Secondly, nothing in Bayeh supports the argument. Indeed, it would appear that, to the extent that there was any argument in that case coming close to the issue sought to be relied upon in this appeal, it was regarded by the Court in Bayeh at [23] as “unsuitable for [its] resolution” as a Court constituted pursuant to s 6AA of the Criminal Appeal Act 1912 (NSW), and was only raised orally and not in any written submissions. Thirdly, the paragraph from Hatfield makes no reference to matters of legislative purpose or history which point significantly towards a construction of s 6DD which only precludes the admissibility of compelled evidence in circumstances where it is being sought to be used in proceedings against the person who has given the compelled testimony in the Royal Commission. Fourthly, Hatfield was not a decision concerned with s 6DD of the Royal Commissions Act.

49. [97]

    For these reasons, s 6DD did not preclude the transcript or video of the appellant’s evidence in the Royal Commission from being admitted and relied upon to support the fair report defence.

50. [98]

    In reaching this conclusion, I do not place any store on the “legality” argument relied upon by the primary judge at [22] of his decision, reproduced at [63] above. In Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 at [307]–[314] Gageler and Keane JJ explained the principle as one of construction and said at [314]:

51. [99]

    These reasons now turn to consider particular grounds of appeal relating to each of the News 1, 2 and 3 publications as well as the SBS publication.

News 1 publications — imputations (c), (d) and (e) (ground 5)

1. [100]

   These alleged imputations have been set out at [18] above. The primary judge held that they were not carried or conveyed by the Herald Sun publication of 7 February 2015, the only publication in which they were said to have been conveyed. A copy of that publication appears at Annexure D to these reasons, its text being as follows:

2. [101]

   The primary judge rejected the appellant’s contention that the article conveyed that the appellant was ignorant as to how “morally wrong” it was for an adult to sexually touch the genitals of a child.

3. [102]

   The appellant fastened on the first paragraph of the article to support the three alternative imputations contended for. The primary judge correctly observed, however, that the ordinary reasonable reader is taken to read the article as a whole and in its complete context: at [145].

4. [103]

   The primary judge accepted at [151] that the word “’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.” His Honour also accepted that “perhaps in this area especially, there will be a large intersection between what is legally and morally wrong.” His Honour concluded, however, that viewed in its full context, the ordinary reasonable reader would not read the article as conveying imputations as to the appellant’s ignorance of that which was morally, as opposed to legally, wrong.

5. [104]

   In my opinion, there is no error in the primary judge’s assessment and his Honour was correct to say that the imputation was not conveyed by the matter complained of. The article is replete with references to notions of legal wrong, lawfulness and legality, and the appellant’s knowledge of those matters or lack thereof. This can be seen in the references to “child abuse laws”, “certain obligations”, “against the law”, reporting to the police, and “outside the legal system”. An ordinary reader would not understand these references, or the article as a whole, as betokening an ignorance of the moral wrongfulness of child sex abuse. Indeed, the whole focus of the article and the cross-examination it reports, fairly read, is on the appellant’s ignorance of his legal responsibilities.

6. [105]

   Although it may be the case, as submitted on behalf of the appellant, that the word “wrong” in the English language “almost never means ‘illegal’”, the word was not used in isolation in the subject article and took its meaning from the balance of the article, which is all about ignorance of the law and legal obligations. Indeed, in the appellant’s written submissions in respect of ground 6, concerning the fair report defence that was upheld by the primary judge, it was put that “the appellant was being tested about his legal knowledge”.

7. [106]

   I would also reject the appellant’s submission in support of this ground to the effect that “[a] person who does not know it is against the law for an adult to sexually touch children on the genitals is likely to not think it is also immoral.” A person may be ignorant of the law for a variety of reasons but still have a strong moral compass. Furthermore, a reasonable reader would not, in my opinion, expect a religious leader not to have a strong view as to the immorality of the act of an adult sexually touching a child on his or her genitals. The word “abuse” in the phrase “child sex abuse” attributed to the appellant in the article, moreover, also conveyed a knowledge on his part of the immorality of such conduct.

News 1 publications — fair report (ground 6)

1. [107]

   This ground and its equivalent in relation to the News 2 publications is in the alternative to ground 1 relating to the admission of the transcript of the Royal Commission into evidence. That is to say, this ground and ground 9 are pressed on the assumption that ground 1 fails such that the transcript of the Royal Commission was properly admitted into evidence.

2. [108]

   Under s 29(1) of the Act, “[i]t is a defence to the publication of defamatory matter if the defendant proves that the matter was, or was contained in, a fair report of any proceedings of public concern.”

3. [109]

   In order to be fair, a report need not be a complete report of the proceedings in question, nor need it be accurate in every respect: Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; [1998] HCA 37 at [42] (Chakravarti); Feldman v Polaris Media Pty Ltd as trustee of The Polaris Media Trust trading as The Australian Jewish News (No 2) [2018] NSWSC 1035; [2018] Aust Torts Reports 82-395 at [288].

4. [110]

   However, a report must be “substantially accurate”: Thom v Associated Newspapers Ltd (1964) 64 SR (NSW) 376 at 383 and 385 (Thom); Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 63 (Waterhouse); Anderson v Nationwide News Pty Ltd (1970) 72 SR (NSW) 313 at 318 and 323–324; Cook v Alexander [1974] QB 279 at 291 (Cook); Nationwide News Pty Limited v Rush (2020) 380 ALR 432; [2020] FCAFC 115 at [439] (Rush); Chakravarti at [42]; Macdougall v Knight (1890) 25 QBD 1 at 7; Burns v Sunol [2014] NSWCATAD 61 at [39]; Ekermawi v Jones (No 3) [2014] NSWCATAD 58 at [54]. Contrary to the appellant’s submissions, the primary judge did not imply that the defence is only lost by the positive statement of an untruth.

5. [111]

   The question of whether a report is substantially accurate is a question of fact: Chakravarti at [42]; Leslie v Mirror Newspapers Ltd (1971) 125 CLR 332; [1971] HCA 66.

6. [112]

   The relevant question is not whether the report is fair or unfair to any particular person; the question is whether it substantially records what was said and done: Thom at 383.

7. [113]

   If the report is fair, in the sense of reporting with substantial accuracy what in fact was said and done in the proceedings, it does not matter that statements made in the course of those proceedings and included in the report were themselves irrelevant to the material issues in those proceedings: Waterhouse at 63; Hutchison v Robinson (1900) 21 LR (NSW) 130 at 145 (Hutchison).

8. [114]

   If the report is fair, it does not matter if those statements so reported are themselves factually untrue: Waterhouse at 63; Hutchison at 145; Cook at 288.

9. [115]

   Recently, in Poniatowska v Channel Seven Sydney Pty Ltd [2019] SASCFC 111, Blue J at [561] summarised the relevant principles in the context of the corresponding common law defence as follows:

10. [116]

    Pursuant to s 29(3), the statutory defence may be defeated if the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education: see, for example, Rush at [439].

11. [117]

    With respect to s 29(3) of the Act, the tone of voice used in a radio or television broadcast or the prominence given to a report can be factors relevant to whether the report was published honestly: Waterhouse at 69–71.

12. [118]

    At [191] of his reasons, the primary judge observed that:

13. [119]

    Mr Cohen, who also appeared for the appellant on appeal, engaged in similar arguments in his written submissions on appeal, submitting, for example, that “[g]iven the lack of detail contained in the questions by counsel assisting, the answers are reasonable in the circumstances”. Further, Mr Cohen submitted that “[i]t is a fundamental principle of fairness that a witness has no obligation to answer a question other than what is asked” and that “the question repeated by counsel assisting [was] confusing”.

14. [120]

    For the same reasons given by the primary judge, such arguments miss the mark. The focus in the context of a fair report defence is whether or not the report is a fair report of the proceedings or a relevant aspect of the proceedings, not whether or not the proceedings were in themselves fair.

15. [121]

    The primary judge reviewed and set out large portions of the appellant’s evidence at [44]–[64] of his judgment, and the Court was also taken to much of that evidence by Mr Dawson, who appeared with Ms Barnett for the respondents on appeal. The evidence extracted at paras [59]–[61] of the primary judgment was of particular significance to his Honour’s conclusion as to fair report, as follows:

16. [122]

    The primary judge emphasised the evidence from the Royal Commission reproduced above, but also indicated that his conclusion as to fair report in relation to the News 1 publications was based on his review of the appellant’s evidence to the Royal Commission as a whole: see the primary judgment at [196], [198], [199] and [202]. Portions of that evidence have been reproduced at [4]–[6] above.

17. [123]

    In this context, reference may also be made to the following portion of the appellant’s cross-examination at the Royal Commission in relation to a complaint regarding the person identified as AVL:

18. [124]

    Later, the appellant said that he “didn’t have a clue” that AVL could be charged with a crime and that “I didn't think much about from the legal perspective. As I said, that wasn't my involvement and I don't deal with that sort of thing.”

19. [125]

    One of the Commissioners was incredulous, asking:

20. [126]

    Earlier in the appellant’s Royal Commission evidence, the following exchange occurred:

21. [127]

    Having thoroughly reviewed the appellant’s evidence to the Royal Commission, I agree with the primary judge’s conclusion that the reporting in the News 1 publications was fair. The appellant was at pains to differentiate in his evidence between his knowledge of Jewish law and morality, on the one hand, and secular law on the other. Indeed his own words reiterated his evident lack of knowledge of child abuse laws. Further, he candidly accepted and indeed volunteered that he didn’t know what his legal obligations were with regard to the reporting of child abuse. The News 1 publications contained numerous quotations from the appellant’s evidence as to his ignorance of child abuse laws. Those quotations were accurate both in terms and contextually.

22. [128]

    The primary judge was correct, in my opinion, to uphold the statutory defence of fair report. This ground of appeal should be dismissed.

23. [129]

    A specific submission was made on behalf of the appellant in relation to the publication on 11 February 2015 (Annexure B). Unlike the other News 1 publications, which had all occurred following the appellant’s evidence to the Royal Commission on 6 February 2015 and predated his further evidence on the following Monday 9 February 2015, the 11 February 2015 publication was criticised as not comprising a fair report because it did not make reference to the appellant’s evidence to the Royal Commission on 9 February 2015, which the primary judge described as an attempted retraction of the controversial evidence which the appellant had given on 6 February 2015 which had been the focus of the other News 1 publications.

24. [130]

    The appellant resigned from his position as Director of Management of the Yeshiva Centre in Bondi, and the focus of the 11 February 2015 publication was on that resignation. The primary judge held at [210] that:

25. [131]

    The respondents submitted that a reporter or editor is entitled to select part of proceedings which he or she considers to be of particular public importance, and report only that part of the proceedings. They referred to Cook at 288 in support of the proposition that a report dealing only with part of proceedings may attract a fair report defence, provided that the report is not “so tendentious or otherwise so slanted as to make it a distorted report of that part of the proceedings to which it relates”: Cook at 290.

26. [132]

    This submission should be accepted and I do not consider that the 11 February 2015 publication was not a fair report because it did not refer to the attempted retraction of the appellant’s evidence given on 6 February 2015. The story in respect of the appellant’s resignation was ineluctably tied to the evidence that he had given on 6 February 2015. That evidence and the response to it were what was reported to have led to the appellant’s resignation.

News 1 publications/SBS publication — justification (ground 2)

1. [133]

   The appellant submitted that the primary judge erred in allowing the defence of justification in respect of the News 1 publications and the SBS publication. As outlined above at [17], the two imputations arising from each of the four News 1 publications were:

2. [134]

   The primary judge accepted that “imputation (n) said to be conveyed by [the SBS publication] is substantially the same as the alternatives (a) and (b)” (at [198]). At [259], the primary judge found the elements of imputation (a) to be substantially true and, although not strictly necessary to decide as imputation (b) had been pleaded in the alternative to imputation (a), the primary judge found the elements of imputation (b) to be substantially true at [267].

3. [135]

   At [256] of his judgment, the primary judge made reference to the evidence of the appellant himself, as follows:

4. [136]

   After referring to this evidence, the primary judge held (at [257]–[259]):

5. [137]

   Earlier (at [247]), the primary judge had drawn attention to the following question, and telling answer, arising from the appellant’s cross-examination at the trial:

6. [138]

   The appellant submitted that the evidence given:

7. [139]

   The appellant continued that the “perception of ignorance on the part of the appellant in reality arises as a result of the idiosyncrasies of the appellant as a witness rather than any ignorance” and that, at most, “the appellant got it wrong” as opposed to fundamentally failing to understand “the concept that it is against the law for an adult to sexually touch a child on the genitals.”

8. [140]

   In relation to the primary judge’s findings of justification with respect to imputation (a), the respondents submitted that:

9. [141]

   With respect to imputation (b), the respondents submitted that, as imputation (a) was found to arise by the primary judge, it was strictly unnecessary for this Honour to address imputation (b), which had been pleaded by the appellant in the alternative.

10. [142]

    In my view, the primary judge was correct to find that the alternative imputations arising from the News 1 publications, and the imputation conveyed by the SBS publication, were justified. That conclusion really flows from the appellant’s own language in answering questions before the Royal Commission in which he eschewed knowledge of the law: see, for example, the lengthy extracts at [4]–[6] above; see also [136] and [138]. This was only reinforced by the fact that the appellant was a leader of a community with important reporting responsibilities, another matter which he acknowledged.

News 2 publications — fair report (ground 9)

1. [143]

   The principles relevant to a fair report defence have been set out at [108]–[117] above.

2. [144]

   The News 2 publications related to the submissions that had been made to the Royal Commission regarding Case Study No 22.

3. [145]

   It was not submitted, with the exception of imputation (g) discussed at [149]–[151] below, that the publications did not accurately summarise the submissions of counsel assisting in relation to the appellant, and no challenge was made to the primary judge’s finding at [216] that:

4. [146]

   Rather, it was submitted on behalf of the appellant that “[i]n accordance with Chakravarti, it was necessary to summarise all parts of the proceedings relevant to the imputation, which would obviously include the appellant’s counsel’s submissions [to the Royal Commission].” No specific page or aspect of the decision in Chakravarti was referred to.

5. [147]

   A similar submission was made and rejected at first instance. In this context, the primary judge accepted the respondents’ submission that this argument misunderstood the scope of the fair report defence and referred to the decision of Buckley LJ in Cook at 290, where his Lordship said:

6. [148]

   In oral submissions, Mr Cohen focussed in particular on the following statement which appeared in the News 2 publications:

7. [149]

   These statements formed the basis of imputation (g) which has been set out at [20] above. The submission was that counsel assisting the Royal Commission had not used the expression “his flock” either in writing or orally, and thus the statements set out in the previous paragraph cannot attract a fair report defence. The primary judge rejected this argument at [221]–[222] of his judgment as follows:

8. [150]

   In my view, the seizing on the reference to “flock” by the appellant does not render the report unfair or inaccurate. Rabbis are religious leaders whose views command respect amongst members of their congregations or those who follow their teachings. What both the Royal Commission and the primary judge said (at [294]) in this respect is common sense:

9. [151]

   The fact that “flock” was used in the article but not in the submissions did not, in my view, alter in any material way the substance of what was being reported, nor did it alter the fact, as found by the primary judge at [216] and not seriously challenged, that “[t]he 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”. The report was fair for the purposes of ss 29(1) and (2) of the Act.

10. [152]

    This ground, too, should be dismissed.

News 2 publications — justification (ground 3)

1. [153]

   The appellant submitted that the primary judge erred by allowing the defence of justification in relation to the News 2 publications. As outlined at [20] above, the three imputations arising from the News 2 publications were imputations (f), (g) and (h).

2. [154]

   The primary judge dealt with the justification defence in relation to imputations (f), (g) and (h) at [268]–[303] of the primary judgment.

3. [155]

   With respect to imputation (f), that the applicant engaged in a disingenuous “public relations” exercise in urging sexual abuse victims to contact police, the primary judge said at [273]–[275]:

4. [156]

   The appellant submitted that the “fundamental problem in upholding the defence of justification is the trial judge has accepted the appellant was a reliable witness and had good credit at [257]”. The appellant further submitted that:

5. [157]

   The respondents submitted that the primary judge’s summation of the evidence demonstrated that there was ample to establish that imputation (f) was substantially true. With respect to the appellant’s submission that the fundamental problem in upholding the defence of justification was that the primary judge accepted the appellant as a witness of credit, the respondents submitted that this:

6. [158]

   There is force in this submission. The passage in the transcript of his evidence extracted by the primary judge at [273] (see [155] above) supports a finding that the imputation of disingenuousness was made good. The primary judge plainly drew upon rather than rejected the rabbi’s evidence that he “wasn’t too excited” to come out with the statement urging sexual abuse victims to contact police and was effectively “forced into it” scarcely admits of a genuine concern for victims of sexual abuse and the need for sexual abuse to be treated by secular authorities. That conclusion is fortified by the following passage from the appellant’s cross-examination on the fifth day of the trial:

7. [159]

   The primary judge’s assessment as to whether or not the appellant in fact engaged in a disingenuous public relations exercise was also likely to be assisted by his Honour’s opportunity to observe the appellant under cross-examination, as well as the other advantages enjoyed by a trial judge: see Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [23].

8. [160]

   In my opinion, it was open to the primary judge to conclude that this imputation was justified, and his Honour was correct in doing so. Although this Court’s duty is to decide the issue for itself, some recognition must be given to the advantages enjoyed by the primary judge who conducted the trial: Macquarie Radio Network Pty Ltd v Dent [2007] NSWCA 261 at [48]–[50], applying Warren v Coombes (1979) 142 CLR 531 at 551; [1979] HCA 9. See also Chakravarti at [42]: “the question that arises is whether it was open for his Honour to find that they [the publications] were not [fair and accurate]”.

9. [161]

   With respect to imputation (g), namely that that the applicant pressured his flock not to report child sexual abuse to the police, the primary judge concluded at [294] that this was substantially true. His Honour held that:

10. [162]

    The appellant submitted that in relation to the primary judge’s conclusion that imputation (g) was substantially true:

11. [163]

    The appellant’s separate appeal ground in relation to s 91 of the Evidence Act was expressly abandoned and so too, it must be inferred, was the last portion of this submission. But the submission has other difficulties. Paragraph 294 of the primary judgment constituted a combination of the primary judge’s findings, coupled with observations in relation to what was contained in the Royal Commission report. I read the primary judge as saying that he reached the same views as had been reached by the Royal Commissioners, rather than drawing on or accepting, in some fact-finding sense, opinions expressed in the Royal Commission report.

12. [164]

    The respondents submitted that there was no error in the primary judge’s reasoning, as the relevant evidence demonstrated how strongly the appellant’s views were held, which was sufficient to establish the substantial truth of the imputation. The respondents thus submitted that the primary judge did not misconstrue the s 25 defence of justification to find that something less or other than substantial truth established the defence.

13. [165]

    The finding that the primary judge reached as to the substantial truth of imputation (g) was open to him. I reject the challenge to the primary judge’s conclusion that imputation (g) was substantially true.

14. [166]

    With respect to imputation (h), namely that the applicant refused to accept that Jewish organisations had a responsibility to report the sexual abuse of children to secular authorities, the primary judge outlined the relevant evidence at [298]–[302], and concluded (at [303]) that he was:

15. [167]

    The appellant submitted that the primary judge erred in this respect as there was “no evidence to support justification”, and at “no stage did the appellant ever refuse to accept Jewish institutions had a responsibility to report child abuse.” The appellant contended that:

16. [168]

    In response, the respondents submitted that, contrary to the submissions of the appellant, there was:

17. [169]

    The appellant’s submission that there was no evidence to support the primary judge’s conclusion must be rejected. That evidence was set out by the primary judge at [298]–[302] of his reasons and was simply not engaged with by the appellant in his written or oral submissions. The submissions, such as they were, rise little above bald assertion.

18. [170]

    No basis has been shown for rejecting the primary judge’s conclusion in this regard. This ground must be dismissed.

News 3 publication — imputations (ground 13)

1. [171]

   The primary judge rejected the appellant’s case that the following five imputations were conveyed by the News 3 publication:

2. [172]

   The publication appears at Annexure G and its text was as follows:

3. [173]

   As the primary judge noted at [102] of his judgment, there was much controversy at the hearing about the obvious editing error resulting in the transposition of the paragraphs which have been italicised at [172] above. His Honour was:

4. [174]

   It might be observed that even if the reader did not do this and read the article through in a linear fashion, that reader would suppose that the “he” referred to in the third last paragraph of the article was Rabbi Yitzchok Dovid Groner and not the appellant, so that, if a defamatory imputation arose about what followed, it was not about the appellant. But I consider that the primary judge was correct to hold as he did at [102]. A reasonable reader would associate the appellant with Rabbi Pinchus Feldman, and would not naturally associate the latter with Rabbi Groner who had a different surname. So read, the article’s focus insofar as it concerned the appellant was in the statement in the ante-penultimate paragraph of the article, namely that neither the appellant nor his father had “taken steps to inform anyone that a rabbinical student accused of molesting was thinking of leaving the country”.

5. [175]

   The primary judge expressed his findings as to this issue at [159]–[169] as follows:

6. [176]

   On appeal, the appellant submitted that the primary judge erred by not finding any of the defamatory imputations were conveyed with respect to this article, based on the finding that the ordinary reasonable reader would understand that there was an obvious editing error. At [45] of the appellant’s submissions, it was contended that:

7. [177]

   The appellant submitted that if the primary judge had “considered the article according to law, all of the pleaded imputations would have been conveyed.” The appellant submitted that the article asserted that there was a cover-up of multiple acts of paedophilia, and gave the impression to the ordinary reasonable reader that that the appellant was significantly involved in this. The appellant pointed to the fact that there was a photograph of the appellant, but no photographs of anybody else, which “would place in the readers mind that the appellant is very significant, if not the most significant in relation to the failings of the Jewish leadership.” At [46] of his written submissions, the appellant argued that:

8. [178]

   The respondents submitted that the primary judge was correct in concluding that he was not satisfied that it would be conveyed to the ordinary reasonable reader that the appellant had covered up multiple acts of paedophilia. It was submitted that the ordinary reasonable reader would not understand the references to the failures of the collective leadership at Yeshiva Bondi and Yeshivah Melbourne to be solely those of the appellant, particularly in circumstances where the article specified the failures of other named leaders.

9. [179]

   The respondents further submitted that the primary judge was correct in reaching the following conclusions: that the ordinary reasonable reader would not equate the references to the collective failings of the Yeshiva leadership with the appellant; that no ordinary reasonable reader could understand the appellant’s alleged failings to be the “most egregious example” as per imputation (m); and that the appellant’s complaint about the primary judge accounting for the obvious editing error did “not explain how a different conclusion would have been reached” if the primary judge did not account for the error.

10. [180]

    I accept the respondents’ submissions and consider that the primary judge’s reasoning on this issue was correct for the reasons he gave.

11. [181]

    As regards imputations (i), (j), (k) and (l), each of those imputations referred to multiple instances of the appellant covering up the acts of multiple perpetrators of child sexual abuse. The report in relation to the appellant was with respect to only one case for which the appellant was singled out. True it is that the title of the article refers to the failing of abused children, but that statement was not made solely with regard to the appellant, but also to Rabbi Groner. Moreover, the reference to Rabbi Groner, in contrast to the reference to the appellant, is in relation to “multiple reports” against two alleged paedophiles. Contrary to the appellant’s submission, I do not think that a reasonable reader would consider or “infer the article is essentially about the appellant.”

12. [182]

    Whilst it is true that the article carries a photograph of the appellant, its heading refers to “Jewish leaders” and the text of the article makes it plain that more than one such leader is being referred to. This is reinforced by the fact that the text of the article refers to Yeshiva Bondi and Yeshivah Melbourne, both of which institutions would be expected to have separate leaders. In fact, the article identified Rabbi Groner as leading Yeshivah Melbourne until his death in 2008. The photograph does not have the effect of altering the text and an ordinary reasonable reader would understand that it is no more than a photograph of one of the rabbis referred to in the article.

13. [183]

    In relation to imputation (m), I agree with the primary judge’s observation at [231] that:

14. [184]

    This ground of appeal should be dismissed.

News 3 publication — public document defence (ground 10)

1. [185]

   Section 28(1)(b) of the Act relevantly provides that “[i]t is a defence to the publication of defamatory matter if a defendant proves that the matter was contained in: [a] fair summary of, or a fair extract from, a public document.” The definition of public document found in s 28(4)(c) extends to “[a]ny report or other document that under the law of any country: (i) is authorised to be published; or (ii) is required to be presented to or submitted to, tabled in, or laid before, a parliamentary body.”

2. [186]

   There was no question that the report of the Royal Commission was a public document. Nor was there any issue taken with the primary judge’s acceptance of the respondents’ submission that the requirements of fairness for the purposes 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: primary judgment at [225].

3. [187]

   At [227]–[230], the primary judge made clear findings that the publication satisfied s 28(1)(b) of the Act as a “fair summary” of a public document, namely the Royal Commission report. His Honour said in this respect:

4. [188]

   The appellant did not develop any oral argument in relation to this ground of appeal, challenging the primary judge’s contingent upholding of the defence for fair publication of public documents, in his principal written submissions. The matter was dealt with fleetingly in some short supplementary submissions, it being contended that “[t]here were other people, whose conduct was equally or more serious than the appellant’s conduct, ‘singled out’ in the Royal Commission …”

5. [189]

   Properly understood as in my view it would have been by an ordinary reasonable reader, the article fairly and accurately identified what the appellant was singled out for and the primary judge’s analysis of that matter was correct. The appellant’s own submission implicitly accepts that to be “singled out” does not require a person to be the only or sole person mentioned in a report. Rather, it highlights that particular emphasis was given to a person in respect of a particular matter.

6. [190]

   The faint attack made under ground 10 should be dismissed.

News 3 publication — justification (grounds 4 and 11 and notice of contention)

1. [191]

   Ground 4 asserted that the primary judge erred in allowing the defence of justification in respect of the News 3 publication, whereas ground 11 asserted that the primary judge erred by finding imputation (k) to be substantially true.

2. [192]

   In its notice of contention, the first respondent (Nationwide News) contended that the primary judge’s conclusion with regard to imputations (i), (j), (l) and (m) should be affirmed on the basis that, if made, each was substantially true, it being implicit in the notice of contention that the primary judge did not decide the justification defence in relation to any of these imputations. Imputation (k) stood on different ground as the primary judge held that, if made, it was substantially true.

3. [193]

   The primary judge observed correctly at [304] that “[i]t is a highly abstract exercise to attempt to run the ruler of justification over imputations which have been rejected.”

4. [194]

   The appellant’s submission on ground 4 was that had the imputations with regard to the News 3 publication been found to have been conveyed, the primary judge’s finding at [306] dictated that the defence of justification would not have succeeded.

5. [195]

   In my view and subject to the respondent’s notice of contention, the appellant’s submission is correct at least as concerns imputations (i) and (l) as the primary judge indicated at [306] that he was not satisfied that the appellant was significantly involved in the cover up of multiple acts of paedophilia. That paragraph stated:

6. [196]

   But even if, again subject to the notice of contention, the appellant’s submission in relation to this ground as far as concerns imputations (i) and (l) is partially correct, that does not avail the appellant in light of my findings in relation to the imputations not being conveyed at [171]–[184] of this judgment. Ground 4 goes nowhere. Its success was contingent on the success on ground 13.

7. [197]

   As regards imputation (j), namely that “[t]he [appellant] was significantly involved in endangering children by allowing perpetrators of child sex abuse to remain associated with the Chabad organisation”, the primary judge did not address the justification defence, it being strictly unnecessary to do so in light of his finding that the imputation was not conveyed and that the report was a fair summary of a public document in any event.

8. [198]

   No specific submission was advanced by the appellant in support of this ground of appeal insofar as it related to imputation (j).

9. [199]

   As regards imputation (k), namely that the appellant discouraged victims of child sexual abuse from reporting abuse, the primary judge found at [309] that this was established. Again, no specific submission was advanced by the appellant in support of ground 11 challenging this finding. In brief supplementary submissions, however, the appellant submitted that the primary judge provided no specific reasons for coming to this conclusion, but appeared to be relying on his findings in relation to imputation (g). The respondents agreed at least with this submission.

10. [200]

    One point, however, should be noted, namely that the imputations differ significantly in their language, imputation (g) using the word “pressured” and imputation (k) being cast in terms of “discourage”.

11. [201]

    The primary judge’s reasons in relation to imputation (g) and the justification defence have been set out at [161]–[165] above. The respondents argued that:

12. [202]

    I agree that there is a similarity between imputations (g) and (k), with the former being the more difficult of the two to establish as a matter of fact because of the use of the word “pressured” rather than “discouraged”. In light of my conclusion that imputation (g) was substantially true, the same conclusion must follow in relation to imputation (k).

13. [203]

    In light of my conclusions in relation to grounds 13 and 10, it is not necessary to deal with the respondents’ notice of contention which was not the subject of particularly detailed written or oral submissions by either party.

Contingent award of damages — manifestly inadequate? (ground 14)

1. [204]

   Ground 14 of the Notice of Appeal challenges the primary judge’s contingent assessment of damages. Only two paragraphs were advanced in support of this ground which was not developed orally. The written submissions are exiguous in the extreme and principally comprise trite propositions of law, culminating in the unhelpful assertion that “clearly the amount awarded is manifestly inadequate”.

2. [205]

   Moreover, as the respondents submitted, an assessment of damages in a defamation action is an exercise of a discretionary judgment such that an appellate court “may interfere with an award of damages for defamation if it appears that the trial judge proceeded upon a wrong principle in fixing the amount of damages, or if the court can infer from the amount adopted by the trial judge, or otherwise, that in some way the discretion to award damages must have miscarried”: Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [89]; see, also, Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at 348–349; [2003] HCA 52 at [62]–[66]. No error of principle is identified by the appellant.

3. [206]

   The submission was also made by the appellant that significant damages would have been awarded had the imputations in respect of the publication considered at [100]–[106] of this judgment been found to have been conveyed. For the reasons there given, those imputations were not conveyed and there is no occasion to revisit the contingent assessment of damages on this basis.

4. [207]

   This contingent ground of appeal must be dismissed.

Conclusion

1. [208]

   For the foregoing reasons, the appeal is dismissed with costs.

2. [209]

   MACFARLAN JA: I agree with Bell P.

3. [210]

   PAYNE JA: I agree with Bell P.