Yosef Yitzchak Feldman v Nationwide News Pty Limited & Ors (No 4)

1. [1]

   Last Thursday, 10 May 2018 which was day 3 of the Trial, I refused Mr Cohen of learned counsel’s application that I disqualify myself from hearing the matter (162.15T). These are my reasons for that decision.

2. [2]

   The ground of the application was apprehended bias which was based upon aspects of my conduct as trial judge. Three matters were relied on. First, when dealing with an application for an amendment of the Statement of Claim in one of the four defamation matters being heard together, I raised my voice at Counsel “[i]n such a manner that would give rise to the ordinary bystander or the average person that there is an apprehension of bias” (sic) (144.20T). Secondly, when I refused an application made by the defendants to require the plaintiff to make admissions about the meaning of Hebrew and Yiddish expressions contained in emails of which he was the author which had been opposed by Mr Cohen, I said to Mr Dawson SC and Ms Barnett, who appear for the defendants “… you better get yourself a translator” (91.35T) in a manner suggesting some partiality to the defendants (144.45T). Thirdly Mr Cohen argued “there was what I considered some heated exchange in relation to whether a document had been admitted into evidence before or after lunch (yesterday), and I must stay, in my respectful submissions there was enough to cause … the ordinary bystander some concern” (145.5T).

3. [3]

   When I asked Counsel, “what does the reasonable bystander apprehend that I am going to do with those matters when it comes to deciding some critical facts in the case?” (145.35T). Counsel responded (145.40T):

4. [4]

   I stood the application down until 2:00 pm and continued with the hearing (148.50 – 149.3T). Immediately following the luncheon adjournment Mr Cohen informed me that he did not “intend to make any more submissions on your Honour recusing yourself” (160.15T). Counsel for the defendant submitted that the matters put forward had not engaged the Ebner test and that there was no “proper basis” for me to disqualify myself (162.5T).

Applicable principles

1. [5]

   As I understand the law, the applicable principles remain those expressed in Ebner, and no other authorities were drawn to my attention. In Ebner Gleeson CJ, McHugh, Gummow, and Hayne JJ said (at 344 [6]):

2. [6]

   At 350 [33], their Honours made clear that the test enunciated is one of general application:

Ground 1: a raised voice

1. [7]

   On the morning of 9 May 2018, I made a ruling that the transcript of evidence given by the plaintiff before the Royal Commission into Institutional Responses to Child Sexual Abuse was admissible in evidence over Mr Cohen’s objection made under s 6DD of the Royal Commissions Act 1902 (Cth). Following my ruling, Mr Cohen said, “what I mentioned earlier at the start of the hearing was I intended to make an application to amend the pleadings. I now wish to make that application, I can in due course explain why your Honour’s decision is relevant to that” (52.50 – 53.5T). I deferred the hearing of the application as there was a lay witness coming to give evidence.

2. [8]

   I returned to the application to amend before the luncheon adjournment that day (81.45T ff). Initially, Mr Cohen handed up a proposed Fourth Amended Statement of Claim in the first set of proceedings. Learned Counsel then said “I have given your Honour the wrong document, my apologies” (82.25T). The draft was handed back. Counsel proceeded orally to make the amendment on the Third Amended Statement of Claim in that matter. There then ensued a discussion about a proposed amendment to paragraph 6 of that form of the pleading which, after hearing from Mr Dawson, lead me to say (85.40T):

3. [9]

   I then asked “[w]hat’s the second thing you want to do?” (85.45T) Counsel responded that he was “…doing it for all four articles”. I interpolate at that point in time, I misunderstood Counsel. I thought he was referring to all four sets of proceedings. However, there followed a discussion about paragraph 12 of the Third Amended Statement of Claim in the first proceedings. During further argument, Mr Dawson said (86.35 – 87.25T):

4. [10]

   Mr Dawson next initiated a discussion about obtaining admissions from the plaintiff (who had not given oral evidence in his case in chief) about the meaning of the Hebrew and Yiddish expressions used by him in an email exchange, printed-outs of which were in the defendants’ tender bundle. He handed up a schedule, which was not quite complete, containing a translation of most of those terms.

5. [11]

   It is necessary to set out at some length extracts from the transcript of what followed. Mr Dawson applied for a direction that I require the plaintiff to make admissions about the meaning of the outstanding expressions: see s 70 of the Civil Procedure Act 2005 (NSW). Mr Dawson had erroneously referred to s 60. The schedule was later admitted as Ex 24. The following exchanges occurred between me and Mr Cohen (89.15 – 91.35T):

6. [12]

   I acknowledge I had become irritated from the point where I said, “when can you bring forward a document which you say represents the case you want me to consider?” My tone became firm, emphatic and insistent. And the volume of my speech would have grown noticeably louder to the listener. It is fair to say I raised my voice at Counsel. And the source of my irritation was, having sought an indulgence by way of leave to make a late amendment, Mr Cohen had become defiantly unco-operative when Mr Dawson was looking for co-operation as to the meaning of expressions used by the plaintiff in circumstances where he had not been called to give evidence in his own case.

7. [13]

   I acknowledge that a judge should always act with moderation, curtesy and restraint, but that shortfalls from that standard do occur from time to time due to human frailty, at least in my own case.

8. [14]

   I reflected upon how I had spoken to Counsel during the ensuing adjournment. Upon resumption, I said the following:

9. [15]

   The defendant raised no opposition to me granting the amendment, provided it was able to rely upon the transcript of evidence before the Royal Commission in relation to its justification defence. Until then its use had been limited to the fair report defence. I did not understand Mr Cohen to oppose that course (95.25 – 96.15T).

Ground 2: the translation of the glossary of Hebrew and Yiddish expression

1. [16]

   The passage of the transcript where I refused the defendant’s application to require the plaintiff to admit the meaning of the outstanding Hebrew and Yiddish expressions is set out above. 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; that the words might have been uttered in the same mode of speech as I have described above, in my judgment, can make no difference. Frankly, I find it impossible to conceive that a fair minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the questions I have to decide simply because I rejected an application made by Mr Cohen’s opponent in what might justly be taken to be a cranky tone. If anything it demonstrates the opposite.

Ground 3: “the heated exchange”

1. [17]

   This ground relates to the argument concerning the admissibility of documents that were eventually admitted as Ex “N”. These were print-outs of additional emails between the plaintiff and a journalist tendered to contextualise other print-outs of e-mails tendered by the defendant snd admitted as Exs DTB 33 and 34. During this argument, Mr Cohen submitted that Exs DTB 33 and 34 should be “taken out of evidence, notwithstanding the objection wasn’t taken yesterday but I will get to that in a moment” (138.5T). When Mr Cohen got to “that”, he said (139.50 – 140.10T):

2. [18]

   After this exchange, I made an error about the timing of the admission of the defendant’s exhibits. I erroneously thought they had been tendered before I had raised my voice at Counsel. I was corrected by Mr Dawson and I accepted I was wrong in my recollection. But I do not accept that the discussion with Mr Cohen was heated. I did not raise my voice, and if I was at all terse, it may have been because I was concentrating on the ramifications of the submission. In particular whether there was a need to review the admission of all of what had been tendered when counsel was “shaken up”.

3. [19]

   I am not of the view that even a robust exchange between counsel and judge about the admissibility of evidence would give rise to any question in the mind of a fair-minded lay observer about the partiality of the judge so far as the determination of the case on its merits was concerned.

Consideration

1. [20]

   I accept that when I spoke to Mr Cohen during the passage I have set out fully at [11] above, which occurred before the luncheon adjourment on 9 May 2018, as I said to Mr Cohen on 10 May 2018 (146.25T), I was intemperate, raised my voice and got cranky with counsel because I had been irritated by the fact that he was not properly armed to demonstrate the amendment he was seeking leave to make. And because he was defiant about the defendant’s application notwithstanding that he was also seeking an indulgence. However, I was justified insisting upon a document in final form containing all of the amendments counsel wished to make. I should have insisted upon that requirement in a calm and measured way rather than in a raised voice. Of course, this is why I apologised to counsel at the first available opportunity.

2. [21]

   The exchange occupied a matter of minutes only in a hearing which was then in its second day and which has continued over another three days. A fair-minded lay observer present during the whole hearing knowing those circumstances and who heard the apology given at the first available opportunity would have no concern that a professional judge would not do his or her duty to decide the case impartially because of the expression of a few minutes of irritation with counsel.

3. [22]

   The only matter of potential, practical unfairness that Mr Cohen was able to point to, that is to say, the logical connection between the matter complained of and the feared deviation from the course of deciding the case on its merit is that he “might have made an application to an amendment to another statement of claim that could have a critical effect” (148.1 – 148.5T). This submission was made notwithstanding the complete disavowal of such an intention twice during the discussions set out above.

4. [23]

   As it transpired a further application to amend pleadings was made later on 10 May 2018 (167.45T ff) involving the Further Amended Statement of Claim filed on 24 March 2018 in the third News proceedings. In the end that amendment was not pressed, the parties being in agreement as to the meaning of the imputation pleaded (176.35 – 177.15T).

5. [24]

   I am not satisfied that the plaintiff has demonstrated that I should disqualify myself from hearing the case.