Feldman v Polaris Media Pty Ltd as Trustee of the Polaris Media Trust t/as The Australian Jewish News

1. [1]

   WHITE JA: The appellant, Rabbi Yosef Feldman, sued the respondents for defamation. The first respondent is the publisher of a newspaper called The Australian Jewish News. The second respondent (who has since died) was a journalist. Rabbi Feldman sued in respect of three articles and an editorial published in The Australian Jewish News. The first article was published on the website of The Australian Jewish News on 6 February 2015. The second article was published on 7 February 2015. The third article was published on 13 February 2015. The fourth publication sued on was an editorial published in the print edition of The Australian Jewish News on or about 13 February 2015.

2. [2]

   The primary judge (McCallum J) gave judgment for the defendants (Feldman v Polaris Media Pty Ltd as trustee of The Polaris Media Trust trading as The Australian Jewish News (No. 2) [2018] NSWSC 1035).

3. [3]

   The appellant has purportedly appealed as of right (although his appeal was filed out of time), or alternatively sought leave to appeal. The appeal required leave because the amount in issue was not shown to be more than $100,000. I would give leave to appeal, at least on the ground that the appeal raises an important issue in relation to the statutory defence of honest opinion. I also think there is a real question as to whether the defamatory imputations found were substantially true as the primary judge held. The matter was fully argued as on appeal.

Factual background

1. [4]

   The immediate factual background to the publications was evidence given by the appellant to the Royal Commission into Institutional Responses to Child Sexual Abuse (“the Royal Commission” or “the Commission”). The first day on which the appellant gave evidence was on 6 February 2015. At the conclusion of that evidence he was under cross-examination. The first and second articles were published after the appellant’s first day of evidence.

2. [5]

   The appellant gave further evidence before the Royal Commission on 9 February 2015.

3. [6]

   On 6 February 2015 the appellant was questioned by counsel assisting about his response to a reported complaint made by a child against a rabbinical student identified in the Commission with the letters AVL in July 2002. The appellant gave evidence that for approximately 15 years (to 2015) he held the role of Rabbinical administrator of the Yeshiva Gedola in Bondi. The Yeshiva Gedola was a tertiary vocational school that provided education and training for young men wishing to be ordained as rabbis (RCT 673). 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 (RCT 685).

4. [7]

   In July 2002 the appellant’s father, also a rabbi, told him that a complaint had been made that AVL had engaged in inappropriate behaviour with regard to children (RCT 687). A meeting was held between the appellant, his father and AVL on 24 July 2002. The appellant gave evidence before the Commission that at that meeting AVL was told that they had heard that there was a complaint of inappropriate behaviour with regard to children and that AVL should not have anything more to do with children, and they would see whether the complaints were verified or not. AVL maintained that he did not do anything. The appellant and his father were prepared to allow him to continue towards ordination. AVL had come to Sydney from New York. He asked whether he could leave and still obtain the ordination, but was told that ordination could not be given for people who had ceased to study (RCT 689).

5. [8]

   After this meeting the appellant had another meeting with AVL. In the course of that meeting, AVL started telling the appellant what the allegations were and said “A bit of touching. Maybe I massaged him a bit or whatever. What’s the issue with that?” or something to that effect (RCT 697.37). The appellant’s opinion was that was “really inappropriate” (RCT 697). AVL told the appellant that he just lay down with a child and may have massaged him and there might have been a bit of touch (RCT 697-698). AVL said that he was lying with the child (not that he went to bed with him) and gave him a “massage or touched or that sort of thing” (RCT 698.39).

6. [9]

   The appellant was then cross-examined as to whether what had been reported to him was a potential crime involving child abuse which he knew had to be reported to the police. He said:

7. [10]

   After further extensive questioning the appellant gave the following evidence:

8. [11]

   Later, it was put to the appellant that he knew that teachers or anyone involved with children should not be massaging children while they lay down with them (RCT 704.5). He responded:

9. [12]

   He refused to accept that if someone lay down with a child and massaged the child that that could potentially be a crime, saying “It could potentially be something which is highly inappropriate. I do not know what a crime is from a legal society perspective.” (RCT 704-705) He accepted counsel assisting’s summary of his evidence as to what he had been told. First, there may have been contact between AVL and the child. Secondly, AVL had laid down with the child. Thirdly, that according to AVL, he may have massaged the child, but not inappropriately (RCT 706-707). Fourthly, he believed that AVL had massaged the child. Fifthly, he believed that such conduct was highly inappropriate.

10. [13]

    The appellant denied knowing that the complaint involved allegations that might amount to sexual abuse (RCT 707-708). He denied understanding that the allegation was that AVL had touched the genitals of an underage boy. He said that he heard that allegation later (RCT 708). It was put to the appellant again that he knew that the allegation might amount to child sexual abuse (RCT 709.20). He answered:

11. [14]

    It appears from the transcript that that perplexing answer was cut off when counsel asked the following question which was critical to the publications complained of:

12. [15]

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

The first article

1. [16]

   The first article was published online on 6 February 2015. It was headed “Rabbi Yossi Feldman, the RCNSW and The AJN”. The article stated:

2. [17]

   The article went on to refer to a statement that the Rabbinical Council was said to have published in 2011 accusing the Australian Jewish News of misrepresenting Rabbi Feldman’s position. The article asserted that the Australian Jewish News’ earlier stance had been shown to be correct.

3. [18]

   The appellant pleaded that the first article conveyed the imputation that the appellant “... displayed reprehensible ignorance of the fact that to touch a child for sexual gratification on the genitals was a crime”.

4. [19]

   The primary judge found that this imputation was conveyed. By notice of contention, the respondents take issue with that finding. The primary judge rejected the defence of fair report. The respondents also take issue with that finding. The primary judge upheld defences of honest opinion (s 31 of the Defamation Act 2005 (NSW)) (Judgment [41]-[116]). This made it unnecessary for her Honour to decide whether the defamatory imputation conveyed by the first article was substantially true. Had it been necessary to decide, the primary judge would have found that the defamatory imputation conveyed by the first article was substantially true (Judgment [163]).

5. [20]

   Against the possibility that her Honour erred in those findings, her Honour found that the respondents were in any event entitled to succeed on the basis of s 26 of the Defamation Act (that the matter carried other imputations (contextual imputations) that were substantially true and the defamatory imputation did not further harm the appellant’s reputation because of the substantial truth of the contextual imputations (Judgment [177]-[191])).

6. [21]

   The primary judge also addressed the respondents’ pleaded defence of statutory qualified privilege (Defamation Act, s 30) and noted that the defence of common law qualified privilege was not pressed. Her Honour would have rejected the defence of statutory qualified privilege in respect of the first and second articles, but would have upheld that defence in respect of the third and fourth articles (Judgment [293]-[331]).

7. [22]

   The respondents’ notice of contention challenges her Honour’s rejection of the defence of statutory qualified privilege in respect of the first and second articles.

The second article

1. [23]

   The second article was published on Saturday, 7 February 2015. It was reported under the heading “Royal Commission: Our darkest week”. The article stated:

2. [24]

   The appellant pleaded that this article conveyed the defamatory meaning:

3. [25]

   The primary judge found that the appellant contended that the second article conveyed only the imputation that “... the plaintiff had displayed reprehensible ignorance of the fact that it was a crime for a teacher to touch a child sexually on the genitals” (viz, not that in so doing he behaved shamefully). Her Honour found that that imputation was carried by the second article (Judgment [21]-[24]). By their notice of contention the respondents challenge that finding.

4. [26]

   The primary judge upheld the statutory defence of honest opinion to the second article (Judgment [117]-[137]).

5. [27]

   As with the first article, consideration of the defence of substantial truth did not arise, but would have been upheld had the defence of honest opinion not succeeded (Judgment [163]).

6. [28]

   As with the first article, had it been necessary to decide, her Honour would have rejected the defence of statutory qualified privilege in respect of the second article and would have also rejected the defence of fair reporting. The respondents challenged that finding in their notice of contention. Her Honour would have upheld the defence that the article contained contextual imputations that were substantially true such that the defamatory imputation did not further harm the appellant’s reputation.

7. [29]

   The third article was published on 13 February 2015. By this time the appellant had given further evidence in the Commission on 9 February 2015 and had completed that evidence. So far as his evidence on 9 February 2015 is material to the issues on this appeal, the appellant said in answer to questions from his counsel that it was not until much later that he heard that there were allegations involving AVL touching or fondling a child’s genitals, and that if he knew or believed in July 2002 that AVL had fondled the genitals of a child indecently he would have known that that was a crime (RCT 902).

8. [30]

   The appellant also gave evidence as follows:

Third article

1. [31]

   The third article was headed “Rabbi Yossi Feldman urged leniency for abusers”. The article stated:

2. [32]

   The appellant pleaded that the third article conveyed the following defamatory meanings:

3. [33]

   The primary judge found that the first imputation was conveyed, but that the second and third imputations were not (Judgment [28] and [33]). There is no appeal from the finding that the second and third imputations were not conveyed. The respondents challenge the finding that the first imputation was conveyed.

4. [34]

   The primary judge rejected the defence of honest opinion in respect of the publication of defamatory matter in the third article. Her Honour found that a reader would have understood it to be asserted as fact that the appellant gave evidence that he was not aware in 2002 that for a man to touch a child’s on the genitals sexually was a crime. Her Honour held that the further element of the imputation that she found was conveyed, namely that the appellant was “shockingly ignorant” was not presented as opinion of the author but as an objective or widely held assessment of the appellant’s evidence (Judgment [139]).

5. [35]

   The respondents by their notice of contention challenged this finding.

6. [36]

   But for her Honour’s conclusion that the matter conveyed was a statement of fact and not opinion, her Honour would have accepted the statutory defence of honest opinion under s 31.

7. [37]

   The primary judge found that the imputation alleged was substantially true (Judgment [154]-[162]).

8. [38]

   As with the first and second articles, the primary judge upheld the contextual truth defence under s 26 in respect of the third article (Judgment [204]-[218], [280]-[282]). Her Honour found that she would have accepted the statutory qualified privilege defence in respect of the third article (Judgment [331]). Her Honour would also have rejected the fair report defence in respect of the third article were it necessary to do so (Judgment [291]). The respondents challenge this finding.

The editorial

1. [39]

   The fourth publication on which the appellant sued was an editorial published on 13 February 2015 headed “Our community’s shame”. The editorial is quoted as an appendix to this judgment.

2. [40]

   The appellant pleaded that the editorial conveyed a defamatory imputation as follows:

3. [41]

   As the primary judge observed, the imputation alleged arises from the third paragraph of the editorial which states that the appellant admitted that in 2002, even though he was director of a school, he was not aware it was illegal to touch a child’s genitals.

4. [42]

   The primary judge was satisfied that that meaning was conveyed (Judgment [38]). The respondents challenged that finding.

5. [43]

   The primary judge held that the defence of honest opinion was available in respect of the editorial and was satisfied. The appellant challenges that finding. Had it been necessary for the primary judge to address the defence that the imputation was substantially true, her Honour would have upheld that defence (Judgment [163]). Her Honour would have upheld the contextual truth defence in respect of the editorial and upheld the defence of statutory qualified privilege (Judgment [331]). Her Honour would have rejected the defence of fair report (Judgment [291]).

6. [44]

   Ground 3 of the appellant’s notice of appeal asserted that he was denied procedural fairness. For the reasons given by Emmett AJA that ground should be rejected.

Consideration – the first article

1. [45]

   The primary judge was correct to find that the first article conveyed the defamatory imputation that the appellant displayed reprehensible ignorance of the fact that to touch a child for sexual gratification on the genitals was a crime.

2. [46]

   The first article did not say so in terms. It said that the appellant had admitted that he did not realise it was illegal to touch a child’s genitals, not that he did not realise it was illegal to touch a child’s genitals for sexual gratification.

3. [47]

   The primary judge addressed the principle for determining what defamatory meaning is conveyed uncontroversially. Her Honour said:

4. [48]

   If the imputed statement is read without context, then it does not convey the alleged defamatory meaning. But the context of the statement is that senior rabbis had put the welfare of paedophiles above the safety of children and that the appellant was concerned about how a rabbinic statement urging the reporting of alleged paedophiles to the police might affect a friend who was a convicted paedophile. In that context an ordinary and reasonable reader would consider that the appellant had admitted not that he did not realise that it was illegal in all cases to touch a child’s genitals, but that he did not realise it was illegal to touch a child’s genitals sexually.

5. [49]

   This requires consideration of the defence of honest opinion. Section 31 of the Defamation Act provides:

6. [50]

   Section 8 provides that:

7. [51]

   The Act distinguishes between the defamatory matter that is published and the defamatory imputation or imputations carried by that matter. Section 31 is concerned with the former.

8. [52]

   Section 25 provides:

9. [53]

   Section 25 requires that the defendant, if relying on the defence of justification, prove that the defamatory imputations carried by the matter published are substantially true. By contrast, s 31(1)(a) requires that the defamatory matter itself be an expression of opinion rather than a statement of fact.

10. [54]

    The published matter that conveyed the defamatory imputation was primarily a pure statement of fact, namely that the appellant had admitted that even though he was director of the school, he did not realise it was illegal to touch a child’s genitals. The additional statements that conveyed the defamatory imputation were, first, that the appellant was worried about a rabbinic statement urging reporting of alleged paedophiles to the police because it might affect his friend who was a convicted paedophile. That was also a statement of fact and not opinion. The other part of the article that gave rise to the defamatory imputation that the appellant did not realise it was illegal to touch a child’s genitals sexually was that “senior rabbis put the welfare of paedophiles above children.” That was a statement of opinion, being a matter of inference or conclusion about the effect of other evidence given at the Commission.

11. [55]

    The respondents pleaded that insofar as each of the three articles and the editorial conveyed the “Plaintiff’s Imputations” they contained expressions of opinion and pleaded the other elements of s 31 upon which the defendants relied. Extensive particulars were provided of the facts said to provide proper material for the opinions expressed.

12. [56]

    The primary judge followed the approach she took in O’Brien v Australian Broadcasting Corporation [2016] NSWSC 1289 at [41]-[47] in holding that although the defence of honest opinion under s 31 is directed to the matter complained of rather than to the imputations specified by the plaintiff, the meaning pleaded by the plaintiff is relevant to the defence because it is the meaning found by the court that is to be scrutinised for its fairness. Her Honour said that the question is whether the ordinary reasonable viewer (or reader) would have understood the meaning found to have been conveyed as comment as opposed to fact. In so concluding her Honour construed s 31 having regard to the reasoning of the High Court in Channel Seven Adelaide Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60 as to the defence of fair comment at common law. Her Honour said (at [51]) that the first matter to be determined was:

13. [57]

    The primary judge concluded on this issue (at [59]):

14. [58]

    This formulation of the principle requires that the characterisation of the statement published as opinion or fact depends upon the defamatory meaning as found, as distinct from the matter published.

15. [59]

    The defamatory meaning as found would properly be characterised as opinion, that is, that the appellant displayed reprehensible ignorance of the fact that to touch a child for sexual gratification on the genitals was a crime. That is an inference drawn from the appellant’s admission as reported.

16. [60]

    In Channel Seven Adelaide Ltd v Manock, Channel 7 promoted a forthcoming television program by the presenter saying:

17. [61]

    The defendant pleaded that those words constituted fair comment on a matter of public interest (at [22]). The majority (Gummow, Hayne and Heydon JJ) held that if those words were statements of fact then they could not constitute fair comment on a matter of public interest, and if some but not all of the words amounted to comment, those that did not could not constitute fair comment on a matter of public interest (at [34]). The majority observed that the form of words used is not determinative and the question is whether a reader or hearer would understand the statement to be comment or opinion, rather than a statement of fact (at [35]-[36]). The first, second and fourth sentences were statements of fact (at [38]-[40]). The third sentence (“the data, dates and documents that don’t add up”) was arguably a statement of opinion suggesting a process of evaluation and judgment (at [41]), but was so mixed up and intermingled with factual material that a viewer could not distinguish between what was report and what was comment (at [41]). The four sentences, whether taken separately or together, were not comments (at [44]).

18. [62]

    After dealing with the issue as to whether a supposed comment must be based on facts sufficiently identified or generally known, the majority addressed a challenge made to the finding of the Full Court of the Supreme Court of South Australia that “the defence of fair comment must address the imputation pleaded” (at [76]). The appellant’s challenge was rejected. The majority said (at 287-288):

19. [63]

    There is no contradiction in the majority’s reasoning that the published matter must be comment and not a statement of fact, and its finding that the defence of fair comment must be responsive to the defamatory meaning contained in the matter published. The matter published must be comment rather than fact, but if the matter published is comment, then the comment will have the meaning found and its fairness must be assessed having regard to that meaning.

20. [64]

    In Harbour Radio Pty Ltd v Ahmed (2015) 90 NSWLR 695; [2015] NSWCA 290 this Court said:

21. [65]

    In Channel Seven Adelaide v Manock, Gummow, Hayne and Heydon JJ stated (at [36]) in terms that are equally applicable to s 31:

22. [66]

    Accordingly, the first question is not whether the defamatory meaning (that is, the imputation) from the matter published in the first article was opinion rather than a statement of fact, but whether the defamatory matter was a statement of opinion rather than fact.

23. [67]

    In my view it was not. The principal sting was that the appellant had admitted that even though he was a director of the school he did not realise it was illegal to touch a child’s genitals. That was a statement of fact that he had made that admission.

24. [68]

    It was the statements that preceded this statement that give rise to the imputation that the appellant was reprehensibly ignorant that it was a crime to touch a child’s genitals for sexual gratification. As noted above, one of the statements that provide the context from which that implication is drawn was at least arguably a statement of opinion. But as in Channel Seven it was so mixed up with the facts that a reader could not distinguish between what was a report of what was said at the Commission and what was an opinion about the evidence given to the Commission.

25. [69]

    In my view the defence of honest opinion under s 31 in respect of the first article should have been dismissed.

26. [70]

    The primary judge considered that the article as a whole would have been considered as an expression of opinion rather than fact because it was a reprise of an argument advanced by The Australian Jewish News in 2011 when the newspaper had called for the appellant to be removed as President of the Rabbinical Council because of his position that allegations of abuse should first be reported to a rabbi before report was made to the police. The newspaper argued in its article on 6 February 2015 that evidence given to the Commission by Rabbi Feldman showed that the stance it had taken in 2011 had been shown to be correct by the appellant’s testimony before the Commission.

27. [71]

    That may be. But it does not mean that the defamatory matter was an expression of opinion. Rather, it means that the balance of the article was an expression of opinion and would have been so understood by a reasonable reader.

28. [72]

    In the course of addressing the question whether there was proper material that was substantially true for what the primary judge found was an opinion expressed in the first article, the primary judge expressly addressed the question whether:

29. [73]

    The primary judge found (at [163]) that had it been necessary to determine the defence of justification in respect of the first article, the defence would have been upheld for substantially the same reasons as the defence was upheld in respect of the third article.

30. [74]

    The primary judge held that the effect of the appellant’s evidence before the Royal Commission was that he did not realise in 2002 that the sexual touching of a child’s genitals was illegal.

31. [75]

    The only material that could justify the imputation that the appellant was reprehensibly ignorant in 2002 that it was illegal to touch a child’s genitals for sexual gratification was his evidence before the Royal Commission. It is true that the appellant frequently said that he was only concerned with Jewish and not civil law, but at no point did he say that he did not know whether touching a child’s genitals for sexual gratification was illegal under the civil law. He was not asked that question. The critical questions that were asked (at [14] and [15] above) were whether he knew that it was illegal to touch a child on the genitals and said that he did not know that as a fact. Counsel assisting may have assumed that having regard to the context of the Royal Commission and the particular allegations concerning AVL, that the touching in her question should be taken as sexual. But counsel’s question did not say so. The primary judge found (at [127]) that it was clear from counsel assisting’s questioning that she was referring to deliberate sexual touching on the genitals. I do not accept that the witness being questioned was required to adopt that assumption.

32. [76]

    The primary judge found (at [128]) that:

33. [77]

    The primary judge enjoyed no advantage over this court in assessing the effect of what the appellant was saying in his evidence to the Royal Commission. Although before the Royal Commission the appellant stated on a number of occasions that he was ignorant of the secular law and was concerned with his role as rabbi, he did not say that he was ignorant as to whether the sexual touching of the genitals of a child was a crime. Nor did he say anything that could be properly construed as such an admission. To the contrary, when cross-examined by counsel assisting the Royal Commission, he said that if he had heard that AVL had touched the child’s genitals, then “obviously that I will consider, as probably the criminal system will consider, it a crime” (at [15] above). His evidence was that from what he had been told by AVL he did not think that a crime was involved.

34. [78]

    As noted above, in re-examination before the Commission on 9 February 2015, the appellant said in answer to a question from his own counsel that if he had known or believed in July 2002 that AVL had fondled the genitals of a child indecently, that is, with a sexual connotation or overtone, he would have known that that was a crime (at [29] above).

35. [79]

    The primary judge was sceptical of that answer because, her Honour said, that in answers given on 6 February to counsel assisting the Royal Commission the appellant had no hesitation in repeating his assertion that he did not know the secular law and he did not know as a fact that it was illegal to touch a child on the genitals (at [111]).

36. [80]

    But that finding was made without regard to the appellant’s evidence referred to at [77] above, which was consistent with the evidence that he gave in re-examination. The appellant’s assertion before the Royal Commission that he did not know the secular law did not go so far as to say that he did not know whether under the secular law touching a child on the genitals indecently was a crime. He was not asked that question by counsel assisting.

37. [81]

    I would not uphold the defence of justification.

38. [82]

    By their notice of contention the respondents challenged the primary judge’s rejection of the defence of fair report.

39. [83]

    Section 29(1) of the Defamation Act provides:

40. [84]

    There is no issue that the proceeding before the Royal Commission was a proceeding of public concern.

41. [85]

    The primary judge rejected the defence of fair report for the following reason:

42. [86]

    The evidence given by the appellant before the Commission quoted at [291] was prefaced by a question as to whether the appellant knew that the complaint of which he was aware concerning AVL could be a crime of abuse against a child (RCT 6422; 699). The appellant was asked whether he understood that a process would be put in place to remove AVL from students. He agreed with that proposition. He then gave the following evidence:

43. [87]

    In this evidence the appellant said nothing about whether the sexual touching of a child’s genitals would be illegal. He said that he thought “from a Jewish perspective it’s highly inappropriate” which was a reference to his evidence that he thought that even on AVL’s account of his dealing with the child, his dealing was highly inappropriate. He accepted in the next answer that the complaint could have been a complaint of abuse. Nowhere in his evidence before the Commission did the appellant say that in his opinion, from a Jewish perspective, he did not know how the secular authorities would deal with the sexual touching of a child’s genitals.

44. [88]

    Accordingly, I do not accept the primary judge’s reason for rejecting the defence of fair report.

45. [89]

    As the primary judge observed, to be “fair” a report need not be a complete report of the proceedings in question, but must be substantially accurate (Chakravarti v Advertising Newspapers Ltd (1998) 193 CLR 519; [1998] HCA 37 at [42], [153]).

46. [90]

    In Chakravati Brennan CJ and McHugh J said (at [2]):

47. [91]

    This statement was applied by this court in Cummings v Fairfax Digital Australia and New Zealand Pty Ltd (2018) 99 NSWLR 173 at 187; [2018] NSWCA 325 at [49] (fn 34) to s 28 of the Act (fair summary of public documents).

48. [92]

    In my view the first article (which contained the defamatory matter published) was a substantially accurate report of the evidence given by the appellant to the Royal Commission, but not a substantially accurate report of the meaning conveyed by the report. Section 29 does not refer to a fair report of the meaning of defamatory matter published. Nonetheless, consistently with authority, I must reject this ground of the notice of contention.

Statutory qualified privilege

1. [93]

   Section 30 of the Defamation Act provides:

2. [94]

   The primary judge found that the hearings of the Royal Commission were a matter of universal interest to readers of The Australian Jewish News so that s 30(1)(a) was satisfied (Judgment [302]). Her Honour was also satisfied that each of the matters complained of was published in the course of giving readers information on that subject (s 30(1)(b): Judgment [305]).

3. [95]

   Her Honour was not satisfied that the statutory defence of qualified privilege was satisfied because she was not satisfied that the conduct of the respondents in publishing the matter was reasonable in the circumstances. The primary judge accepted the evidence of the journalists that they believed the content of the articles were true and correct at the time of publication.

4. [96]

   The primary judge accepted that the appellant’s evidence before the Royal Commission was a matter of strong public interest, that the matter published related to the performance of the public functions of the appellant as President of the Rabbinical Council, director of the company that ran the Yeshiva College, rabbinical administrator of the Yeshiva Gedola and as a spiritual leader of the Jewish community (Judgment [315]). Her Honour concluded (in respect of s 30(3)(d)) that the matters complained of were carefully written and drew an appropriate distinction between suspicions, allegations and proven facts. The primary judge accepted that it was in the public interest for articles to be published expeditiously (s 30(3)(e)).

5. [97]

   In respect of ss 30(3)(c) and (f) the primary judge held that because the defamatory imputations complained of by the appellant were serious a high standard of reporting was required in assessing the reasonableness of the respondents in publishing defamatory matter and that it was appropriate to hold journalists to a higher standard of due diligence in preparing an article published widely and for a profit (Judgment [316] and [319]).

6. [98]

   As to s 30(3)(g) it was clear that the sources of each article published was the evidence that the appellant gave at the Royal Commission whose integrity was not in doubt (Judgment [323]).

7. [99]

   The defence of qualified privilege failed because the primary judge did not consider that s 30(3)(h) was satisfied.

8. [100]

   Her Honour had earlier observed that the list of factors in s 30(3) was not exhaustive. Nor is each element prescriptive.

9. [101]

   The primary judge set out the evidence of the journalists which she accepted as follows:

10. [102]

    The primary judge then considered the significance of the fact that the appellant was not given an opportunity to provide a response to the first and second articles. Her Honour said:

11. [103]

    I do not accept that conclusion.

12. [104]

    When the first and second articles were published the appellant was under cross-examination. It would have been improper for the journalist to seek his comment upon the first and second articles that were published on 6 and 7 February 2015. To do so might amount to interference with the process of the Commission in the same way, as in court proceedings, a witness is warned against discussing his or her evidence with anyone whilst under cross-examination. As the primary judge found (and there was no challenge to this finding) it was in the public interest for the matters to be published expeditiously at or around the time of the appellant’s appearance at the Royal Commission. Consistently with the need for expedition, the respondents were not required to seek the appellant’s comments upon the articles to be published. I would uphold the statutory defence of qualified privilege.

Consideration – the second article

1. [105]

   The heading of the second article (“Royal Commission: Our darkest week”) provides the context for the alleged defamatory imputation arising from the statement:

2. [106]

   The context of the article was that the Jewish community needed to wake up to the fact that there were dozens of victims of child abuse in the community. In the context in which the defamatory matter was published, it conveyed the pleaded defamatory imputation that the appellant displayed reprehensible ignorance of the fact that it was a crime for a teacher to touch a child sexually on the genitals.

3. [107]

   The second article was a report of the previous week’s hearing in the Royal Commission. The defamatory matter published was a statement of fact as to the evidence given by the appellant before the Commission.

4. [108]

   The primary judge concluded that the article conveyed a defamatory meaning that the appellant had displayed reprehensible ignorance of the fact that it was a crime for a teacher to touch a child sexually on the genitals. I agree.

5. [109]

   The primary judge then concluded that the ordinary reasonable reader would have understood that meaning to be an expression of opinion (Judgment [118]).

6. [110]

   For the reasons given in respect of the first article, I do not agree with that reasoning.

7. [111]

   In my view the defence of honest opinion was not open in respect of the defamatory matter published in the second article.

8. [112]

   Nor, for the reasons I have given in respect of the first article, do I accept that a defence of justification was available in respect of the publication.

9. [113]

   For the same reasons as are applicable to the first article, I consider that the defence of statutory qualified privilege should have been upheld.

Consideration – the third article

1. [114]

   The primary judge found the defamatory matter conveyed by the third article was not opinion, but a statement of fact. I agree. Her Honour upheld the defence of justification. For the reasons applicable to the first article I do not agree.

2. [115]

   The primary judge also relied upon an email sent by the appellant shortly after he gave evidence at the Royal Commission to a journalist from The Herald Sun summarised by the primary judge as follows:

3. [116]

   The primary judge found:

4. [117]

   I do not agree. It is clear from the text of the appellant’s response that he was drawing a distinction between touching and fondling, being a similar distinction as that between a touch whilst angry and an assault. He stated that he had said that it was “very very wrong even to massage while lying without touching”. The email said nothing about distinguishing between precepts of Jewish faith and his knowledge of what would constitute a crime. In substance, he asserted that he was not sure in 2002 that accidental touching of a child’s genitals would be a crime.

5. [118]

   This evidence does not establish that defence of justification.

6. [119]

   Nonetheless, for the same reasons as given in respect of the first article, the defence of statutory qualified privilege should have been upheld.

Consideration - The editorial

1. [120]

   The appellant pleaded that the editorial conveyed the defamatory meaning that he was reprehensibly ignorant because he was not aware in 2002 that it was illegal for an adult to touch a child on the genitals for sexual gratification. I accept that that imputation was conveyed for the same reasons as were applicable to the first three articles. The editorial stated that the appellant had argued against his colleagues’ issuing a plea for victims to come forward because he feared the impact that such a statement might have had on his now convicted friend, a child abuser, and that he admitted that in 2002, even though he was a director of the school, he was not aware it was illegal to touch a child’s genitals.

2. [121]

   The editorial was plainly an expression of opinion and would have been so understood by an ordinary reader. The opinion expressed was honest and clearly related to a matter of public interest. The only question is whether that opinion was based on proper material.

3. [122]

   I agree with the reasons of the primary judge that the opinion expressed was based on proper material.

4. [123]

   The proper material upon which an opinion can be expressed need not be such that would prove that the underlying facts upon which the opinion was expressed were substantially true. If it were otherwise, there would be no need for the separate defence of honest opinion. Although I do not accept that the material for the opinion expressed in the editorial established that the imputation was substantially true, it was nonetheless proper material for that opinion.

5. [124]

   In respect of the editorial I would uphold the defence under s 31 as well as the defence of statutory qualified privilege.

6. [125]

   The respondents propounded the defences of contextual truth in respect of each of the three articles and the editorial. The primary judge made detailed findings upholding the defences of contextual truth. Because I would dismiss the appeal on other grounds it is not necessary to deal with the defence of contextual truth (Boensch v Pascoe [2019] HCA 49 at [8]).

7. [126]

   Whilst judgment was reserved the court was informed that the second respondent had died. The solicitors for the respondent submitted that it followed from s 10(b) of the Defamation Act that the proceedings against him could not proceed and the appeal concerning him should be dismissed. The court is not a “person” within the meaning of s 10(b). It is only if the appeal were to be allowed that the possible application of s 10(b) would arise. Section 10(b) does not preclude the court from dismissing the appeal with appropriate costs orders.

8. [127]

   For these reasons I would make the following orders:

   1. (1)

      Grant leave to the applicant to appeal from the orders of 23 July 2018.

   2. (2)

      Direct that the proposed amended notice of appeal that is annexure “A” to the affidavit of Ljupka Subeska dated 10 May 2019, except paragraph 13, stand as the notice of appeal.

   3. (3)

      Dismiss the appeal.

   4. (4)

      Order that the appellant pay the respondents’ costs of the application for leave to appeal and of the appeal, and the costs of the respondents’ notice of motion of 21 February 2019.

9. [128]

   EMMETT AJA:

Introduction

1. [129]

   This appeal is concerned with alleged defamation of the appellant, Rabbi Yosef Feldman (Rabbi Feldman), by the respondents, Polaris Media Pty Ltd (Polaris) and Mr Joshua Levi. Polaris is the publisher of “The Australian Jewish News” newspaper (the Newspaper). Mr Levi was at relevant times a journalist and was the author of articles published by Polaris in the Newspaper.

2. [130]

   Rabbi Feldman alleged that four separate publications by Polaris and Mr Levi conveyed meanings that were defamatory of him. The first matter complained of was published in an article on 6 February 2015 (the first article). The second matter complained of was published in an article on 7 February 2015 (the second article), the third matter complained of was published in an article on 13 February 2015 (the third article) and the fourth matter complained of was published also on 13 February 2015 (the editorial).

3. [131]

   All four matters arose out of evidence given by Rabbi Feldman in February 2015 to the Royal Commission into Institutional Responses to Child Sexual Abuse. In the course of giving evidence, Rabbi Feldman was questioned as to his views and understanding of allegations of child sexual abuse in the context of his handling of a particular complaint. The matters sued on reported on and referred to that evidence.

4. [132]

   The final version of Rabbi Feldman’s statement of claim alleged that the material in question carried the following defamatory imputations:

   1. (1)

      First article: Rabbi Feldman displayed reprehensible ignorance of the fact that to touch a child for sexual gratification on the genitals was a crime.

   2. (2)

      Second article: Rabbi Feldman, although the head of a rabbinical college fundamentally concerned with the responsibilities of teachers, behaved shamefully in that he had displayed reprehensible ignorance of the fact that it was a crime for a teacher to touch a child sexually on the genitals.

   3. (3)

      Third article:

   4. (4)

      The editorial: Rabbi Feldman, in giving evidence at the Royal Commission into Institutional Responses to Child Sexual Abuse concerning his attitudes to child sexual abuse in the Jewish community was reprehensibly ignorant because he was not aware in 2002 that it was illegal for an adult to touch a child on the genitals for sexual gratification.

5. [133]

   In its amended defence filed on 17 March 2017, Polaris admitted that it published the three articles and the editorial and Mr Levi admitted that he was the author of the second and third articles. However, each of them denied that any of the material conveyed the defamatory imputations pleaded by Rabbi Feldman. Each also pleaded positive defences of honest opinion, justification, contextual truth, fair report of proceedings, statutory qualified privilege and common law qualified privilege.

6. [134]

   The proceedings were heard by a judge of Common Law Division without a jury (the primary judge) over five days. Rabbi Feldman was represented by counsel and solicitors for the first four days of the trial but then withdrew instructions to counsel and solicitors and thereafter represented himself. On 23 July 2018, the primary judge directed the entry of judgment for Polaris and Mr Levi (the primary decision). [1] Her Honour subsequently ordered Rabbi Feldman to pay the costs of Polaris and Mr Levi of defending the proceedings.

Leave to Appeal

1. [135]

   On 15 August 2018, Rabbi Feldman served a notice of intention to appeal from the orders made by the primary judge. On 22 October 2018, he filed a summons seeking leave to appeal. On 10 December 2018, Polaris and Mr Levi filed a notice of contention.

2. [136]

   Subsequently, on 15 February 2019, Rabbi Feldman filed a notice of appeal. That prompted Polaris and Mr Levi to file, on 21 February 2019, a notice of motion seeking an order under Uniform Civil Procedure Rules 2005 (NSW), r 51.41(1) that the notice of appeal be dismissed as incompetent. The basis upon which Polaris and Mr Levi assert that the notice of appeal is incompetent is as follows:

3. [137]

   The appeal was fixed for hearing on 20 May 2019 and a direction was given that the application for leave be heard concurrently with the appeal. On 20 May 2019, during the hearing, Rabbi Feldman sought leave to rely on a proposed amended draft notice of appeal, annexed to an affidavit sworn on 10 May 2019, which raised some 13 grounds. The proposed amended notice of appeal raised, for the first time, an additional ground of appeal, Ground 13, that the primary judge conducted the hearing in a manner giving rise to an apprehension of bias. The ground had not been raised previously, and was not raised during the trial. The respondents opposed the ground being raised at that late stage. Leave was granted to Rabbi Feldman to rely on the amended notice of appeal as his proposed draft notice of appeal, save for proposed Ground 13.

4. [138]

   Polaris and Mr Levi were aware of Rabbi Feldman’s desire to appeal from the orders made by the primary judge. It would therefore have been appropriate, if leave to appeal is granted, that the time for filing the notice of appeal be extended. However, had the application for leave been heard separately from the argument on the appeal, it would probably have been appropriate to refuse leave to appeal, for the reasons that follow. However, since the Court has heard full argument on the grounds proposed, the appropriate course is to grant leave to appeal. For the reasons indicated below, none of the grounds should succeed.

5. [139]

   A further complication that has arisen in relation to the appeal is that, since the hearing of the appeal, Mr Levi has died. If Rabbi Feldman wishes to maintain the appeal as against the estate of Mr Levi, appropriate steps will need to be taken. In the meantime, it is appropriate that the appeal as against Polaris be disposed of, having regard to the unfortunate delay since the hearing, which has been occasioned, to a not insubstantial extent by the indisposition of a member of the Court.

Reasons of the Primary Judge

1. [140]

   In her reasons for directing judgment for the defendants, the primary judge found that the imputations alleged in relation to the first [2] and second [3] articles and the editorial [4] and the first imputation alleged in relation to the third article [5] were carried and were defamatory. Her Honour found that the second and third imputations alleged in relation to the third article were not carried. [6]

2. [141]

   The primary judge also found that the imputations alleged in relation to the first and second articles and the editorial were expressions of opinion that were rationally based on proper material for comment and therefore that the first and second articles and the editorial were defensible as opinion. [7] Her Honour found that the first imputation in relation to the third article was not an expression of opinion and accordingly the defence of honest opinion must fail in respect of the third article. [8]

3. [142]

   In addressing the contextual truth defence, the primary judge first discerned which of the contextual imputations were in fact carried by the publications. [9] The remaining elements of the contextual truth defence would be considered only by reference to the contextual imputations found to be conveyed. The primary judge secondly determined whether the contextual imputations found to be conveyed were substantially true. Her Honour was not persuaded that the “reporting child abuse” [10] and “reprehensible attitude” [11] contextual imputations were substantially true. Her Honour found that the “friends with a paedophile” contextual imputations were substantially true [12] and that certain of the “leniency for sex offenders” contextual imputations were substantially true. [13]

4. [143]

   The primary judge then considered whether the defamatory imputations did not further harm the reputation of Rabbi Feldman because of the substantial truth of the contextual imputations. Her Honour found that, had it been necessary to decide the issue, the defence of contextual truth was established in relation to the first and second articles. [14] With respect to the third article, the primary judge was not persuaded that the plaintiff’s second and third imputations were conveyed, but shorn of those imputations, the contextual truth defence would succeed. [15]

5. [144]

   Her Honour also found that the defence of qualified privilege under s 30 of the Defamation Act 2005 (NSW) (the Defamation Act) was established in relation to the third article and the editorial. [16] Finally, her Honour held that the defence of fair report under s 29 of the Defamation Act failed in relation to all three articles and the editorial. [17]

Grounds of Appeal

1. [145]

   The amended notice of appeal alleges that the primary judge made errors as follows:

   1. (1)

      her Honour erred in finding that the respondents had the defence of honest opinion in relation to the first and second articles and the editorial;

   2. (2)

      her Honour erred in determining that there was proper material for the respondents to base their opinion in relation to the first and second articles and the editorial;

   3. (3)

      her Honour failed to afford Rabbi Feldman procedural fairness in determining the facts;

   4. (4)

      her Honour erred by making findings of fact incapable of being supported by the evidence or not reasonably available on the evidence, specifically, in finding that Rabbi Feldman was not, or gave evidence at the Royal Commission that he was not, aware it was against the law for an adult to touch a child sexually on the genitals;

   5. (5)

      her Honour did not have regard to the principles in Browne v Dunn; [18]

   6. (6)

      her Honour did not take relevant evidence into consideration;

   7. (7)

      her Honour erred in relation to the defence of statutory qualified privilege in determining the reasonableness of the conduct of the respondents with regard to:

   8. (8)

      her Honour erred in finding that the conduct of the respondents was reasonable in determining the issue of statutory qualified privilege, erred in finding that the respondents contacted Rabbi Feldman in relation to the third article and the editorial and erred in finding that Rabbi Feldman’s side of the story was published;

   9. (9)

      her Honour erred in finding that, because of the contextual imputations alleged by the respondents, the defamatory imputations did no further damage to Rabbi Feldman;

   10. (10)

       her Honour failed, in determining the defence of contextual truth, to have regard to relevant evidence given by Rabbi Feldman;

   11. (11)

       her Honour erred in that it was not reasonably open to find that the contextual imputations were true;

   12. (12)

       her Honour erred in not awarding damages in favour of the appellant above the sum of $100,000. [19]

2. [146]

   Section 31 of the Defamation Act relevantly provides that it is a defence to the publication of defamatory matter if the defendant proves that:

3. [147]

   Section 28 provides that it is a defence to the publication of defamatory material if the defendant proves that the matter was contained in a public document. Section 29 provides that it 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.

4. [148]

   The primary judge found that the first article was presented argumentatively and that the whole piece was presented as an argument. That is a proper basis upon which to conclude that the relevant statements were expressed as opinion as opposed to fact. The primary judge found that the second article opened in the language of an opinion piece and was written in a “personal tone”, including being expressed in the first person. It therefore would have been understood as an expression of opinion. Her Honour also found that the tone of the editorial was of moral discourse and reflection and, so, conveyed an opinion. There was no error on the part of the primary judge in upholding the defence under s 31.

5. [149]

   Most of the facts relied upon by the respondents as proper material were things said by Rabbi Feldman in the course of his evidence at the Royal Commission. He does not dispute that his evidence was given on an occasion of absolute privilege. That is determinative of the issue of proper material for the purpose of the Defamation Act, s 31 to the extent that those facts formed the basis of the opinion. Further, Rabbi Feldman does not point to any aspect of the reasons of her Honour in relation to the question of facts found to be substantially true that amounts to error for the purposes of s 31(5)(a). Disputing whether Rabbi Feldman’s evidence at the Royal Commission expressly stated that he did not “realise” that it was illegal to touch a child’s genitals leads nowhere so long as that was the effect of his evidence, which her Honour found it was. It is irrelevant if Rabbi Feldman’s evidence before the Royal Commission was false, as that would not detract from the proposition that his evidence was to that effect. All that was needed to be proven as substantially true was that Rabbi Feldman had given evidence to that effect, whether or not it was true. There was no error on the part of the primary judge in concluding that there was proper material for the respondents to base their opinion in relation to the first and second articles and the editorial. Ground 2 has not been made out.

6. [150]

   Rabbi Feldman asserts that the particulars relied upon by the respondents in alleging substantial truth were not capable of proving the substantial truth of the imputations nor to prove that the opinions expressed by the matters complained of were based on facts that were substantially true. The assertion was not argued below and is not explained.

7. [151]

   Another of Rabbi Feldman’s complaints appears to be that the primary judge erred in regarding his answer in re-examination at the Royal Commission on 9 February 2015 “with some scepticism”. Rabbi Feldman contends that such a conclusion was not open to her Honour because it was not put to him during the hearing that the evidence was “false” and thus he was denied procedural fairness. However, her Honour did not find that the evidence was “false”. Her Honour noted that Rabbi Feldman’s answers in re-examination at the Royal Commission were out of step with his earlier evidence on 6 February 2015. Her Honour found he had no hesitation in repeating the assertion that he did not know the secular law and, in particular, that he did not know as a fact that it was illegal to touch a child on the genitals. Her Honour remarked that, if any sense was to be made of Rabbi Feldman’s evidence in re-examination, it was that he was trying to distinguish between “fondling” and “touching”.

8. [152]

   The question that was before the primary judge was whether or not it was substantially true that Rabbi Feldman gave evidence that, in 2002, he did not realise it was illegal to touch a child’s genitals, in the sense that he was not aware whether the secular law would regard that as a crime. Whatever answers might have been given in re-examination, Rabbi Feldman had in fact given that evidence on 6 February 2015. Her Honour was satisfied that it was substantially true that Rabbi Feldman gave evidence that in 2002 he did not realise it was illegal to touch a child’s genitals. Her Honour was satisfied that the burden of the evidence taken as a whole was to claim ignorance as to what was unlawful according to secular law, as opposed to Jewish law.

9. [153]

   The primary judge considered the separate question as to whether it was true that Rabbi Feldman did not know, in 2002, that it was a crime for a teacher to touch the genitals of a child. Her Honour found that it was true. Rabbi Feldman complains that, in reaching that finding, her Honour ought not to have found that his evidence during the hearing reflected “an ex post facto revision” of his previous position during the Royal Commission, in which he sought to portray his earlier equivocation on the basis of alternative facts rather than ignorance of the law. That was squarely raised.

10. [154]

    Thus, Rabbi Feldman first started to suggest that he gave the evidence that he did before the Royal Commission when he said that there are many ways you can touch a child’s genitals. Her Honour then asked whether Rabbi Feldman had taken up the idea that the reason he answered in that way was because he knew, for a fact, that there were legal ways to touch a child and he was drawing a distinction. He responded “yes”. Her Honour then asked Rabbi Feldman whether he had just taken that up that idea recently and he responded “No: I knew all along”. Her Honour expressed the view that those matters were “concerning” and made it clear to Rabbi Feldman’s counsel that she considered his evidence in the proceedings to be potentially inconsistent with the evidence he gave to the Royal Commission. Thus, her Honour directly invited Rabbi Feldman to explain the inconsistency between his evidence in 2017, in the trial before her Honour, and his earlier evidence in 2015, to the Royal Commission. He gave an explanation but her Honour did not accept it. There was no lack of procedural fairness.

11. [155]

    It is quite apparent that Rabbi Feldman was given an adequate opportunity to explain his position. There was no denial of procedural fairness. None of Grounds 3, 4, 5 or 6 has been made out.

12. [156]

    Rabbi Feldman contends that the conduct of the respondents was not reasonable because they did not contact him for comment prior to publication, only published selected excerpts of his evidence before the Royal Commission and did not report on his further evidence in re-examination on 9 February 2015. Her Honour rejected the defence under s 30 in relation to the first article and the second article because Rabbi Feldman was not contacted prior to publication. However, he was contacted, albeit through his brother, prior to the publication of the third article and the editorial. Through his brother, Rabbi Feldman provided a statement to the respondents, which they published. Rabbi Feldman gave evidence that his brother was “the spokesperson” for the family and that any questions that the respondents had were to be directed to him. Rabbi Feldman was afforded the opportunity to comment on the allegations prior to publication of the third article and the editorial. His position was included in the Newspaper in full. Grounds 7 and 8 have not been made out.

13. [157]

    In their amended defence of 17 March 2017, the respondents relied on s 26 of the Defamation Act, which relevantly provides that it is a defence to the publication of defamatory matter if the defendant proves that the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true, and the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

14. [158]

    In relation to the first article, the respondents alleged that each of the following imputations was conveyed and is substantially true:

15. [159]

    The amended defence also alleged that the second article conveyed the following imputations and that each of them is substantially true:

16. [160]

    The amended defence alleged that the third article conveyed the following imputations and that each of them is substantially true:

17. [161]

    Finally, the amended defence alleged that the editorial conveyed the following imputations and that each of them is substantially true:

18. [162]

    In dealing with contextual imputations, the Court is not required to compare imputation with imputation. Rather, it is required to take into account the evidence led in support of the contextual imputations and consider whether, in the light of that evidence, the reputation of the plaintiff was not further damaged by the publication of the imputations about which complaint is made. The admissions made by Rabbi Feldman in the course of his evidence to the Royal Commission were analysed in detail by the primary judge and the allegation that he did not know it was against the law for an adult to sexually touch children on the genitals was found to be substantially true. Her Honour held that the harmful impact of the imputation of ignorance was swallowed by the airing of the true position: that his admission that he did not know “what’s a crime and what’s not a crime” was merely incidental to his principal thesis, which called for adherence to the repugnant proposition that a halachic ruling confers special immunity upon Jewish perpetrators of child sexual abuse from the rule of law. [20] That finding was clearly capable of overwhelming any defamatory effect of the imputations complained of by Rabbi Feldman.

19. [163]

    The primary judge declined to consider the truth of the contextual imputation that Rabbi Feldman had so conducted himself as to warrant dismissal because it was not necessary.

20. [164]

    There is no doubt that the imputations were proved to be substantially true, given the findings made by her Honour about Rabbi Feldman. The imputations and the evidence supporting them were adequate to satisfy the requirements of a defence under s 26. Accordingly, there is no substance in grounds 9, 10 or 11.

Other Issues

1. [165]

   By his proposed Ground 12, Rabbi Feldman also asserted that the primary judge erred in not awarding damages in excess of $100,000. In light of the conclusions reached above, it is unnecessary to consider that ground. It is also unnecessary to consider matters raised by the notice of contention filed on behalf of Polaris and Mr Levi.

Conclusion

1. [166]

   I would make the following orders:

   1. (1)

      Grant leave to the applicant to appeal from the orders of 23 July 2018.

   2. (2)

      Direct that the proposed amended notice of appeal that is annexure “A” to the affidavit of Ljupka Subeska dated 10 May 2019, except paragraph 13, stand as the notice of appeal.

   3. (3)

      Dismiss the appeal.

   4. (4)

      Order that the appellant pay the respondents’ costs of the application for leave to appeal and of the appeal, and the costs of the respondents’ notice of motion of 21 February 2019.

2. [167]

   SIMPSON AJA: On 23 July 2018 McCallum J (“the primary judge”) in the Common Law Division of the Supreme Court gave judgment in favour of Polaris Media Pty Ltd (“Polaris”) and Mr Joshua Levi (collectively, “the respondents”) in proceedings brought against them by Rabbi Feldman, in which he claimed damages in respect of four publications which he claimed conveyed imputations defamatory of him: Feldman v Polaris Media Pty Ltd as trustee of The Polaris Media Trust trading as The Australian Jewish News (No 2) [2018] NSWSC 1035.

3. [168]

   On 15 August 2018 Rabbi Feldman filed a notice of intention to appeal. On 22 October 2018 he filed a summons seeking leave to appeal against the orders. On 15 February 2019 he filed a notice of appeal.

4. [169]

   On 21 February 2019, pursuant to Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 51.41(1), the respondents filed a notice of motion seeking an order that the notice of appeal be dismissed as incompetent. That notice of motion was supported by an affidavit of Nicholas Pullen, the solicitor representing the respondents.

5. [170]

   There are two independent bases for the respondents’ application. The first is that the notice of appeal was filed, without explanation and without the leave of the Court, out of time.

6. [171]

   I would uphold the application on that basis alone. By UCPR r 51.9, a party who has served a notice of intention to appeal must file and serve a notice of appeal on each necessary party within three months of the “material date”. The “material date” is, by UCPR r 51.2(a), in this case, the date on which judgment was given – 23 July 2018. Accordingly, the last date for filing the notice of appeal was 23 October 2018. The notice of appeal was not filed until almost four months later. No application has been made for an extension of time, and no explanation has been given for the failure to file within the time prescribed by the UCPR.

7. [172]

   That is, in itself, a sufficient basis to dismiss the notice of appeal as incompetent.

8. [173]

   The second basis on which the respondents relied is equally valid, but requires a little more explanation. As indicated above, Rabbi Feldman’s claim was for damages for defamation. After a five day hearing the primary judge found that the defamatory imputations he pleaded had been conveyed in each of the four publications on which Rabbi Feldman sued, but also held that each was successfully defended by the respondents. Her Honour did not, for reasons she gave, proceed to assess damages on the notional basis that Rabbi Feldman’s claim had succeeded.

9. [174]

   By s 101(2)(r) of the Supreme Court Act 1970 (NSW) an appeal does not lie to this Court, without leave, where the value of the matter in issue does not exceed $100,000. By UCPR r 51.22, where such a restriction applies, the party proposing to appeal must file and serve an affidavit that identifies the nature of the restriction, and sets out the material facts on which the proposed appeal relies to show that the restriction does not apply. In other words, it was necessary for Rabbi Feldman to file and serve an affidavit identifying the reasons that he contended that, had judgment been given in his favour, it would probably have exceeded $100,000.

10. [175]

    On 15 February 2019, with his notice of appeal, Rabbi Feldman filed an affidavit sworn on 14 February 2019 in which he deposed that:

11. [176]

    He went on to say that he based this view on certain “uncontested” facts. These uncontested facts were as follows:

12. [177]

    He further asserted that the imputations were highly defamatory, particularly in the context of significant publicity in relation to child sex offending (a subject with which his claim for defamation was concerned), that the defamatory imputations had “greatly affected” his reputation within the Jewish community, and were “extremely damaging” to him personally.

13. [178]

    Rabbi Feldman offered no basis on which he was qualified to express what is, essentially, a professional or expert opinion as to the quantification of damages he might have expected to receive had his claim been successful.

14. [179]

    In his affidavit Mr Pullen deposed that he, as a lawyer who has practised in defamation and media law for over 30 years, is familiar with the law of defamation and that he maintains familiarity with awards of damages in defamation cases. For reasons he gave, he considered that the proposed appeal does not involve a matter amounting to or greater than $100,000. A principal reason for this included what he described as the relatively limited circulation of the publication. He also referred to findings of the primary judge that four of the imputations on which Rabbi Feldman sued were substantially true. In addition, he attached copies of a number of deeds of release relevant to other proceedings commenced by Rabbi Feldman in relation to similar imputations to those the subject of these proceedings.

15. [180]

    The relevance of the deeds is not apparent to me; moreover, reliance on the findings that the imputations conveyed were substantially true is, in my opinion, questionable. However, even if Rabbi Feldman were to achieve partial success in his proposed appeal, it could not be assumed that he would be awarded damages in respect of all of the imputations he pleaded. Assessment of the value of his claim is, in these circumstances, complex. That was one of the reasons the primary judge declined to embark upon that exercise.

16. [181]

    The exercise is not assisted by the sparseness of the evidence provided by Rabbi Feldman.

17. [182]

    In the circumstances, I am not satisfied that Rabbi Feldman has established that the matter in issue is potentially to the value of $100,000 or more. The notice of appeal is incompetent for that reason also. I would therefore order that the notice of appeal be dismissed.

18. [183]

    The proceedings in this Court ought to be treated as an application for leave to appeal, and, if leave is granted, an appeal to be heard concurrently.

The proceedings in the Supreme Court

1. [184]

   As indicated above, Rabbi Feldman (to whom I will now refer as “the applicant”) commenced proceedings against the respondents claiming damages for publications which he alleged were defamatory of him. The operative pleading was a first amended statement of claim filed on 3 March 2016.

2. [185]

   The first respondent (Polaris) is the publisher of a newspaper called Australian Jewish News (“AJN”). The second respondent (Joshua Levi) was at relevant times a journalist and the author of articles published in the AJN.

3. [186]

   In his first amended statement of claim the applicant alleged that four separate publications by Polaris and Mr Levi conveyed meanings that were defamatory of him. The first matter complained of was an article published on 6 February 2015 under the heading “Rabbi Yossi Feldman, the RCNSW and the AJN”. The second matter complained of was an article published on 7 February 2015 under the heading “Royal Commission: Our darkest week”. The third matter complained of was an article published on 13 February 2015 under the heading “Rabbi Yossi Feldman urged leniency for abusers”. The fourth matter complained of was an editorial also published on 13 February 2015 headed “Our community’s shame”.

4. [187]

   All four matters reported on evidence given by the applicant in February 2015 to the Royal Commission into Institutional Responses to Child Sexual Abuse. In the course of giving evidence, the applicant was questioned as to his views and understanding of allegations of child sexual abuse in the context of his handling of a particular complaint. It was that evidence that was predominantly the subject of each publication.

5. [188]

   Material had previously been published in the AJN, in 2011, calling for the removal of the applicant as President of the Rabbinical Council of New South Wales (“RCNSW”) after it was revealed that he had written to other members of the RCNSW urging the view that, before being reported to secular authorities, allegations of child sexual abuse (in the Jewish community) should first be reported to a rabbi so that the rabbi could determine what course of action to take.

6. [189]

   The first article, after noting AJN’s 2011 call for the removal of the applicant, contained (inter alia) the following:

7. [190]

   The article then referred to a statement issued by RCNSW, and concluded:

8. [191]

   The second article, which appeared under Mr Levi’s name, began with:

9. [192]

   It then set out a series of factual statements, including, but not limited to:

10. [193]

    The third article (also published under Mr Levi’s name) contained the following:

11. [194]

    The editorial was published on the front page of AJN, and contained the following:

12. [195]

    In large and bold print at the bottom of the page, it was said:

13. [196]

    The applicant pleaded that each publication conveyed a defamatory imputation or imputations as follows (it will be convenient to refer to the imputations by their position and numbering in the first amended statement of claim):

14. [197]

    Polaris admitted that it published the three articles and the editorial and Mr Levi admitted that he was the author of the second and third articles. Each denied that any of the material conveyed the defamatory imputations pleaded by the applicant. Each pleaded positive defences under the Defamation Act 2005 (NSW) of honest opinion (s 31), justification (s 25), contextual truth (s 26), fair report of proceedings (s 29), statutory qualified privilege (s 30) and qualified privilege at common law.

15. [198]

    Pursuant to s 26, the respondents pleaded multiple contextual imputations with respect to each publication.

16. [199]

    The proceedings were heard by the primary judge without a jury. The applicant was represented by counsel and solicitors for the first four days of the trial but then withdrew instructions to counsel and solicitors and thereafter represented himself. On 23 July 2018, after a trial over five days, the primary judge directed the entry of judgment for the respondents: Feldman v Polaris Media Pty Ltd as trustee of The Polaris Media Trust trading as The Australian Jewish News (No 2) [2018] NSWSC 1035. On 3 August 2018, for reasons published on 6 August 2018, the primary judge refused an application made by the applicant to have judgment set aside and for her Honour to recuse herself: Feldman v Polaris Media Pty Ltd as trustee of The Polaris Media Trust trading as The Australian Jewish News (No 3) [2018] NSWSC 1201. Her Honour ordered the applicant to pay the costs of the respondents of defending the proceedings and of the further application.

17. [200]

    The primary judge found that the imputations alleged in relation to the first and second articles and the editorial and the first imputation alleged in relation to the third article were conveyed and were defamatory. Her Honour found that the second and third imputations alleged in relation to the third article were not conveyed.

18. [201]

    The primary judge also found that the imputations alleged in relation to the first and second articles and the editorial were expressions of opinion that were rationally based on proper material for comment and therefore that the first and second articles and the editorial were defensible under s 31 as honest opinion. Her Honour found that the first imputation in relation to the third article was not an expression of opinion and accordingly the defence of honest opinion failed in respect of that article.

19. [202]

    Her Honour also found that the defence of qualified privilege under s 30 of the Defamation Act was established in relation to the third article and the editorial. Her Honour found that each imputation that had been conveyed was substantially true. Finally, her Honour held that the defence of fair report under s 29 of the Defamation Act failed in relation to all three articles and the editorial.

20. [203]

    Thus, each imputation found to have been conveyed and to have been defamatory was successfully defended on at least two bases without resort to the defence of contextual truth. Imputations 3(a) and 6(a) were found to have been defended on the basis of honest opinion and justification; imputation 9(a) on the basis of justification and statutory qualified privilege, and imputation 12(a) on the basis of honest opinion, justification and statutory qualified privilege. It was therefore unnecessary to determine the contextual truth defence. However, against the possibility of error in her earlier rulings, the primary judge did address that defence. She found that several of the contextual imputations pleaded by the respondents were substantially true, and that, by reason of the substantive truth of those imputations, the imputations conveyed by the first and second articles did not further harm the applicant’s reputation. She reached a different view in relation to the third article and the editorial.

The application for leave to appeal

1. [204]

   At the hearing in this Court, the applicant sought leave to rely on an amended notice of appeal (which should be treated as a draft). Limited leave was granted. The draft amended notice of appeal alleges that the primary judge made errors as follows:

   1. (1)

      in finding that the respondents had the defence of honest opinion in relation to the first and second articles and the editorial;

   2. (2)

      in determining that there was proper material for the respondents to base their opinion in relation to the first and second articles and the editorial;

   3. (3)

      in failing to afford the applicant procedural fairness in determining the facts;

   4. (4)

      by making findings of fact incapable of being supported by the evidence, or not reasonably available on the evidence, specifically, in finding that the applicant was not, or gave evidence at the Royal Commission that he was not, aware that it was against the law for an adult to touch a child sexually on the genitals;

   5. (5)

      by failing to have regard to the principles in Browne v Dunn (1893) 6 R 67;

   6. (6)

      by failing to take relevant evidence into consideration;

   7. (7)

      in relation to the defence of statutory qualified privilege, in determining the reasonableness of the conduct of the respondents with regard to:

   8. (8)

      in finding that the conduct of the respondents was reasonable in determining the issue of statutory qualified privilege, erred in finding that the respondents contacted the applicant in relation to the third and fourth articles and erred in finding that the applicant’s side of the story was published;

   9. (9)

      in finding that, because of the contextual imputations alleged by the respondents, the defamatory imputations did no further damage to the applicant;

   10. (10)

       in determining the defence of contextual truth by failing to have regard to relevant evidence given by the applicant;

   11. (11)

       in determining that it was not reasonably open to find that the contextual imputations were true;

   12. (12)

       in failing to award damages above the sum of $100,000.

Proposed appeal grounds 1 and 2: honest opinion

1. [205]

   Section 31 of the Defamation Act relevantly provides:

2. [206]

   Section 28 provides that it is a defence to the publication of defamatory material if the defendant proves that the matter was contained in a public document. Section 29 provides that it 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. [207]

   In the circumstances of this case, the questions that arise in relation to the defences under s 31 are, in relation to each publication:

4. [208]

   Such a defence is defeated only if the plaintiff proves that the opinion was not honestly held by the defendant, or the employee or agent of the defendant, at the time the defamatory matter was published (s 31(4)).

5. [209]

   The primary judge gave a number of reasons for finding that the first article was an expression of opinion rather than a statement of fact. First, she accepted a submission made by the respondents that, “in its textual context”, the point of reporting the applicant’s ignorance of the requirements of the law was to convey disagreement with his reported belief that rabbis have common sense and can investigate allegations of child sexual abuse. That, her Honour held, was an indicator of opinion rather than fact.

6. [210]

   Second, her Honour considered that the article was presented as an argument in defence of its 2011 publication calling for the applicant to be removed from his position on the RCNSW. That too, her Honour concluded, was a strong indicator of opinion rather than fact, particularly by reference to the concluding two sentences of the article.

7. [211]

   Third, her Honour relied on the use of the word “reprehensible” in the imputation, as:

8. [212]

   The primary judge found, upholding the respondents’ submissions, that the matter was based on material that was substantially true. Six factual propositions underlie that finding, they are:

9. [213]

   It was not in issue that propositions (a), (c), (d) and (f) were true. Her Honour gave extensive consideration to the truth of propositions (b) and (e) and concluded that each was substantially true. Accordingly, the respondents successfully defended the first article under s 31. No issue under subs 31(4) was raised.

10. [214]

    The applicant contended that the primary judge was in error in finding that the first article was an expression of opinion and not a statement of fact.

11. [215]

    The written submissions he provided are difficult to understand. It is best to extract some passages therefrom. They include:

12. [216]

    For the reasons given by the primary judge, the first article should be seen as an expression of opinion. One key to that conclusion, as her Honour found, lies in the word “reprehensible”. It is telling that, in formulating the imputations alleged to have been conveyed by the first article, the applicant (or his advisors) focussed on what they discerned as the undertone of the matter. Once it is accepted that the article conveyed the accusation that the applicant displayed “reprehensible ignorance”, it is inevitable that the matter will be seen as an expression of opinion. “Reprehensible” is the language of opinion and value judgment.

13. [217]

    Nothing in the argument advanced on behalf of the applicant persuades me that the ruling of the primary judge that the first matter was an expression of opinion was wrong.

14. [218]

    The applicant also contended that the primary judge was in error in determining that there was proper material on which the opinion was based.

15. [219]

    In this respect the applicant seized upon the language of proposition (e), that he “gave evidence that he did not realise that it was illegal to touch a child’s genitals”. He asserted that that was substantially false because, not having used the word “realise”, he did not give that evidence. The argument went on:

16. [220]

    In concluding that proposition (e) was substantially true the primary judge quoted lengthy extracts from the transcript of the applicant’s evidence in the Royal Commission. It is necessary to mention only two of those extracts. They are:

17. [221]

    In my opinion, the proposition that the applicant gave evidence to the Royal Commission that he did not “realise” that it was illegal to touch a child’s genitals is amply borne out by these answers. It is not to the point that other answers given by the applicant were more equivocal; nor is it to the point that the word “realise” was not used.

18. [222]

    I would reject the challenge to the finding that the expression of opinion contained in the first article was based on proper material. I would reject grounds 1 and 2 of the proposed appeal.

Proposed appeal grounds 3, 4, 5 and 6

1. [223]

   In his written submissions the applicant dealt with these grounds together. I will do the same.

2. [224]

   Ground 3 is an assertion that the primary judge failed to afford procedural fairness in her determination of the facts. In the written submissions filed in support of this ground, I am able to detect only two references that could remotely be taken to be assertions of denial of procedural fairness.

3. [225]

   Those references are to questioning of the applicant in the Royal Commission, generally on the subject of the illegality of adults touching children on the genitals, and, more specifically, the applicant’s awareness of that illegality. Specific reference was made in the questioning to a person known as “AVL”, who, it seems, had been involved in child sexual offending.

4. [226]

   In the primary judgment, lengthy passages of the applicant’s evidence in the Royal Commission and cross-examination at trial are set out. It is fair to say that his answers are, at times, equivocal and appear to be evasive.

5. [227]

   The applicant was initially questioned on Friday, 6 February 2015, and was re-examined by his own counsel on Monday, 9 February 2015. In his evidence at first instance, the applicant was asked to explain some of the expressions he had used in cross-examination in relation to AVL. The following passage of transcript from the trial is extracted in the judgment:

6. [228]

   With that background, I come to the submission made by the applicant; it was submitted:

7. [229]

   His second complaint was that the primary judge:

8. [230]

   He asserted that this had never been put to the applicant in cross-examination and that he had no notice that this was the respondents’ case.

9. [231]

   Both submissions, in my opinion, should be rejected. It is plain that her Honour paid careful attention to the evidence given by the applicant, both in the Royal Commission, and in the proceedings before her. It was open to her to draw the conclusions that she did. It was, indeed, her task to assess the evidence given by the applicant in both proceedings. There is no basis to conclude that she failed to understand that the applicant’s obligation in the Royal Commission was merely to answer the questions put to him.

10. [232]

    Further, it was open to her, and, indeed, her task, to assess the evidence given by the applicant before her. She was not bound to accept his evidence and she was not bound to notify him of any scepticism she experienced. There was no denial of procedural fairness in the manner in which the primary judge went about her task.

11. [233]

    Ground 4 asserted that the primary judge made errors of law by making findings of fact incapable of being supported by the evidence, or not reasonably available on the evidence. The ground specifies a finding of fact that the applicant gave evidence at the Royal Commission that he was not aware that it was against the law for an adult sexually to touch a child on the genitals.

12. [234]

    The written submissions do not identify any other finding of fact said to be unsupportable on the evidence. They do assert that her Honour had no basis to conclude, as she did, (at [128]) that the applicant’s evidence in the Supreme Court hearing was an ex post facto revision.

13. [235]

    The argument appeared to be directed to an explanation of why the applicant was equivocal in his answers in the Royal Commission. For example, it was put:

14. [236]

    It was also suggested that the questions directed to the applicant in the Royal Commission were vague, meaning that it was reasonable for the applicant to give the less than forthcoming answers that he did.

15. [237]

    The primary judge gave careful attention to the transcript of evidence in the Royal Commission. The issue to which her Honour was directing attention in this part of the judgment was whether it was true that, in the Royal Commission, the applicant had given evidence that he did not realise that it was illegal to touch a child on the genitals. After careful examination of the relevant transcript her Honour concluded that it was substantially true. The extracts of evidence from the Royal Commission amply support that conclusion. There is no basis for concluding that her Honour made findings of fact that were not capable of being supported by the evidence.

16. [238]

    Ground 5 of the proposed appeal was that her Honour failed to have regard to the principles in Browne v Dunn. In support of this ground the applicant asserted that in cross-examination in the proceedings before the primary judge, the respondents did no more than put to the applicant that the imputations were true, and that Browne v Dunn required more.

17. [239]

    Again, this overlooks the issue to which the cross-examination was directed. That issue was the evidence given by the applicant in the Royal Commission. It was not the truth or otherwise of that evidence. It was sufficient for the respondents to put to the applicant that he had given evidence to the effect of that recorded in the transcript of the Royal Commission. In any event, given that the transcript was available, that question was incontrovertible.

18. [240]

    Ground 6 asserts that the primary judge failed to take into account relevant evidence. In the written submissions it is submitted:

19. [241]

    It was also asserted that her Honour failed to take into consideration the applicant’s uncontested evidence that, at the Royal Commission, he intentionally answered questions “in a literal manner”.

20. [242]

    The applicant did not identify the “express evidence” to which he was referring concerning what the applicant had known “his whole adult life”.

21. [243]

    There is nothing contained in the submissions advanced on behalf of the applicant that persuades me that the primary judge overlooked or failed to take account of any relevant evidence. I would reject each of those proposed grounds.

Proposed appeal grounds 7 and 8

1. [244]

   These grounds concern the defence of qualified privilege provided by s 30 of the Defamation Act. That section relevantly provides:

2. [245]

   The principal issue raised by the applicant under these grounds concerns the assessment of the reasonableness of the respondents’ conduct in publishing the defamatory matter having regard to the matters specified in subs (3)(h). It was asserted that failure by the respondents to give the applicant an opportunity to respond to the allegations would “mean reasonableness is untenable”.

3. [246]

   The implied assertion that the applicant was not given an opportunity to respond to any of the allegations calls for further examination. The primary judge dealt with this at [327] and following. She noted that the respondents accepted that the applicant’s comments were not sought in relation to the first and second articles, which were published on the day of and the day after his evidence to the Royal Commission. An explanation for that was given by the author (a Mr Lawrence). Mr Lawrence said that, as far as he was concerned, the first article was not specifically to do with the applicant, but was an attack on RCNSW and, moreover, was effectively an opinion piece. Further, in relation to the third article and the editorial, Mr Lawrence said that AJN had been asked by the Feldman family to stop contacting the applicant and his mother, and, instead, if comment were needed, to contact the applicant’s brother, Eli. Mr Lawrence said that was done.

4. [247]

   Further, although it is not apparent from the publications in respect of which the applicant sued, the third article and the editorial appeared in an edition of AJN that included the statement made by the applicant and published his request through his brother Eli.

5. [248]

   Her Honour considered that that circumstance was a strong factor pointing in favour of accepting the reasonableness of the respondents’ conduct in publishing the third article and the editorial.

6. [249]

   Her Honour found “a measure of artificiality” in determining the reasonableness of the conduct of the respondents in publishing the first and second articles and their failure to contact the applicant for his response. She found that the requirement of providing an opportunity to respond did not sit comfortably with the finding that the matter published was an expression of opinion based on proper material and substantially true.

7. [250]

   In my opinion there is no substance in these grounds of appeal and they ought to be rejected.

Proposed appeal grounds 9, 10 and 11

1. [251]

   These grounds concern the defence of contextual truth.

2. [252]

   By ground 9 the applicant complains of the conclusions reached by the primary judge in relation to the defence of contextual truth. The ultimate conclusion was that by reason of the contextual imputations her Honour found to have been conveyed and to be true, the defamatory imputations relied on by the applicant did not further damage his reputation.

3. [253]

   Her Honour considered the contextual truth defence only against the possibility that she was held to be in error in relation to another or others of the issues presented to her for determination.

4. [254]

   Since I am not satisfied that any other ground of appeal has been made out, it is unnecessary to consider the contextual truth defence. The respondents have successfully defended each of the publications.

5. [255]

   The consequence is that ground 12 (assessment of damages) does not arise.

Proposed appeal ground 13: apprehended bias

1. [256]

   The amended notice of appeal signed on 10 May 2019 raised, for the first time, an additional ground of appeal, that the primary judge conducted the hearing in a manner giving rise to an apprehension of bias. The ground had not been raised previously, and was not raised during the trial. The respondents opposed the ground being raised at that late stage.

2. [257]

   The proposed ground complained only of a specific exchange occurring on 12 July 2017 in which the primary judge addressed two questions to the applicant. The primary judge put to the applicant that he had recently “taken up this idea” that there were legal ways to touch a child. The applicant replied that he had known that “all along”. Although counsel for the applicant objected to the primary judge’s questions of his client, on the basis they were “not fair questions”, he made no application. There was nothing untoward about the questions asked by her Honour, who made clear she was merely “flagging issues” that were of concern to her and inviting the applicant to correct issues that may otherwise turn out to be unfavourable to him. In any event, the applicant should, in the circumstances, be treated as having waived a complaint as to that matter. Leave to raise this proposed ground was refused.

3. [258]

   The applicant has failed to make out any arguable or reasonable basis for a grant of leave to appeal.

4. [259]

   As indicated in the other judgments, the Court has been advised that, since judgment was reserved, Mr Levi has died. It was suggested by his former lawyers that the appeal ought, so far as he is concerned, be dismissed, by reason of s 10(b) of the Defamation Act. Section 10(b) precludes the assertion, continuation or enforcement of a cause of action in relation to a person who has died since the publication in question.

5. [260]

   This appeal is neither the assertion, continuation or enforcement of a cause of action in defamation. It is not affected by s 10(b). Section 10(b) would have implications for Rabbi Feldman if he were to be successful in the appeal.

Conclusion

1. [261]

   The orders I propose are:

   1. (1)

      The notice of appeal filed on 15 February 2019 and subsequently amended is dismissed.

   2. (2)

      Leave to appeal against the orders of 23 July 2018 is refused.

   3. (3)

      The applicant is to pay the respondents’ costs of the proceedings.