Feldman v Nationwide News Pty Ltd & Ors

WHITE JA: On 31 January 2020 Campbell J gave judgment for the defendants in four defamation proceedings brought by the appellant, Rabbi Feldman (Feldman v Nationwide News Pty Ltd & Ors; Feldman v Nationwide News Pty Ltd & Ors; Feldman v Nationwide News Pty Ltd & Ors; Feldman v Special Broadcasting Corporation [2020] NSWSC 26). Three of those proceedings were brought against Nationwide News Pty Ltd and one against Special Broadcasting Corporation (“SBS”). The News 1 proceeding concerned four publications (exhibits A-D) made between 6 and 11 February 2015. The News 2 proceeding concerned two publications (exhibits E and F) of 19 and 20 September 2015. The News 3 proceeding concerned a publication on 30 January 2016 (exhibit G). The SBS proceeding concerned a publication (exhibit H) on 6 February 2015 (Judgment [8]).

The defendants (respondents to the appeal) had and have common legal representation. The defendants accepted that exhibits A-D the subject of the News 1 proceeding, and exhibit H the subject of the SBS proceeding, conveyed the pleaded imputations (a) and (n) respectively, namely that the appellant was reprehensively ignorant or displayed reprehensible ignorance of the fact that it was against the law for an adult to sexually touch the genitals of a child (Judgment [10], [14], [15] and [19]).

The primary judge upheld the defence of fair report of proceedings of public concern (Defamation Act 2005 (NSW), s 29) in respect of the publications that were the subject of the News 1 proceeding (Judgment [196], [199], [203] and [209]) and the publication that was the subject of the SBS proceeding (Judgment [198]).

The primary judge also upheld the defence of justification (Defamation Act, s 25) in respect of imputation (a) (Judgment [259]) and in respect of imputation (n) (Judgment [262] and [267]).

The appellant’s notice of appeal was filed on 6 May 2020. The grounds of appeal were:

On 24 June 2020 the Registrar made orders for the filing of the appeal books, submissions and chronology. The appeal was listed for hearing on 14 September 2020.

On 16 July 2020 the appellant sought leave to file an amended notice of appeal in the form of Annexure A to an affidavit of the appellant’s solicitor, Ms Brigitte Simeonides of 16 July 2020. That application came before me on 20 July 2020. The respondents rightly objected to some of the proposed amendments concerning the primary judge’s findings with respect to the News 3 proceedings. This was because the proposed amended grounds did not accurately reflect the findings that were made. An additional concern of the respondents was that the appellant’s written submissions that had been filed pursuant to the Registrar’s orders did not address, except in one sentence, a proposed amended ground of appeal. Counsel for the respondents then expressed concern that the hearing date not be lost, it being the only date suitable to all counsel this year. She expressed concern that the respondents not be ambushed by oral submissions at the hearing of which they did not have notice. The grounds of appeal even as amended, were brief but not specific. They asserted error, but did not identify why the primary judge allegedly erred. The respondents were prepared to live with this on the basis that the respondents’ written submissions would be expected to identify the alleged errors.

I gave the appellant leave to file the proposed amended notice of appeal, subject to that document being amended in specified respects, and I gave directions for the prompt service of written submissions on the new ground.

On 21 July 2020 the appellant filed an amended notice of appeal. The notice of appeal as filed was not in accordance with the leave given. It included the following grounds for which leave had not been given:

Objection is not taken to the amendment to ground 5 which narrows or clarifies that ground.

Objection is taken to the amendments to grounds 2 and 6. On 27 July 2020 the respondents’ solicitors objected to the form of the amended notice of appeal filed on 21 July. They observed that two new appeal grounds in respect of what was described as the “SBS proceeding” had been included and that the appellant had not sought to include those grounds in the proposed amended notice of appeal that was the subject of submissions on 20 July. No application had been made for leave to rely upon those additional grounds and no explanation for their inclusion had been proffered.

On 7 August 2020 the appellant’s solicitor stated:

I do not accept what is stated in the last paragraph quoted above. The fact that the primary judge referred to the SBS proceeding as proceeding 3 does not mean that the reference in the notice of appeal to proceeding 3 was to the SBS proceeding. It was a reference to the News 3 proceeding. This was common ground at the hearing on 20 July 2020 as also appears to be accepted in the last paragraph quoted. The statement that the trial judge referred to the SBS proceeding as proceeding 3 is an irrelevance.

Ms Simeonides was correct to the extent that she stated that the appellant’s written submissions addressed the defence of justification by reference not only to exhibits A-D, but to exhibit H.

In those written submissions dated 13 July 2020 the appellant’s counsel under the heading “His Honour erred by allowing the defence of justification in proceedings 1” stated “Proceedings 1, concern imputations (a) to (e) and (h) contained in exhibits A-D and H”. Exhibit H was relevant only to the SBS proceeding.

The appellant seeks to advance the same argument of justification with respect to the publication in the SBS proceeding as he advances with respect to the publications the subject of the News 1 proceeding. It was common ground that the publications gave rise to the same imputations (a) and (n). The primary judge dealt with the issue of justification in the same way with respect to both proceedings. The appellant raises no different argument with respect to the defence of justification in the SBS proceeding than in the News 1 proceeding.

I do not understand the respondents to advance any particular ground of prejudice in relation to the amendment proposed in ground 2 quoted above.

The same is not true in respect of the appellant’s submissions concerning the defence of fair report. In his written submissions of 13 July the appellant made submissions under the heading “His Honour erred by allowing the defence of fair protected report in article 1”. It can be inferred, and counsel accepted, that the reference to article 1 was intended to be a reference to proceeding 1. The written submissions contained the following:

No written submissions were provided concerning the primary judge’s upholding the defence of fair report with respect to the publication of exhibit H the subject of the SBS proceeding.

The respondents filed written submissions on 7 August 2020. They observed that the amended notice of appeal contained two significant amendments to the form in respect of which leave was sought and granted. The submissions for SBS stated that SBS had not addressed ground 6 concerning the offence of fair report so far as it purported to extend to the SBS proceedings, and noted that the appellant had not advanced any submissions in relation to the defence of fair report so far as it concerned exhibit H. The respondents did not address exhibit H.

As I understood the submissions of counsel for the appellant, it was to the effect that the omission of a ground of appeal challenging the primary judge’s upholding the defence of fair report concerning the SBS article exhibit H was unintentional. Counsel suggested that that omission had not crossed his mind until preparing the re-drafted proposed amended notice of appeal following the hearing on 20 July 2020 and he was of the view that it was appropriate to include additional grounds because they would be “entirely uncontroversial”. There was no proper basis for that assumption and the inclusion of the additional and wider grounds of appeal than those for which leave had been given, without seeking leave for those additional grounds, is not to be condoned.

Nonetheless, the question is whether that ground that is now in ground 6 can be raised. That depends upon the matters in Pt 6 of the Civil Procedure Act 2005 (NSW) concerning case management and the allowance of amendments. Unlike the raising in the SBS proceeding of a challenge to the judge’s upholding a defence of justification, the challenge raised by proposed ground 6 does raise new and additional matter that would require a separate response from the respondents. The appellant’s counsel accepts that a consideration of the defence of fair report involves a consideration of the particular article in respect of which the defence is raised and that submissions would need to be provided to the respondents that articulated why it is said that the primary judge erred in upholding that defence in relation to exhibit H. There is no evidence and no explanation as to why such articulation has not yet occurred.

The appeal is listed for hearing in less than three weeks’ time.

The respondents point to the fact that the primary judge made a provisional assessment of damages if his Honour erred in his rejection of the appellant’s claim against SBS in the sum of $10,000. That provisional assessment is not challenged by the notice of appeal.

It is inevitable that if the amendment to ground 6 is allowed, additional costs will be incurred by the respondents in dealing with that ground and there is no evidence before me to suggest that the appellant, if unsuccessful in the appeal, will be able to meet the costs orders that would follow. I accept the submission of counsel for the respondents, Ms Barnett, that to allow the amendment would be to require the incurring of costs that would be disproportionate to the importance and complexity of the subject matter, particularly having regard to the judge’s finding as to damages.

I also have regard to the unsatisfactory progress of the formulation of the grounds of appeal. The appellant has been afforded various indulgences. I do not accept that justice requires this further indulgence.

It was not until 21 August 2020 that the appellant filed a notice of motion seeking leave to file a further amended notice of appeal.

There will be leave to amend the amended notice of appeal to include the additional words in ground 2, but not to include the additional words in ground 6. As I have noted, there is no objection to the amendment to ground 5.

The proposed further amended notice of appeal includes an additional proposed amendment to ground 1, namely:

I was told that at the trial the respondents tendered the transcript of proceedings before the Royal Commission and that the appellant objected to the tender in reliance on s 6DD of the Royal Commissions Act 1902 (Cth). I was told that the primary judge overruled the objection and the transcript was received as an exhibit. I was also told that subsequently the respondents tendered a video recording of what I assume to be the parts of the hearing relevant to these proceedings. I was told that the appellant objected to the tender of the video recording on the ground of relevance and in reliance on s 135 of the Evidence Act 1995 (NSW). I assume the objection on the ground of relevance was that it was said that the video recording had no additional relevance to the transcript which had already been admitted.

I was informed today by counsel for the appellant that the amendment proposed to ground 1 of the notice of appeal to include reference to the video recording was dependent upon the appellant’s succeeding in his challenge to the tender of the transcript, that is to say, was dependent upon the appellant’s succeeding in his objection taken on the basis of s 6DD. On that basis, the amendment to ground 1 does not raise any new issue upon which the appellant would rely in relation to the video recording.

I understood from the oral submissions of counsel for the respondents that a question might arise at the hearing of the appeal as to whether, even if the transcript ought to have been rejected on the ground of s 6DD, the video recording might itself be admissible insofar as it displayed the appearance or mien of the appellant. However that might be, any such issue would involve the respondents’ seeking to deploy the video recording and would be a fallback position which assumes that the appellant would be otherwise successful in his argument on ground 1 of the appeal. In those circumstances, I do not think that there would be any relevant prejudice to the respondents in permitting the amendment to ground 1.

For these reasons, and subject to hearing from counsel as to the precise form of the order I propose, I propose the following orders:

I will hear the parties on costs.

I make the order in the form I proposed.

The appellant submits that the costs of the notice of motion should be costs in the cause. The respondents seek an order that the appellant pay their costs of the notice of motion.

The appellant is seeking a further indulgence. The costs of the notice of motion and the correspondence which preceded it would have been unnecessary had proper attention been given at the proper time to the form of the notice of appeal.

Notwithstanding that the appellant has had a degree of success in the application, I am satisfied that justice requires that he pay the respondents’ costs of and incidental to the notice of motion. I use that formulation to ensure that the costs of the correspondence which preceded the notice of motion are covered by the orders.

I further order: