Feldman v Polaris Media Pty Ltd as trustee for the Polaris Media Trust trading as the Australian Jewish News & Anor [2020] HCATrans 162 (13 October 2020)

Last Updated: 16 October 2020

[2020] HCATrans 162

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S65 of 2020

B e t w e e n -

YOSEF YITZCHAK FELDMAN

Applicant

and

POLARIS MEDIA PTY LTD AS TRUSTEE OF THE POLARIS MEDIA TRUST TRADING AS THE AUSTRALIAN JEWISH NEWS

First Respondent

JOSHUA LEVI

Second Respondent

Application for special leave to appeal

NETTLE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO CONNECTION TO BRISBANE

ON TUESDAY, 13 OCTOBER 2020, AT 12.36 PM

Copyright in the High Court of Australia
MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR J.B. COHEN, for the applicant. (instructed by Eddy Neumann Lawyers)

MS S. CHRYSANTHOU, SC: I appear with my learned friend, MR N.J. OLSON, for the first respondent. (instructed by HWL Ebsworth Lawyers)

NETTLE J: Yes, Mr Walker.

MR WALKER: Your Honours, the proceedings from which in the Court of Appeal we seek special leave to appeal, it has to be said on the pleadings and on the determinations at first instance and in the Court of Appeal present some logical complexity. However, they started with the relatively straightforward, if striking, giving of evidence before the royal commission on the 6 February and 9 February 2015 by my client.

Your Honours will have seen the references to that on page 31 of the application book. I do not need to go in great detail to it. Your Honours will appreciate that during the course of questioning, there was a set of questions directed to the touching of a child, the touching of a child’s genitals and eventually the question of the touching of a child’s genitals for sexual gratification. You see, for example, on page 34 what her Honour at trial described as “the critical exchange” ‑ and so it was for some purposes ‑ where the question was framed simply as follows:

Q In 2002 did you understand it was against the law for an adult to touch the genitals of another child?

A I didn’t know that as a fact –

As your Honours appreciate, the elaboration of that presumably incomplete proposition took some time and extended into what is called re‑examination after what is called cross‑examination at the royal commission. One sees that, in particular, at page 36 in paragraph 107, for example. But we draw to attention, for example, on page 35 in paragraph 105 the quotation of evidence on 6 February following the short adjournment concern after “the critical exchange” your Honour refers to where you see at about lines 10 and 20 respectively references to touching on the genitals as opposed to mere touching or massaging as had been introduced as a term.

Your Honours, that gave rise, as you know, to some articles, one of which was published that very day, the sixth, another the seventh, and culminating in a third as an editorial on 13 February. That has given rise to the swirl of issues raised by pleadings and the way in which the proceedings were conducted with which your Honours have now been acquainted in the written submissions. Can we make this clear? It is not possible for us sensibly to seek special leave from the High Court for an appeal in the High Court which would dispose – even were we to be successful – of the whole proceedings. That is because, contrary to the way in which it is presented in the application itself, there is not the material which would render it appropriate in the absence of the Court of Appeal having considered the question to embark definitively on matters of contextual imputation and that means all the issues involved in that.

It is for those reasons that were we to be granted special leave and to succeed in our appeal, we accept that there is unfinished business in the Court of Appeal concerning contextual imputations. It may well be said that there could be unfinished business on other issues as well, including a matter that might otherwise be the subject of a contention in the High Court, such as fair report. But those matters we have to put to one side in trying to persuade your Honours to special leave at all for anything.

The matters in order that we seek to persuade your Honours justifies such a grant start with an examination of the nature of the matter complained of – I will pick by way of example the so‑called “first article” in relation to the reported evidence before the royal commission. The first article’s critical passages, for present purposes, can be found conveniently on pages 9 and 10 of the book. I do not need to dwell on it. You see, in particular, a passage at about line 15 on page 10 concerning a so‑called “admission”:

he didn’t realise it was illegal to touch a child’s genitals.

Then one sees the imputation conveyed by the matter complained of which, of course, includes a deal about paedophilia in the very same paragraph of the article recorded by her Honour in paragraph 13, on page 10, where one sees that there is touching of a child:

for sexual gratification on the genitals –

Now, your Honour, our first point concerns justification, and it is simply that there was, properly understood, a plain deficiency in the question answered by our client which provided the material transcribed in the royal commission said to have been referred to in the first article. And, put shortly, the approach that we contend ought to be entertained by this Court, is that simply expressed by Justice White at page 145 of the application book, in paragraph 75. That, in our submission, properly recalls that the justification must fail because it could not be said that the evidence of the plaintiff for the royal commission made out the sting, particularly for sexual gratification on the genitals, which was properly held by her Honour to have been conveyed by the matter complained of. And so the matter complained of, in our submission ‑ ‑ ‑

EDELMAN J: Mr Walker, Justice White was in the minority on this point.

MR WALKER: Quite so, your Honour, though I am seeking special leave to advance an argument that failed below in this regard, and the minority approach is that taken by his Honour at page 145 in paragraph 75, and, in our submission, it is worthy of special leave for this Court to consider the extent to which questions and answers in a court‑like proceeding, a royal commission, should be construed in a way that turns on what might be called very broad assumption without any textual anchoring, by which the questions are so obviously to be understood as referring only to sexual gratification, that there could not have been a proper answer to the effect, well, I do not know that any touching of any child on the genitals is a crime.

NETTLE J: Is that a question of general importance, Mr Walker?

MR WALKER: If it is not, your Honours should not grant special leave, I accept that. We do have an element in this case of the interests of justice in the particular case, in our submission, that is, a possible fallback argument that your Honours may care to take into account, bearing in mind the centrality to the persona of our client of the damaging imputation conveyed. But it is only, if your Honours considered that, even without general public importance, that you would reach the stage of considering whether, of the many who seek, our client should be one of the few chosen for this Court’s visitorial jurisdiction. What I plead in that regard is the obvious significance of the public poignancy of a man in our client’s position, at the time of the defamation and at the trial, of a defamation case, in relation to such allegations.

But to return to the question concerning whether there is general public importance it is, in our submission, quite important for there to be an understanding of how official records of questions and answers in official tribunals should be understood and, in our submission, there is and should be no room for what might be called the vibe of the matter, that is, the unconveyed assumptions or qualifications necessary in order to make an answer to a question sinister as opposed to perhaps pedantic but, nonetheless, entirely correct. It is for those reasons, in our submission, that on the justification issue the case is one that is appropriate for special leave.

Can I come to the second basis upon which we seek special leave? Now, there are three bases, as I go through 1, 2 and 3, that we would need to get special leave on in order that an appeal would serve the utility of them having the Court of Appeal perform the unfinished business. They are, of course, justification; the second one to which I am coming is section 31, honest opinion; and the third one is, of course, section 30, statutory qualified privilege. I accept our burden is to persuade your Honours that on those three the case is one which provides an appropriate vehicle for the issues conveyed by each of those three to be granted special leave.

As to honest opinion, section 31, the main point to which we seek to go is again conveniently found in the reasons, again dissenting, of Justice White after the careful, with respect, consideration of what follows in relation to the expression of a matter being characterised as opinion or a statement of fact. At page 143 in paragraph 64, his Honour cites from Harbour Radio, I do not need to read it – in relation to a matter which, in our submission, is of general importance going beyond the particular application in this case of the test to particular facts. That is, the relation between the imputation which, of course, as explained in this Court tells us in a sense what the matter complained of means, and the matter which, of course, is the word “refused” in section 31 as being that to which the characterisation of opinion as opposed to fact must be applied. It culminates again in ‑ ‑ ‑

EDELMAN J: If you were correct upon that, would you say that that would also extend to the editorial on which Justice White found against your client?

MR WALKER: We have in the application said just so. Your Honours, I understand that I labour under a large bulk of popular and, with respect, intelligent perception where the thing is called editorial because it is the expression of opinion. Indeed, it is said to be one of the reasons why a free press need not confine itself to merely reporting unvarnished news. Yes, we face that burden. In the alternative, of course, we are able to say that if we can succeed in defeating this defence or answer for any of the defamations, then there is an outcome which in the administration of justice ought to be allowed in our favour even if for, say, the opinion conveyed in the editorial, ex hypothesi that we will fail.

In short, of course there is capable of being conveyed, by way of the legal characterisation, fact opinion, a black and white legal concept although grey in real life. There is, of course, a distinction to be observed between self‑described editorials and pieces of purported reportage.

EDELMAN J: Do you say that there is any question of legal principle involved in determining this boundary between fact and opinion or is it the implication in these circumstances about which you complain?

MR WALKER: Your Honour, I am going to try to have a bit of both, if I can explain. Of course, we cannot win unless, in an appeal, we were able to persuade the Court that the application of the law concerning the distinction opinion of fact has miscarried. So, of course, the argument would centrally and ultimately have to deal with application.

However, in terms of a legal approach – that is, how to apply that characterisation distinction – in our submission, there is something to be gathered from his case going beyond simply the particular, some might say highly peculiar, facts that give rise to it in these proceedings.

In particular, we submit that when you have a constellation of possibilities, including as it happens fair report of proceedings just like a royal commission or court proceedings, then there is, in our submission, something to be emphasised concerning the way in which the reporting of what has been said by a plaintiff in a forum which gives public prominence to his or her words, is preternaturally likely always to be characterised as a question of fact, as opposed to following comment concerning matters of opinion that may arise from that statement of fact, with or without other circumstances as well.

Insofar as it is said, as we submit, the imputation properly conveys that there was the statement of his evidence, in our submission, the fact that there is no verbatim quotation as opposed to paraphrase cannot possibly satisfy the sandbar distinction between fact and opinion. And when there is, for purposes of verisimilitude and, as it were, reliability, a report which refers to what somebody has said at a reported and publicised occasion then, in our submission, there is a matter of principle ‑ I think I need.....call it simply a matter of law, although it does involve an understanding of the law – involved. That may be over lengthy, your Honours, but that is my attempt to answer Justice Edelman’s question.

Could I come to the third of the matters that we would need to persuade your Honours deserve special leave in order to make it to an appeal a concrete and useful possibility and that involves the section 30 question, under statutory qualified privilege where the focus, I am bound to say, is on the issue of reasonableness of conduct. In our submission, this is a case, an appropriate vehicle for what occurs where there are some circumstances not due to the desultory behaviour of the defendant by which it becomes either impractical, improper or impossible for the plaintiff to be asked for his or her view of the matter about to be reported, the 31H approach.

Now, in our submission, the particular facts of this case throw it up as a useful vehicle in the following way. Again, using the nomenclature employed in the proceedings, my client was being, as everyone says,
cross‑examined, that is, questioned at the royal commission. We do not demur at all or seek to have any qualification imposed on the proposition that that is a reason why there could not have been contact with him between the 6th and the end of proceedings on the 9th when his evidence came to an end.

Of course, by 9 February, as your Honours know from the record, there had been explanation which would had it been included, say, in the first and second articles given a strikingly different view of the attitude supposedly of my client towards the status as a matter of criminal law of the sexual touching of children on their genitals.

In our submission, this case is, therefore, an appropriate vehicle to test not the impossible proposition that if you cannot ask the plaintiff for their position, you cannot publish, that would be absurd and would turn the provisions of the section into an anti‑textual prescriptive character but rather, we say, it means there needs to be circumspection and, in particular, an avoidance of what I am going to call “tendentious paraphrase”, that is, paraphrase that lets appear, as the found imputation clearly demonstrates, a defamatory implication beyond what the verbatim words reported in transcript actually convey.

So, in our submission, those are how there are the three separate, but combined, as they must be, approaches to those issues in the case for which we need special leave in order for an appeal to be useful and which, in our submission, suffice to render it useful. May it please the Court.

NETTLE J: Thank you, Mr Walker. Yes, Ms Chrysanthou.

MS CHRYSANTHOU: Your Honours, the difficulty that the applicant for special leave faces is that in relation to each of the four matters complained of at least three defences were found to have succeeded by the trial judge and in relation to the editorial, four defences. The trial judge found only one imputation carried for each of the matters and in relation to the failed imputations the applicant does not appeal. So, he is in a position whereby he needs to satisfy your Honours, we say, that there is some prospect in order to obtain special leave, that there was error, at least for one of those matters complained of for each of the defences.

Moreover, even if that could be achieved, which we say it cannot, that there would be any utility in carrying out that task, given her Honour Justice McCallum specifically reserved for further determination if necessary ‑ and this is at page 71 of the application book ‑ the issue of whether it was true, for purposes of the contextual truth defence, that Rabbi Feldman had so conducted himself as to warrant being dismissed from his position. Her Honour took the generous position, we say, of not determining that matter in order to preserve the applicant’s reputation in circumstances where a determination of that matter was unnecessary, given the other findings that had been made as to the other defences.

So the applicant needs to find the matter complained of, in which there was error in relation to at least three defences, four if it is the editorial, the applicant then needs to go back to Justice McCallum if there was such an error in relation to whether or not it was true that he had so conducted himself in a manner as to warrant his dismissal, and if contextual truth defence failed in those circumstances, the question of damages needs to be assessed in the face of unchallenged findings by the trial judge that each of the other contextual imputations, or a number of the other contextual imputations, were true.

Your Honours will be aware that, as a matter of mitigation in the defamation matter, the sorts of findings made by her Honour below that are not challenged, that were not challenged in the Court of Appeal and are not challenged here, the sorts of findings that were made would result in a nominal damages award, or a damages award so insubstantial that it would not warrant the matter going back to the trial judge. We say, for those reasons, before we address the specific grounds, this is not a proper matter in which your Honours would grant special leave.

As to the question of justification, the first ground of appeal that my learned friend dealt with, this is purely a factual matter, and we should say that at trial, the respondents made detailed written and oral submissions as to matters of principle in opening and in closing address, and none of those principles were the subject of.....on the part of the applicant, who was represented for the first five days by counsel, and then elected, right at the conclusion of the trial, to represent himself in closing address. There was no issue of principle raised at all.

On the question of justification, the characterisation of the applicant’s evidence at the royal commission over two days is purely a question of fact. And the issue is whether or not it was open to the learned trial judge to conclude, as she did, upon carefully considering that evidence, and also taking into account the evidence of Rabbi Feldman at trial, whether the imputation he was reprehensibly ignorant was substantially true.

And as your Honours know, precise truth does not have to be proved for the purposes of section 25 of the Defamation Act, only substantial truth. It was, undoubtedly, open to the learned trial judge to make that finding, and to the extent Justice White forms a different view, my learned friend has already drawn your Honours’ attention to page 155 of the application ‑ paragraph 155 of the judgment, to the extent his Honour Justice White forms a different view, his Honour, with respect, does not actually identify any error in the learned trial judge’s reasoning. All his Honour does is go and draw different inferences from the same evidence and come to a different conclusion. There is no matter of principle to be determined in this Court as a result of that exercise by Justice White, who was in the minority on that issue.

Now, Justices Emmett and Simpson, at pages 167 and 190 and following of the application book, analyse the reasoning of the learned trial judge, and both find that it was open to her Honour to come to the conclusion that the evidence given by Rabbi Feldman at the royal commission, the evidence he gave at trial before her Honour, and also, a small matter, an email that the rabbi sent to a journalist, in which he made admissions, was sufficient to prove, as a matter of substantial truth, the imputations in question. And we say there is no question of principle and no issue warranting special leave.

In relation to section 30, the second ground of appeal, paragraph 8 in the application for special leave, your Honours might well know that it is highly unusual for a media defendant to succeed in a section 30 defence. Her Honour made unchallenged findings that are now not the subject of challenge. In relation to the two journalists in question who both gave evidence – the second respondent who is now deceased and the editor – her Honour made a series of findings where she set out reasons why she was impressed with the research and the diligence of the journalists in question in preparing each of the matters complained of. All of that was relevant to the finding of reasonableness for the purposes of section 30(3) of the Defamation Act.

In relation to the first and second matters complained of, that defence did not succeed merely and only because the journalist did speak to Rabbi Feldman before publication. That would be the subject of a notice of contention if the matter is granted special leave. In the Court of Appeal, Justices Simpson and Emmett did not address the issue having then dismissed the appeal. But Justice White found that her Honour erred and that section 30 should have succeeded, not only for the third and fourth matters complained of but also for the first and second publications because it was a circumstance contemplated by this Court in Lange where it was not practicable to speak to the plaintiff prior to publication or it was otherwise unnecessary to give the plaintiff an opportunity to respond.

It is suggested in the submissions filed on behalf of the applicant – the written submissions – that a failure to speak to a plaintiff prior to publication and publish his response is determinative of the question of reasonableness. My learned friend, I think, does not put that. The reason he does not is because it cannot be correct. Communications with the plaintiff prior to publication are one aspect of the consideration of reasonableness – clearly an important aspect. We accept that if there is no proper reason to not speak to a plaintiff prior to publication, then it would be difficult to prove reasonableness for a media defendant.

But, in this case, Justice White found that there was a proper reason to not approach Rabbi Feldman while he was still, over the weekend, effectively under cross‑examination. But also, we say, because the purpose of the report was to.....what the rabbi had said in evidence and approaching him to comment on his own evidence was unnecessary given the other matters that her Honour found favoured a reasonableness conclusion. It is a factual issue and a factual determination. There is no issue of principle for the purposes of this matter in relation to section 30 and there is no special leave point, we say, in relation to that defence.

The defence of contextual truth poses a significant problem for the applicant. Again, there is no issue of principle raised. Justices Emmett and Simpson, at application book 169 for Justice Emmett, and following, and 196 for Justice Simpson, upheld her Honour’s findings in relation to contextual truth. Justice White does not deal with contextual truth at all. So, there is no dissenting view that could assist my learned friend as far as this defence is concerned.

The applicant does not challenge the finding that the contextual imputations were carried. He does not challenge the findings that some of them were proved substantially true. What he says is that her Honour erred in the balancing exercise as to whether or not, by reason of the truth of those contextual imputations, further harm was not done to the plaintiff’s reputation by reason of the reprehensible ignorance, imputations that he relied upon.

Again, there is no issue of principle in how that assessment is to take place. Her Honour carried out that assessment and as a matter of fact made the determination in favour of the publisher and her Honour did so in accordance with the principle that is accepted – that you do not just compare imputation with imputation when you carry out that exercise. You compare and you look at the evidence supporting each of the contextual imputations to see whether or not the imputation itself and the evidence in support of it would result in a finding that no further harm could have been done to the plaintiff’s reputation by reason of the publication of the imputation of which he complained.

We say, the contextual truth defence was found to have succeeded in relation to all publications and no error has been identified in her Honour’s reasons or reasons of the Court of Appeal in relation to that defence under section 26 of the Defamation Act.

The honest opinion ground seems to turn on whether or not the question under section 31 of the Defamation Act concerns the imputation of which the plaintiff complains or the matter as a whole. There is no dispute that section 31 is in the terms of the matter, but as a practical reality it would be impossible for any defendant to succeed if that was the only thing that one had to look at.

We say it is accepted as a matter of principle that the matter, for the purposes of section 31, has to be considered in the context of the defamatory imputation carried by the matter. We say Justice White, in considering this issue, was applying the same principle as Justices Emmett and Simpson, and also Justice McCallum, but at paragraph ‑ sorry I will just find the paragraph – I think it was 66 falls into error, where he confuses what the defamatory sting actually is. Justice McCallum looked the defamatory sting in terms of a conclusion of reprehensible ignorance, arising from two facts, namely, that the plaintiff was a rabbi and the director of a school, and that he had said he did not understand the illegalities in relation to inappropriate touching of children.

Justice White ignored the first aspect of the defamatory sting, and at paragraph 67 of the judgment found that the defamatory sting were the two facts, namely, that he was a rabbi and that he was unaware of those matters. We say that in circumstances where the defamatory sting found to be carried by the trial judge involved the conclusion of reprehensible ignorance, Justice White, using the same approach and the same principle, we supplied that principle as a matter of fact, and we have identified in paragraph 67 of the judgment what the defamatory sting was that had been found.

Justices Emmet and Simpson, particularly Justice Simpson, engages from page 155 of the application book a detailed consideration of Justice McCallum’s reasons in relation to honest opinion, and makes a finding, we say, a correct finding, with respect, that each of the factual matters that her Honour found in favour of the honest opinion defences were open to her Honour on the evidence, and that there is in fact no issue of principle despite the fact that in relation to three of the four matters complained of Justice White comes to a different conclusion as to whether or not the imputation itself is a matter of fact or opinion.

Where the defamatory sting amounts to a conclusion, even where it might come across as a statement of fact, any statement that a reader would understand to be a conclusion, can be an opinion. The law in relation to the distinction between fact and opinion is well settled in this Court, and in numerous courts of appeal, and there is no question of principle that arises or any matter of public importance as to that issue. Those are our submissions.

NETTLE J: Thank you Ms Chrysanthou. Mr Walker, any reply? I think you need to switch on Mr Walker – you are muted.

MR WALKER: I am sorry, your Honours. I apologise. Page 197, I should draw to attention paragraph 253 of Justice Simpson’s reasons. As we read it, her Honour did not engage with the defence based on the truth of contextual imputations, which is why we took the approach, or would seek to take the approach, that I explained in‑chief.

Your Honours, in our submission, when our learned friend draws to attention what I will call an understanding about how the word “matter” in section 31 is to be understood in practice, then there is a question worthy of this Court’s consideration extending beyond the merits or outcome of this particular case.

True, there is a question as to whether this is an appropriate vehicle for that argument but, in our submission, for the reasons we have already put, it does provide, particularly in the context of considering what occurs in relation to words published from such a formal occasion as evidence before a royal commission, a significant question as to whether the defence found in section 31 is to be focused on the matter complained of or whether there is performed, as there might be in other areas of the law, the substitution of the imputation, that is, the found defamatory meaning, for the matter complained of itself.

That, in our submission, is not the subject of settled doctrine in this Court and is a matter worthy of special leave. Otherwise, your Honours, I would be repeating what I have said in‑chief. May it please the Court.

NETTLE J: Thank you, Mr Walker. The Court will adjourn briefly to consider the matter.

AT 1.16 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.20 PM:

NETTLE J: In this matter, we consider that an appeal would enjoy no prospect of success. The application is dismissed with costs.

AT 1.20 PM THE MATTER WAS CONCLUDED