Feldman v Polaris Media Pty Ltd as Trustee of the Polaris Media Trust t/as The Australian Jewish News [2020] NSWCA 56

Feldman v Polaris Media Pty Ltd as Trustee of the Polaris Media Trust t/as The Australian Jewish News [2020] NSWCA 56

Leave to appeal was granted because the appeal was fully argued and raised issues including honest opinion, but the appeal was dismissed. The Court was not persuaded that any ground warranted setting aside the judgment for the respondents. White JA held that the first three articles were not protected by honest opinion or justification, and that fair report failed, but statutory qualified privilege should have been upheld; the editorial was protected by honest opinion and statutory qualified privilege. Emmett AJA concluded that the pleaded grounds, including honest opinion, proper material, procedural fairness, Browne v Dunn, qualified privilege and contextual truth grounds, were not made...

Jurisdiction
Australia
Judgment Date
01 April 2020
Procedural Posture
Defamation Appeal and Application for Leave to Appeal / Court of Appeal From Orders of the Supreme Court of New South Wales, Common Law Division, After Judgment for the Defendants
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['leave to Appeal' 'incompetent Notice of Appeal' 'honest Opinion' 'justification' 'contextual Truth' 'fair Report of Proceedings of Public Concern' 'statutory Qualified Privilege' 'procedural Fairness' 'browne V Dunn']
['defamation' 'civil Procedure'] ['leave to Appeal' 'incompetent Notice of Appeal' 'honest Opinion' 'justification' 'contextual Truth' 'fair Report of Proceedings of Public Concern' 'statutory Qualified Privilege' 'procedural Fairness' 'browne V Dunn']

Case Brief

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Procedural Posture

Defamation Appeal and Application for Leave to Appeal / Court of Appeal From Orders of the Supreme Court of New South Wales, Common Law Division, After Judgment for the Defendants

Legal Issues

  1. 1 ['Whether the appeal was incompetent because the notice of appeal was filed out of time and leave was required where the amount in issue was not shown to exceed $100,000.' 'Whether the primary judge erred in finding that the publications conveyed the defamatory imputations alleged by the appellant.' 'Whether the publications, or any of them, were defensible as honest opinion under s 31 of the Defamation Act 2005 (NSW).' 'Whether the defamatory imputations were substantially true or defeated by contextual truth.' 'Whether the publications were fair reports of proceedings of public concern under s 29 of the Defamation Act 2005 (NSW).' "Whether statutory qualified privilege under s 30 of the Defamation Act 2005 (NSW) was established, including whether the respondents' conduct was reasonable despite not seeking comment before the first and second articles." 'Whether the appellant was denied procedural fairness or the principles in Browne v Dunn were breached.']

Ratio Decidendi

Leave to appeal was granted because the appeal was fully argued and raised issues including honest opinion, but the appeal was dismissed. The Court was not persuaded that any ground warranted setting aside the judgment for the respondents. White JA held that the first three articles were not protected by honest opinion or justification, and that fair report failed, but statutory qualified privilege should have been upheld; the editorial was protected by honest opinion and statutory qualified privilege. Emmett AJA concluded that the pleaded grounds, including honest opinion, proper material, procedural fairness, Browne v Dunn, qualified privilege and contextual truth grounds, were not made...

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Grant leave to the applicant to appeal from the orders of 23 July 2018.' '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.' 'Dismiss the appeal.' "Order that the appellant pay the...