Yosef Yitzchak Feldman v Nationwide News Pty Limited & Ors (No 2) [2018] NSWSC 716

Yosef Yitzchak Feldman v Nationwide News Pty Limited & Ors (No 2) [2018] NSWSC 716

The submissions were relevant to the fair report defence and their probative value was not substantially outweighed by the danger of unfair prejudice to the plaintiff. The absence of Ms Towers did not justify exclusion because her non-service was a matter for the plaintiff, the plaintiff could have taken steps such as subpoenaing her, and the plaintiff remained able to make a Jones v Dunkel submission in closing.

Jurisdiction
Australia
Judgment Date
09 May 2018
Procedural Posture
Defamation / Procedural Ruling on Objection to Tender of Written Submissions
Outcome
Objection overruled; written submissions admitted as exhibit DBT5.
Legal Topics
['tender of Written Submissions' 'unfair Prejudice' 'probative Value' 'fair Report Defence' 'jones V Dunkel Submission']
['defamation' 'evidence' 'civil Procedure'] ['tender of Written Submissions' 'unfair Prejudice' 'probative Value' 'fair Report Defence' 'jones V Dunkel Submission']

Case Brief

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Procedural Posture

Defamation / Procedural Ruling on Objection to Tender of Written Submissions

Legal Issues

  1. 1 ['Whether written submissions of counsel assisting the Royal Commission should be admitted despite an objection under s 135 of the Evidence Act 1995 (NSW).' 'Whether the probative value of the submissions was substantially outweighed by the danger that the evidence might be unfairly prejudicial to the plaintiff.' 'Whether the absence of the journalist who wrote the article unfairly deprived the plaintiff of an opportunity to cross-examine her.']

Ratio Decidendi

The submissions were relevant to the fair report defence and their probative value was not substantially outweighed by the danger of unfair prejudice to the plaintiff. The absence of Ms Towers did not justify exclusion because her non-service was a matter for the plaintiff, the plaintiff could have taken steps such as subpoenaing her, and the plaintiff remained able to make a Jones v Dunkel submission in closing.

Court Disposition

Objection overruled; written submissions admitted as exhibit DBT5.

Orders

  • ['I overrule the objection and I will admit the submissions as Ex DBT5.']