FEDERAL COURT OF AUSTRALIA

Mond v The Age Company Pty Limited [2025] FCA 442

ORDERS

THE COURT ORDERS THAT:

1.    By 4.00pm on 12 May 2025, the respondents file and serve submissions on the questions of interest, costs and permanent injunction, limited to four pages, in 1.5 spacing and 12 point font.

2.    By 4.00pm on 14 May 2025, the applicant file and serve submissions in response, limited to four pages, in 1.5 spacing and 12 point font.

3.    The outstanding questions, including the terms of final orders, be fixed for hearing at 10.15am on 15 May 2025.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    The applicant is a Melbourne businessman and accountant. At the times relevant to this proceeding, he was the president, and then immediate past president, of the Caulfield Hebrew Congregation Inc, which is also known as the Caulfield Shule. The applicant seeks damages and other relief in respect of the mainstream publication of print and online articles which he alleges were defamatory of him.

2    There are four respondents. The first respondent, The Age Company Pty Ltd (The Age), is the publisher of The Age newspaper and of the content on its website, www.theage.com.au and is alleged to be vicariously liable for the conduct of the third respondent, Mr Stephen Brook. The second respondent, Fairfax Media Publications Pty Ltd (Fairfax Media), is the publisher of the content on the website associated with The Sydney Morning Herald, www.smh.com.au and is alleged to be vicariously liable for the conduct of the fourth respondent, Ms Samantha Hutchinson. The third respondent, Mr Brook, is a journalist employed by The Age, and is one of two journalists under whose by-line the articles were published. The fourth respondent, Ms Hutchinson, is a journalist employed by Fairfax Media, and is the other journalist under whose by-line the articles were published. No issue in relation to the allegations of publication arises in relation to the first, second, or third respondents. However, Ms Hutchinson denies that she was a publisher of the articles, and that issue therefore falls for determination.

3    The trial of the proceeding was fragmented. This occurred because the estimated trial length given by the parties at the case management hearing, and the time that the Court set aside for the trial between its other commitments, proved to be insufficient. At the conclusion of evidence, and at the request of the Court, the parties presented an agreed list of issues, comprising 55 in number. Within those 55 issues were sub-issues, and issues that were contingent upon the determination of other issues. I mention this to indicate that there were some complexities in the case, which have taken some time to consider.

The publications

4    There are seven distinct articles that comprise the matters that are the subject of the applicant’s claims. The articles were published in the “CBD” column of The Age newspaper and online. The seven articles can be grouped into three sets of publications –

(1)    the 5 May 2021 articles, comprising –

(a)    a print article published in The Age newspaper dated 5 May 2021 and titled, Uproar over invitation to convicted spy (the first matter); and

(b)    an online article published on The Age website dated 5 May 2021 and titled Orthodox uproar over invitation to convicted spy (the second matter);

(2)    the 13 December 2021 articles, comprising –

(a)    a print article published in The Age newspaper dated 13 December 2021 and titled, Trouble across the board in Caulfield (the third matter); and

(b)    an online article published on The Age website dated 13 December 2021 and titled Trouble across the board at Caulfield Shule (the fourth matter); and

(3)    the 18 February 2022 articles, comprising –

(a)    a print article published in The Age newspaper dated 18 February 2022 and titled, RABBI RIFT SEEMS NOT FULLY HEALED (the fifth matter);

(b)    an online article published on The Age website dated 18 February 2022 and titled RENEWAL (the sixth matter); and

(c)    an online article published on The Sydney Morning Herald website dated 18 February 2022 and also titled RENEWAL (the seventh matter).

5    In addition to the primary publication of the seven matters, the applicant alleges that the first, second, third and fourth matters were subsequently published by hyperlinks appearing in the online versions of the later articles.

6    The text of each of the seven matters is set out in the schedules to this judgment, together with copies of the pages in which the articles were published so as to show how they would have appeared to the ordinary reasonable reader.

7    There are some material differences between the first and the second matters dated 5 May 2021 to which I will refer later. The text of the third and the fourth matters that were dated 13 December 2021 is the same, although the headings differ slightly. And the text of the three matters dated 18 February 2022 is the same, although the heading of the print matter is different from the online matters.

8    I will address the imputations that the applicant alleges were conveyed by the matters later in these reasons. It will also be necessary to consider alternative imputations alleged by the respondents in support of their statutory and common law defences.

Overview of the issues in the proceeding

9    As I mentioned above, the agreed list of issues itemised 55 issues for determination. I have given attention to all the issues raised by the parties, but I have addressed them within my own framework of analysis. In broad outline, the main issues that arise for determination are as follows –

Issue (1):    

Was the fourth respondent, Ms Hutchinson, a publisher of any of the articles?

Issue (2):

Did the articles convey any, and if so what, imputations that were defamatory of the applicant, and which are within the applicant’s pleaded case?

Issue (3):

In respect of any defamatory publication occurring after 1 July 2021, has the applicant established that he suffered serious harm to his reputation as a result of the relevant publication?

Issues (4), (5), and (6):

If any of the articles were defamatory of the applicant, and if (where relevant) he suffered serious harm to his reputation as a result, then have the respondents established any of their positive defences, namely –

(a)    common law or statutory justification;

(b)    honest opinion or fair comment; or

(c)    public interest in respect of publications after 1 July 2021?

I have grouped these issues together because their resolution is inter-dependent.

Issue (7):

If the applicant has established any cause of action, in what sum should damages be assessed, and is the applicant entitled to the remedy of an injunction?

Brief background

10    Before going to the issues in more detail, I will set out some background, which comprises findings that I make on some basic issues. When addressing the facts in more detail, it will be necessary to make further findings.

11    The applicant is a practising accountant, and is aged in his early 70s. He is married to his wife Betty, and is close to his brother, Barry Mond. He was born in Melbourne, where he grew up. Over the years, he has had a successful career in business and in his profession of accountancy. He is a former treasurer of the Victorian Liberal Party. He has been part of the social fabric of the community of Melbourne, including as a follower of AFL football, being for many years an enthusiastic supporter of the Carlton Football Club.

12    Growing up, the applicant and his family were members of the congregation of a shule in North Carlton, before the applicant moved with his wife to Doncaster in 1981, and then to Caulfield in 1989. Upon moving to Caulfield, the applicant became a member of the Caulfield Shule, with which his extended family had an existing association, with his brother Mr Barry Mond having been involved with the Caulfield Shule since 1981. The Caulfield Shule is one of many congregations in Caulfield, and in terms of membership is one of the largest in Victoria.

13    The applicant’s faith is a very significant part of his everyday life. At the times relevant to this proceeding, the applicant attended the Caulfield Shule almost daily, and developed close social relationships with many other members of the Congregation. The applicant’s involvement with the Caulfield Shule extended to his election as president of the Congregation, which was an office that he held from September 2018 to October 2021.

14    Although I will use the terms Caulfield Shule and Caulfield Hebrew Congregation interchangeably, it is necessary to identify that Caulfield Hebrew Congregation Inc is an incorporated association, and has a constitution which provides for such things as its purposes, membership, a board of management, an executive, meetings, and diverse powers of both the Congregation and its board of management. The board of management is elected, and is responsible for the control and management of the business and affairs of the Congregation.

15    The constitution of the Congregation provides for the appointment by the board of officials of the Congregation, such as ministers, assistant ministers, chazzanim (or cantors), and other officers. However, the constitution makes no express reference to such persons having a role on the board or the executive of the Congregation. Officials of the Congregation are guided in the performance of their duties and in all matters affecting the interests of the Congregation by directions from the president. However, in spiritual matters, officials of the Congregation are not subject to any direction of the board.

16    The evidence was that there are different ways in which members of the Jewish community practise and express their faith. The Caulfield Shule is a modern Orthodox congregation that was established after the Second World War by many Holocaust survivors. Under its constitution, one of its purposes is to uphold and foster the aims of Zionism, which is elaborated upon in its constitution. There are other congregations in Melbourne where members practise their faith with different emphases, and which will be well-known to members of the Jewish community and others. One such congregation is under the umbrella of the Mizrachi Organisation. Mizrachi also has a shule in Caulfield, which is located close to the Caulfield Shule. Mizrachi has some common features with the Caulfield Shule, including its adherence to the Ashkenazi rites, and the promotion of Zionism, but there is no formal association between the two organisations.

17    During the time the applicant served as president of the Caulfield Shule in 2020 and 2021, the State of Victoria was subject to lockdowns, social distancing requirements, and other restrictions as a result of the outbreak of the COVID-19 virus. These restrictions affected people’s ability to attend religious services and to pray in places of worship. The restrictions presented many challenges to the Caulfield Shule, including their effect on fundraising, because members of the Shule were not able to use their synagogue seats. Funds raised from synagogue seats comprised the bulk of the Caulfield Shule’s revenue. The applicant had to confront these issues, and took a number of steps to address them such as personally making financial contributions, and making hundreds of calls to members of the Congregation. Ms Rachel Mihalovich, the Chief Executive Officer of the Shule at the time, spoke highly in her evidence of the applicant’s leadership of the Shule during this difficult period, and during his term as president generally.

18    On 14 April 2021, Dr Danny Lamm, who was the president of Mizrachi, spoke to Mr Mond at an event organised by Mizrachi to mark Israeli Independence Day, known as Yom Ha’atzmaut. Although organised by Mizrachi, the event was held at the Caulfield Shule, which had a larger capacity than the Mizrachi Shule and was more suitable having regard to COVID-related capacity restrictions that were in place at the time. Dr Lamm asked Mr Mond whether Mizrachi could also use the Caulfield Shule for an upcoming event to be held on 9 May 2021 to mark Jerusalem Day, which is known as Yom Yerushalayim, to which the applicant agreed. At the conclusion of the Independence Day event Dr Lamm announced to those present that the Jerusalem Day event would also be celebrated at the Caulfield Shule.

19    A week later, on 21 April 2021, Dr Lamm left a voicemail message for Mr Mond in which he told him that the guest speaker for the Jerusalem Day event would be Jonathan Pollard. The proposal was that Mr Pollard would speak at the event from Israel by means of a recorded video.

20    Jonathan Pollard is an Israeli resident who is a controversial figure within Jewish circles. It is well known within sections of the Jewish community in the United States and Australia that Mr Pollard is a United States citizen who was sentenced to a term of imprisonment of 30 years in the United States from about 1987 for spying for Israel and other countries. Mr Pollard was released from prison in about 2015, and in about late 2020 after completing his parole he left the United States to live in Israel.

21    In a sermon given at The Great Synagogue in Sydney in January 2021, Rabbi Dr Benjamin Elton, who was called as a witness by the respondents, explained his view that Mr Pollard should not be celebrated, valorised, or honoured, and that to do so would severely damage the standing of diaspora Jews. Rabbi Elton said that Australian loyalties matter, and that it was essential that everyone understand that they matter. Of Mr Pollard, Rabbi Elton said in his sermon –

Not only was he a traitor, but he undermined the central platform of diaspora Zionism, that we support the State of Israel but we are implacably loyal to our home nations, until such time as we choose to live in Israel and become Israeli citizens. Pollard’s actions blew a hole in that delicate understanding.

22    In evidence, Rabbi Elton went further, and stated his opinion that it would be contrary to the teachings of the Torah in a broad sense to celebrate someone like Mr Pollard, while acknowledging that his view was not one that was universally held.

23    The proposal that Mr Pollard speak at the Jerusalem Day event at the Caulfield Shule led to differences of opinion between some members of the Jewish community, and between members of the board of the Shule. Rabbi Genende, who was the spiritual leader of the Congregation at the time, spoke to the applicant of concerns relating to the proposal. The board engaged in some email exchanges upon being informed that Mr Pollard would be the speaker at the Jerusalem Day event. Subsequently, Rabbi Genende sent an email to the board expressing his opposition to having Mr Pollard speak, which was expressed in fairly direct terms, supported by reasoning. At a meeting on 3 May 2021 which Rabbi Genende attended, the board discussed the Rabbi’s concerns. A motion that the Congregation withdraw from the event was defeated by a majority.

24    In the meantime, the proposal to have Mr Pollard speak at the Jerusalem Day event was reported in the media, initially in Israel, and then in Melbourne. On 3 May 2021, the Israeli Haaretz newspaper reported online that the invitation to Mr Pollard to speak at the event in Australia had raised controversy. Haaretz attributed to Mr Jeremy Leibler, president of the Zionist Federation of Australia, views that were opposed to having Mr Pollard speak. The Haaretz article also referred to the email that Rabbi Genende had sent to the board of the Caulfield Hebrew Congregation expressing his opposition to the proposal to have Mr Pollard speak, and set out some extracts from the email. The Haaretz article also claimed that the congregational rabbi, who was identified as Rabbi Genende, had not been consulted.

25    Two days later, on 5 May 2021, the first and second matters were published in The Age newspaper in print and online as part of its CBD column, which was a weekday column that normally appeared prominently on page two of the print edition of The Age newspaper. The general subject matter of these articles was the controversy that the invitation to Mr Pollard had generated. Mr Mond claims that these publications were defamatory of him in meanings that I will set out later and consider. There were other print and online articles at around this time that reported on the controversy surrounding the Jerusalem Day event, including in The Australian Jewish News.

26    The Jerusalem Day event proceeded at the Caulfield Shule on 9 May 2021. Mr Pollard spoke at the event via a recorded video, and the event was well attended.

27    Mr Mond and other board members decided to retire from the board of the Congregation at the Annual General Meeting that was to take place on 29 August 2021. This was reported by The Australian Jewish News on 6 August 2021 under the headline “CHC mass resignation”. The article included some quotations that were attributed to a member of the Congregation, Mr Adam Slonim, that were disparaging of the board. The claim of mass resignation was later retracted by The Australian Jewish News, which issued a correction stating that the members of the board were not resigning but were retiring. In that context, on 13 August 2021 the applicant sent a circular email to the members of the Congregation addressing the circumstances of the retirement of the members of the board. In the course of that email, the applicant made some references to Mr Slonim. Mr Slonim claimed that the applicant’s circular email was defamatory of him, and engaged solicitors who on 17 August 2021 served a concerns notice addressed to the Congregation and the applicant.

28    After the applicant and the old board had retired from their positions, and a new board was elected, the new board made an apology to Mr Slonim. The new board published its apology to Mr Slonim by a circular email to the members of the Congregation dated 8 December 2021.

29    On 13 December 2021, the third and fourth matters were published in the CBD column of The Age in print and online. Amongst other things, the third and fourth matters alluded to the first and second matters, and to the applicant’s circular email that referred to Mr Slonim, and to the board’s apology to Mr Slonim. Again, I will identify and consider later in these reasons the meanings that the applicant claims the matters conveyed.

30    In late 2021, Rabbi Genende’s term as senior rabbi of the Caulfield Shule came to an end, and a new rabbi, Rabbi Rabin, commenced his term of appointment. On 12 February 2022, a ceremony to inaugurate Rabbi Rabin as the senior rabbi was held at the Caufield Shule.

31    On 18 February 2022, the fifth, sixth, and seventh matters were published in the CBD column in print in The Age newspaper, and online on The Age and The Sydney Morning Herald websites. These matters alluded to the earlier matters published in the CBD column and claimed that attendances at the inauguration ceremony for Rabbi Rabin were low, and that divisions in the synagogue still existed. The applicant claims that these matters were defamatory of him in meanings that I will set out later and consider.

32    Fairfax Media is also alleged to be liable for the publication of the online articles of 5 May 2021 and 13 December 2021 on the ground that its online article of 18 February 2022 contained hyperlinks to those articles.

Issue (1): did the fourth respondent publish the matters the subject of this proceeding?

33    The first issue to address is whether the fourth respondent, Ms Hutchinson, was a publisher of the seven matters. As I have mentioned, Ms Hutchinson, who was a journalist with The Sydney Morning Herald, denies that she is liable as a publisher. I will set out the circumstances in which that dispute arises.

34    The print and online articles were published with by-lines that identified both Mr Brook and Ms Hutchinson. In addition, the print articles were published in The Age newspaper under a banner which contained photographs of Mr Brook and Ms Hutchinson and which is reproduced below –

35    An editorial code of conduct titled “Australian Metro Publishing – Editorial Code of Conduct”, which applied to all Australian Metro Publishing editorial employees, including staff at The Sydney Morning Herald and The Age, provided under a heading that referred to plagiarism and attribution –

Bylines should be carried only on material that is substantially the work of the bylined journalist.

36    Both Ms Hutchinson and Mr Brook accepted that the Code of Conduct applied to them, and Ms Hutchinson accepted that both she and Mr Brook were held out as co-columnists of the CBD column.

37    However, Ms Hutchinson’s case essentially is that Mr Brook composed those parts of the CBD columns on which the applicant’s claims are founded, and that she did not take responsibility for anything that Mr Brook wrote. Ms Hutchinson’s case is that because she did not compose the words sued upon, she is not liable as a publisher.

38    The applicant made the following allegations in the further amended statement of claim –

(a)    the CBD column is a marquee gossip column published prominently by The Age online and in print and Fairfax Media, relevantly, online, of which Mr Brook and Ms Hutchinson are or were at all material times the columnists; and

(b)    in the particulars to the allegations of publication of the matters by the respondents, that the “lead authors” of the matters were Mr Brook and Ms Hutchinson.

39    By their further amended defence the respondents denied that Ms Hutchinson was an author of, or in any way involved in, or otherwise published or caused the articles to be published.

40    Prior to trial, the solicitors for the parties engaged in correspondence in relation to the question of publication. In a letter to the solicitors for the respondents dated 16 August 2023, the solicitors for the applicant claimed that Ms Hutchinson was an active participant in the publication of the matters. This claim was made in support of an invitation to the respondents to admit that Ms Hutchinson was a publisher of the matters. In support of this invitation, the solicitors for the applicant relied on the following claims that were said to be based upon their review of discovered documents –

It is apparent that Ms Hutchinson participated actively in the production of each of the relevant CBD Columns. Her approval of and overt participation in the matters complained of is apparent from the following:

1.    The content of the CBD Column was published jointly under the names of Mr Brook and Ms Hutchinson.

2.    The columnists worked up the matters to be published in a joint document.

3.    Ms Hutchinson was on notice at all material times of all the content that was to go out under her name, whether or not she wrote it.

4.    The practice of the journalists was to amend each other’s work if they had an issue with it. They also sometimes wrote content jointly. Other times they did not amend each other’s work.

5.    When they did not amend each other’s work, it can be readily inferred that it was because they had nothing to add or change and thereby sanctioned the contents.

6.    Ms Hutchinson chose not to amend the matters complained of even though she had the opportunity to do so. She thereby sanctioned and endorsed the contents.

7.    Further, in relation to the December 2021 publications, Ms Hutchinson formatted the topic ideas which included the word SHUL, and formatted the document as a whole.

8.    Further, in relation to the February 2022 publications, Ms Hutchinson wrote the term “Shule” in the Melbourne column, and formatted the document as a whole.

41    The letter then referred to the leading High Court authorities concerning liability for publication of defamatory matter.

42    In the applicant’s written opening at trial, counsel for the applicant stated that the case against Ms Hutchinson was that she and Mr Brook worked on a joint document, knowing that it would be published under their joint by-lines, and that Ms Hutchinson was therefore liable as a publisher. On the other hand, counsel for the respondents in their written and oral openings pointed to the applicant’s allegation in the particulars of the further amended statement of claim that the fourth respondent was an “author” of the articles, and stated that Ms Hutchinson was not an author, but that Mr Brook was the sole author.

43    Both Mr Brook and Ms Hutchinson gave evidence in relation to the composition of the articles the subject of this proceeding. Ms Hutchinson gave evidence in a straight-forward manner, and in relation to her evidence as to primary facts, impressed me as being reliable. On issues other than publication, Mr Brook’s evidence will be considered later. For present purposes, there is no aspect of the presentation of either Mr Brook or Ms Hutchinson as witnesses that bears upon my evaluation of the evidence of primary facts going to publication. Those facts include admitted facts arising from the applicant’s service of a notice to admit and the respondents’ response to that notice, being an amended notice of dispute. In referring to primary facts, I am excluding the evidence of Ms Hutchinson and Mr Brook that used the term “author”, and its derivatives, because that is an ultimate conclusion. Both addressed questions from counsel and gave evidence that used the word “author”, which in context must be taken to have referred to the actual composition or writing of the articles. By way of example, Ms Hutchinson denied that she was an “author” of the articles.

44    The following are my findings in relation to the disputed claims of publication of the articles based upon the evidence and the relevant admitted facts.

45    At the time each of the matters was published, Mr Brook was employed at The Age in Melbourne, and Ms Hutchinson was employed by The Sydney Morning Herald in Sydney. Both were engaged as columnists for the CBD column, which was published by both newspapers and on their respective websites. However, the published columns were not usually identical because they were tailored to the different markets of Sydney and Melbourne. Many items in the CBD column were published only in The Age or The Sydney Morning Herald, but not both. However, sometimes items that had a national flavour were published in the CBD columns of both newspapers. Mr Brook and Ms Hutchinson worked together on the CBD columns in this way until about May 2022 when Ms Hutchinson left to join the Australian Financial Review.

46    The system for the preparation of the CBD columns commenced with a shared Google document that was created by either Mr Brook or Ms Hutchinson. This was a document stored in the cloud to which Mr Brook and Ms Hutchinson had access. I understood the evidence to be that both could work on a Google document concurrently, and that it was possible for each to see the other person’s changes to the document in real time, depending upon what part of the document was viewable on the screen. As Ms Hutchinson put it, “we would be one on top of the other”. Later in the process, an editor was also given access to the shared document.

47    The Google documents that led to the CBD columns for 5 May 2021, 13 December 2021, and 18 February 2022, evolved. They evolved from the planning stages, where ideas for content were recorded in a table containing separate columns for Sydney and Melbourne. Each of Mr Brook and Ms Hutchinson then entered text in the shared document as it developed. The text included drafts of what became components of the CBD columns. Through this process, Mr Brook composed each of the matters the subject of the applicant’s claims. Ms Hutchinson did not contribute to their composition. Nor did she contribute any ideas, or research any of the matters in issue.

48    After the Google documents were completed, the text was transferred to a publishing platform known as “Ink”. For the CBD column, two publishing shells within Ink were created: one for Sydney, and the other for Melbourne. Editorial and production staff of The Sydney Morning Herald then worked on the Sydney shell, and corresponding staff at The Age worked on the Melbourne shell. That process of production through the Ink platform typically resulted in several more versions of the columns before final publication.

Publication of the 5 May 2021 articles

49    Mr Brook and Ms Hutchinson worked on a shared Google document for the 5 May 2021 CBD column. In the planning table under “Melbourne” Mr Brook entered “Shul”. There were at least five different versions of the column prior to publication. The column was published online at 12.01 am on 5 May 2021, and in the print edition of The Age of 5 May 2021.

50    Mr Brook gave evidence, which I accept, that he and Ms Hutchinson spoke to each other about the 5 May article at an early stage. The substance of that conversation was that Mr Brook informed Ms Hutchinson what he was planning to write, in response to which Ms Hutchinson stated that she knew nothing about the matter, and had no contacts or information that would be helpful, and that she would leave the research and the writing to Mr Brook.

51    In a Google document for the CBD column dated 4 May 2021 and time-stamped at 13:41, both Mr Brook and Ms Hutchinson worked in the document. Mr Brook wrote a draft of the matter that is in issue. Ms Hutchinson did not make any revisions to Mr Brook’s draft.

52    In a Google document for the CBD column dated 4 May 2021 and time-stamped at 17:59, Mr Brook amended the draft of the matter in issue, Ms Hutchinson did not amend the draft of the matter, and there was another matter in the document drafted by Ms Hutchinson concerning the Society restaurant that Mr Brook did amend.

53    Mr Brook created the Ink shell for the 5 May 2021 article published in The Age. There were no revisions by Ms Hutchinson to the column on the Ink shell.

Publication of the 13 December 2021 articles

54    As with the 5 May 2021 article, Mr Brook and Ms Hutchinson worked in a joint document that led to the 13 December 2021 publications. There were at least four different versions of the column prior to publication. The CBD column was published online at 5:00 am on 13 December 2021, and in the print edition of The Age of 13 December 2021.

55    In a Google document for the CBD column dated 12 December 2021 and time-stamped at 14:18, each of Mr Brook and Ms Hutchinson contributed topic ideas. In the “Mel” column Mr Brook wrote “SHUL”, and each of Mr Brook and Ms Hutchinson suggested other ideas in the draft.

56    In a Google document for the CBD column dated 12 December 2021 and time-stamped at 17:22, Mr Brook and Ms Hutchinson deleted some of the topic ideas, Mr Brook amended the draft of the matter in issue, Ms Hutchinson did not make any revisions to the draft of the matter in issue, and Mr Brook and Ms Hutchinson both contributed to an item concerning Alan Jones.

57    As with the 5 May 2021 article, Mr Brook created the Ink shell for the 13 December 2021 article. Ms Hutchinson did not make any revisions to the article within the Ink shell.

58    Neither Mr Brook nor Ms Hutchinson gave evidence of any conversation with each other about the 13 December 2021 article.

Publication of the 18 February 2022 articles

59    In relation to the 18 February 2022 articles, Mr Brook and Ms Hutchinson worked on a joint draft document. There were at least seven different versions of the column prior to publication. The column was published online at 5:00 am on 18 February 2022 on The Age and The Sydney Morning Herald websites, and in the print edition of The Age dated 18 February 2022.

60    In a Google document for the CBD column dated 17 February 2022 and timestamped at 12:10, Ms Hutchinson wrote the term “Shule” in the Melbourne column.

61    In a further version of the Google document dated 17 February 2022 and timestamped at 17:28, Mr Brook wrote a draft of the matter that is in issue. Ms Hutchinson did not make any revisions to the draft. Mr Brook made amendments to content that Ms Hutchinson drafted in relation to another item concerning Josh Frydenberg and Eddie McGuire, and Ms Hutchinson made amendments to Mr Brook’s text in relation to another matter concerning the Superbowl.

62    Mr Brook also created the Ink shell for the 18 February 2022 article, and Ms Hutchinson did not make any revisions to the article within the Ink shell.

63    Neither Mr Brook nor Ms Hutchinson gave evidence of any conversation with each other about the 18 February 2022 article.

The fourth respondent was a publisher of the matters

64    At trial, counsel for the respondents maintained that the applicant’s pleaded case in relation to Ms Hutchinson’s liability for publication was confined to authorship of the matters, relying on the applicant’s pleas that the “lead authors” of the articles were Mr Brook and Ms Hutchinson, which reflected the fact that their names appeared in the by-lines. Counsel for the respondents submitted that, on the evidence, Ms Hutchinson was not an author of any of the matters, and that she had nothing to do with their writing.

65    It is trite that liability for publication is not confined to those who compose or write defamatory matter. The following statement from the old text Folkard on Slander and Libel (5th ed, 1891) was approved by Isaacs J in Webb v Bloch (1928) 41 CLR 331 at 363–364 –

The term published is the proper and technical term to be used in the case of libel, without reference to the precise degree in which the defendant has been instrumental to such publication; since, if he has intentionally lent his assistance to its existence for the purpose of being published, his instrumentality is evidence to show a publication by him.

66    More recently, in Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27; 273 CLR 346 (Voller), Kiefel CJ, Keane and Gleeson JJ at [23] described publication as “the process by which a defamatory statement or communication is conveyed”. Any act of participation in the communication of defamatory matter to a third party is sufficient to make a respondent a publisher, such that, as their honours held at [32] –

a person who has been instrumental in, or contributes to any extent to, the publication of defamatory matter is a publisher. All that is required is a voluntary act of participation in its communication.

67    To similar effect, Gageler and Gordon JJ held at [62] –

every intentional participant in a process directed to making matter available for comprehension by a third party is a “publisher” of the matter upon the matter becoming available to be comprehended by the third party.

68    The references to intention and voluntary participation relate to the process of publication, and not to any intention to publish defamatory matter or knowledge of the defamatory nature of the matter. Intention in that sense is not relevant to liability for publication, because the tort is one of strict liability and the actionable wrong is the publication: see Voller at [27], [66].

69    Ms Hutchinson worked at The Sydney Morning Herald from August 2020 to May 2022 as a senior columnist for the CBD column. From February 2021, she worked on the CBD column with Mr Brook in the way described at [45]–[62] above. True, she did not herself type into the joint Google document the words that comprised the articles. But she actively and voluntarily participated in the process by which the joint document evolved. She was at the relevant times a voluntary and active participant in the process by which those columns were published. Ms Hutchinson gave evidence in cross-examination that she knew that the CBD columns were published under the joint by-line, and that she did not object to that process at any point in time. I find that at all relevant times Ms Hutchinson knew that the publication which resulted from the joint Google documents on which she and Mr Brook worked would be published under their joint names, and that she authorised publication of the CBD column in this form. Ms Hutchinson thereby gave her imprimatur to the publication of each of the matters in issue. For these reasons, Ms Hutchinson was a publisher of the articles in the legal sense explained in the majority judgments in Voller.

70    Further, Ms Hutchinson may be described as an author of the articles. The respondents’ case treated the concept of authorship in a narrow sense, as being synonymous with the primary composition of, or the primary writing of the actual words used in the articles. It was on this basis that Ms Hutchinson denied in evidence-in-chief that she was the author of any of the articles. But this is only one sense in which there might be authorship. Ms Hutchinson gave her imprimatur to the articles by her agreement to the process of publication in which she participated in the planning stages, and worked on the joint Google document, knowing that she would be named in the by-line as one of the writers of the CBD column. By doing so, Ms Hutchinson was an author in the sense of being one of two co-authors with Mr Brook, neither of whom wrote everything, but both of whom assumed authorship for what was published. For these reasons, the findings of publication of the articles by Ms Hutchinson are within the scope of the applicant’s pleaded case.

71    It follows that Fairfax Media is vicariously liable for the publications in issue to the extent that Ms Hutchinson is found to be liable.

Issue (2): the imputations

72    The significance of words is in their meaning. Until the meanings of the matters in issue are determined, and unless it is held that a matter is defamatory in some meaning about which an applicant complains, there is no occasion to address serious harm (which is an element of the cause of action in relation to publications on and after 1 July 2021), or to address defences such as justification, honest opinion, fair comment, or public interest.

73    The principles applicable to the ascertainment of defamatory meaning are not controversial. The meaning of written words, and the question whether in the meanings so found a matter is defamatory, are evaluated against the objective standard of the ordinary reasonable reader. The ordinary reasonable reader is an ordinary decent person, being of ordinary intelligence, experience, and education, who brings to the question his or her general knowledge and experience of worldly affairs: Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 (Radio 2UE) at [4]–[6], [39]–[40] (French CJ, Gummow, Kiefel and Bell JJ). The ordinary reasonable reader is a lay person, and not a lawyer, and does not examine an impugned publication over-zealously, but is someone who views the publication casually and is prone to a degree of loose thinking. The understanding of the ordinary reasonable reader is not the same as a lawyer’s understanding. Therefore, a publication such as a newspaper column should not be approached as if it were an exercise in statutory construction, where “a court construing a statutory provision must strive to give meaning to every word of the provision”: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [71] (McHugh, Gummow, Kirby and Hayne JJ).

74    The imputed knowledge of worldly affairs allows for the ordinary reasonable reader to read between the lines, and to draw inferences, implications, and conclusions much more freely than a lawyer, especially derogatory implications: Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 641 (Mason and Jacobs JJ, Gibbs J and Stephen J agreeing); Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 221 ALR 186 at [11]; Trkulja v Google LLC [2018] HCA 25; (2018) 263 CLR 149 at [32] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ). Therefore, it is often the case that it is the broad impression conveyed by an impugned publication that falls for consideration, and not the meaning of each word under analysis: Lewis v Daily Telegraph Ltd [1964] AC 234 at 285 (Lord Devlin). There are, however, limits on the extent to which the ordinary reasonable reader may engage in loose thinking or reading between the lines. While the ordinary reasonable reader’s knowledge and experience in worldly affairs will permit the drawing of inferences, available meanings might not extend to a meaning that is the result of drawing an inference upon an inference that is not suggested by a reasonable reading of the language, or to a meaning that would be understood by some readers only as a result of some prejudice: see Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 301–302 (Mason J). Of course, everything depends upon the words that are used in the publication and the broad impression that the publication conveys.

75    Because meaning is to be determined by reference to an objective standard, the audience to whom a matter is published is taken to have a uniform view of meaning. Although different people might in fact have understood the meanings conveyed by a matter in different ways, the Court must arrive at a single objective meaning. The test is not what an ordinarily reasonable reader could understand the matter to mean, as with the question of capacity arising in interlocutory disputes about pleadings or whether a case should be left to a jury. For that reason, care must be exercised in applying some judicial statements that are concerned with interlocutory questions of capacity, as distinct from the factual question of actual meaning. Thus, it is not sufficient for an applicant to demonstrate that some members of the audience might have understood the matter in the way alleged, or that the publication was reasonably capable of bearing the defamatory meanings alleged, for they are not the issues. The issue is the single meaning that an objective audience composed of ordinary decent persons should collectively have understood the matter to bear. The single meaning rule, coupled with the objective standard of the ordinary reasonable reader, is an important stabilising element of the cause of action in defamation, and has been described as representing “a fair and workable method for deciding whether the words under consideration are to be treated as defamatory”: Bonnick v Morris [2002] UKPC 31; [2003] 1 AC 300 at [21] (Lord Nicholls of Birkenhead).

76    The single meaning rule does not mean that an applicant is confined to a single imputation or sting arising from a defamatory matter. That is not what the single meaning rule is about. As the Full Court explained in Australian Broadcasting Corporation v Chau Chak Wing (2019) [2019] FCAFC 125; (2019) 271 FCR 632 (ABC v Wing) at [33], an applicant may allege two or more distinct defamatory imputations, and may allege imputations in the alternative: see also Massoud v Nationwide News Pty Ltd [2022] NSWCA 150; (2022) 109 NSWLR 469 (Massoud) at [57] (Leeming JA, Mitchelmore JA and Simpson AJA agreeing).

77    Whether words in the meanings found to be conveyed are defamatory of an applicant is also determined objectively by reference to the standards of the community generally: Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 507 (Brennan J, with whom Gibbs CJ, Stephen J, Murphy J and Wilson J agreed). What is involved is a loss of standing in some respect amongst ordinary decent persons who will apply general community standards: Radio 2UE at [39]–[40]; Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31 at [54] (Gummow, Hayne and Bell JJ). The reference to loss of standing includes by reason of disparagement of an applicant, and by imputations that have a tendency to cause people to shun and avoid an applicant. In addition, in relation to matters published after 1 July 2021, by operation of s 10A of the Defamation Act 2005 (Vic), actual damage to reputation in the form of “serious harm” must be demonstrated as an element of the cause of action. However, because the tort of defamation is concerned with the supposed impact of a matter on an applicant’s reputation amongst those to whom it is communicated, it is not concerned with the publication of matter which is merely false, or which embarrasses an applicant, or which results in injury to feelings. Embarrassment or injury to feelings may result from a publication, but publication of defamatory meaning in the estimation of the ordinary reasonable reader, and (since 1 July 2021) resultant serious harm to reputation, is the essence of the cause of action.

78    All of the imputations alleged by the applicant are said to arise from the natural and ordinary meaning of the articles. There is no reliance on any true innuendoes. Therefore, no imputations are alleged to turn on what the articles conveyed to the ordinary reasonable reader with knowledge of any special facts that would be known to members of the Caulfield Hebrew Congregation, or the Orthodox Jewish community more generally: see Duncan and Neill on Defamation (Butterworths, 1983) at [4.18(b)].

79    It is well to remember that under the Defamation Act, and corresponding uniform legislation across Australia, it is the publication of defamatory matter that constitutes the cause of action, and not the publication of imputations. Under s 8 of the Act, the publication of a matter gives rise to a single cause of action even if more than one defamatory imputation is conveyed. The object of adopting on a uniform basis the common law position that it is the publication of defamatory matter that constitutes the actionable tort was to do away with the complexities that had arisen in New South Wales, where under the Defamation Act 1974 (NSW) each imputation was a separate cause of action: see the extra-curial observations of Levine J recorded in the Second Reading Speech of the New South Wales Bill, set out in Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174; (2011) 81 NSWLR 157 at [37] (McColl JA). However, the ascertainment of the defamatory meaning of a matter by a court is not at large. An applicant’s case is shaped by the meanings alleged in the statement of claim, which will generally confine the questions of meaning for determination: Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 (Chakravarti) at [17]–[21] (Brennan CJ and McHugh J). Although it is the publication of the matter that constitutes the tort, the pleading of meanings identifies the field of inquiry at trial: Advertiser-News Weekend Publishing Company Ltd v Manock (2005) 91 SASR 206 at [76] (Doyle CJ, with whom Vanstone J and White J agreed). At least as far as an applicant’s meanings are concerned, the case may extend to meanings that are comprehended in, or are less injurious than, or are a mere shade or nuance of the pleaded meaning: Chakravarti at [21]–[22] (Brennan CJ and McHugh J), [60] (Gaudron and Gummow JJ), [139] at points 3 and 4 (Kirby J). Whether, and to what extent, an applicant may be permitted at trial to depart from the pleaded meanings will be resolved by considerations of fairness and practical justice.

80    At trial the Court is concerned with making findings directed to the single natural meaning that would be conveyed to the ordinary reasonable reader and is not concerned with identifying the outer boundaries of possible meanings. The terms of the imputations alleged by an applicant are therefore important. An applicant is entitled to bring a proceeding for defamation seeking vindication on some point which will usually be the subject of a pleaded imputation: see the discussion by the Full Court in ABC v Wing at [87], citing Associated Newspapers Ltd v Dingle [1964] AC 371 at 396 (Lord Radcliffe). In framing imputations, an applicant is entitled to disclaim meanings as being outside the pleaded case, at least where those other meanings are separate and distinct and not bound up with or material variants of the meanings that have been pleaded, as the facts of Templeton v Jones [1984] 1 NZLR 448 illustrate. There is often a tension between what defamatory meanings an applicant alleges a matter conveys, and those meanings in respect of which a respondent might maintain defences such as justification or fair comment. Framing imputations therefore carries risk. If an applicant pleads imputations that are strained, or which incorporate contestable or extravagant elements, or which are otherwise contrived for the purpose of establishing the serious harm element or heading off defences to more natural or less serious imputations, an applicant runs the risk that a court will find that the applicant has failed to establish a defamatory meaning within the bounds of the pleaded case: see for example Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15; 387 ALR 123 at [53] (Lee J).

81    In this case, the respondents have pleaded their own meanings in relation to all of the matters as an alternative to their denial of the applicant’s imputations. The respondents rely on their alternative meanings in support of defences of common law justification, the statutory defence of honest opinion, and the common law defence of fair comment. These alternative meanings are referred to colloquially as Hore-Lacy meanings: see David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24; 1 VR 667. This form of pleading is permissible for the reasons, and to the extent, explained in ABC v Wing at [15]–[23]. A collateral incident of a respondent pleading an alternative meaning may also be to make explicit the respondent’s ground for denying the applicant’s pleaded imputations: Chakravarti at [8] (Brennan CJ and McHugh J). The principles explained in ABC v Wing may extend to Hore-Lacy meanings in support of a common law defence of fair comment: see Soultanov v The Age Co Ltd [2009] VSC 145; (2009) 23 VR 182 (Kaye J). That is because, like justification, a fair comment defence is a defence of confession and avoidance where the ascertainment of defamatory meaning is the first step in scrutinising the elements of the defence, such as whether the publication amounted to comment, whether the comment was based upon true facts, and whether the comment was one that could reasonably be made by an honest person: Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245 (Manock) at [83]–[85] (Gummow, Hayne and Heydon JJ). Similar considerations may arise in relation to the statutory defence of honest opinion under s 31 of the Defamation Act. For the statutory defence to operate, the defence must be addressed to the matter in its defamatory sense: see Lloyd v David Syme & Co Ltd [1986] AC 350 at 365 (PC); Nassif v Seven Network (Operations) Ltd [2021] FCA 1286 at [180] (Abraham J). However, it is the matter and not the language of the court’s findings as to defamatory meaning which is the subject of scrutiny for the purposes of considering whether the statutory defence of honest opinion is made out: Massoud at [194]–[195]. The rationale of allowing the pleading of alternate meanings is to permit a respondent to defend the publication of the matter in meanings which are comprehended by, or which are a variant of and not more injurious than one of the meanings alleged by the applicant and which, on the respondent’s case, are true, or amount to fair comment or honest opinion. A Hore-Lacy plea within these permissible bounds will be a pleading of a defence to the matter in a meaning on which the applicant would be entitled to succeed at trial.

82    The task of the Court is therefore to make findings about whether the applicant has established by reference to the standard of the ordinary reasonable reader that the matters conveyed a meaning that was defamatory of the applicant that is fairly within the bounds of his pleaded case. In making findings as to meaning, I have given careful attention to whether the meanings found are fairly within the case argued at trial. That is because it would be procedurally unfair to the respondents to allow the applicant to succeed on a defamatory meaning that was not fairly within the imputations that the applicant pleaded and which the respondents addressed at trial, including by formulating and advancing defences to alternative meanings. I have also had regard to the fact that some meanings are alleged by the applicant to be primary meanings, and others are alleged cumulatively and in the alternative.

83    At trial, senior counsel for the applicant submitted that while the applicant maintained reliance on his imputations in the terms in which they were formulated, and disputed the respondents’ alternative meanings, the applicant would nonetheless be entitled to succeed if the Court found that a publication was defamatory of him in a meaning that was a permissible variant of one of the imputations that had been pleaded. On the other hand, senior counsel for the respondents submitted in closing that the applicant did not seek a “verdict” on the respondents’ alternative meanings because the applicant claimed that they were not conveyed. The word “verdict” is apt to a jury trial, but I understood senior counsel for the respondents to be referring to a judgment of the Court.

84    I do not accept the respondents’ submissions on this issue, and I accept the applicant’s submissions in part. There are two important points. First, the cause of action in defamation is constituted by the publication of the matter, and not the imputations. The imputations pleaded by the applicant shape the issues at trial, but the issues at trial are also informed by the respondents’ pleadings. In this respect, it is noteworthy that the respondents’ further amended defence, which maintained their reliance on alternative meanings, was filed on 20 October 2023, which was the second day of trial.

85    Secondly, in Chakravarti at [19] Brennan CJ and McHugh J stated that a plaintiff may not seek a “verdict” on a meaning different to that pleaded, but the terms of what their Honours said are important –

A plaintiff who pleads a false innuendo thereby confines the meanings relied on. The plaintiff cannot then seek a verdict on a different meaning which so alters the substance of the meaning pleaded that the defendant would have been entitled to plead a different issue, to adduce different evidence or to conduct the case on a different basis.

(Emphasis added.)

86    The emphasised words highlight that the different meaning which their Honours had in contemplation was one that so altered the substance of the meaning pleaded by the plaintiff that it raised different issues by way of defence. A similar observation was made by Gaudron and Gummow JJ at [60] –

As a general rule, there will be no disadvantage in allowing a plaintiff to rely on meanings which are comprehended in, or are less injurious than the meaning pleaded in his or her statement of claim. So, too, there will generally be no disadvantage in permitting reliance on a meaning which is simply a variant of the meaning pleaded. On the other hand, there may be disadvantage if a plaintiff is allowed to rely on a substantially different meaning or, even, a meaning which focuses on some different factual basis. Particularly is that so if the defendant has pleaded justification or, as in this case, justification of an alternative meaning. However, the question whether disadvantage will or may result is one to be answered having regard to all the circumstances of the case, including the material which is said to be defamatory and the issues in the trial, and not simply by reference to the pleadings.

(Emphasis added.)

87    In this case a fundamental premise of the respondents’ pleading of their alternative Hore-Lacy meanings is that, as an alternative to their denial that the applicant’s meanings were conveyed, the respondents must be taken to advance their meanings as being bound up with the applicant’s imputations, and as being permissible variants in the way explained in ABC v Wing such that they are meanings on which the applicant would be entitled to succeed at trial. It is only on this premise that the respondents are able to plead defences that are directed to their own alternative meanings.

88    As Gaudron and Gummow JJ indicated in Chakravarti at [60], there will often be no unfairness in treating an alternative meaning advanced by a respondent as being within the applicant’s case. There are qualifications, three of which I will mention. The first is where an applicant, expressly or by implication, nails his or her colours to the mast and thereby excludes any meanings other than those in the strict terms pleaded by the applicant. This has arisen in cases involving the guilt/suspicion dichotomy where an imputation of guilt may be pleaded by an applicant in terms which necessarily exclude lesser or different imputations. In those circumstances, to entertain findings in relation to lesser or different imputations such as reasonable suspicion or reason to investigate would be to engage with false issues, and might result in a denial of procedural fairness to a respondent who may not have advanced positive defences to lesser, unpleaded imputations. The second is where the imputations formulated by an applicant contain necessary elements, the absence of which materially changes the substance of the case. It is to be recalled that the framing of imputations by an applicant is an area of choice for the applicant: see ABC v Wing at [16]. In framing imputations, the applicant defines the territory on which the applicant’s claims of defamatory meaning are to be considered. The third qualification is that while there might be no unfairness in treating a respondent’s alternative meaning as a permissible variant of an applicant’s meaning, unfairness may arise if the Court were to go further and entertain variants on variants, that is, variants of the respondent’s alternative meanings. These are examples only, and there are no hard and fast rules for dealing with these types of issues because circumstances will differ.

89    Because of the importance of pleadings, and the way in which a trial is conducted to the making of findings of defamatory meaning, if an applicant fails to establish a defamatory meaning within the bounds of the pleaded case, the Court will not be expected to pick over the carcasses of the applicant’s failed imputations and piece together a different case.

90    The applicant has primarily advanced his meanings, or meanings not different in substance. The applicant disputed the terms of the respondents’ alternative meanings. The formulations of both sides constitute the boundaries within which questions of defamatory meaning may fairly be determined, but bearing in mind that the respondents’ meanings are advanced only as alternative expressions of the applicant’s case, and on the premise that the respondents’ primary position is to deny that the matters were defamatory in the meanings alleged by the applicant. Therefore, the respondents’ alternative meanings do not constitute admissions by the respondents.

91    The pleadings show that while the applicant’s primary position was to deny the alternative imputations pleaded by the respondents, the applicant advanced an alternative position on the premise that the Court found the matters to be defamatory in the Hore-Lacy meanings alleged by the respondents. This is apparent from paragraphs 7, 8, and 9 of the applicant’s reply dated 18 August 2022 to the respondents’ defence. In those paragraphs the applicant made allegations that are contingent upon the Court accepting the alternative meanings alleged by the respondents. This is consistent with the position taken by senior counsel for the applicant in closing submissions. It is also consistent with the position taken by senior counsel for the applicant in opening, where he accepted in response to a question from the Court that the applicant’s elaborate imputations included permissible lesser variants. Therefore, this is not a case where the applicant disclaimed, expressly or by implication, reliance on the respondents’ alternative meanings as permissible variants of his own meanings on which he was entitled to succeed. And because the respondents advanced positive defences by reference to their own alternative meanings, there is no injustice to the respondents should the Court entertain making findings that are variants of the applicant’s meanings which are within the bounds of the respondents’ alternative meanings.

Imputations – the 5 May 2021 articles

92    The 5 May 2021 articles are set out in the First Schedule. There is a difference between the text of the print article which appeared in The Age newspaper, and the online article. In evidence, Mr Brook stated that the difference was likely the result of editorial staff reducing the length of the print article in order to fit within the available space in the newspaper. There are also differences between the imputations which are alleged in respect of the two articles. I will therefore address the first and second matters separately.

Imputations – the 5 May 2021 print article

93    In relation to the first matter, the applicant alleges in paragraph 9 of the further amended statement of claim that it was defamatory of him and conveyed the following meanings, or meanings not different in substance –

(a)    Mr Mond is a person so lacking in judgment that he recklessly agreed to host a convicted spy at an important event for Melbourne’s Orthodox Jewish community without appropriate consultation;

...

(c)    Mr Mond is a disruptive person who has caused uproar within the Orthodox Jewish community by reason of the matters alleged in (a);

(d)    further and alternatively to (c), Mr Mond is a disruptive person who has caused uproar within the Orthodox Jewish community by recklessly agreeing to host a convicted spy at an important event for Melbourne’s Orthodox Jewish community without appropriate consultation.

94    In opening, the applicant submitted that permissible variants of imputation (c) that were applicable to the 5 May 2021 print and online articles were –

(a)    Mr Mond is a disruptive person who has caused uproar within the Orthodox Jewish community by recklessly agreeing to host a convicted spy at an important event for Melbourne’s Orthodox Jewish community without appropriate consultation.

(b)    Mr Mond is a disruptive person who has caused uproar within the Orthodox Jewish community when he condoned treason by supporting and sanctioning the conduct of Jonathan Pollard who is a convicted spy. [Online version only]

95    The respondents submitted that the applicant’s pleaded imputations in respect of all of the publications were unduly convoluted and rolled-up. Embedded within most of the imputations are multiple stings. As I will identify, there is also a degree of overstatement in elements of the imputations alleged by the applicant, including the applicant’s variant imputations that were advanced in argument. Each of the above imputations in relation to the first matter rolls up different charges in a compendious way. Imputation (a) rolls up lacking in judgment, recklessness, and the absence of appropriate consultation. Imputation (c) adds to the list of rolled-up charges by introducing a charge that the applicant was a disruptive person. Imputation (d), which was introduced by amendment, is an alternative way of putting imputation (c), but as with the other imputations and variant imputation (a), relies on the absence of appropriate consultation as a necessary element.

96    I am required to assess how the ordinary reasonable reader would regard the CBD column. The applicant characterised the CBD column in the further amended statement of claim as a “marquee gossip column”. As a result of this plea, the question whether the CBD column comprised gossip became a point of contention at trial, with Mr Brook rejecting that characterisation, equating gossip with unconfirmed information.

97    I do not accept the evidence of Mr Brook that the CBD column was not in the nature of a gossip column. Gossip is not accurately characterised as being limited to unconfirmed information. Contrary to the evidence of Mr Brook, the CBD columns that were in evidence clearly comprised gossip. That is because often the source of information in the columns was not disclosed. All of the articles about the Caulfield Hebrew Congregation conveyed the exposure of disagreements behind the scenes, thereby giving the appearance of gossip. Other topics covered by the CBD columns in evidence included:

(1)    when the Society restaurant in Melbourne was likely to open;

(2)    an account of a City of Stonnington council meeting, where there was a quotation attributed to the Stonnington mayor referring to the CBD column as a “gossip column in The Age”;

(3)    a suggestion that a federal member of Parliament, Mr Katter might be planning for a life outside politics;

(4)    a reference to what Christmas gifts were given to Sky News staff;

(5)    an account of the then federal Treasurer Mr Josh Frydenberg attending a secondary school and addressing an economics class, accompanied by speculation as to what connections with the school secured Mr Frydenberg’s attendance and a reference to “our source at the tuck shop”; and

(6)    an account of Mr “Eddie Everywhere” Maguire attending the Super Bowl in the United States.

98    One of the items was even written about the respondents’ solicitor in this proceeding, referring to him as a “man-about-town” and “sports tragic” who also jetted over to the Super Bowl only to be forced to return to Melbourne to attend to a legal matter and who gave his Super Bowl ticket to a former Hawthorn AFL footballer. All this might have been of interest to the readers of The Age in Melbourne, and I am not to be taken as being critical of the CBD column, or the engaging style in which it was written. But however well written, this was not public interest journalism or reporting the news of the day. It was gossip.

99    The ordinary reasonable reader would regard the style of the CBD column as conveying a mixture of facts and opinions, and as incorporating some elements that were mocking in tone. The column was written in a way that attracted attention and was easily absorbed by a reader. The items in the CBD column “name checked” people by placing their names in bold, thereby drawing attention to their identities. Each item within the CBD column was usually short in length. The first matter was typical. It was pithy. As a result, the ordinary reasonable reader would have read the first matter quickly and in its entirety. The ordinary reasonable reader would have taken away the main points. It was not the type of piece that the ordinary reasonable reader would have analysed in any depth. The same observations apply to each of the other matters on which the applicant sues. As a result of these characteristics, it is more the impression conveyed by each of the matters that is important, rather than any deep analysis of the individual words that made up the items.

100    The overall impression conveyed by the first matter was to inform the reader of the existence of disputation in the Orthodox Jewish community in relation to a decision to have Mr Pollard, a convicted spy, speak at a Jerusalem Day event. On the one hand, Rabbi Genende and Mr Jeremy Leibler were presented as opposing the decision. Against that, Dr Lamm, who was said to have extended the invitation to Mr Pollard, was presented as defending the decision.

101    The imputations alleged by the applicant in relation to the first matter were not conveyed to the ordinary reasonable reader. As I have mentioned, the focus of the article is on the existence of a controversy, or “uproar” in the Orthodox Jewish community as a result of Dr Lamm inviting Mr Pollard to speak at an event which the applicant agreed to host. Mr Pollard is described in the article as a controversial figure. Controversy attracted controversy. Two sources of that controversy were identified: Rabbi Genende who described the proposal as “misguided and potentially damaging” and in respect of whom a “rift” was said to have resulted; and Mr Jeremy Leibler who said that one had to question the judgment of selecting Mr Pollard as a keynote speaker for the event.

102    While the article identified the existence of an issue relating to the wisdom of having Mr Pollard speak at the Jerusalem Day event, and identified points of disagreement about the event, it did not convey to the ordinary reasonable reader that the applicant agreed to host the event without consultation. This is a necessary element running through each of the imputations alleged by the applicant in relation to the 5 May 2021 print article. But the article says nothing about whether consultation was required, or expected, or took place. If anything, the article conveys that there was consultation between Dr Lamm and the applicant. Whether that level of consultation was sufficient, or appropriate, or not, is not something upon which the article touches. The applicant submitted that the references in the article to fingers being pointed, and Rabbi Genende firing off an angry missive, supported an element of the imputations that the applicant did not appropriately consult. This is a very long stretch. Nor would the ordinary reasonable reader understand the first matter as conveying the strident elements of the rolled-up imputations relating to the applicant’s character that are alleged, involving recklessness and the charge that the applicant is a disruptive person. The meanings conveyed by the matter, so far as they concern the applicant, impugn his judgment. However, a bare imputation concerning the applicant’s judgment is not a meaning which is fairly within the applicant’s pleaded case.

103    The respondents denied the imputations alleged by the applicant in relation to the first matter, and in the alternative alleged a meaning which they sought to justify and rely upon for the purposes of the defences of honest opinion and fair comment. In relation to both the first and second matters the respondents alleged the following imputation at paragraph 26(a) of their further amended defence –

the Applicant, who was then president of the board of the Caulfield Shule, agreed to host an address by a person (Pollard) who was convicted of spying for Israel without appropriately consulting the Senior Rabbi of that Shule, which decision led to a dispute between the board and the Rabbi;

104    While the alternative meaning which the respondents alleged in paragraph 26(a) of the further amended defence also includes a lack of appropriate consultation as an element, this was an alternative plea under cover of a denial that the article was defamatory of the applicant in a meaning alleged by the applicant, and was argued as such by the respondents. For the reasons I gave earlier, the alternative plea was not an admission.

105    A claimed imputation in the first matter about a lack of appropriate consultation was inherent to the basis on which the trial was conducted in relation to the meanings conveyed by the first article, when the article said nothing about it. The respondents succeed in their first line of defence, which is that the first matter was not defamatory of the applicant in a meaning about which he complains, or in any meaning not different in substance, including the alternative meaning advanced by the respondents.

Imputations – the 5 May 2021 online article

106    The second matter, being the online version of the first matter, is also set out in the First Schedule to these reasons. The second matter was not in the same terms as the first matter because it contained additional elements. The additional elements were: (1) an express reference to Rabbi Genende not having been consulted; and (2) an additional quotation of words attributed to Rabbi Genende, namely, “It sends a message to the Jewish community and especially to young Jews, that it is acceptable to betray one’s country, one’s staunchest ally and friend”.

107    In relation to the second matter, by paragraph 9B of the further amended statement of claim the applicant alleges that the matter was defamatory of him in the following meaning, or meanings not different in substance –

(a)    Mr Mond is a person so lacking in judgment that he recklessly agreed to host a convicted spy at an important event for Melbourne’s Orthodox Jewish community without appropriate consultation;

(b)    Mr Mond is a person who condones treason by supporting and sanctioning the conduct of Jonathan Pollard who is a convicted spy;

(c)    Mr Mond is a disruptive person who has caused uproar within the Orthodox Jewish community by reason of the matters alleged in (a) and/or (b);

(d)    further and alternatively to (c), Mr Mond is a disruptive person who has caused uproar within the Orthodox Jewish community by recklessly agreeing to host a convicted spy at an important event for Melbourne’s Orthodox Jewish community without appropriate consultation;

(e)    further and alternatively to (c), Mr Mond is a disruptive person who has caused uproar within the Orthodox Jewish community when he condoned treason by supporting and sanctioning the conduct of Jonathan Pollard who is a convicted spy.

108    In written closing submissions the applicant effectively abandoned reliance on imputation 9B(c).

109    As I mentioned earlier, the respondents pleaded an alternative imputation in paragraph 26(a) of their further amended defence, which I have set out at [103] above.

110    I will consider first the applicant’s imputations 9B(b) and (e) and the variant imputation (b) that was opened. The second matter did not convey to the ordinary reasonable reader that the applicant condoned treason. The ordinary reasonable reader would understand the second matter, and in particular the words attributed to Rabbi Genende, as imputing that the choice of Mr Pollard as a speaker at the Jerusalem Day event showed poor judgment because of the appearance that it potentially gave, that is, the message that it potentially sent. It did not convey that the applicant, or Dr Lamm for that matter, condoned treason. The prospect that the event might send the wrong message is tied up with poor judgment, which is the principal sting of the second matter. The poor judgment arose, not because the applicant condoned treason, but because of the risk that by hosting the event it would mistakenly appear that the Jewish community condoned the idea that it was acceptable to betray one’s country. Hence, the decision was referred to as “misguided” in the words attributed to Rabbi Genende.

111    I will address together the applicant’s imputations 9B(a) and (d), and the variant imputation (a) that was opened.

112    The second matter conveyed to the ordinary reasonable reader that the applicant agreed to host the Jerusalem Day event at which Mr Pollard, a convicted spy, would speak, and which resulted in controversy. The controversy is explained by reference to the opinions attributed to Rabbi Genende and Mr Jeremy Leibler which convey the sting of poor judgment, and the contrary opinion attributed to Dr Lamm, who sought to defend the decision.

113    I do not accept that the complex, overstated, rolled-up imputations alleged by the applicant were conveyed by the second matter. That is, I do not accept that the second matter conveyed to the ordinary reasonable reader that the applicant was so lacking in judgment that he recklessly agreed to host the event without appropriate consultation, or that the applicant is a disruptive person who has caused uproar within the Orthodox Jewish community by recklessly agreeing to host a convicted spy at an important event for Melbourne’s Orthodox Jewish community without appropriate consultation. These rolled-up imputations read too much into the matter and are the product of over-analysis. In particular, as to the element of the rolled-up imputation 9B(d) that the applicant was a disruptive person, I accept that it was open to the ordinary reasonable reader to think that the applicant’s poor judgment in agreeing to host the event led to strongly-expressed disagreement, or “uproar” as a matter of cause and effect. However, in submissions, the applicant contended that –

The imputation that Mr Mond is “a disruptive person” could be seen as an alternative to reckless, if disruptive meant intentionally disruptive. However, it is possible to be unthinkingly (i.e., recklessly) disruptive, so the better view is that both forms of disparagement are conveyed simultaneously.

114    The terms of this submission demonstrate the difficulties with the imputations alleged by the applicant which do not find any footing in the publications. As I have said, the sting of the second matter, to the extent that it refers to the applicant, is concerned with questioning the judgment that he exercised in agreeing to host the event in question, which led to the disputation referred to in the article. But it is an extreme step to conclude that the words conveyed to the ordinary reasonable reader an imputation, or an element of an imputation, that the applicant is a disruptive person. The impression conveyed to the ordinary reasonable reader by the second matter is no more than the existence of a controversy in the Orthodox Jewish community, which is the dominant theme of the article. The controversy was caused by the decision to have Jonathan Pollard as the keynote speaker for the upcoming Jerusalem Day event. The ordinary reasonable reader would think no more than that the second matter conveyed as a sting that the applicant, as one of those responsible for that decision, lacked judgment in making the decision. An imputation pleaded in those terms would no doubt have attracted a fairly straight-forward defence of common law fair comment or honest opinion, and in relation to any continuing publication after 1 July 2021 might have even risked failure by the applicant to establish the serious harm element in s 10A of the Defamation Act discussed later, which possibly explains why this natural imputation was not pleaded. As to the idea that the impact of an opinion, clearly presented as such for the reader’s evaluation, might not satisfy the serious harm element, see Sube v News Group Newspapers [2018] EWHC 1234 (QB) at [42] (Warby J).

115    Nor do I accept that the second matter conveyed to the ordinary reasonable reader that the applicant agreed to host the event with Mr Pollard without “appropriate consultation”. I accept the submission of the respondents that the sting of the article does not relate to appropriate consultation. The article stated in an incidental way that Rabbi Genende was not consulted. But it reads far too much into the article to say that the applicant, or anybody else for that matter, was expected or required to consult the Rabbi, and acted inappropriately in failing to do so. Instead, the fact that the Rabbi was not consulted is presented in the second matter as context for the Rabbi’s “angry missive”, and as conveying that the Rabbi was not involved in the decision to host the event. The statement that the Rabbi was not consulted serves to locate the Rabbi within the controversy. The “rift” is evidenced by the quotations from the Rabbi’s “angry missive” and is not linked to any failure to consult. The ordinary reasonable reader would not read more into it.

116    For the above reasons, the second matter was not defamatory of the applicant in any of the meanings of which the applicant complains, or in the meaning alleged by the respondents in paragraph 26(a) of their further amended defence.

Imputations – the 13 December 2021 articles

117    The third and fourth matters, being the print and online publications of an item in the CBD column of 13 December 2021, are set out in the Second Schedule. There are no differences between the text of the print and online articles. However, the online article includes a prominent colour photograph of the applicant, and the headline differs slightly. Noting these differences, I will consider the two matters together.

118    In paragraph 11 of the further amended statement of claim the applicant alleges that the third matter was defamatory of him and conveyed the following meanings, or meanings not different in substance, in which the Caulfield Hebrew Congregation is referred to by the acronym “CHC” –

(a)    Mr Mond is a person so lacking in judgment that he recklessly and autocratically decided to host a speech by a convicted spy at CHC without consultation;

...

(c)    Mr Mond’s previous actions have inflicted lingering damage on CHC;

(d)    Mr Mond has compounded the damage he has inflicted on CHC by his lack of consultation in deciding to host a speech by a convicted spy, and by also sending an email to CHC members which forced the Board to issue an extraordinary apology to a CHC member, Adam Slonim, for Mr Mond’s negative and unfair behaviour towards Mr Slonim; and

(e)    Mr Mond is a person so lacking in judgment due to his reckless and autocratic personality that his wrongful conduct on multiple occasions has created a mess at CHC.

119    In paragraph 11B of the further amended statement of claim the applicant alleges identical meanings, or meanings not different in substance, in relation to the fourth matter, being the online version of the third matter. The applicant’s imputations do not plead knowledge of the May 2021 articles as an extrinsic fact supporting any meaning.

120    The respondents submitted that the applicant’s imputations directed to the third and fourth matters are more complex and convoluted than those alleged in relation to the first and second matters. For their part, the respondents alleged the following alternative meanings at paragraph 27 of their further amended defence –

(a)    the Applicant, who was then president of the board of the Caulfield Shule, agreed to host an address by a person who was convicted of spying for Israel and other countries, without appropriately consulting the Senior Rabbi of that Shule, which decision led to a dispute between the board and the Rabbi;

(b)    The Applicant had damaged the standing of the Caulfield Shule by sending an ill-considered and defamatory email to Shule members in which he criticised another Shule member, Adam Slonim and, as a result, the board of the Shule was forced to issue an apology to Adam Slonim in which the new board described Mr Mond’s references to Mr Slonim as “negative and unfair”;

(c)    The Applicant’s Email had resulted in a mess which the new president of the Caulfield Shule was required to clean up;

(d)    The Applicant’s actions had resulted in difficulties or, alternatively, controversies for the Caulfield Shule on multiple occasions.

121    The two headlines to the 13 December 2021 articles are “Trouble across the board in Caulfield” in the print article, and “Trouble across the board at Caulfield Shule” in the online article. In each case, the ordinary reasonable reader would have read the headline together with the text of the article. The headline is calculated to attract attention which it does by the word “Trouble”. The term “across the board” is a play on words which conveys the idea of widespread trouble and is linked to the later reference in the article to the board having to deal with legal issues arising from the applicant’s email that was disparaging of Mr Slonim.

122    The ordinary reasonable reader would see the 13 December 2021 articles as comprising two parts. The first part of the article introduced the applicant and referred to a “rift” between the applicant and Rabbi Genende over the applicant’s lack of consultation in deciding to host a speech by a convicted spy. The reference to the convicted spy is attention-grabbing. The articles conveyed the impression that the applicant caused the rift because he did not consult the Rabbi. There was much debate about whether the article conveyed that it was appropriate to consult the Rabbi, and what level of consultation was appropriate. That debate is resolved by the fact that the 13 December 2021 articles conveyed to the ordinary reasonable reader the clear impression that the applicant should have consulted Rabbi Genende, and caused a rift because he did not do so. The lack of consultation is represented as being disparaging of the applicant. The reasons for that include the reference to “the impact of Mond’s previous actions” lingering, and the reference to “leadership through emotional intelligence” in the final paragraph of the articles.

123    The second part of the articles concerned the board’s apology to Mr Slonim. The apology was an event that had currency at the time the articles were published and was described in the article as “extraordinary”. The second part commences with a segue, “But the impact of Mond’s previous actions lingers”, which leads immediately to the reference to the applicant’s August email to Shule members. The impact of the applicant’s actions is explained by the balance of the articles, which recount the board’s apology to Mr Slonim.

124    The final two paragraphs of the articles stated –

Sounds like lawyers at 10 paces, but neither Slonim nor CMC chief executive Rachel Mihalovich would comment. What a mess for President Zeimer to clean up.

Incidentally, Slonim is an adjunct fellow at Victoria University, and founder of Blended Learning Group, which “assists organisations with leadership through emotional intelligence”. Presumably, he is available for hire.

125    I have given consideration to whether the ordinary reasonable reader would sever the two parts of the article and isolate the “rift” between the applicant and Rabbi Genende as an event in the past because “both men have moved on”. I have concluded that the ordinary reasonable reader would be led into the article by the reference to the “rift”, and understand the reference to the applicant’s “previous actions”, which is expressed in the plural, as a reference to both the “rift” with the Rabbi over the applicant’s lack of consultation, and the August email which the applicant sent while he was still president, the consequences of which lingered. In that way, the article builds a bridge between the two parts of the article and links them.

126    The ordinary reasonable reader would understand the words “what a mess for president Zeimer to clean up” to be a reference to the legal issues that the article implies had arisen as a result of the applicant’s August email.

127    Because of the pithy nature of the article, the ordinary reasonable reader would understand the reference to Mr Slonim’s business “assisting organisations with leadership through emotional intelligence”, and the statement, “Presumably, he is available for hire”, to be a cutting remark about the applicant’s leadership of the Shule.

128    I will take the applicant’s alleged meanings in turn.

Applicant’s imputation 11(a)

129    The imputation alleged by the applicant in paragraph 11(a) of the further amended statement of claim in relation to the 13 December 2021 articles is somewhat convoluted. The imputation contains the extravagant adverbs “recklessly and autocratically” and, unlike the 5 May 2021 articles, the 13 December 2021 articles were not directed expressly to the applicant’s judgment in agreeing to host the Jerusalem Day event featuring Jonathan Pollard because of the identity of the speaker. As I have mentioned, the applicant’s case does not rely on knowledge of the earlier articles as an extrinsic fact that supports any true innuendo.

130    However, within the applicant’s imputation 11(a), is a lesser defamatory meaning that the 13 December 2021 articles conveyed, which was that the applicant decided to host a speech by a convicted spy at the Caulfield Shule without consulting Senior Rabbi Genende in circumstances where the applicant should have consulted him. The ordinary reasonable reader would understand the articles as conveying that the applicant thereby caused the “rift”. That lesser meaning is substantially reflected in the respondents’ alternative imputation 27(a), but with the qualification that the articles conveyed that the rift or dispute was between the applicant and the Rabbi rather than between the board and the Rabbi. I do not regard that difference as material.

Applicant’s imputation 11(c)

131    The applicant’s imputation 11(c) was conveyed by the 13 December 2021 articles and is to be understood in the context of the articles. For the reasons I have explained, the term “previous actions” is a reference to both the lack of consultation in deciding to host a speech by a convicted spy, and the applicant’s August email to Shule members which led to the apology to Mr Slonim. The ordinary reasonable reader would have understood both the rift with the Rabbi and the legal issues that had arisen as a result of the August email to be part of the lingering damage which resulted from the applicant’s actions while he was president of the Congregation. The idea both events resulted in lingering damage was also supported by the headlines to the articles, which referred to “trouble across the board”.

Applicant’s imputation 11(d)

132    The essential sting of the applicant’s imputation 11(d) is that the applicant compounded the damage, or the “trouble” that he had caused at the Caulfield Shule by his lack of consultation over hosting a speech by a convicted spy, by sending a negative and unfair email to Shule members that was disparaging of Mr Slonim in respect of which the board was forced to issue an extraordinary apology. The substance of imputation 11(d) was conveyed to the ordinary reasonable reader by the 13 December 2021 articles.

Applicant’s imputation 11(e)

133    The applicant’s imputation 11(e) was not conveyed. It contains a number of concurrent elements within the compound idea that the applicant “was so lacking in judgment due to his reckless and autocratic personality that his wrongful conduct on multiple occasions has created a mess at CHC”. The reference to “reckless and autocratic personality” is not an impression that was conveyed to the ordinary reasonable reader, although lack of judgment was. The “mess” for president Zeimer to clean up would have been understood by the ordinary reasonable reader as relating to the apology to Mr Slonim and the legal issues that the article implies had arisen as a result of the August email, but not more broadly. The applicant’s imputation 11(e) presents a situation in which essential elements of the imputation were not conveyed, with the result that it would be a step too far for the Court to patch together some lesser and materially different imputation that has not been pleaded.

134    I will now consider the respondents’ alternative imputations.

Respondents’ alternative imputation 27(a)

135    The substance of the respondents’ alternative imputation 27(a) is that the applicant agreed to host an address by “a person who was convicted of spying for Israel and other countries, without appropriately consulting the Senior Rabbi of that Shule, which decision led to a dispute between the board and the Rabbi”. This imputation departs from the language of the article in at least three ways. First, the article does not identify for whom the speaker was spying, although this is probably not relevant to the sting of the alternative imputation. Secondly, the article refers to “lack of consultation” without expressly stating who should have been but was not consulted, which is a point I have considered in relation to the applicant’s imputation 11(a). However, as I concluded earlier, the ordinary reasonable reader is left with the impression that the applicant should have consulted Rabbi Genende and that he was not consulted. And thirdly, the “rift” is portrayed by the articles as being between the applicant and Rabbi Genende, and not between the Rabbi and the board as the respondent’s alternative imputation pleads.

136    In paragraph [235] of their closing submissions, in addressing why the applicant’s imputation 11(a) was not conveyed, the respondents referred to their imputation 27(a) in the following terms, which are closer to what the articles say –

If an imputation of the kind alleged is conveyed (which is denied) it is to the effect that the applicant agreed to host an address by a person who was convicted of spying without appropriately consulting with the Senior Rabbi of the CHC.

137    A meaning in the above terms is not very different from the lesser meaning that I have upheld in relation to the applicant’s imputation 11(a). Indeed, it is substantially the same, subject to identifying what is meant by “appropriately”. On that issue, the article conveyed the impression that the applicant should have consulted Rabbi Genende, and that he did not consult him. In that sense, the word “appropriate” in the imputation has work to do.

Respondents’ alternative imputation 27(b)

138    The respondents’ alternative imputation 27(b) on its face appears to be a variation of the applicant’s imputation 11(d). However, it contains a subtle difference. It attributes to the applicant that he sent an ill-considered and defamatory email to Shule members in which he criticised Mr Slonim, as a result of which the board was forced to issue an apology, with the board describing the references to Mr Slonim as “negative and unfair”, thereby placing distance between the board’s characterisation of the applicant’s email and the meaning conveyed by the articles. However, the 13 December 2021 article repeated the board’s claim that the references to Mr Slonim were negative and unfair and should not have been included in the email, and the articles themselves thereby conveyed that meaning: see “Truth” (New Zealand) Ltd v Holloway [1960] 1 WLR 997 at 1002–1003 (PC); Lewis v Daily Telegraph Ltd at 260 (Lord Reid). The substance of the applicant’s imputation 11(d) to which I refer at [132] above therefore captures the sting more accurately than the respondents’ alternative imputation 27(b).

The applicant’s imputations alleged in paragraph 11B

139    The above findings apply to the corresponding meanings alleged by the applicant in paragraph 11B of the further amended statement of claim in relation to the online article of 13 December 2021, with the consequence that imputation 11B(a) was conveyed in the lesser meaning that I have identified, 11B(b) was conveyed, the substance of 11B(c) was conveyed, but 11B(d) was not conveyed. It also follows that I accept that the respondents’ alternative imputation 27(a) was conveyed by the online article substantially in the way explained at [130] and [136]–[137] above, but I do not accept that the respondents’ alternative meaning alleged in paragraph 27(b) of the further amended defence was conveyed.

Imputations – the 18 February 2022 articles

140    The fifth matter was the print article of 18 February 2022 in The Age newspaper, and the sixth and seventh matters were the corresponding online articles published on The Age and The Sydney Morning Herald websites. The text of the articles is set out in the Third Schedule to these reasons. The bodies of the articles were the same, but the headlines were different. The print article was headed, “RABBI RIFT SEEMS NOT FULLY HEALED”, and the online articles were headed, “RENEWAL”.

141    The applicant alleges in paragraph 13 of the further amended statement of claim that the 18 February 2022 articles, in hard copy and online, were defamatory of him. The applicant does not plead knowledge of any of the first to fourth matters as extrinsic facts that would support any of the imputations that he alleges. The applicant alleges that in its natural and ordinary meaning the 18 February 2022 articles conveyed the following meanings, or meanings not different in substance, where again the Caulfield Hebrew Congregation is referred to by the acronym “CHC” –

(a)    Mr Mond has created bad times at CHC through his wrongful conduct by hosting a speech by a convicted spy without appropriate consultation;

...

(c)    Mr Mond has compounded the damage he has inflicted on CHC by reason of the matters alleged in (a) by a further incident in which Mr Mond’s negative and unfair behaviour towards a CHC member, Adam Slonim, forced the Board to issue an apology to Mr Slonim for Mr Mond’s behaviour;

(d)    the divisions Mr Mond has created within CHC by reason of his misconduct as alleged in (a) and (c) have been so serious that they have not yet been able to be remedied;

(e)    further and alternatively to (c), Mr Mond has compounded the damage he has inflicted on CHC by hosting a speech by a convicted spy without appropriate consultation by a further incident in which Mr Mond’s negative and unfair behaviour towards a CHC member, Adam Slonim, forced the Board to issue an apology for Mr Mond’s behaviour;

(f)    further and alternatively to (d), the divisions Mr Mond has created within CHC, by hosting a speech by a convicted spy without appropriate consultation and by negative and unfair behaviour towards a CHC member, Adam Slonim, which forced the Board to issue an apology to Mr Slonim, have been so serious that they have not yet been able to be remedied.

142    The applicant’s imputations (e) and (f) were added to his pleading by way of amendment, and are prefaced by the words “further and alternatively” to (c) and (d) respectively, thereby extending the imputations alleged in those paragraphs. The result is that there is a set of overlapping and apparently inter-dependent meanings that fall for consideration. Indeed, the applicant submitted in closing that imputations 13(d) and (f) were identical in substance.

143    The respondents submitted that the imputations pleaded by the applicant in relation to the 18 February 2022 articles were too convoluted and complicated to have been conveyed in circumstances where they rely so heavily on notions that are not set out in the words of the publications. I agree that the imputations are convoluted and complicated, and I agree they deploy terms not found in the publications, such as “wrongful conduct”, and “misconduct”. However, ideas may be conveyed by implication, so the choice of words for an imputation that are not present in the publication is not, for that reason alone, necessarily fatal.

144    For their part, the respondents allege the following alternative meanings in paragraph 28 of the further amended defence in support of their justification, honest opinion, and fair comment defences –

(a)    the actions of the Applicant, as president of the board of the Caulfield Shule, had caused the Shule to become involved in controversy by agreeing to host an address by a convicted spy without appropriately consulting the Senior Rabbi of the Shule;

(b)    Further, the Applicant had sent an ill-conceived and defamatory email to Shule members in which he criticised another Shule member, Adam Slonim, and the new board of the Shule was forced to issue an apology to Adam Slonim over Mr Mond’s criticism of Adam Slonim which the board described as “negative and unfair”.

145    The respondents’ alternative imputation 28(b) contains the same subtle feature to which I referred at [138] above in relation to their alternative imputation 27(b).

146    The print article contains the heading “RABBI RIFT SEEMS NOT FULLY HEALED”, whereas the online articles contains the more benign heading, “RENEWAL”. Putting the headings to one side for the moment, the 18 February 2022 articles present instances of division in an episodic way. Three areas of division are identified –

(1)    division between the applicant and Rabbi Genende over the applicant’s claimed failure to consult the Rabbi over hosting a speech by a convicted spy;

(2)    division between the applicant and Mr Slonim, in respect of which the board was forced to issue an apology; and

(3)    a division of a vague and unspecified nature in relation to the commencement of Rabbi Rabin’s term, where at his induction attendances were low, other rabbis were thin on the ground, and Rabbi Genende was not in attendance, possibly as a “snub”.

147    By reason of its heading, the ordinary reasonable reader would see the print article as linking Rabbi Genende’s absence at the inauguration to the rift that was claimed to have existed between the applicant and the Rabbi over the applicant’s failure to consult. That link is not as strong in the online articles, but it is nonetheless conveyed by the suggestion that Rabbi Genende did not attend the inauguration as a “snub”.

148    As with the 13 December 2021 articles, the 18 February 2022 articles conveyed to the ordinary reasonable reader that the applicant had failed to consult Rabbi Genende over a decision to host a speech by a convicted spy, thereby causing a rift between the applicant and the Rabbi. The ordinary reasonable reader would consider that the applicant was the cause of the rift, and that the reference to the rift in the articles to be disparaging and therefore defamatory of the applicant, because it is tied up with the “bad times”, and the continuing divisions in the synagogue to which the articles refer.

149    As to the issue with Mr Slonim, the 18 February 2022 articles treated the applicant’s email to the Congregation in a more direct way than the 13 December 2021 articles. The applicant’s email was said to have included “negative and unfair” references, which the ordinary reasonable reader would have understood as relating to Mr Slonim. The quotation marks around “negative and unfair” would signal to the ordinary reasonable reader that the words are taken from the board’s apology to Mr Slonim, but as with the 13 December 2021 articles, the respondents are liable for the publication of those words if they convey or contribute to a defamatory meaning.

150    In relation to the last section of the 18 February 2022 articles, relating to the level of attendance at Rabbi Rabin’s inauguration, the ordinary reasonable reader would regard that as adding colour to the other defamatory aspects of the articles. The reference to the divisions in the synagogue, and to the suggestion that Rabbi Genende did not attend the inauguration as a “snub”, tie the themes of the article together and contribute to their overall disparaging flavour.

151    I will now address the applicant’s pleaded meanings in relation to the 18 February 2022 articles in turn.

Applicant’s imputation 13(a)

152    I find that the substance of the applicant’s imputation 13(a) was conveyed to the ordinary reasonable reader by the articles. The term “wrongful conduct” in the applicant’s imputation 13(a) is an elusive term, but it is the product of the way the articles were expressed, and what they implied. The ordinary reasonable reader of the articles would have been left with the impression that the applicant’s failure to consult Rabbi Genende over the decision to host a speech by a convicted spy was wrong: see the observations of Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137E. As I reasoned earlier in relation to the 13 December 2021 articles, the 18 February 2022 articles conveyed that the applicant failed to consult the Rabbi when he should have consulted him, and that by failing to do so, the applicant had caused a rift. In that way, the articles conveyed that there was not appropriate consultation.

Applicant’s imputations 13(c) and (e)

153    The applicant’s imputations 13(c) and (e) are similar, and (e) is alleged both in addition to and in the alternative to (c). Imputation 13(e) is a more complete version of 13(c). It brings together the two episodes that the articles convey contributed to the “bad times” that had occurred at the Caulfield Shule. I find that the substance of the applicant’s imputation 13(e) was conveyed, and in that meaning it was defamatory of the applicant. The articles conveyed that the applicant caused damage to the Shule as a result of the references in the articles to the “bad times” and the divisions, in the context of the references to the applicant. The articles step through the episodes, and they would have conveyed to the ordinary reasonable reader that the applicant compounded the damage that resulted from the rift with the Rabbi that he had caused, by his conduct in sending the email that contained “negative and unfair” references to Mr Slonim.

Applicant’s imputations 13(d) and (f)

154    As I mentioned above, counsel for the applicant submitted that the applicant’s imputations (d) and (f) were identical in substance. Imputation 13(f) is a more complete version of 13(d).

155    I have already held, in substance, that the two foundational components of 13(f) were conveyed, namely that the applicant agreed to host a convicted spy without appropriate consultation, and that the applicant engaged in negative and unfair behaviour towards Mr Slonim in his farewell email. It is a small step to find that the articles also conveyed to the ordinary reasonable reader that, by his conduct, the applicant had created divisions within the Shule which were continuing. That meaning is conveyed by the articles when read as a whole and in particular as a result of their reference to the “bad times”, and by the phrase, “Alas, the divisions at the synagogue still exist”. In combination, these features of the articles conveyed to the ordinary reasonable reader that the applicant’s conduct caused divisions which have not been able to be remedied. Therefore, I find that the applicant’s imputation 13(f) was conveyed by the 18 February 2022 articles, and in that meaning the articles were defamatory of the applicant.

Respondents’ alternative imputations

156    As for the respondents’ alternative meanings, imputation 28(a) is not relevantly or substantially different from the applicant’s imputation 13(a) in the way that I have explained it at [152] above. The essential sting is the same. Because I have found that the applicant’s imputation 13(a) was conveyed in its lesser variant, it is unnecessary to give separate consideration to the alternative form in which the respondents have expressed that particular meaning.

157    The respondents’ alternative meaning 28(b) has the same feature as their alternative meaning 27(b), which I addressed at [138] above, namely that it has a subtle but important difference when compared to the applicant’s imputations 13(c) and (e) in that it seeks to attribute the “negative and unfair” description as being merely a report of the description by the board rather than a meaning conveyed by the article. For the same reasons I have given at [138], and for the additional reasons that I have given at [149], I do not accept the terms of the respondents’ alternative imputation 28(b).

The background facts in more detail

158    Before addressing the question of serious harm and the respondents’ positive defences, I will make some further findings of primary facts, as those findings will inform the outcome of my consideration of the circumstances in which the publications were made and of the defences. The following findings are based upon the documentary and oral evidence, together with the statement of agreed facts that was tendered. I will address the parties’ submissions on disputed primary facts as they arise. However, for the most part the primary facts were not significantly contentious.

Witnesses

The applicant

159    The applicant gave extensive evidence-in-chief and was cross-examined. The applicant came across as being a person who felt very aggrieved by the whole course of events. I have no doubt about the applicant’s sincerity in giving evidence of the hurt that he said he had suffered as a result of the publications. I formed the impression that this hurt was suffered in the context of other hurt that the applicant must have suffered as a result of other events around the Shule, such as Rabbi Rabin’s failure to acknowledge the applicant on the occasion of his inauguration at the Shule to which I will refer below.

160    I formed the view that the applicant was a frank and honest witness. This was particularly apparent in relation to his evidence of primary facts. He gave straight-forward answers, some of which were against his interests.

161    However, when it came to evidence which called for some degree of evaluation, or appraisal, the applicant’s evidence naturally favoured his own view of things, and he was reluctant to make concessions. This is not a criticism directed to the applicant’s honesty or integrity, and I emphasise my finding that I thought that the applicant was honest in giving evidence. But perhaps understandably, the applicant lacked some objectivity. One example bears that out. It was obvious that Mr Slonim’s conduct was a source of annoyance to the applicant, and that there was a degree of tension between the two men. The applicant was reluctant in evidence to make concessions when it was put to him that the terms of his 13 August 2021 email to the Congregation had been unfair to Mr Slonim. However, I can see why the applicant was not able to see other viewpoints about his 13 August 2021 email, and I do not consider that this feature of his evidence affects his general credibility.

Rachel Mihalovich

162    Ms Rachel Mihalovich was the Chief Executive Officer of the Caulfield Hebrew Congregation at the relevant time. Ms Mihalovich came across as an impressive and reliable witness.

Barry Mond

163    The applicant’s brother, Mr Barry Mond, presented as someone who is very close and loyal to the applicant. This is not a criticism, but an observation. No issues about Mr Barry Mond’s credibility arise, because his evidence about the primary events leading to the publication of the matters sued upon was limited.

Betty Mond

164    The applicant’s wife, Betty Mond, gave evidence. The focus of her evidence was around the changes in the applicant’s behaviour following the publications and not about the events that gave rise to them. No issues arise in relation to her credibility.

Adam Slonim

165    Mr Adam Slonim initially came across as a confident witness, but ultimately I thought that his recollection of some events was flawed, and that his apparent confidence masked some reconstruction to which he was prone. As with the applicant, I detected in Mr Slonim a degree of tension between them. This is unsurprising given the course of events, and the evidence of differences of opinion between the two men on a number of issues within and outside the Shule. Mr Slonim’s evidence requires some scrutiny, and it will be necessary to resolve some issues in relation to the evidence that he gave.

Adam Hyman

166    Mr Adam Hyman is a member of the Melbourne Orthodox Jewish community who gave evidence that he protested outside the Caulfield Shule at the time the Jerusalem Day event was held, and of the reasons for his protest. No challenge was made to his credibility, and no issues otherwise arise.

Samantha Hutchinson

167    I have already addressed Ms Hutchinson’s evidence, which related to the question of publication. On primary facts, Ms Hutchinson was a reliable witness, and no issues arise.

Stephen Brook

168    Mr Brook gave evidence principally on issues that went to the defences of honest opinion, fair comment, and public interest. The applicant submitted that Mr Brook was not an impressive witness, for reasons including that “he was unusually keen to impress upon the Court what an important journalist (or person) he is, and how he moves in very powerful circles”. These aspects of the applicant’s submissions were not warranted, and I do not accept them. Mr Brook was asked questions about his career in journalism, how he came to commence writing the CBD column, and about the nature of his brief in writing the CBD column, and he answered them. He came across as being proud of his career and his work, and this is not a basis for criticism.

169    There are, though, three features of Mr Brook’s evidence that are worthy of comment. The first is that Mr Brook gave evidence about information that he obtained from confidential sources. Section 126K of the Evidence Act 1995 (Cth) confers a statutory privilege on journalists in relation to the disclosure of the identity of confidential informants. No issue arose in this case in relation to whether Mr Brook’s sources were confidential, and therefore he was not challenged on that claim. Further, senior counsel for the applicant cross-examined Mr Brook with some care so as not to encroach upon the privilege. However, this had the consequence that the evidence about information from Mr Brook’s sources was often presented in a global way. There were some exceptions, an example being Mr Brook’s evidence that he emailed one of the articles in draft to a source to be fact-checked.

170    The second feature of Mr Brook’s evidence that is worthy of comment is that he was cross-examined about the obligations under the Code of Conduct titled “Australian Metro Publishing – Editorial Code of Conduct” to which I referred earlier in the context of Ms Hutchinson’s liability for publication. The Code of Conduct provided that it applied to all Australian Metro Publishing editorial employees, including staff at The Sydney Morning Herald and The Age. The Code of Conduct provided for principles such as honesty, impartiality, accuracy, fairness, disclosure of all essential facts, and offering a right of reply. The principles included that opinion and comment pieces should fairly and accurately present the relevant facts upon which the opinion or comment was based, and that reporters were to ensure that expressions of opinion were not based on inaccurate material or omission of key facts. The principles included that all editorial material should distinguish between comment, verified fact, and speculation, and that commentary and analysis should meet the same standards of factual accuracy as news reports. Other principles included that reporters would not place unnecessary emphasis on personal characteristics, such as religious beliefs. Mr Brook accepted that as a journalist preparing and publishing material in the CBD column, he was subject to the Code of Conduct, and said that he was familiar with its contents. However, when Mr Brook was taken to its provisions in more detail in cross-examination, he sought to maintain that some provisions that applied to reporters did not apply to him because he was a columnist. I formed the impression that this distinction was expedient, and had occurred to Mr Brook on the run while he was giving evidence, and that he had not had a full opportunity to reflect upon it.

171    The third feature of Mr Brook’s evidence is that the volume of written work for publication that he produced in a given year was very significant. The three CBD columns the subject of this proceeding were only a small part of a large body of regular writing. It is necessary to take this into account if it becomes necessary to assess Mr Brook’s evidence that relies on his recollection of any contentious point of detail relating to his preparation of the matters.

Rabbi Dr Benjamin Elton

172    Rabbi Elton, who as I have already mentioned was the Chief Minister of the Grand Synagogue in Sydney, was called by the respondents as an expert witness. With the assistance of junior counsel for the respondents he prepared a report addressing the question whether it was appropriate for the president of a Shule to consult with the senior rabbi of the Shule before agreeing to host Jonathan Pollard as a speaker. The involvement of junior counsel in preparing the expert report of Rabbi Elton was extensive, with counsel preparing the first draft of the report based upon Rabbi Elton’s instructions and communicating directly with Rabbi Elton by email. The evidence suggests that this was the product of time constraints, the unavailability of the solicitors to attend to the issue, and the need to ensure that the opinions of Rabbi Elton were presented in an admissible form. Rabbi Elton was cross-examined about the manner in which his report was prepared. It was not put to Rabbi Elton that the opinions that were recorded in those parts of his report that were admitted into evidence were not his opinions.

173    The assumptions that were set out in Rabbi Elton’s report which he had been given were incomplete in several respects. In particular, the assumptions did not faithfully convey some material elements of the parties’ statement of agreed facts. The applicant relied on these omissions in support of a claim for aggravated damages which I will address later. Several parts of Rabbi Elton’s report were not read into evidence in response to objections as to admissibility.

174    Putting the above issues to one side, in the limited oral evidence that Rabbi Elton gave, he answered questions directly and presented as an impressive witness. However, apart from providing the Court with some helpful background in relation to religious issues and the workings of a synagogue, I do not place much weight on Rabbi Elton’s evidence in relation to any contested issues about consultation. That is because Rabbi Elton was given an incomplete account of the factual circumstances which undoubtedly influenced his opinions.

Witnesses who were not called

175    The applicants submitted that there were a number of witnesses who were not called by the respondents, and in respect of whom Jones v Dunkel inferences should be drawn: see Jones v Dunkel (1959) 101 CLR 298. The nature of that inference is that the evidence that was not called “would not have helped the party’s case”: Brandi v Mingot (1976) 12 ALR 551 at 559–560 (Gibbs ACJ, Stephen, Mason and Aickin JJ). See also, Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345 at [165]–[167] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) where reference was made in this context to Lord Mansfield’s dictum in Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970, and where it was observed that Jones v Dunkel “is a particular and vivid example of the principles that govern how the demonstration that other evidence could have been called, but was not, may be used”.

176    The witnesses not called by the respondents in respect of whom the applicant submitted that a Jones v Dunkel inference arose were:

(1)    Dr Lamm (who had been subpoenaed by the respondents but was not called);

(2)    Rabbi Genende;

(3)    Rabbi Rabin;

(4)    Mr Jeremy Leibler;

(5)    Ms Judy Maltz, who was the journalist with Haaretz who reported on the controversy on 3 May 2021;

(6)    the editor of The Age; and

(7)    the editor of The Sydney Morning Herald.

Evidence of the editors was said to be relevant to the decision to publish.

177    I do not see how any evidence of Dr Lamm would likely have had a material bearing on any real issue in contest, and the applicant’s submissions did not identify any.

178    As to Rabbi Genende, I do not draw any Jones v Dunkel inference against the respondents, just as I do not draw any corresponding inference against the applicant for his failure to call Rabbi Genende. I do not see Rabbi Genende as a witness whom I would have expected either side to call, given all the circumstances. Moreover, the order of events leading up to the hosting of the Jerusalem Day event is reasonably well documented. Whether what occurred amounted to a failure to consult Rabbi Genende, which is an issue on which the parties joined, is ultimately an evaluative conclusion for the Court. Nor do I see Rabbi Rabin as being within the camp of either side. In any case, I do not regard Rabbi Rabin as a witness to any central contested event.

179    The applicants submitted that the respondents had alleged that the articles contained opinions held by Rabbi Genende and Jeremy Leibler, but did not call them as witnesses and that their failure to do so was unexplained. That submission was misplaced and leads nowhere. The email from Rabbi Genende to the board of the Caulfield Shule of 3 May 2021 setting out his opinions was in evidence. There is no reason not to accept that what was said in that email were the opinions of Rabbi Genende. For the purposes of the statutory defence of honest opinion, the onus falls on the applicant under s 31(4)(c) of the Defamation Act to show that the respondents did not have reasonable grounds to believe that the opinions were not honestly held by Rabbi Genende. However, in his reply, the applicant did not plead any reliance on s 31(4)(c). The same applies to the opinion attributed to Mr Jeremy Leibler. By the applicant’s response to the respondents’ notice to admit the applicant admitted that Mr Leibler stated the words that are attributed to him. There is no claim that the respondents did not have reasonable grounds to believe that Mr Leibler held the opinions set out in his statement.

180    The applicant did not explain in submissions how Judy Maltz could give admissible evidence on any contested issue. Any oral evidence of her conversations with others would likely contain hearsay representations. At most, the failure to call Ms Maltz would go only to the weight to be given to the accuracy of hearsay representations that she recorded in an email that was tendered. However, even that would be of doubtful utility because in the case of the documentary record of Ms Maltz of a representation made to her by Rabbi Genende, that representation would carry weight only if Rabbi Genende was called, which he was not.

181    As for the editors, for reasons that will become apparent, their failure to give evidence leads to an evidentiary gap in relation to the corporate respondents’ defence of public interest under s 29A of the Defamation Act.

The organisation of the Jerusalem Day event

182    On 7 April 2021, Rabbi Genende, who was the senior rabbi at the Caulfield Shule, went on leave, and remained on leave until 28 April 2021. However, notwithstanding that he was on leave, as recounted later, the Rabbi spoke to the applicant about the Jerusalem Day event during his period of leave.

183    On 14 April 2021, the applicant, in his capacity as president of the Caulfield Shule, agreed with Dr Danny Lamm of Mizrachi that the Caulfield Shule would host a Jerusalem Day event to be held on 9 May 2021. The agreement occurred during a conversation between the applicant and Dr Lamm at an Israeli Independence Day event that was organised by Mizrachi and held at the Caulfield Shule. Towards the end of that event Dr Lamm announced to those present, and who numbered over 400, that the applicant had agreed to host the Jerusalem Day event at the Shule. The congregation responded with applause. Dr Lamm did not tell the applicant on that occasion that he proposed that Jonathan Pollard would speak at the event. Rather, after he had announced the Jerusalem Day event publicly, Dr Lamm told the applicant that he was working on getting a surprise guest for the event.

184    After Dr Lamm’s announcement of the event on 14 April 2021, organisation of the Jerusalem Day event was set in train.

185    On 21 April 2021, Dr Lamm left a short voicemail message for the applicant in which he stated that the guest speaker for the event was Jonathan Pollard. The text of the voicemail message is as follows –

(laugh) Hey mate, it’s impossible to get us together (laugh). I just wanted you to know who our guest speaker is for Yom Yerushalayim and it’s Jonathan Pollard so something to talk about and I do want to discuss a couple of things with you so let’s try and speak to each other. I will stay off the phone for 2 minutes in case you ring back. Bye.

186    As I recounted earlier, Mr Pollard is a convicted spy and is a controversial figure within Jewish circles.

187    The applicant returned Dr Lamm’s call in the afternoon of 21 April 2021, just before 3.00 pm. The telephone record for the conversation shows that it was a little over four minutes in duration. In that conversation, the applicant asked Dr Lamm who Jonathan Pollard was, in response to which Dr Lamm told the applicant that he was a person who had been convicted of treason, and had spent 30 years in prison. Dr Lamm expressed the opinion to the applicant that this was far longer than what he deserved, and that 10 years would have been more appropriate. Dr Lamm told the applicant that Mr Pollard would speak at the event by way of a recorded video interview on the topic, “What Jerusalem means to me”, and that the video would be heavily vetted. The applicant understood that the video would be in the nature of a documentary. Dr Lamm foreshadowed that he would send the applicant an article about Mr Pollard so that he had some information. The applicant’s response to Dr Lamm was, “Okay”.

188    The following day, on 22 April 2021, Rabbi Genende telephoned the applicant at about 10.00 am and left a voicemail message in which he asked the applicant to call him. This occurred at the time during which the Rabbi was on leave. The Rabbi’s voicemail was in the following terms –

David just something came up late last night which I think you should know about. Umm so please give me a call back if I don’t hear from you tonight, then I will just text you what it’s about but probably better to talk about it on the phone. I will be unavailable between 10:15 and 11.

189    The applicant returned Rabbi Genende’s call at 11.07 am, and they spoke for about three and a half minutes. Rabbi Genende told the applicant that he was aware that Jonathan Pollard was going to be involved in the Jerusalem Day event, and that he had received a call from Mr Mark Leibler who was putting a lot of pressure on him to do something about it. Rabbi Genende also told the applicant that he had some concerns.

190    Mr Mark Leibler is a well-known lawyer and member of the Jewish community in Melbourne. He is the father of Mr Jeremy Leibler, who was quoted in the articles of 5 May 2021. The applicant gave evidence that Mr Mark Leibler was a friend of Rabbi Genende, and was a member of Mizrachi.

191    In cross-examination, the applicant accepted by reference to his answer to an interrogatory that Rabbi Genende told him that Mark Leibler had telephoned the Rabbi to tell him that the Shule should not be hosting the event. The Rabbi expressed reservations to the applicant about the event and said words to the effect, “I feel pressure from Mark to cancel the event”. The applicant listened to what Rabbi Genende had to say. The applicant did not ask the Rabbi why Mark Leibler thought that the Shule should not be hosting a speech by Jonathan Pollard or of Mr Leibler’s concerns. The applicant informed Rabbi Genende that Mr Pollard’s participation would be by pre-recorded video, and that the topic would be “What Jerusalem means to me”. The applicant did not ask the Rabbi to elaborate upon his concerns. It was put to the applicant in cross-examination, and he agreed, that he did not ask Rabbi Genende whether he was so concerned about the event that he thought the Shule should not be hosting Mr Pollard, that he did not ask the Rabbi about possible repercussions for the Shule should the event with Mr Pollard go ahead, that he did not ask the Rabbi how he thought members of the Shule might react, or how the wider Jewish community might react, or at this point whether the Rabbi would be comfortable attending the Shule on the occasion of the Pollard video presentation. The applicant accepted in cross-examination that his discussion with Rabbi Genende on this occasion was not one in which he sought advice or input from the Rabbi on whether the Shule should have been hosting the event. The applicant gave evidence-in-chief that he said to Rabbi Genende that if he had some concerns, then the applicant would get some feedback from the board and see what they had to say. The applicant gave evidence that the Rabbi conveyed to him that he was very happy with that approach and thanked the applicant. The applicant was not challenged on this evidence in cross-examination. Instead, in cross-examination the applicant was asked to affirm his evidence about the way in which his telephone call with the Rabbi concluded, and I accept his evidence. This was the basis on which the applicant understood that the issue was resolved with the Rabbi at that point in time.

192    The statement of agreed facts relating to the applicant’s telephone records states that the applicant telephoned Dr Lamm at 11.12 am on 22 April 2021, and that they spoke for more than five minutes. The applicant gave no evidence about this telephone call in evidence-in-chief, and he was not cross-examined about it. Given the proximity of time between the two calls, there is an available inference that the subject-matter of this call was the applicant’s conversation only minutes earlier with Rabbi Genende, and Mr Mark Leibler’s opposition to having Jonathan Pollard speak at the Jerusalem Day event. However, no party made a submission about the likely subject matter of this call, the respondents noting in their submissions that the applicant gave no evidence about the call.

193    On 22 April 2021 at 11.21 am, the applicant emailed the members of the board of the Congregation, stating –

Dear Board Member

I have been advised that the guest Speaker is Jonathan Pollard.

Happy To Receive any comments. Regards

David Mond

194    This email made no reference to the fact that Rabbi Genende had conveyed to the applicant concerns about Mr Pollard addressing the event as guest speaker. And it did not expressly direct attention to whether there should be any reason for concern. The applicant explained in evidence that he did not wish to influence the board members one way or the other, and that he regarded his conversation with Rabbi Genende as being between them at that stage.

195    During the course of the day there were email responses from some, but not all members of the board. The responses included –

(a)    at 11.39 am, Danny Gluck wrote –

David,

I think it will be very interesting!

It’s a controversial choice to say the least.

The down side I see is that “some” people may see it as provocative, whilst “others” will see him as a hero.

It will definitely raise the conversation level.

(b)    at 11.46 am, Willie Best wrote –

Agreed with Danny 100%

I think the majority of people will think it is a good choice.

He did the wrong thing by America, but in my opinion the sentence didn’t justify the crime.

They made a scapegoat out of him.

It may well be a draw card for people to come.

(c)    at 11.49 am, Miriam Weisz responded –

I too find this an interesting choice.

(d)    at 12.01 pm, Robert Weil wrote –

Controversial, yes, but if he turns out to be an inspiring speaker who champions the cause of Jerusalem at this event, then people will say it was a great choice.

(e)    at 2.45 pm, Issy Feldman wrote –

Hi All

A very interesting speaker and sure to bring in a crowd. Does anyone feel there is any downside to the provocative aspects he may present.

(f)    at 4.27 pm, Miriam Weisz wrote –

My views for what they’re worth are that I think there will be some fall out regardless of the speaker. The person doesn’t have to be controversial for this to occur. This man has done his time and it will be interesting to hear his reflections.

(g)    at 5.19 pm, Barry Mond, who is the applicant’s brother, wrote –

I saw a photo of him recently eating in a restaurant in Jerusalem surrounded by people just wanting to shake his hand and wish him well.

He will draw a crowd and the fact that we have managed to get him is frankly amazing in my opinion.

(h)    at 5.23 pm, Willie Best wrote –

What are the logistics of the AV presentation.

I presume there will been [sic] to be big screen TVs placed strategically around the shule.

This takes time to organise and set up.

(i)    at 5.34 pm, Danny Gluck wrote –

Big Screen and speakers on the stage in front of the Aron. Logistics already in progress – Mark Steiner is organising it.

196    Four members of the board did not respond. The applicant gave evidence that because they had not responded, he assumed that it was not a matter of concern to them. The applicant was also cross-examined about the various responses, the upshot of which is that I find that while the applicant appreciated as a result of the responses that some members of the board thought that Jonathan Pollard was a controversial, or interesting choice, as a speaker who might provoke discussion around different viewpoints, he did not consider that there was any opposition. While Issy Feldman posed the question whether there was any downside, nobody responded so as to identify any downside. The applicant also spoke to his brother Barry Mond about the topic, who emphasised that under Jewish law repentance was available at any time. The applicant otherwise did not respond to the emails from the board members.

197    As a result of receiving the emails from board members, the applicant formed the view that the board was supportive of the proposal to have Jonathan Pollard speak at the Jerusalem Day event. The applicant was not directly challenged in cross-examination about his view that the board was supportive, and I accept his evidence. For his part, the applicant thought that the video presentation was likely to be something in the nature of a documentary, and thought that no real downside had been expressed, but he did not have a particular view himself. As a result, the applicant did not have concerns.

198    In the meantime, at 12.12 pm on 22 April 2021, and following their telephone conversation about an hour earlier, Dr Lamm forwarded to the applicant a WhatsApp message containing a link to an article about Jonathan Pollard in the Jerusalem Post. The text that accompanied the forwarded link stated –

Pollard is a polarising character especially for US Jews, as he squarely raises the issue of dual loyalties. Isi Leibler wrote an article about him in 2014, making the point that Jonathan Pollard is no hero but a convicted spy who was paid to provide valuable intelligence to Israel relevant to the Gulf War. Isi Leibler strongly argued that Pollard’s punishment grossly exceeded his crime and there was no precedent for any other spy in the US undergoing such harsh treatment in the post-World War II era.

199    The forwarded link was accompanied by a message from Dr Lamm –

I hope you will hold up

I won’t buckle

200    The applicant understood Dr Lamm to be conveying that he would not buckle to the view being expressed by some people that a video with Jonathan Pollard should not be shown at the Jerusalem Day event, and that he hoped that the applicant would not buckle either.

201    After Dr Lamm forwarded the Jerusalem Post link to the applicant, the applicant perused the article about Jonathan Pollard, taking in the gist of the article, but did not study it, describing it as a “very heavy article”. The article was dated 28 January 2014, and the applicant gave evidence that the author of the article, Isi Leibler, was the brother of Mark Leibler.

202    In the early evening of 22 April 2021, there was a further exchange of WhatsApp messages between Dr Lamm and the applicant –

7.13 pm – Dr Lamm:        All ok?

7.16 pm – the applicant:    All good!

7.17 pm – Dr Lamm:        Great

Leibler’s behaviour speaks for itself

It will drive more people to attend

7.19 pm – the applicant:    Upwards and onwards!

7.21 pm – Dr Lamm:    I’ve publicised it in Mizrachi Matters so it will likely infuriate ML

Incidentally I also announced my intended retirement from Miz presidency

7.29 pm – the applicant:    Happy retirement

Could be catchy this retirement business. It’s time for generational change and they have to step up to the plate.

203    I find that the references to “Leibler” and “ML” in the above exchanges were to Mr Mark Leibler. The applicant accepted in cross-examination that his own statement, “Upwards and onwards!”, was to indicate that he did not have any difficulty with the Jerusalem Day event proceeding with Jonathan Pollard as a speaker. That was because the applicant did not have any concerns with the Shule hosting the event with Jonathan Pollard speaking by pre-recorded video, and he had received comments from the board, and everybody seemed to be happy.

204    Prior to sending the WhatsApp message to Dr Lamm the applicant did not have any further conversation with Rabbi Genende about the issue. He said in cross-examination that he did not make any conscious decision about it, that the Rabbi was on leave, and that he had all the feedback from the board, which he considered was supportive of the event going ahead. A fair appraisal of the applicant’s evidence is that it was the combination of these factors that resulted in him not contacting the Rabbi again at that point. The applicant gave evidence that when the Rabbi was on leave “he didn’t want to be disturbed unless it was a funeral”. There was some cross-examination around this topic to the effect that the Rabbi had thought that the issue was sufficiently important to interrupt his leave to call the applicant. However, the applicant was not directly challenged on his answer that he did not go back to the Rabbi because of the combination of reasons that he gave, which included that the Rabbi was on leave. I accept the applicant’s evidence, the tenor of which was that the combination of the Rabbi’s leave, and his view that the board had not raised any issues, had the result that it did not cross his mind to contact the Rabbi again before the WhatsApp exchange with Dr Lamm.

205    It was put to the applicant in cross-examination that prior to sending the WhatsApp message to Dr Lamm on 22 April 2021 he had not consulted with Rabbi Genende about moving forward with the event with Jonathan Pollard as the guest speaker. The applicant responded -

Strictly speaking, yes. But I had consulted with him as to the process.

206    When asked by the Court to clarify what he meant by “yes”, the applicant elaborated –

My understanding, your Honour, was that I had spoken to Rabbi Genende on the 22nd when he rang me to tell me that he had heard of Pollard, and that we had agreed, so there was a consultation there. We had agreed the process would be that I would then see what the board had to say about it. That was – that was the extent. That was the consultation right there.

207    The cross-examination continued, as follows –

Q:    Prior to sending your message to Dr Lamm at 7 pm on 22 April, you didn’t consult Rabbi Genende about moving forward with the event with Jonathan Pollard as the speaker?

A:    No.

Q:    Is that right?

A:    No, it’s more correct to say I didn’t go back to – to Rabbi Genende.

Q:    To consult him? You didn’t [get] back to Rabbi Genende - - -?

A:    To advise him.

Q:    To consult him?

A:    No, not to consult him. To advise him about the – what the board’s view[s] were.

Q:    And you didn’t go back to him to seek his views?

A:    Well, he was on leave, that’s why I didn’t go back. He was on leave.

208    The applicant’s answers in the above passages of evidence must be seen against how the first question in the sequence of questions was framed, which was whether the applicant consulted Rabbi Genende “about moving forward with the event”, and not consultation in the broad sense. The underlying primary fact is not in issue, that is, that the applicant did not speak to Rabbi Genende again on 22 April 2021 after seeking the views of the board.

209    On 23 April 2021, as part of a newsletter titled “Mizrachi Matters”, Dr Lamm notified Mizrachi members of the need to register for the Jerusalem Day event, and that the guest speaker would be Jonathan Pollard.

210    The board of the Caulfield Hebrew Congregation had regular monthly meetings. Rabbi Genende was not a member of the board, but it was the practice that he attended the board meetings. On 29 April 2021, Rachel Mihalovich, who at the time was the Chief Executive Officer of the Caulfield Hebrew Congregation, distributed to the board members, and copied to Rabbi Genende, the Rabbi’s report for the board meeting due to be held on 3 May 2021. Under the heading, “Future Events and Activities” were five items, one of which stated –

•    Yom Yerushalayim – I have several concerns about the main feature of this evening and possible repercussions for the Shule.

211    The applicant read Rabbi Genende’s report, and then contacted him on 29 April 2021. The applicant’s best recollection was that he contacted the Rabbi by telephone, which was an agreed fact. In closing submissions, the respondents challenged the applicant’s evidence about this conversation as being unreliable, and even questioned whether the conversation took place. This latter submission carries little weight in view of the way that the respondents conducted their case. The parties’ signed statement of agreed facts that was tendered provided that “[o]n about 29 April 2021 the applicant communicated by telephone with Rabbi Genende about the forthcoming event”. In addition, the fact that a call took place is supported by circumstantial evidence in the form of an email from the applicant to Rabbi Genende on 3 May 2021 at 2.17 pm to which I refer below which alludes to a conversation between the applicant and the Rabbi the previous week. Further, while senior counsel for the respondents put to the applicant by reference to mobile telephone records that he could not have made the call from his mobile telephone, which the applicant accepted, the applicant was not squarely challenged in cross-examination to the effect that no call took place by other means. In a sense, this was unremarkable given that it was an agreed fact that a telephone conversation took place. Senior counsel for the respondents made a call during cross-examination for the applicant’s telephone records for his landline. The response by senior counsel for the applicant was that he would require instructions. Senior counsel for the respondents had the opportunity to defer completion of the cross-examination of the applicant until the call for the landline telephone records had been answered, but this opportunity was not taken up. Instead, the call for the documents was expressly abandoned after the conclusion of the applicant’s evidence. The cross-examination of the applicant otherwise proceeded on the assumption that the conversation had taken place. In the above circumstances, the respondents’ submission that questioned the occurrence of the telephone conversation between the applicant and Rabbi Genende on 29 April 2021 lacked foundation.

212    I find that the tenor of the conversation between the applicant and Rabbi Genende on 29 April 2021 was that the Rabbi said that he was still getting pressure from Mark Leibler about the Jerusalem Day event and the inclusion of Jonathan Pollard. The applicant recalled in evidence that the Rabbi referred to possible repercussions around the event. In response, the applicant told the Rabbi that the board seemed to be “okay with it”, and proposed that if the Rabbi was concerned, then he might consider not attending the event, or not speaking at the event. Rabbi Genende informed the applicant that he would think about it and get back to the applicant.

213    Also on about 29 April 2021, “Plus61J Media” posted on its Facebook page a promotional flyer for the Jerusalem Day event in the joint names of Mizrachi and the Caulfield Hebrew Congregation which stated that there would be a “keynote address” by Jonathan Pollard. The flyer was separately emailed to the applicant, Dr Lamm, and others on 29 April 2021 as the “PR materials” for the Jerusalem Day event. Although subsequent emails to which the applicant was not a party suggest that this was a draft flyer, it was not presented to the applicant as a draft, and he did not comment on it. Other evidence to which I have referred shows that the applicant understood that Mr Pollard would be the subject of a pre-recorded video that would be vetted, and what ultimately occurred was that a 10 minute pre-recorded interview of Mr Pollard was played at the event. But it remains the case that the Jerusalem Day event was publicly promoted as including a “keynote address” by Mr Pollard. The flyer indicated that other hosts of the event were Bnei Akiva and Hineni (both of which are Orthodox youth groups), the Rabbinical Council of Victoria, and the Council of Orthodox Synagogues of Victoria. I pause to note that in addition to being the Chief Executive Officer of the Caufield Hebrew Congregation, Ms Mihalovich was also the Executive Director of the Rabbinical Council of Victoria. Messages posted on the Facebook page show that there were mixed responses to the choice of Mr Pollard as a speaker, with one person posting, “Really bad choice”.

214    It is an agreed fact that the applicant’s telephone records show that on 3 May 2021, at about 12.18 pm, there was an outgoing call from the applicant to Rabbi Genende that lasted almost seven minutes. The applicant referred to this telephone conversation in an answer to an interrogatory that was in evidence, and briefly in his oral evidence. The applicant stated that he contacted Rabbi Genende to enquire what he wished to do in light of their previous discussion about the Jerusalem Day event. The Rabbi told the applicant in this conversation that he did not want any negative publicity, that he had considered the matter, and that he had decided that he would attend and speak at the event.

215    Within the hour, at about 1.11 pm, Rabbi Genende sent an email to the applicant and the board of the Congregation, extracts from which were later published by the press, including in the 5 May 2021 articles. The email stated –

Dear David and Members of the Board,

I am writing to advise you how distressed I am at the invitation to Jonathan Pollard, a convicted spy, to be the keynote speaker at the Yom Yerushalayim event next Sunday night.

On both a personal level, as Senior Rabbi to the Congregation and as Senior Rabbi to one of the religious advisors to the ADF, I believe this is a misguided and potentially damaging invitation to both the Shule and the wider Jewish community.

It sends a message to the Jewish community and especially to young Jews, that it is acceptable to betray one’s country, one’s staunchest ally and friend. It sends a message to the Australian government and people that our Jewish community admires such behaviour and opens the door to accusations against us of untrustworthy loyalty. Incidentally, Shimon Peres, then Israeli PM, apologised for Pollard’s activities which had caused considerable damage to the relations with the USA.

It’s a great pity that an event that should unite the community in its love for Jerusalem is being used to promote a man whose behaviour was at best controversial.

Yours Sincerely

Rabbi Ralph Genende

(Emphasis in italics added.)

216    In evidence, the applicant described this email as unexpected in light of his earlier telephone conversation with the Rabbi that day. In response, the applicant stated to Rabbi Genende in an email at 2.17 pm on 3 May 2021 –

Dear Rabbi

As per my call earlier, you had made me aware last week of your personal feelings and as a result, I did offer you to either not attend or attend and not speak as you please. I confirm that you advised me today that you wish to attend and open the evening by welcoming attendees. In response to your unexpected communication below and without going into the substance of the matters raised, there have been a number of interesting events that some would classify as controversial or inappropriate at Caulfield Shul including a “Black Lives Matter” event among others.

As a supporter of free speech, despite objections, these events have taken place.

I see our role as doing our best to welcome everyone and making the evening a success.

Regards,

David Mond

President

Enquiries from the Haaretz newspaper

217    During the afternoon of 3 May 2021, Judy Maltz from the Haaretz newspaper in Israel emailed the applicant, and called the Congregation’s office and left a message by which she sought a comment on the Jerusalem Day event that the Congregation was hosting. The email from Ms Maltz was sent to the applicant at the president’s email address at the Shule, which the applicant said he did not recall receiving. The applicant said that he did not have automatic access to the president’s email box, stating that someone needed to forward an email to him in order for him to receive it. The email from Ms Maltz to the applicant stated –

Dear David,

I understand that your synagogue is co-hosting a Yom Yerushalayim event next Sunday at which Jonathan Pollard will be the keynote speaker (I assume he will be speaking by Zoom). I wonder why you would choose such a controversial individual to be your keynote speaker. After all, he was convicted of spying for Israel, did considerable damage to Israel’s relations with the United States and never showed any remorse for his actions.

Also, has there been any pushback in the community against the decision to host him?

I contacted Rabbi Genende who said the decision was done without his consultation and best that I contact you instead for a response.

Thanks you, and I would be grateful for a reply by noon my time in Tel Aviv.

Best,

Judy Maltz

218    Ms Maltz’s telephone message was conveyed by the Shule office to the applicant by email to his personal email address at about 3.05 pm. The email recorded Ms Malz as stating that she had a deadline, and sought a response by 7.00 pm. The applicant did not respond to the telephone message, stating in evidence that he did not normally respond to journalists, and that the Rabbi’s email needed to be addressed at the board meeting.

219    On the topic whether the applicant consulted Rabbi Genende about Jonathan Pollard speaking at the Jerusalem Day event, the respondents relied on the passage of the email from Judy Maltz to the applicant in which Ms Maltz stated that Rabbi Genende said to her when she contacted him that the “decision was done without his consultation”. At trial, I overruled an objection by the applicant pursuant to s 136 of the Evidence Act to the admission of this representation on the ground that it would be unfairly prejudicial. However, I do not place any weight on the representation in the email, because it is a conclusion, and is no more than expression of belief or perception. While a statement of lay opinion may be admissible under s 78 of the Evidence Act, Rabbi Genende who was the maker of the statement was not called by the respondents who sought to rely on the statement, and therefore the statement and any basis for it could not be tested. Whether there was consultation is to be determined by reference to the primary facts. The respondents, who bear the onus of proof in relation to their positive defences, did not call Rabbi Genende. That has the result that the applicant’s evidence of his conversations with Rabbi Genende is uncontradicted.

Other enquiries by the media

220    In addition to the communications directed to the applicant from Judy Maltz of Haaretz, there were enquiries made to the Caulfield Shule on behalf of other media organisations. At 11.28 am on 3 May 2021 a journalist from The Australian newspaper left a voicemail message with the office of the Shule which the Chief Executive Officer of the Shule forwarded to the applicant at 5.44 pm via the Shule president’s email account. There is no evidence that the applicant, or any other person from the Shule, returned this call.

221    On 4 May 2021, a member of the Shule’s office staff took a telephone message from Mr Brook which was forwarded to the applicant by email in the following terms –

Steven Brook called from The Age newspaper. Heard there was a Council meeting last night to discuss Jonathan Pollard talk. Wants to know if it’s going ahead [mobile number provided].

222    The applicant did not return Mr Brook’s telephone call. I will return to the circumstances in which Mr Brook came to make that telephone call and to write the articles later in these reasons.

The board meeting

223    The monthly meeting of the board of the Congregation took place on 3 May 2021, commencing at 7.30 pm, with Rabbi Genende in attendance. The Rabbi addressed the board on the Jerusalem Day event, which was scheduled for 9 May 2021, and its inclusion of Jonathan Pollard. Ms Mihalovich described the tone of the discussion as respectful, and Mr Barry Mond described the tone as “excellent”. The discussion that occurred was a precursor to a motion that the Congregation withdraw from the event. The Congregation’s minutes of the board meeting record that during discussion different views were expressed, including those of Rabbi Genende. One board member stated that it would be disrespectful to the Rabbi’s views not to cancel the event. Another board member also spoke in support of the Rabbi’s views. The minutes record that some members discussed that they had not considered certain issues until they were outlined by Rabbi Genende in his email that day. Ms Mihalovich, who attended but was not a board member, gave evidence that while she thought that Jonathan Pollard was controversial because he was a convicted spy, she did not see the issue about dual loyalties and feeding into an antisemitic trope until it was raised by Rabbi Genende, although she did not necessarily agree with the Rabbi’s opinion. The minutes record that in response to an enquiry by a board member as to where the criticism was coming from, the Rabbi mentioned that there was an enquiry from the Haaretz newspaper in Israel. The minutes also record the applicant as stating that he would consider cancelling the event to be an act of betrayal, as the event had been approved by the board and organised in good faith with other organisations. The motion to withdraw from the event was not carried. The revised minutes state that three people voted in support of the motion to withdraw, five were against, and two people were noted as having abstained. In due course, the event went ahead on 9 May 2021.

The aftermath of the board meeting

224    On 3 May 2021 at 8.37 pm, Dr Lamm sent a text message to the applicant stating –

Your Rabbi has thrown you under the bus, you could suggest he stay at home

225    Attached to the text message was a link to an article published by Haaretz under the by-line of Judy Maltz titled, “Honor Extended to Jonathan Pollard by Australia’s Orthodox Jewish Community Stirs Controversy”. The Haaretz article commenced –

An invitation extended to convicted spy Jonathan Pollard to serve as the keynote speaker at a large Jewish event in Australia has sparked condemnation and exposed a deep rift in the community.

226    The Haaretz article contained quotations attributed to Mr Jeremy Leibler in his capacity as president of the Zionist Federation of Australia which questioned the judgment of selecting Jonathan Pollard as a speaker –

Jeremy Leibler, president of the Zionist Federation of Australia, questioned the choice of such a controversial figure for a large community event. “While the hosts of the Yom Yerushalayim event are free to select their guest of honor, I can think of far more appropriate guests to speak at such an event than an individual who has been convicted and imprisoned by Israel’s strongest and most reliable ally for treason,” he told Haaretz.

“The issue of Jonathan Pollard raises very serious issues for Jewish communities in the Diaspora and one has to question the judgment of selecting him as a keynote speaker for such an event.”

227    The article stated that Rabbi Genende refused to comment on the decision, but stated that the newspaper had obtained a copy of a “letter” that Rabbi Genende had sent to the board of the Caulfield Shule. The article claimed that the Rabbi had not been consulted about the decision and set out extracts from the email that Rabbi Genende had sent to the board members earlier that day –

In his letter to the board members, Genende wrote: “On both a personal level, as senior rabbi to the congregation and as senior rabbi and one of the religious advisors to the Australian Defense [sic] Force, I believe this is a misguided and potentially damaging invitation to both the Shul and the wider Jewish community. It sends a message to the Jewish community and especially to young Jews, that it is acceptable to betray one’s country, one’s staunchest ally and friend. It sends a message to the Australian government and people that our Jewish community admires such behavior [sic] and opens the door to accusations against us of untrustworthy loyalty.”

The letter notes that the late Shimon Peres, then serving as Israel’s prime minister, had apologized for Pollard’s activities “which had caused considerable damage to the relations with the USA.” Genende added that it was “a great pity” that an event “that should unite the community in its love for Jerusalem” was being used to promote an individual “whose behaviour was at best controversial.”

228    The Haaretz article quoted a detailed response attributed to Dr Lamm about the claimed controversy. The article also stated that the applicant did not reply to a request for comment from Haaretz.

229    Shortly after midnight, on 4 May 2021, Rabbi Genende sent an email to the members of the board of the Congregation in the following terms –

Dear David and Board members

I was surprised and disappointed to come home from our meeting tonight and read large extracts from my letter to you, published in an article in Haaretz. I don’t know who divulged this letter which was sent on the assumption that it would remain confidential. I certainly did not share my letter with them, and when contacted by the journalist earlier today, refused to comment and referred her to David.

Whilst I feel strongly about the issue, I am pained that it has already become a source of conflict. I have no interest in embroiling the Shule in controversy and airing our in-house differences, and that’s why I will attend the service on Sunday night (despite David’s kind offer of the option not to attend).

I pray for the peace of Jerusalem and hope that the event on Sunday night will encourage us to work together rather than exacerbate the differences between us.

230    Later on 4 May 2021, the applicant directed Ms Mihalovich to undertake an investigation into what he regarded as a serious breach of confidence. In response to that request, Ms Mihalovich sent an email to Rabbi Genende which referred to the Shule’s code of conduct and which asked the Rabbi whether his email to board members the previous day at 1.11 pm had been transmitted to anybody other than the board members and life governors of the Shule. The email foreshadowed an intention to seek statutory declarations from all board members and life governors on the question. Rabbi Genende responded at 4.21 pm –

The email was sent to the Board members and Life Governors.

It was discussed with one other party for the purpose of getting legal advice.

231    Upon the applicant’s instructions, Ms Mihalovich then responded to Rabbi Genende by email at 4.51 pm with the following request –

In discussing the email with the legal advisor did you provide that legal advisor with a copy of the email or did they draw up the contents of the email for you to forward on?

232    There was a follow-up email from Ms Mihalovich on 5 May 2021 at 4.56 pm. Rabbi Genende responded to the question in an email sent to the applicant and Ms Mihalovich in the evening of 5 May 2021, where he stated –

... I alone wrote the email to the Board which expressed my own views on the invitation to Jonathan Pollard.

233    Ms Mihalovich also sent an email to board members seeking that they each declare that they did not disclose the Rabbi’s email to the board. The applicant and Ms Mihalovich gave evidence that each board member responded and made such a declaration.

Rabbi Genende stated that there was no “rift”

234    On 5 May 2021, the applicant sent an email to Rabbi Genende asking whether in light of his email to the board shortly after midnight on 4 May 2021 he was contemplating a public rebuttal of the report in The Age that day that there was a “rift” between the Rabbi and the applicant, or between the Rabbi and the board. The applicant stated in the email –

As far as I am concerned there is no rift.

235    The applicant gave evidence that while there were disagreements between him and the Rabbi, there was no rift. The applicant said that while he regarded Rabbi Genende as associating with the Left, and that he associated with the Right, their working relationship was excellent.

236    In the evening of 5 May 2021, Rabbi Genende sent an email to the applicant and to Ms Mihalovich, part of which I referred to at [229] above. In that email, the Rabbi stated –

... I remain disturbed and disappointed that this private email was leaked without my knowledge or consent to the press both locally and in Israel. The email was an expression of my concern for the reputation and well-being of our community. I am upset it has been used mischievously to suggest we have a rift as opposed to a disagreement. I intend to state both on Shabbat and Sunday night that there is no rift between us or between myself and the Board.

Given that this has been in the press, it may also be judicious for us to issue a joint statement that a difference in views doesn’t mean a rift or rupture in our relationship. We could include this in the newsletter tomorrow to help allay any disquiet over the issue in the community.

I remain committed to working together with you and the Board for the good of Caulfield Shule until my departure in October.

237    The applicant and Rabbi Genende did not issue a joint statement. The applicant’s initial response to Rabbi Genende’s offer in his 5 May 2021 email to issue a joint statement was that the Rabbi’s statement reported in The Australian Jewish News dealt with the issue. Nonetheless, the Rabbi addressed the issue in a newsletter that was sent to members of the Congregation on about 7 May 2021, the terms of which the applicant helped settle by making some suggestions to a draft which the Rabbi had earlier sent him –

FROM THE DESK OF RABBI RALPH

In view of the press coverage of our Yom Yerushalayim function on Sunday evening, I would like to clarify that there is not a rift between myself and the President, David Mond, or the Board. A difference of opinion, however strong, does not indicate a rupture. I intend to continue working together for good of this community and for the harmony of the Jewish people until I leave the congregation later this year.

I pray for the peace of Jerusalem and hope that event on Sunday night will encourage us to work together rather than exacerbate the differences between us.

238    Rabbi Genende also made statements that there was no rift in his sermons to the congregants at the Shule on Friday 7 May 2021, and on Sunday 9 May 2021.

Other expressions of disagreement

239    In the following days, there were other expressions of disagreement by members of the Jewish community about the choice of Mr Pollard to speak at the Jerusalem Day event. One member of the Congregation asked by email that her ticket to the event be cancelled, stating that she did not wish to hear Jonathan Pollard speak, and did not think that he should speak. Another member of the Congregation sent an email to the applicant expressing disappointment that the Shule was hosting Mr Pollard, stating that it sent a message that it was acceptable to betray one’s own country and that it supported “the old anti-Semitic trope of questioning Jews’ loyalty to their native country”, and urging the board to reconsider.

240    On 5 May 2021, an online publication www.jwire.com.au published an article titled “A difference of opinion”. The article referred to the proposal to have Jonathan Pollard as the keynote speaker at the Jerusalem Day event. The article contained a quotation attributed to Dr Colin Rubenstein, the executive director of The Australia/Israel and Jewish Affairs Council. Dr Rubenstein was highly critical of the proposal to have Mr Pollard as the keynote speaker, and expressed strong disagreement, describing the decision as “divisive and misguided”. The article also contained the quotation attributed to Mr Jeremy Leibler in the Haaretz article. On the other hand, the article attributed statements to Dr Lamm, defending the decision to have Mr Pollard speak. The applicant did not read this article at the time it was published.

241    On 6 May 2021, The Australian Jewish News published an article titled, “Mizrachi, CHC blasted over Jonathan Pollard invite”. The article identified issues of controversy around Jonathan Pollard, and contained quotations from Mr Jeremy Leibler and Dr Rubenstein that were critical of the decision to have Mr Pollard speak. On the other hand, Dr Lamm was again quoted as defending the decision. The article referred to Rabbi Genende’s email of 3 May 2021 to the board of the Caulfield Shule which it described as a “private letter to board members”, and set out a quotation from the email that was critical of the proposal. Rabbi Genende was quoted in the article as stating to The Australian Jewish News, “Even if I disagree with my board, I accepted its decision and will abide by it”. The article stated that the applicant declined to comment when contacted. The applicant read this article in The Australian Jewish News at the time it was published.

242    On 7 May 2021 at about 1.00 pm, Danny Gluck, who was a member of the board of the Caulfield Hebrew Congregation, sent an email to Dr Lamm, which was copied to others including the applicant, stating amongst other things –

I just received a call from Jaimie Braun Rosh Hineni, who had the embarrassing task to tell me that they could not muster any volunteers to assist with ushering on Sunday night.

The reason she gave was, any potential volunteers had issues (we know what they are) and did not want to be front of house and visibly involved.

243    The relevance of this email is the existence of an issue concerning volunteer ushers. I do not treat the email as evidence of the cause of the issue, as it is not apparent that the maker of the representation was doing anything other than speculating.

244    The respondents called as a witness Mr Adam Hyman. In 2021, Mr Hyman was employed as a teacher in the Jewish studies faculty at Mount Scopus College, which is a major Jewish school in Melbourne. Mr Hyman was not a member of Mizrachi, or the Caulfield Shule, but attended Shira Hadasha, which is another shule in Melbourne. Mr Hyman gave evidence that he practised what he considered to be a form of Orthodox Judaism that differed in some respects from that practised by others. Mr Hyman said that he was appalled, shocked, and disappointed when he became aware of promotions which stated that Jonathan Pollard would be the keynote speaker at the Jerusalem Day event at the Caulfield Shule. My Hyman also stated that he read the article in The Age newspaper. His particular concern was not that Mr Pollard was allowed to speak, but that he was held out as the keynote speaker, which implied endorsement of him and that he was a role model. Mr Hyman said that from a moral perspective he did not think that Mr Pollard should be held up as a role model, and that he was really concerned about the fallout in terms of the perception of the Jewish community. This feared perception was similar to that referred to in other evidence, being the antisemitic trope that Jewish people had dual loyalties, of which Mr Pollard was the embodiment. Mr Hyman acknowledged, however, that not everyone in the Jewish community shared his views. Upon learning of the promotional material that identified Jonathan Pollard as the keynote speaker, Mr Hyman discussed his views with his general social group, members of his own shule, and other staff at Mount Scopus. On the day of the event, 9 May 2021, Mr Hyman protested outside the Caulfield Shule, holding two signs. One stated, “this event is a disgrace”, and the other stated, “Pollard ain’t no hero”.

245    Mr Adam Slonim, a member of the Congregation, gave evidence that he was personally appalled at the decision to have Jonathan Pollard speak at the Jerusalem Day event, and that he observed that the reaction in the Jewish community was one where there were divided views about the issue.

246    The Jerusalem Day event proceeded as planned, and was well attended. Ms Mihalovich recalled that the synagogue was quite full. There were 380 registrations for the event, and a further 70 people attended making a total of about 450 people. Rabbi Genende attended, gave a welcome, and remained for the evening. The applicant welcomed people as they arrived, and during the event sat in the president’s chair. During the evening, a recorded interview of Jonathan Pollard was played, which went for about 10 minutes. The applicant recalled that the main message conveyed by the interview was Mr Pollard’s love for Jerusalem.

247    The Jerusalem Day event at the Caulfield Shule was subsequently reported by online media, www.plus61j.net.au, in an article titled, “Jonathan Pollard rallies the right-wing at Caulfield synagogue event”. That article was not tendered as evidence of the truth of its contents, but as evidence of public interest in the event.

The apology issued by the board of the Caulfield Shule to Mr Adam Slonim

248    There is a fair amount of background to the apology that the board of the Caulfield Shule made to Mr Adam Slonim and which was referred to in the articles of 13 December 2021 and 18 February 2022.

249    Mr Slonim was a member of the Caulfield Hebrew Congregation from 2005 until 2021, when Rabbi Genende’s term expired and Rabbi Rabin’s term commenced. During that time, he had been a member of the board from 2008 to 2012, holding the position of vice-president from 2010 to 2012. Mr Slonim attended the Shule weekly, and was in regular contact with Rabbi Genende.

250    Rabbi Genende’s term as senior rabbi of the Congregation was due to end in about October 2021. In the first half of 2021, the board set in train a process for the engagement of a new rabbinic couple. The board established a selection committee to review candidates for appointment. The applicant was a member of the selection committee which was chaired by Mr Richard Rogers. The process of selection involved advertisements being placed in The Australian Jewish News, and a dedicated Gmail account was established to which applications could be sent. The process was outlined more fully in the minutes of an extraordinary board meeting of 3 June 2021, and in the minutes of a special general meeting of the Congregation of 8 July 2021. The new rabbinic couple was to commence on 1 November 2021.

251    Prior to the formal process of selection getting underway, in December 2020 the applicant met Mr Slonim to discuss government funding for works at the Caulfield Shule, including a Jewish community centre that was in the planning stages. The meeting occurred at the applicant’s office. The applicant sought Mr Slonim’s assistance with funding through his political contacts within the Australian Labor Party. Mr Slonim gave evidence that he is a life member of the Australian Labor Party. During the meeting, the applicant showed Mr Slonim a video presentation of the proposed project. The applicant gave evidence that during the meeting Mr Slonim asked him what he was going to do about the rabbinic couple, and in the course of the conversation stated that his daughter and son-in-law, whom the applicant knew to be Lydia and Marcus Rosenberg, would be perfect for the job. The applicant said that he questioned their experience, in response to which Mr Slonim said they could learn on the job. The applicant said that he explained to Mr Slonim that there was a process to be undertaken the following year, which would be high on the agenda.

252    For his part, Mr Slonim gave evidence-in-chief that he did not recall mentioning the possibility of his daughter and son-in-law as the new rabbinic couple at the December 2020 meeting with the applicant. In cross-examination, Mr Slonim conceded that his recollection about the meeting was not 100 per cent given the passage of time, but ultimately in the face of cross-examination maintained that at the December 2020 meeting he did not raise the topic of the suitability of his daughter and son-in-law as the new rabbinic couple, and did not accept that a conversation to that effect took place. However, by his answers Mr Slonim said that he had mentioned his daughter and son-in-law as potential candidates to other members of the Congregation on other occasions.

253    I prefer the evidence of the applicant on the question whether at the meeting in December 2020 Mr Slonim mentioned to him the prospect that his daughter and son-in-law might be suitable for appointment as the new rabbinic couple. Other evidence given by Mr Slonim was that leadership of a community as a rabbinic couple was a topic that he had discussed with his daughter and son-in-law in the second half of 2020, that he had encouraged them in about December 2020 to apply for the position at the Caulfield Shule and, as I have mentioned, it was a matter that he had raised with others at the Shule. By reason of these circumstances, there is a likelihood that in December 2020 he also raised it with the applicant, and I accept the applicant’s evidence that he did.

254    On 27 April 2021, Rabbi Yehoshua Grunstein, who served at a rabbinical training college in Israel, sent an unsolicited email to Mr Rogers, albeit the email was clearly one that was sent in the knowledge that the Shule was seeking to appoint a new rabbinic couple and was welcomed by Mr Rogers. In the email, Rabbi Grunstein offered his services in suggesting potential candidates for the position of senior rabbi of the Shule. The initial response from Mr Rogers was that due to COVID-19 travel restrictions that were in place at the time, consideration of overseas candidates would be problematic.

255    On 5 May 2021, Rabbi Grunstein emailed the resumés of two couples to Mr Rogers. One of the couples was from New Zealand, in relation to which Australia had a “travel bubble” at the time, and the other couple was Marcus and Lydia Rosenberg, the son-in-law and daughter of Mr Slonim. The initial response of Mr Rogers, which was sent to Rabbi Grunstein on 6 May 2021, was that upon looking at the resumés he did not feel that either couple had the depth of experience required. Mr Rogers forwarded the resumés to the other members of the selection committee, including the applicant, later on 6 May 2021. Subsequently, by an email dated 23 May 2021 to Rabbi Grunstein, Mr Rogers confirmed that he did not think that Marcus Rosenberg had the experience required, but that there might be an opportunity for an alternative function for him once a new rabbinic couple was appointed.

256    On 11 May 2021, Mr Slonim sent an email to Mr Rogers which attached a memorandum containing a considered submission concerning the appointment of the new rabbinic couple. The following day, Mr Rogers forwarded Mr Slonim’s submission to the selection committee, including the applicant. The tenor of the submission was that the Shule should be looking to appoint a couple who were Modern, Orthodox, and Zionists, rather than a couple with Chabad or Lubavitch backgrounds or associations. Mr Slonim said in evidence that the purpose of the submission was to lay out what he considered should be the guiding principles for the appointment of a new rabbinic couple for the Shule. Within the submission was the following paragraph –

By way of relieving any perceived conflict of interest, my son-in-law Rabbi Marcus Rosenberg, who received his Smicha at the centrally important modern orthodox Yeshivah of Har Etzion in Israel and now teaches at Yavneh College, and with my Matan-trained daughter Lydia, are not applying for the job

257    Mr Slonim said in evidence that the reason he inserted the above passage was because his son-in-law had recently completed rabbinic training (his Smicha) in Israel, and that he wanted to be clear that his son-in-law and daughter were not applying for the job, which reflected his understanding. Mr Slonim gave evidence that he had been informed by them in the summer of 2020/2021 that they were not going to apply for the job, and that until a few days before he came to give evidence in this proceeding, he was unaware that their resumés had been sent to the selection committee, and that his understanding from speaking to them was that while they initially thought of applying, they had determined not to.

258    I accept Mr Slonim’s evidence on this issue. While he was challenged in cross-examination about this topic, and while there are other aspects of Mr Slonim’s evidence to which I will refer below that attract reliability issues, there was no direct submission that I should not accept his evidence that, at the time he made the submission to the selection committee, he was unaware that a resumé for his son-in-law and daughter had been submitted. In my view, it is unlikely that Mr Slonim would make a direct statement to the selection committee that his son-in-law and daughter had not applied for the position, if he believed that they had. That would not make sense. It would not have been in Mr Slonim’s interest knowingly to make a false statement of that type, which could easily have been identified as false. Further, the email from Rabbi Grunstein in Israel, who forwarded resumés from the couples in New Zealand and Australia, had the appearance of forwarding resumés that were on his file. The contents of the resumés were generic, and did not indicate that they had been prepared for the specific purpose of submission to the Caulfield Shule.

259    On 8 July 2021, in his capacity as president of Caulfield Hebrew Congregation, the applicant chaired a special general meeting of the Congregation to consider a motion to ratify a decision of the board that had been made on 24 June 2021 to appoint Rabbi Daniel Rabin as Senior Rabbi of the Congregation to replace Rabbi Genende. A number of people spoke at the meeting. Mr Slonim spoke against the motion and voted against it. The substance of what Mr Slonim said is recorded in the minutes of the meeting. The minutes of the meeting were taken by the Chief Executive Officer of the Congregation, Ms Rachel Mihalovich. Ms Mihalovich gave evidence and, as I stated earlier, presented as an impressive and reliable witness. Accordingly, I give weight to her recollection and the minutes that she took. In essence, the minutes record that Mr Slonim stated that the Rabins were a good couple, but characterised them as being “Chabad lite/Lubavitch”, rather than being Modern Orthodox Zionist. The applicant accepted in cross-examination that Mr Slonim expressed his views at the meeting in a respectful way. Mr Slonim gave evidence that many people, including Richard Rogers, spoke to him afterwards in positive terms in relation to the manner in which he conveyed his views to the meeting. The applicant spoke after Mr Slonim, and addressed the points that Mr Slonim had raised. Mr Slonim said that one other person, Mr Allen Milner, also spoke against the motion. The minutes record that the resolution was passed on a show of hands, with one objection. Ms Mihalovich recalled that only Mr Slonim voted against the motion, and she was not challenged on this evidence. Contrary to what is recorded in the minutes, Mr Slonim said that there were maybe three or four others who also voted against the motion. The applicant said in evidence that he had recalled that two people voted against the motion. I prefer the evidence in the minutes, but even if Mr Slonim’s evidence on this issue was correct, I find that the resolution to ratify the appointment of Rabbi Rabin was overwhelmingly supported.

260    On 3 August 2021, in an email to members of the Congregation with the subject “Special Announcement – re the AGM and Generational Change” that was authored by the applicant, the board of the Congregation announced the retirement of most of its members, that the Annual General Meeting would be held on 29 August 2021, and the appointment of the new rabbinic couple.

261    On 6 August 2021, The Australian Jewish news reported the retirement of the board members in an article under the headlines, “DISCORD AT CAULFIELD”, and “CHC mass resignation”. Although the headline referred to “mass resignation”, the first paragraph of the article referred to the bulk of the board announcing their “retirement ... in a move to revitalise leadership”. The article contained references to the email of 3 August 2021 announcing that the board would retire and “pass the baton on to the generational change age group”. There were also quotations in the article attributed to the applicant. The article included the following passages which contained quotations that were attributed to Mr Slonim and which were critical of the board’s decision to retire and of the appointment of the new rabbinic couple –

However, noting the employment of the Rabins, long-time shule member Adam Slonim told The AJN, “To make an appointment of such significance and then to resign en masse is very bizarre.”

“That is not organisational change,” he said. “They’ve made that decision and then walked away without carrying it through. You don’t operate this way.”

Slonim, who was opposed to the appointment of the Rabins due to their Chabad associations, added, “For those of us that are truly Modern Orthodox Zionist look to Jerusalem for religious leadership, not New York.”

He said he understands that a number of other members agree and is potentially looking to start up another minyan to cater for Modern Orthodox members.

262    Mr Slonim accepted that he spoke the words attributed to him by the journalist, and did so on the record and knowing that they might be published. He accepted that his words were critical of the board. Mr Slonim’s reference to looking to Jerusalem for religious leadership, not New York, was similar to a statement that he had made when speaking in opposition to the ratification of the appointment of the Rabins at the special general meeting of the Shule held on 8 July 2021.

263    Mr Slonim said in evidence-in-chief that the journalist from The Australian Jewish News telephoned him about three or four days before publication. I find that the likely timeframe within which Mr Slonim spoke to the journalist was between 3 August 2021, being the date of the email, and 5 August 2021, being the day before publication of the article.

264    In cross-examination, Mr Slonim accepted that it was possible that he had called the journalist, but said that he doubted that he did so. He said that the journalist told him that she had been given his name because he disagreed with the appointment of the Rabins. Mr Slonim gave evidence that the journalist told him that the board of the Caulfield Shule had just resigned. Mr Slonim’s evidence-in-chief was –

Q:    And can you tell his Honour about the discussion with the journalist?

A:    Yes. Carly had rang me and said, “Adam, your name was given to me. You had voted against the Rabins at Caulfield Shule.” I said, “Yes. But that’s old news.” And she said, “Well, the board has resigned.” And I went, “What?” She said, “The board of Caulfield Shule has just resigned.” This is just after the appointment, some weeks.

Q:    Right?---And I said that’s really bizarre for, you know, an organisation or leadership, when you appoint a significant position like a CEO or, you know, a really top leader, you appoint them and then you carry them through for a year or so and then, if you want to leave, you normally leave. That’s sort of normal organisational practice. Like, we’re seeing at Qantas the same thing, you know. There will be a carry through and then the board would choose to resign if they chose to do so. But to appoint a rabbi and/or CEO and then leave is bizarre and I said it. I said, “That’s not normal practice. That’s not what we do in organisational life, having worked in this space for decades.”

Q:    And is that the – and then do we see that quoted there in the column to the right?

A:    Yes.

To make an appointment of such significance and then to resign en masse is very bizarre. That is not organisational change.

Q:    And that’s what you said to - - -?

A:    Yes. They’ve made that decision and then walked away without carrying it through. You don’t operate this way. I mean, that’s – yes. It’s just not good practice.

265    Mr Slonim’s evidence about when he first read the 3 August 2021 email announcing the retirement of the board members varied. In cross-examination, Mr Slonim initially suggested that he was no longer a member of the Shule at this time, and was hesitant to say that he read the email prior to speaking to the journalist from The Australian Jewish News. Ultimately, he accepted that he remained a member of the Shule when the email was sent, and accepted that it was very probable that he read it before speaking to the journalist, before acknowledging that he had in fact read it before speaking to the journalist. Much of the cross-examination proceeded on the basis of Mr Slonim’s repeated acceptance that he had read the email before he spoke to the journalist. Mr Slonim agreed in cross-examination that as a result of reading the email he was aware of the board’s proposal that there be generational change and of its plans to pass the baton on. This evidence was significant, because Mr Slonim accepted that he appreciated the difference between “resignation en masse”, and retirement, with the former suggesting that there was some problem.

266    However, in re-examination Mr Slonim changed his evidence. When the sequence of events was pointed out to him, he gave evidence that he would not have read the email of 3 August 2021 at the time the journalist called him. He said that he had no specific recollection of reading the email before the journalist called him.

267    Although I do not consider that all of Mr Slonim’s evidence on this issue was reliable, I prefer the evidence that he gave in re-examination. Mr Slonim was prone to reconstruction, which led him to accept in cross-examination that he must have read the 3 August 2021 email before the journalist called him. However, I consider that the quotations attributed to him are not consistent with him having read the email, and are more consistent with the journalist putting to him that the board had resigned, and seeking his comment as a person who had opposed the motion to ratify the appointment of the Rabins as the new rabbinic couple.

268    On 6 August 2021, the applicant sent an email to The Australian Jewish News complaining about the article, and in particular the headlines, and requested a retraction. The applicant also attached a letter in response to the article, which he requested be published by the newspaper, and in which he criticised Mr Slonim.

269    On 13 August 2021, The Australian Jewish News published a brief correction, and apologised for its error. The correction stated that the members of the board of the Caulfield Shule were not resigning, but were retiring. The newspaper did not publish the applicant’s letter. However, it published a letter from another board member who was due to retire, Mr Robert Weil, under the heading “Praise for CHC board”. Amongst other things, Mr Weil wrote –

The current board from which I’m about to retire is without doubt the most professional and cohesive group I can recall, and under the leadership of president David Mond, treasurer Martin Meier and secretary Danny Gluck, has worked tirelessly spending countless hours as well as personal resources into ensuring that Caulfield Shule will continue to remain the flagship synagogue of the Melbourne community and to strategically bring every aspect of our congregation up to gold standard. The result is that the CHC is now financially sound and professionally run by an outstanding CEO aided by a professional support team, ready to hand over to the next generation of leaders.

...

The appointment of Rabbi Daniel and Rebbetzin Sarah Rabin means that our future spiritual leadership is also gold standard.

It was disappointing to read the comments of Adam Slonim. Mr Slonim might like to reflect on the fact that the rabbinical appointment was not only ratified by an overwhelming majority at the special general meeting of members, but has been further endorsed by the scores of new members who have joined and taken up seats at CHC since the announcement of the Rabins’ appointment.

Finally, I wish to point out that not one member of the current board has “resigned”. They have retired and as such, will not be nominating for the next two year term. Nevertheless, David as immediate past president will be on the executive and board and every member of the current board, without exception, has agreed to be available in a mentoring role to assist the new board which must comprise of a younger generational change demographic, to propel the organisation into the future.

270    Also on 13 August 2021, the applicant sent a circular email to the members of the Congregation with the subject line, “Message from the President”. The email addressed the article in The Australian Jewish News, and the correction that had been published. Amongst other things, the email sought to correct the false impression conveyed by The Australian Jewish News article that the board had resigned, and explained the circumstances of the decision of the members of the board to retire, the substance of which was that it was time for generational change. As for the appointment of the new rabbinic couple, the applicant stated that according to the minutes of the special general meeting, of the 90 persons present Mr Slonim was the only person who publicly voted against confirmation of the appointment. The applicant then made other references to Mr Slonim –

The conflicted open antipathy of Mr Slonim against the Rabbinic Couple because among other reasons, they have a connection with Chabad would not be countenanced against any other “labelled” group. The Rabin’s [sic] are a world class couple and pursue excellence collectively and individually in their own right. Evidence of the unprecedented support for their appointment to lead the CHC is the record numbers of new membership applications and purchasers of seats since the announcement of the Rabins as the appointee Rabbinic couple.

...

In contrast to the feigned hysteria of Mr Slonim, a person of ‘discord’, the implementation of generational change at Board level is entirely consistent with, and appropriately follows, the implementation over the last 3 years of this Board’s Strategic Review and Organisational Review.

...

On any objective assessment, the Board has achieved more in the last 3 years than what was achieved in the previous 30 years, including when Mr Slonim made a cameo appearance as a Board Member.

(Emphasis in italics added.)

271    The references to Mr Slonim in the applicant’s email drew upon some elements of the applicant’s letter to The Australian Jewish News which had not been published. And the reference to “discord” echoed the headline to the article, “DISCORD AT CAULFIELD”.

272    The applicant explained his reasons for the email as including that he considered Mr Slonim’s remarks to be defamatory of the Rabins, and incorrect in suggesting by implication that the Rabins would not conduct themselves in accordance with the Constitution of the Shule because they had a Chabad association. The applicant considered Mr Slonim’s remarks to be somewhat vindictive in circumstances where the Rabins had already been appointed. The applicant said that he was terribly upset that Mr Slonim continued to hound the Rabins and defame the board, and that it had to stop.

273    The applicant accepted in cross-examination that whether it was unfair to put Mr Slonim down before the whole Congregation was something he could reflect upon, but it was not part of his thinking at the time because he wanted to put a stop to Mr Slonim damaging the Rabins’ reputation and making them feel uncomfortable and upset. The applicant did not accept that he could have supported the Rabins without at the same time attacking Mr Slonim. The applicant accepted that the references to Mr Slonim in his email were negative, but stated that they were not unfair.

274    The applicant gave evidence that his reference to Mr Slonim’s “conflicted open antipathy” towards the Rabins included an allusion to the fact that the applicant understood that Mr Slonim’s son-in-law and daughter had applied for the position of rabbinic couple, which the applicant considered was a conflict of interest that Mr Slonim should have declared. However, the applicant accepted the possibility that Mr Slonim did not know that his son-in-law and daughter had applied for the position when he wrote his submission of 11 May 2021, but asserted that Mr Slonim must have become aware of the situation later. The applicant said in evidence that he believed that Mr Slonim’s antipathy towards that rabbinic couple was “sour grapes” because his daughter and son-in-law did not get the position. He also said that his reference to Mr Slonim’s feigned hysteria was to assert that Mr Slonim’s views were not genuine in the context where the applicant said in evidence that Mr Slonim was seeking to promote his daughter and son-in-law.

275    For my part, it is not clear that Mr Slonim’s son-in-law and daughter ever applied for the position of rabbinic couple of the Caulfield Shule, and I accept Mr Slonim’s evidence that he only became aware shortly prior to giving evidence that their resumés had been forwarded to the selection committee. The applicant accepted that by the time the Rabins had been appointed there was no issue of conflict. The applicant also accepted that at the time he sent his email of 13 August 2021 he did not know what Mr Slonim knew or did not know about the resumés of his son-in-law and daughter being forwarded. Nonetheless, and perhaps inconsistently, the applicant gave evidence that at the time Mr Slonim spoke to The Australian Jewish News, Mr Slonim “was in a conflict of interest position and he should not have made the comments he made”.

276    As to the applicant’s reference to Mr Slonim’s open antipathy towards the rabbinic couple, the applicant said of Mr Slonim, “He hates Chabad”. The applicant expressed the view that by making statements to The Australian Jewish News after the appointment of the Rabins had been ratified, Mr Slonim was ridiculing the appointment, including by stating that he was considering setting up another congregation. The applicant stated that in doing this Mr Slonim was not a person looking for unity and respect, but was divisive. The applicant said that he labelled Mr Slonim as a person of “discord” in a reference to the headline to the article in The Australian Jewish News, “DISCORD AT CAULFIELD”, and because Mr Slonim had continued to hound the Rabins and the choice that the Congregation had made.

277    The applicant accepted in cross-examination that his reference to Mr Slonim’s “cameo appearance” on the board of the Congregation was a put-down, adding, “You know, I’m not perfect, I accept that”. The applicant said in evidence that his put-down of Mr Slonim was “a fair comment”, but said that “maybe I could have used a different word”. While Mr Slonim had been on the board for two years, the applicant did not serve with Mr Slonim during that period. The applicant made some criticisms of Mr Slonim’s performance as a board member, but these criticisms were all based on hearsay and not on any knowledge that the applicant possessed.

278    The applicant gave evidence that he received some comments from friends who went to the Congregation that were complimentary of his email of 13 August 2021. The tenor of one comment was that “it was about time that Mr Slonim would be put in his place and not be as disruptive as he has been for quite some time”. The applicant also said that Mr Slonim’s brother, Jonathan Slonim, had expressed agreement.

279    However, there were expressions of disappointment. One person sent an email to the Shule’s office requesting that the following be passed on to the applicant and the entire board –

I would like to give you some feedback regarding the “Message from President” e-mailed out on 13 August 2021.

I feel that the President’s identifying Mr Slonim in such a derogatory and condescending way is totally inappropriate.

I do not know Mr Slonim, but it was his right to attend the SGM and to vote as he wished, even if he was in the minority. To single him out and criticise him for voting, which is his right under the Shule’s Rules, is bullying and appears to be an attempt to discourage and intimidate others from thinking and voting freely and independently.

Public shaming is unprofessional and reflects poorly on Mr Mond and in fact entire Board,

I feel that the President owes Mr Slonim a public apology.

280    The applicant did not accept one of the premises of this email, namely that he had criticised Mr Slonim for voting at the special general meeting of the Congregation. However, the applicant accepted that on reflection his email of 13 August 2021 had been condescending, and accepted that “maybe” some of his statements about Mr Slonim were inappropriate.

281    In cross-examination, Ms Mihalovich, the Chief Executive Officer of the Congregation, agreed that the applicant had engaged in completely unnecessary criticism of Mr Slonim for his purpose of defending the Rabins. Ms Mihalovich also agreed that Mr Slonim’s opinions represented essentially philosophical differences, and agreed that he did not object to the Rabins being appointed at a personal level, but to the fact that they were Chabad.

282    Mr Slonim regarded the applicant’s email to the Congregation of 13 August 2021 as a personal attack. He disputed that there was any antipathy by him towards the Rabins, and disputed that he had any conflict. He stated in evidence that he considered that the email was meant to be hurtful, and he regarded the email as the applicant “venting” in a nasty way. He viewed the reference to his “cameo” appearance on the board as a nasty takedown that was hurtful and unnecessary. Mr Slonim said that he received many calls in support. He said that one of those calls was from Dr Howard Zeimer, who was to replace the applicant as president of the Shule, and who telephoned him and said that the email was appalling and did not reflect the values of the Shule.

283    Mr Slonim instructed solicitors. On 17 August 2021, Mr Slonim’s solicitors sent a concerns notice addressed to the board of the Congregation and to the applicant. The concerns notice listed 15 claimed imputations raising themes of conflict of interest, antipathy towards the new rabbinic couple, irrational bigotry, religious discrimination, and untrustworthiness. The notice demanded an apology from the applicant, and a separate apology from the board to be emailed to every recipient of the applicant’s impugned email. The notice also demanded that the applicant publish his apology in The Australian Jewish News and make a donation of $18,000 to a charity of Mr Slonim’s choice. The notice also sought payment of Mr Slonim’s legal costs in the sum of $2,200.

284    The Congregation and the applicant jointly engaged a firm of solicitors which on 30 August 2021 made an offer to Mr Slonim involving a statement of clarification and payment of Mr Slonim’s costs. The offer was under cover of claims that the matter in dispute was not defamatory, and that it was subject to qualified privilege. This letter and offer led to an escalation in Mr Slonim’s position. By a response dated 23 September 2021, Mr Slonim made what was said to be an open offer involving apologies by the applicant and by the Congregation, a donation to charity in the sum of $36,000, and payment of Mr Slonim’s costs in the sum of $5,500. Imminent proceedings were foreshadowed in the event of non-acceptance.

285    Mr Slonim gave evidence that on one occasion he spoke to Dr Howard Zeimer in the street. Mr Slonim said that he and Dr Zeimer discussed the possibility of an apology being made.

286    On 1 October 2021, the new board of the Caulfield Hebrew Congregation was installed and the applicant retired as president. Dr Ziemer was the new president. Upon the new board taking office, a different approach was recommended by a practising barrister and mediator, Mr Joel Silver, who had joined the board. In an email to the new board members Mr Silver recommended that resolution of the dispute should be delegated to a sub-committee, and that –

Whatever the law, I think it is important that CHC take steps to [de-escalate] this situation ...

287    Mr Silver also expressed the view that the Congregation and the applicant should be separately represented.

288    On 1 December 2021, the Caulfield Hebrew Congregation and Mr Slonim settled the matter without admission of liability. The Congregation agreed to pay Mr Slonim’s costs fixed in the sum of $8,800 and to publish an apology to Mr Slonim. The apology was subsequently published by email on 8 December 2021 as a “Message from the CHC Board” in the following terms –

On 13 August 2021, our then President Mr David Mond sent an email to all members of CHC.

The email contained references to one of our members, Mr Adam Slonim.

These references to Mr Slonim were negative and unfair and should not have been included in the email.

The Board wishes to apologise to Mr Slonim for this and express its sincere regret for any hurt or embarrassment caused.

289    There was no settlement between the applicant and Mr Slonim, and the applicant did not have input into the conduct or decisions of the new board. Mr Slonim gave evidence that he did not propose to commence any legal proceeding against the applicant, and any claim would now be statute-barred.

290    The applicant accepted in cross-examination that the references to Mr Slonim in his email to the Congregation of 13 August 2021 were negative, but said that they were not unfair. He said that he was unhappy with the board’s apology, and accepted that it reflected badly upon him.

291    The day after the apology to Mr Slonim was published, Mr Brook sought comment from Ms Mihalovich in her capacity as Chief Executive Officer of the Congregation by email. This was a precursor to the publication of the third and fourth matters on 13 December 2021.

292    Mr Slonim gave evidence that Mr Brook also telephoned him seeking a comment. Mr Slonim said that he had no discussion with Mr Brook, and made no comment. Mr Slonim said in evidence-in-chief that he considered that it was not appropriate to take Shule matters into the public arena. This was not consistent with the fact that in August 2021 Mr Slonim had shared his opinions on Shule matters with The Australian Jewish News. When this inconsistency was put to Mr Slonim in cross-examination, he described The Australian Jewish News as the “Jewish public arena”, and said that the Melbourne Age was different.

293    I will address the circumstances in which Mr Brook wrote the articles of 13 December 2021 later in these reasons.

The inauguration of Rabbi Rabin at the Caulfield Shule

294    Ms Mihalovich was responsible for organising the inauguration event for Rabbi Rabin at the Caulfield Shule, and she attended. Ms Mihalovich gave evidence that the inauguration occurred on a Sunday, and that there were many apologies from rabbis, including Rabbi Genende. She explained that rabbis often have weddings, consecrations, and funerals. She said that because COVID restrictions had lessened, many people were having lifecycle events such as weddings, celebrations, and bar mitzvahs, and that many rabbis sent their apologies because they had other events to attend. However, Ms Mihalovich could not remember whether Rabbi Genende gave a reason.

295    Ms Mihalovich disputed the claim in the 18 February 2022 articles that divisions in the synagogue still existed, saying that this was not accurate. She said that all the feedback from the members was that they were extremely excited, and that Rabbi Rabin and Rebbetzin Rabin were known in the community as a very engaging rabbinic couple who had done a lot of good, and that the community was very excited to have them.

296    The applicant also attended the inauguration of Rabbi Rabin together with his family. To the applicant’s disappointment, Rabbi Rabin said nothing publicly in his speech at the event to acknowledge or thank the applicant for his service as president of the Congregation. As a result, the applicant felt quite hollow, empty, and upset. Ms Mihalovich gave evidence that she thought that the failure of Rabbi Rabin to mention the applicant was unfortunate. She said that the applicant had led organisational and financial improvements, the appointment of the new rabbinic couple, and the generational change that the applicant had achieved, leaving the Congregation in good shape.

297    After the inauguration, Rabbi Rabin sent the applicant a series of text messages, one of which was a statement of regret and apology for not mentioning the applicant’s name specifically. The following morning, 14 February 2022, Rabbi Rabin sent a message to the applicant stating that he had made a big error and asked to make an appointment with the applicant to apologise to him.

298    Also on the morning of 14 February 2022, the applicant sent an email to his brother, Barry Mond, with what I infer to be a draft email to Rabbi Rabin. The draft email was trenchant in its criticism of Rabbi Rabin. The applicant was not taken to this email in evidence-in-chief, or in cross-examination: the email was tendered by the respondents at the conclusion of their evidence. Towards the end of the draft email, after the applicant referred to the Rabbi’s failure to thank a number of people at the inauguration, the applicant stated –

Yet somehow, you found time to mention Rabbi Genende as an “apology”, when you and I know that he didn’t want to be there!

By not also acknowledging me, this contributed to the clear impression that the vision of a Jewish Community Centre is dead.

I wish you and the Rebbetzin all the best

299    Because the applicant was not asked to explain what he meant by stating that both he and Rabbi Rabin knew why Rabbi Genende did not want to be at the inauguration, I can only speculate on what that reason might have been.

300    Later on 14 February 2022, Rabbi Rabin visited the applicant in his office, and told the applicant that the truth was that whenever he mentioned the applicant’s name he had a really bad reaction from many congregants, and he thought it best not to mention the applicant’s name as a result. The applicant said that this conversation made him feel extremely low. I consider this evidence to be relevant to the applicant’s feelings at the time of the inauguration and the later publication of the 18 February 2022 articles. However, I do not give any weight to the hearsay representation of Rabbi Rabin concerning the reason for which he did not mention the applicant’s name at the inauguration in circumstances where Rabbi Rabin was not called to give evidence.

The circumstances surrounding the publication of the articles

301    The third respondent, Mr Brook, is a journalist with more than 28 years of experience in Australia and in the United Kingdom. He joined The Age in 2020, and he wrote each of the articles in the CBD column on which the applicant sues. I made findings earlier in these reasons in relation to the way articles that were written for the CBD column evolved.

The Editorial Code of Conduct

302    I referred earlier, in the context of Ms Hutchinson’s liability for publication, to the Code of Conduct titled “Australian Metro Publishing – Editorial Code of Conduct”. The Code of Conduct provided that it applied to all Australian Metro Publishing editorial employees, including staff at The Sydney Morning Herald and The Age. Mr Brook accepted that as a journalist preparing and publishing material in the CBD column, he was subject to the Code of Conduct, and said that he was familiar with its content.

303    As I mentioned earlier, the Code of Conduct provided for principles such as honesty, impartiality, accuracy, fairness, disclosure of all essential facts, and offering a right of reply. The principles included that opinion and comment pieces should fairly and accurately present the relevant facts that the opinion or comment is based upon, and that reporters were to ensure that expressions of opinion were not based on inaccurate material or omission of key facts. The principles included that all editorial material should distinguish between comment, verified fact, and speculation, and that commentary and analysis should meet the same standards of factual accuracy as news reports. Other principles included that reporters would not place unnecessary emphasis on personal characteristics, such as religious beliefs.

304    There was a reasonably extensive provision in the Code of Conduct relating to sources. Amongst other things, it provided –

Reporters should keep in mind their sources’ agendas and motives for providing information and be alert to being compromised.

Reporters should always press sources to be quoted on the record. Care should be taken and motives considered if the source demands anonymity.

Quotes not attributed to named sources will be used only with the approval of the topic’s commissioning editor.

When sources are anonymous as much detail as possible should be given to show they are legitimate. Audiences should never be led to believe there are several sources when there is only one.

Claims should always be cross-checked with multiple sources to ensure accuracy and balance, and to reduce the likelihood of being misled by groups or individuals pushing a particular view.

...

305    After Mr Brook had agreed that the Code of Conduct applied to him, and as he was being taken in cross-examination to each of the above obligations, he qualified the position, by describing himself as a “columnist” rather than a “reporter” to whom the obligations on a reporter applied. Notwithstanding, Mr Brook agreed that these obligations applied to him, at least in his capacity as a “reporter”, and also agreed that as a columnist he had to meet the same standards of factual accuracy that applied to news reports.

306    In relation to the obligation to press sources to be quoted on the record, Mr Brook explained in re-examination his understanding that this obligation related to actual quotations, and not to information obtained from confidential sources.

307    In relation to the reporting of material published elsewhere, the Code of Conduct provided –

Extreme care should be taken when reporting material published elsewhere. Something is not a fact because it has been reported by other organisations or on social media. Reporters must always do their own checks.

308    Mr Brook initially agreed in cross-examination that he had the above obligation, but later qualified his position, suggesting that he was not a reporter, but a columnist.

The Journalist Code of Ethics

309    Mr Brook was a member of the Media Entertainment and Arts Alliance at the time of giving his evidence. The Alliance had a Journalist Code of Ethics. Mr Brook was uncertain as to whether he had been a member of the Alliance at the time he wrote the articles in question. Nonetheless, he said that there were no obligations set out in the Code of Ethics that did not apply to him. The obligations in the Code of Ethics were pithy, and in the nature of exhortations. They included obligations of honesty, accuracy, fairness, disclosure of all relevant facts, independence, and respect for the rights of others.

The 5 May 2021 articles

310    I have held that the 5 May 2021 articles are not actionable because they were not defamatory of the applicant in a meaning that is fairly within the pleadings. However, the background to the publication of those articles is relevant to the publication of the subsequent articles.

311    Mr Brook’s evidence-in-chief about the inception of the 5 May 2021 articles was general in nature. He stated that in the days before the articles were published he was contacted by people in the Jewish community who numbered about ten. He gave evidence in a broad-brush way that these people asked to remain anonymous, and not appear in the article, and that he would not discuss with anyone who they were, to which he agreed. Mr Brook said that he could not recall precisely who contacted him or when. Without attributing the following statement to any particular source, Mr Brook said that people were approaching him and saying –

This is very bad. We would like you to write about this. It’s a serious issue and we don’t think that it should be going ahead, and we would like you, as a journalist, to cover this issue.

312    In cross-examination, Mr Brook’s evidence was less clear. He did not accept the proposition that the view of his confidential sources was that the event should not be happening at all, saying, “I don’t recall that as being a particular focus of them”, and “Well some of them perhaps, but not all of them”. He suggested that his sources did not speak in unison, saying that “It’s difficult to speak about them as a whole”.

313    In cross-examination, Mr Brook agreed that he did not press his sources to be quoted on the record. Mr Brook was asked this question in the context of the obligation on a reporter under the Code of Conduct always to press sources to be quoted on the record, and that care should be taken and motives considered if the source demands anonymity (see the extract from the Code of Conduct at [304] above). As I have alluded to already, Mr Brook repeatedly suggested that several obligations did not apply to him because he was not a news reporter but an opinion columnist, with a different role, but nonetheless accepted on other occasions that some obligations in the Code of Conduct did apply to him, such as those relating to opinion and comment pieces. Mr Brook’s evidence on these issues came across as confused, because he also accepted that part of his role as a columnist was to report news. The upshot was that Mr Brook considered that the question whether reporting obligations applied to him as a columnist depended upon whether he was reporting news or comment, but that some obligations such as those relating to personal interests and relationships applied to both.

314    Nonetheless, in relation to the 5 May 2021 articles Mr Brook accepted that the sources who told him that the Jerusalem Day event should not go ahead had that motivation. Mr Brook also accepted that he had had to treat the information with some scepticism, being mindful that the sources did not wish to go on the record, and that he had to check the information for accuracy. The effect of Mr Brook’s evidence was that he did not have an independent source for the information that there was a rift between Rabbi Genende and the applicant, because the sources that he had did not think that the event should be going ahead. And while Mr Brook had read extracts from Rabbi Genende’s “angry missive” of 3 May 2021 in Haaretz, he did not have a copy of the email, and the sources with whom he checked the extracts were not independent. Mr Brook was also questioned in cross-examination as to whether he had any independent source for his information that Rabbi Genende had not been consulted. He nominated the Haaretz article as a source, but acknowledged that if that was the case, he had to take extreme care.

315    It was put to Mr Brook in cross-examination, and he did not dispute, that the evidence was that at the time the applicant agreed to host the Jerusalem Day event at the Caulfield Shule he did not know the identity of the speaker. Mr Brook accepted that he did not report that fact in the 5 May 2021 articles, and accepted that as a result the articles did not disclose all the essential facts in relation to the matter he was reporting, and that absent that information, what he had reported distorted the relevant facts. Mr Brook was re-examined about this issue. In re-examination, Mr Brook’s attention was drawn to other evidence that, after the applicant became aware that the guest speaker would be Jonathan Pollard, he sent the WhatsApp message to Dr Lamm, the substance of which was that they should move forward with the event. Mr Brook said that with knowledge of this additional evidence he did not believe that he had distorted the relevant facts.

316    Mr Brook also gave evidence in cross-examination that he had the 5 May 2021 articles “fact-checked” by one of his confidential sources. In re-examination, Mr Brook was taken to the respondents’ verified list of documents in which there was a global category of emails between Mr Brook and confidential sources dated 4 to 5 May 2021, for which privilege was claimed under s 126K of the Evidence Act. Mr Brook gave evidence that comprised within that category were communications with the confidential source in which he provided a draft of the article for fact-checking.

317    Mr Brook was asked what, if any, opinion he held about the subject-matter of the 5 May 2021 articles. His answer to this and other questions about his opinions did not always convey a distinction between fact and opinion, which may be the product of the way the questions were put. As a result, in answer to this and other questions that sought his opinion, Mr Brook expressed his belief about the existence of facts –

So at the time, it was clear to me that this event was controversial, and that there was uproar in the community amongst people who thought that the event should not go ahead. It was clear to me that there was division within the Caulfield Shule about the event and that there had been a rift between the rabbi and Mr Mond, and I also – it was my opinion that the rabbi had not been consulted about the event.

318    Mr Brook’s evidence that it was his opinion that the Rabbi had not been consulted was not an opinion based on any facts, but was an instance where Mr Brook treated an expression of belief about the existence of a fact as an opinion.

319    Mr Brook said that people told him that they were upset that Jonathan Pollard, who was a controversial figure, would be invited to give an address on an important occasion, that this was importing a global controversy, and that it would reflect badly upon the people and institutions concerned. Mr Brook said that he was told about foreign publications that had written about the issue, and that his attention was drawn to the article in Haaretz, and one or two other websites.

320    Mr Brook was asked in evidence-in-chief whether he had an opinion in relation to whether there had been appropriate consultation between the applicant and Rabbi Genende, and responded that he thought that there had not been appropriate consultation. This was another instance where Mr Brook was not asked about his opinion, but about his belief as to the existence of facts. When asked why he thought that there had not been appropriate consultation, he said it was on the basis of information given to him by his sources that a decision had been made by Dr Lamm and the applicant, that the Rabbi had subsequently found out about the decision, and in consequence had written the “memorandum” that was quoted in the article. Mr Brook said that he had been told by confidential sources that the applicant had decided to host the event and that he had decided to do that without consulting the Rabbi, and that that had led to a rift between the two men.

321    Mr Brook also said he read the Haaretz article of 3 May 2021, and its reference to the Rabbi not being consulted, when he prepared the 5 May 2021 articles. When asked whether he had an opinion about the applicant’s conduct in agreeing to host the event without consulting Rabbi Genende, Mr Brook stated that he thought that, given the controversial nature of Mr Pollard and the fact that a lot of people would disagree with the decision to host the event, it was misguided not to consult the Rabbi, given his importance in the Jewish community. He said that given the Rabbi’s status in the Caulfield Shule, it would have been proper to consult him before making the decision.

322    Mr Brook was also asked in evidence-in-chief whether he had an opinion at the time he wrote the article about Rabbi Genende’s reaction to the applicant agreeing to host the event without consulting him, to which Mr Brook responded that he thought that the Rabbi was upset and angry about the state of affairs. Mr Brook said that he considered the reaction to be a rift, as he had stated in the article. Mr Brook explained that it was clear to him that the Rabbi was not supportive of the decision, and felt that he should have been consulted before the applicant agreed to host the event. He said that the information upon which he “would have been relying” was what people had told him – referring to his confidential sources, and what he described as the memorandum from Rabbi Genende to the board, being the Rabbi’s 3 May 2021 email to the board. I note that Mr Brook did not have a copy of this email at the time he wrote the article.

323    Mr Brook was asked about his use of the word “uproar” in the 5 May 2021 articles. He said that the confidential sources who approached him explained how angry they were that the Pollard event was occurring. He referred again to his sources urging him to write about the issue because it was an important matter of public interest, and that other journalists, both here and internationally, had reflected that controversy in their own publications. He said that he thought that “uproar” was an accurate descriptor of what was occurring in the Jewish community.

324    Mr Brook gave evidence that at the time of writing the 5 May 2021 articles, he considered the publication of the article to be in the public interest. In explanation, Mr Brook said that members of the Jewish community were calling him, requesting that he look into the matter and to write about it because they disagreed with the decision to invite and host Jonathan Pollard. Mr Brook said that other journalists who wrote for Jewish publications in Australia and internationally also considered it to be in the public interest and wrote stories about it.

325    Mr Brook said that in preparing the 5 May 2021 articles, he spoke to Dr Lamm, with whom he had a conversation about the matter and who provided a quotation for publication which subsequently appeared in the article. Mr Brook also telephoned the Caulfield Shule and left a message and his contact details, but his call was not returned. I set out the message at [237] above. Mr Brook also telephoned the applicant’s office and asked to speak to him. After waiting for a while, Mr Brook was told that the applicant was unavailable. The applicant did not return Mr Brook’s call.

326    Returning to Mr Brook’s evidence that he read the Haaretz article, after he read the article he downloaded it and copied and pasted its text into the shared Google document which was the starting point for the 5 May 2021 articles. There were a number of words and phrases in an early working draft of Mr Brook’s article that he had lifted from the Haaretz article. However, Mr Brook added his own sentences and paragraphs to his draft and rewrote passages, so that while there was some similar information and ideas, Mr Brook’s article as published was shorter, and for the large part written in different terms. One example of the way the matter was shortened or abbreviated is that the Haaretz article stated that Rabbi Genende had sent a “letter” to the congregational board, whereas Mr Brook wrote that the Rabbi had “fired off an angry missive”, leaving it to implication or speculation to whom the missive was sent. Another example is that Mr Brook did not include reference to the other sponsors of the event named in the Haaretz article, namely the Bnei Akiva and Hineni youth movements, the Rabbinical Council of Victoria, and the Council of Orthodox Synagogues Victoria. Another example is that the full quotation attributed to Mr Jeremy Leibler in Haaretz was not reproduced by Mr Brook, but only an extract. Mr Brook accepted that in the Haaretz article, Mr Leibler’s criticisms were directed to the hosts of the event, namely Mizrachi and the Caulfield Hebrew Congregation, and that one reading of what he had written was that the quotation appeared to question the two individuals that he had identified, namely Dr Lamm and the applicant, but that he did not think it was clear. However, Mr Brook explained that the two individuals made the decision as representatives of their organisations. Another aspect of the Haaretz article that did not find its way into the published articles was that Haaretz had reported that the board of the Caulfield Shule was due to meet later on the Monday (which was 3 May 2021), and might revisit the decision to host the event. Mr Brook gave evidence in cross-examination that he decided not to refer to this aspect because, having contacted the Shule, he could not confirm it. The fact that Mr Brook contacted the Shule prior to publication is corroborated by an email that Ms Mihalovich sent to the applicant on 4 May 2021. Nonetheless, Mr Brook accepted in cross-examination at one point that the Haaretz article formed a significant part of the work that he ultimately published. At another point, Mr Brook said in cross-examination that the Haaretz article was not the basis for his column, but was part of the published literature that he consulted.

327    The result was that there were words and ideas that were present in both articles. One word was “rift”. The Haaretz article said that the invitation to Jonathan Pollard had “exposed a deep rift in the community”. Mr Brook wrote that the applicant “agreed to host the event, prompting a rift with Rabbi Ralph Genende”. In cross-examination, Mr Brook denied that he picked up the concept of a “rift” from the Haaretz article. He said that he came up with the word “rift” in his article independently of the use of that term in the Haaretz article, and repeatedly said that he had a source for that allegation. Mr Brook said that in his understanding the agreement to host the event and the lack of consultation prompted the rift. Mr Brook was unaware of the newsletter that Rabbi Genende sent to the Congregation on about 7 May 2021 (see [234] above) in which he stated that there was no rift between himself and the applicant, or the board. When this document was put to Mr Brook, together with an assumption that there was evidence that Rabbi Genende had stated in sermons given over that weekend that there was no rift, Mr Brook did not accept that there was in fact no rift. Nor did Mr Brook accept that he had failed to represent all the relevant facts in his reporting, noting however that Rabbi Genende’s note in the newsletter was sent after the 5 May 2021 articles were published.

328    As to ideas that were in common, in his early working draft Mr Brook wrote, “The congregational rabbi, however, was not consulted”. Mr Brook agreed that this was copied from the Haaretz article. The idea survived in the published article when Mr Brook wrote, “...Rabbi Ralph Genende, the senior Caulfield Shule rabbi, who was not consulted...”. Other features of the Haaretz article that were carried across into the published articles of 5 May 2021 were a component of the quotation that Haaretz attributed to Mr Jeremy Leibler, and some extracts from passages from Rabbi Genende’s email to the board of 3 May 2021 that Haaretz had published. As I have mentioned, Mr Brook did not have a copy of this email at the time of publication and said that he had not seen it before he was taken to it in cross-examination.

329    Mr Brook agreed in cross-examination that, on the assumption this was the evidence, that he had not reported that when the applicant agreed to host the event that he did not know the identity of the speaker. On that assumption, he agreed that he had not reported all relevant facts and, absent that information, what he had reported distorted the relevant facts.

330    Mr Brook agreed in cross-examination that while he contacted the applicant and asked to speak to him, he did not tell the applicant at any stage that he was planning to write a story to the effect that there was uproar in the Orthodox community and that fingers were being pointed at him.

The 13 December 2021 articles

331    Mr Brook gave evidence that he became aware that an apology had been issued by the board of the Caulfield Shule to Mr Adam Slonim. He said that a confidential source sent him a copy of the message from the board to the Congregation that included the apology. Mr Brook said that he thought that he had also been sent a copy of the original communication to the Congregation from the applicant that was the subject of the apology.

332    Mr Brook was asked in a global way whether the opinions that he held about the Pollard incident were still held by him at the time he wrote the 13 December 2021 articles, which he answered in the affirmative. In relation to the topic of the apology to Mr Slonim, Mr Brook gave evidence that he thought that the situation was a “mess”, and that it was an example of bad corporate governance to have to issue an apology to a member of an organisation that had been caused by a memo or an email that had been sent out to the members, and that it was a highly unusual situation. Mr Brook said that he had never come across a similar incident where the chair of an organisation, whether it be corporate or religious, had taken an action that had resulted in the threat of legal action by another member of that organisation and had then resulted in an apology by the board. In relation to the reference in the articles to “sounds like lawyers at 10 paces”, Mr Brook said that he did not have a great deal of knowledge about that. He then appeared to speculate that there had been a concerns notice that had prompted or forced the board to issue the apology.

333    Mr Brook said that he used the word “forced” in the articles with reference to the apology to Mr Slonim because he understood that there had been some sort of legal engagement in relation to the issue.

334    Prior to publication of the 13 December 2021 articles, Mr Brook telephoned the Shule on 29 November 2021 and Ms Mihalovich on 9 December 2021. He did not have any recollection of these calls. Mr Brook also exchanged emails with Ms Mihalovich. Amongst other things, in an email of 9 December 2021, Mr Brook asked the following questions in relation to the apology to Mr Slonim (adopting the numbering in the email) –

2.    How much money did the CHC spend on legal fees?

3.    Has the CHC given any undertakings to Mr Slonim about future behaviour?

4.    Has the former president Mr Mond been disciplined?

335    In an email response the following day, Ms Mihalovich stated that the Caulfield Hebrew Congregation had no comment in addition to the apology. Mr Brook contacted Mr Slonim in relation to the apology, and Mr Slonim provided no comment. Mr Brook made no attempt to contact the applicant. He explained in evidence-in-chief that he thought that the board had to be answerable for the apology, and that he understood that the applicant was a member of the board by nature of his position as the former president. Mr Brook said that he thought that Ms Mihalovich was the appropriate person to approach to seek comment from the board and all its members.

336    Mr Brook gave evidence that he considered the publication of the 13 December 2021 articles to be in the public interest. In evidence-in-chief, Mr Brook stated –

...the Jewish community is an important part of Melbourne. The Caulfield Shule is an important part of the Jewish community. There had clearly been an incident that had prompted this very unusual public apology. I felt that it was important to examine what – or attempt to examine what had gone on behind the scenes that had prompted that and that that would be of interest to our readers who were part of the community but also broader community of readers in Melbourne.

337    The 13 December 2021 articles referred to the earlier articles of 5 May 2021 noting a “rift” between the applicant and Rabbi Genende over the applicant’s lack of consultation in deciding to host a speech by a convicted spy. Mr Brook gave evidence that at the time he wrote the 13 December 2021 articles he was unaware that there had been a publication by Rabbi Genende refuting that claim. Mr Brook said that he “talked to sources and none of them mentioned it”. Mr Brook agreed that he should have discovered, if he was doing a reasonable job of reporting, that the Rabbi had publicly refuted the claim of a rift.

338    Mr Brook also gave evidence in cross-examination, the effect of which was that at the time of writing the 13 December 2021 articles –

(1)    he did not know until he saw it in the context of this case that the applicant, after speaking to Rabbi Genende on 22 April 2021 about Jonathan Pollard speaking at the Jerusalem Day event, sent an email to the board alerting them to the fact that Pollard was the speaker and seeking its views;

(2)    he did not know that the Rabbi had given a report to the board in advance of the meeting that identified concerns with the Jerusalem Day event;

(3)    he did not know that the applicant spoke to the Rabbi on 29 April 2021 and again on 3 May 2021 about how the Rabbi was going to approach the event; and

(4)    he did not know that Rabbi Genende spoke to the board at its meeting on 3 May 2021, that the board considered his views, and then voted not to withdraw from the event.

339    Mr Brook did not accept that a fair presentation of the facts would have included that there had been a discussion between Rabbi Genende and the applicant on 29 April 2021 about Mr Pollard’s participation in the Jerusalem Day event, saying that he did not think it had any bearing on his reporting of a rift. Mr Brook acknowledged that he did not refer to the board meeting of 3 May 2021 which followed Rabbi Genende’s email of that date. He gave varying reasons for not including that reference, including that he had not been informed about it, and that he had very limited space. In relation to his unawareness of the board meeting, he referred to the fact that he made contact with Ms Mihalovich of the Shule seeking information.

340    Mr Brook was asked about whether the applicant’s email to the board of 22 April 2021 following his telephone conversation with Rabbi Genende was relevant to his article which claimed that there had been a lack of consultation. Mr Brook answered that he believed that the email was evidence of consultation, that he was not saying that there was no consultation, but that what he was saying in the article was that there was a lack of consultation. When asked whether, if he had been doing his job in accordance with the Code of Conduct he would have discovered that email chain, he stated that he was reliant on information that the Shule was prepared to give him, and that the Shule did not wish to comment. However, Mr Brook accepted that in the telephone message that he left at the Shule on 4 May 2021 he did not foreshadow that he was going to write a story that was critical because there had been a lack of consultation. The Shule’s record of that telephone message is set out at [237] above.

341    Mr Brook also said in evidence that the report to the board by Rabbi Genende of 29 April 2021 was evidence of some consultation, and again said that he was saying that there was a lack of consultation. He appeared to say that he had not been informed by Rabbi Genende about the report of 29 April 2021, before accepting when challenged on this evidence that he only spoke to Rabbi Genende prior to the publication of the 18 February 2022 articles (see [355] below).

342    In relation to the references in the 13 December 2021 articles to Mr Slonim, Mr Brook gave evidence that he was not aware that Mr Slonim had made comments to The Australian Jewish News, and at the time he wrote the articles had not seen the article in The Australian Jewish News in which Mr Slonim had been quoted. However, Mr Brook accepted that he had been forwarded a copy of the applicant’s circular email of 13 August 2021 to the Congregation, but he later qualified this evidence saying that he received only screenshots of the document, and not the full email, and qualified his evidence further, saying that he was unable to say whether or not he received the full document. Mr Brook agreed that a good start in getting to the bottom of what was behind the apology was to get a copy of the whole document. He said that he believed that he had a conversation with Ms Mihalovich about it, and that she did not send him the document. The evidence is that Mr Brook spoke to Ms Mihalovich by telephone and later sent her the email dated 9 December 2021 to which I referred at [334] above. There is no evidence that Mr Brook asked Ms Mihalovich for a copy of the 13 August 2021 email in his conversation with her, and his email to Ms Mihalovich did not seek a copy of the document. When Mr Brook was pressed in cross-examination about his failure to obtain a full copy of the 13 August 2021 email, he sought to deflect responsibility by stating “Well, it was hard, because I was not supplied with the document when I made enquiries”. Mr Brook then agreed that it would not have been difficult to get a copy of the 13 August 2021 email from the person who sent him the screenshots, and said that he did not ask his source for the full document. It will be recalled that the email of 13 August 2021 referred to the article in The Australian Jewish News, and was a response to it. When it was put to Mr Brook that he would have read and understood that there had been a problem with something that had been published in The Australian Jewish News, he said that he did not recall reading that, and later said that he could not remember reading the full document.

343    Mr Brook gave evidence that while he knew at the time of writing the 13 December 2021 articles that the Rabins had been recently appointed to the Shule, he had only recently become aware that Mr Slonim had made some comments about the Rabins. Mr Brook said in evidence that he did not receive information that Mr Slonim had voted against the appointment of Rabbi Rabin, and that he did not know that Mr Slonim had made comments adverse to Rabbi Rabin to The Australian Jewish News. Nor was Mr Brook aware of the letter that a board member, Mr Robert Weil, had written and which was published in The Australian Jewish News under the heading “Praise for CHC board” in which Mr Weil expressed disappointment in reading the comments of Mr Slonim and rebutted them (see [269] above). Again, Mr Brook said that Ms Mihalovich and the Rabbi did not supply him with the letter, noting that it does not appear that Mr Brook spoke to Rabbi Rabin prior to publication of the 13 December 2021 articles. However, Mr Brook eventually conceded that it would not have been hard for him as a working journalist to get his hands on this information.

344    Mr Brook referred on several occasions in the context of the 13 December 2021 articles to a conversation that he had with Rabbi Rabin. There is contemporaneous evidence that corroborates the fact that he spoke to Rabbi Rabin at this point in time in the form of an email that he sent to Ms Mihalovich on 12 December 2021, but Mr Brook did not give an account of any conversation with Rabbi Rabin at this point in time in his evidence. The inference that arises from his email exchange with Ms Mihalovich is that he spoke to Rabbi Rabin about a different topic, being some comments that Mr Brook claimed that the Rabbi had made about the then-Premier of Victoria, Daniel Andrews, which did not form the basis of any published article.

345    Mr Brook accepted that the questions that he asked Ms Mihalovich in his email to her of 9 December 2021 were not directed to understanding the background to the dispute between Mr Slonim and the Shule. He agreed that none of the questions that he asked was likely to lead to a response which would lead him to understand the background to the dispute. Rather, he said that the point of his telephone conversation with Ms Mihalovich was to understand the background, but then gave evidence that the result of that conversation was that he would send follow-up questions for comment. As I mentioned earlier, Mr Brook agreed that he never obtained a full copy of the August email that was the subject of the board’s apology.

346    When it was put to Mr Brook that he did not really have a proper basis to understand what was going on, he answered, “I had a – conversations with people involved and then I sent a list of questions through”.

347    Mr Brook had given evidence-in-chief that he assumed that Ms Mihalovich would contact everyone relevant to the decision about the apology and respond to him on their behalf. Having regard to Mr Brook’s other evidence that the substance of the conversation was that he would send follow-up questions in writing, any such assumption could only relate to the questions that he sent, and not the background to the matter generally. Mr Brook accepted that he did not seek to contact the applicant prior to publication of the 13 December 2021 articles, and he accepted that this was a failing. He then volunteered that he did not have the applicant’s email address, but when pressed he conceded that he could have attempted to get it and that he did not attempt to do so.

348    Mr Brook accepted in cross-examination that he was unaware that the applicant had published his email to the members of the Congregation for the purpose of addressing the claims of “discord” at the Shule and for the purpose of providing support for Rabbi Rabin, whom Mr Slonim had publicly criticised. He again said that he had asked for information, and sent some questions and he was given no comment. In terms of what he knew, Mr Brook said, “I can’t recall precisely what I knew”.

349    Mr Brook was aware that the Shule had a new president, but unaware that there was a new board. He did not know that the settlement had been negotiated without any input from the applicant, and did not know that the applicant had not agreed to apologise.

350    Mr Brook did not accept that the claim that the board was forced to issue an apology was not fair or lacked balance, pointing to the fact that there had been some sort of legal activity.

351    Mr Brook was asked about the last paragraph of the 13 December 2021 articles, and the reference to Mr Slonim’s work with emotional intelligence and the last sentence, “Presumably he is available for hire”. Mr Brook denied that this was intended to be a barb at the applicant, and denied that he was intending to be insulting to the applicant.

The 18 February 2022 articles

352    The 18 February 2022 articles commence with the words, “Down in the bagel belt...”. The applicant gave evidence that he considered that reference to be a slight, because bagels are associated with Jewish people. Mr Brook gave evidence-in-chief that his reference to the “bagel belt” was an affectionate reference, and had been used by other columnists including a Jewish colleague, and had been used by the Australian Jewish Museum as the name of an exhibition that it hosted. In cross-examination, Mr Brook accepted that what he said in the article was not very affectionate, but maintained that in using the term “bagel belt” he was being affectionate.

353    The 18 February 2022 articles repeated the claim that there was a rift between the applicant and Rabbi Genende over his failure to consult the Rabbi. Mr Brook said that he was told after publication of the original article by some confidential sources that this had been correct, but he did not undertake any additional research. He was not told, and he was unaware, that Rabbi Genende had said publicly that there was no rift. Nor did Mr Brook undertake any additional research in relation to the reference to the forced apology to Mr Slonim before writing the 18 February 2022 articles. Mr Brook said that he saw no need to investigate these matters further.

354    In evidence-in-chief, Mr Brook stated that the purpose for which he wrote the 18 February 2022 articles was that he had been approached by sources who thought it was a significant matter. He said that the sources wanted to highlight the impact that the previous discord had had on the community, and also on the synagogue in question, and to point out that Rabbi Genende had not attended the inauguration of Rabbi Rabin, which was an important event.

355    Mr Brook said that prior to publication of the 18 February 2022 articles he spoke to both Rabbi Rabin and Rabbi Genende. He said that he had an extensive, cordial discussion with Rabbi Rabin, but could not recall it very well. It was an agreed fact that the duration of Mr Brook’s call to Rabbi Rabin was four minutes and ten seconds. Mr Brook said on two occasions during his evidence-in-chief that Rabbi Rabin declined to make a comment on the record, but later qualified this evidence by saying that he was not sure whether Rabbi Rabin declined or not. On the topic of why Rabbi Genende did not attend the ceremony at the Shule, Rabbi Rabin told Mr Brook that he had otherwise been engaged. Mr Brook said that Rabbi Rabin told him that it had been a very busy time due to the coronavirus lockdowns, and that there was a backlog of matters that rabbis had to attend to and that he thought that Rabbi Genende was simply busy on other matters at that time.

356    As for Rabbi Genende, it was an agreed fact that Mr Brook called him and that the duration of the call was 41 seconds. Mr Brook’s evidence was that in this call he introduced himself to Rabbi Genende, and stated that the purpose of the call was to ask about his absence at Rabbi Rabin’s induction. Mr Brook said that the conversation was cordial, but that Rabbi Genende declined to make any comment.

357    Mr Brook again used the word “rift” in the articles in referring to the relationship between the applicant and Rabbi Genende. When he was asked why he made this reference, he referred again to his understanding of the course of events, that the Rabbi had not been consulted, and that this information had been given to him by his confidential sources.

358    Going to the substance of the 18 February 2022 articles, which was that there had been less than a full attendance at Rabbi Rabin’s inauguration and that fellow rabbis were thin on the ground, Mr Brook stated that his source of that information was a member of the Jewish community who was a confidential source. Mr Brook gave evidence that the source was not at the inauguration.

359    In relation to the reference in the 18 February 2022 articles to “A snub, others said”, Mr Brook said that this was derived from his confidential source.

360    Mr Brook said that at the time he wrote the 18 February 2022 articles, he still held the opinions that he held about the Jonathan Pollard matter at the time he wrote the 5 May 2021 and 13 December 2021 articles. He also said that he continued to hold the opinions regarding the apology to Mr Slonim that he had held at the time of publication of the 13 December 2021 articles.

361    Mr Brook said in evidence-in-chief that he considered that the publication of the 18 February 2022 articles was in the public interest. He explained that he thought that there was, again, ongoing evidence of the issues that had affected the Caulfield Shule about which he had written previously, and that the non-appearance by Rabbi Genende at Rabbi Rabin’s inauguration was evidence that the previous matters to which he referred were still having an impact. He said that the Jewish population is an important part of Melbourne, and the Caulfield Shule is an important part of the Jewish community, and that there was ongoing evidence of discord.

362    Mr Brook was asked about the following passage in an article of 24 March 2022 in the CBD column that he wrote titled “Out of Shule” –

This column has written several columns about goings on at the synagogue over the past year, and this has left some members deeply unhappy.

363    It was put to Mr Brook that he was referring in this passage to the applicant, in response to which he said it was probably a reference to Rabbi Rabin, Ms Mihalovich, as well as the applicant.

364    It was put to Mr Brook in cross-examination in several different ways that his articles encouraged antisemitic views. In general terms, Mr Brook’s response was that members of the Jewish community were concerned that the invitation to Mr Pollard would give rise to antisemitism in the community. Mr Brook said that nobody telephoned him after the publication of any of the articles expressing concerns that his articles had encouraged antisemitic views. He said that he was not intending to promote antisemitic views, and that he did not believe that he had done so in publishing the articles.

Issue (3): serious harm

365    Several amendments were made to the Defamation Act by the Justice Legislation Amendment (Supporting Victims and Other Matters) Act 2020 (Vic). The amendments included the introduction of s 10A of the Defamation Act which provides for a serious harm element to a cause of action in defamation –

(1)    It is an element (the serious harm element) of a cause of action for defamation that the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person

366    A corresponding amendment was made to the defamation legislation in most, but not all other Australian jurisdictions. This proceeding was conducted on the basis that the Victorian Act was picked up and that it applied: see the statutory choice of law rule in Defamation Act, s 11(2). The transitional provision for the 2020 amendments to the Defamation Act provides that the amendments apply to the publication of defamatory matter after the commencement of the amendment: see Defamation Act, s 47. The amendment effected by the addition of the serious harm element in s 10A commenced on 1 July 2021. Therefore, serious harm must be proven as an element of any instances of publication of a defamatory matter on or after 1 July 2021, even if the matter was first published before that date: Russell v Australian Broadcasting Corporation (No 3) [2023] FCA 1223; (2023) 303 FCR 372 (Russell) at [258] (Lee J).

367    Section 10A of the Defamation Act was inspired by, but is in different terms to, s 1 of the Defamation Act 2013 (UK). Under s 1 of the UK Act –

a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.

368    The difference in the text of the provisions was noted by Besanko J sitting in the Full Court in Selkirk v Wyatt [2024] FCAFC 48; (2024) 302 FCR 541 at [42]. Section 10A of the Victorian Act is drafted in terms which make it an element of the cause of action that the publication of the defamatory matter has caused, or is likely to cause serious harm, thereby putting beyond doubt that the serious harm element is not concerned with the inherent tendency of the words to cause serious harm to the reputation of an applicant, but with actual harm: compare the approach of the Court of Appeal referred to in the judgment of Lord Sumption in Lachaux v Independent Print Ltd [2020] AC 612; [2019] UKSC 27 (Lachaux) at [11] with that which prevailed in the Supreme Court. As a result of the decision of the Supreme Court in Lachaux, the difference in text would not appear to affect the relevance of the UK authorities to the construction of s 10A of the Victorian Act in relation to the issues that arise in the present case.

369    The key requirement of s 10A is that an applicant must prove that the publication of the defamatory matter caused, or is likely to cause, serious harm to reputation. The reference to “defamatory matter” in s 10A suggests that the causal relationship is with the publication of the matter in a defamatory sense. It was accepted in Greenwich v Latham [2024] FCA 1050 at [174] (O’Callaghan J) that when it comes to serious harm, the Court is concerned with actual serious harm, and not serious harm amongst a notional cohort of ordinary reasonable readers, and that is undoubtedly correct.

370    Serious harm to reputation, or likely serious harm to reputation, are facts that must be proven by evidence. The evidence may include direct evidence, but depending on the circumstances of the particular case, a claim of serious harm need not be supported by direct evidence. That is because like any fact in issue serious harm to reputation may arise as an inference to be drawn from all the circumstances of the case: Lachaux at [21] (Lord Sumption). Those circumstances may include a combination of the following –

(a)    the inherent tendency of the defamatory matter and its actual or probable impact on those to whom it was published, in other words, the gravity of the imputations;

(b)    the extent of publication, any likely republication, and any likely “grapevine effect” or “percolation”;

(c)    whether there was a prompt apology, and the breadth of the audience to which any apology was published;

(d)    the reputation of the publisher – a defamatory publication by a generally reputable publisher that is represented as being reliable and the product of research might be more capable of causing serious harm than one by a publisher that is not so reputable;

(e)    the medium of the publication – a transient publication might cause less harm to reputation than one in print or which is available for viewing online for an extended period or indefinitely;

(f)    the situation of the applicant, including the applicant’s existing reputation in the relevant sector;

(g)    the identity of the persons to whom the defamatory matter was published; and

(h)    the inherent probabilities generally.

371    There are discussions of several of these and other circumstances by O’Callaghan J in Deeming v Pesutto (No 3) [2024] FCA 1430 at [525]–[534], and by Applegarth J in Peros v Nationwide News Pty Ltd (No 3) [2024] QSC 192 (Peros) at [55]–[72]. The circumstances identified above are not a checklist, or exhaustive. What circumstances may be relevant will vary from case to case, and in some cases a consideration of only some circumstances may readily lead one way or the other to a determination of whether the serious harm element has been established.

372    The requirement that the defamatory publication has caused “serious harm to the reputation” of the person defamed requires an evaluative judgment in circumstances where the common law accepts that damage to reputation is not a commodity, and that every defamation is necessarily unique: see Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327 (Rogers) at [66] (Hayne J). Evaluative judgments of this type are not unknown to the statute books. For many years, legislation in Victoria has provided for “serious injury” gateways to common law damages proceedings in relation to workplace and transport accident injuries: see Transport Accident Act 1986 (Vic), s 93(2)(b); Workplace Rehabilitation and Compensation Act 2013 (Vic), s 327. For the purpose of that legislation, a “serious injury” is to be assessed by reference to its consequences when judged by comparison with other cases and is an injury which can be fairly described at least as “very considerable” and certainly more than “significant” or “marked”: Transport Accident Commission v Katanas [2017] HCA 32; 262 CLR 550 at [4]–[6] (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ). That formulation is of no assistance here, because it concerns a different statutory phrase, in different legislation, which has a different context and objects.

373    The term “serious harm” in s 10A(1) of the Defamation Act is not defined. It is an open-textured phrase where no precise or universal test has been authoritatively stated at appellate level in relation to the Australian legislation. In Rader v Haines [2022] NSWCA 198 (Rader) at [27] Brereton JA, with whom Macfarlan JA agreed, stated in the context of s 1 of the United Kingdom Act that “serious” sits on a spectrum that is above “substantial”, but below “grave”. However, at [91] Basten AJA stated that there was a risk in seeking synonyms of “serious” and in seeking to place the term on a scale between other terms of equal imprecision. In Peros at [95], Applegarth J agreed with Basten AJA. I also agree with Basten AJA, noting the accepted dangers of substituting judicial language for the text of legislation: see Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [92] (Hayne and Heydon JJ).

374    For the purposes of s 10A(1) of the Defamation Act, what is meant by “serious harm” is to be resolved by reference to the modern principles of statutory construction that look to text, context, and purpose, where text includes surrounding provisions, where context includes legislative history and extrinsic materials to which regard is had at the first stage and in its widest sense: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47] (Hayne, Heydon, Crennan and Kiefel JJ); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 5; (2012) 250 CLR 503 at [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ); SZTAL v Minister for Immigration & Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14] (Kiefel CJ, Nettle and Gordon JJ).

375    Professor Rolph in his article A Serious Harm Threshold for Australian Defamation Law (2022) 51 Aust Bar Rev 185 makes the point that the respective antecedent laws in Australia and the United Kingdom were different before the introduction of their serious harm provisions, with the Australian statutes providing for a defence of triviality. That defence was removed in the uniform legislation with the introduction of the serious harm element. For this reason alone, attention must be directed to the proper construction of the Australian provisions relating to serious harm, rather than the United Kingdom provision that was the subject of consideration by the New South Wales Court of Appeal in Rader.

376    The introduction of the serious harm element in Victoria was part of a largely national uniform approach agreed to by the Council of Attorneys-General upon the instigation of New South Wales. It is legitimate to have regard to this national approach as part of the statutory context, especially having regard to the reciprocal statutory choice of law rules in Australian jurisdictions, which in Victoria is found in s 11 of its Defamation Act. In the New South Wales Parliament, the Attorney-General in the second reading speech for the Defamation Amendment Bill 2020 referred to stakeholders having raised “significant concerns that defamation law is increasingly being used for trivial, spurious and vexatious backyard claims”. The context for the Victorian Act also includes the legislative intent expressed in the second reading speech to the Justice Legislation Amendment (Supporting Victims and Other Matters) Bill 2020 (Vic), where the Attorney-General stated –

The Bill will introduce a new “serious harm threshold” as an additional element of the cause of action for defamation. This will require plaintiffs to establish that the publication of allegedly defamatory matter has caused, or is likely to cause, serious harm to their reputation. This important reform will operate to prevent trivial or frivolous defamation claims at the outset, reducing the burden of unwarranted defamation litigation on businesses, individuals, and the courts.

377    One difference between the Victorian and the United Kingdom legislation that provides some context for determining what constitutes “serious harm”, is that while s 10A(3) of the Victorian Act contemplates that the serious harm element may be established at trial by providing that in a jury trial it is a question for the judge and not the jury, s 10A(5) provides that if an application is made, a judge must determine as soon as practicable before trial the serious harm element unless there are special circumstances which are elaborated upon in s 10A(6). This is a feature of s 10A that is an integral component of the reform that it effected, which in the words of the Victorian Attorney-General was directed to preventing “trivial or frivolous defamation claims at the outset”. In light of the object in s 3(c) of the Defamation Act to provide effective and fair remedies for persons whose reputations are harmed, s 10A(5) suggests that the serious harm element may be capable of ready determination prior to trial, thereby indicating that “serious harm to reputation” is harm that is at least not trivial or minor in nature, as the second reading speeches to the Victorian and New South Wales Bills would indicate, rather than establishing an especially high threshold requiring extensive evidence to be led by an applicant. For the purposes of this analysis, I put to one side the question whether the procedural provisions in s 10A(5), (6) and (7) are picked up in federal jurisdiction under s 79 of the Judiciary Act 1903 (Cth). For present purposes, the relevance of those subsections is to the evaluation of “serious harm to reputation” in order to determine whether the serious harm element in s 10A(1) is established.

378    In paragraph 20 of the further amended statement of claim the applicant alleges that the publication of the matters “has, or is likely to have caused” serious harm to the applicant’s reputation. Both limbs of the applicant’s plea are expressed in the past tense. I do not see any distinction between “has caused” and “is likely to have caused”. Compare the text of s 10A(1), and see Lachaux at [14] where Lord Sumption stated in the context of s 1 of the United Kingdom Act that the phrase “likely to cause serious harm” naturally refers to probable future harm.

379    The applicant pleaded the following particulars of serious harm –

(i)    The publication of the matters complained of is to a mass media audience from which it is to be inferred that the imputations have or are likely to have come to the attention of people who know Mr Mond or will come to know him in future whether within CHC and the wider Australian Jewish Community, in the course of his professional pursuits, within the Liberal Party or howsoever otherwise. Further, those who search ‘David Mond’ online will be confronted by a link to the Online May 2021 Age Article and/or Online December 2021 Age Article on page 1 of the search engine results.

(ii)    The matters complained of involve a suite of articles over a 10 month period about Mr Mond in the CBD Column (refer to paragraph 6 above and its particulars). Seeking to promulgate gossip about Mr Mond to readers in this context, in the Hard Copy and Online December 2021 Age Articles and Hard Copy 2022 Age Article and Online 2022 Age/SMH Articles, preceding allegations were presented in summary form to introduce the next set of allegations. This has or is likely to have embedded into the minds of readers of the CBD Column (refer to paragraphs 6, 14 and 15 above) negative imputations about Mr Mond.

(iii)    The imputations are serious. Mr Mond’s professional reputation depends on his integrity, good judgment and management skills within a conservative field, namely tax and related business endeavours. The imputations as alleged pose a significant risk to Mr Mond’s professional reputation in the Australian business community, the Public Service including the Australian Tax Office, as well as to his reputation within the Liberal Party.

(iv)    Mr Mond holds dearly his excellent reputation in the wider Australian Jewish community and in CHC. The CHC is the preeminent synagogue in Melbourne with over 1,100 members. The likely adverse effect on him of the matters complained of within Mr Mond’s immediate community has caused him acute distress.

(v)    The matters complained of are likely to prejudice Mr Mond’s ability to raise funds, including government funding. His immediate concern is the need to ensure that a building permit (which expires in March 2024) is maintained to build a new Jewish Community Centre including a fully refurbished synagogue. During his 3-year presidency of CHC and prior to the May Article, Mr Mond together with committee member Rabbi Genende and others, were able to raise $2.45 million to fund costs including the grant of this permit. The cost of the build is estimated at $25 million, with $3.45 million already pledged (including $500,000 from the Mond family). Mr Mond is very concerned that his hard work will be prejudiced due to the tarnish caused to his reputation by the matters complained of.

380    Three observations may be made about these particulars.

381    First, the applicant’s particulars aggregate claimed consequences of all the matters, without making claims of serious harm in relation to each distinct matter sued upon in circumstances where, as I have found, not all of the matters are actionable. Section 10A(1) makes it “an element… of a cause of action” in relation to the publication of defamatory matter that the matter caused serious harm to reputation. The word “publication” in s 10A(1) must be taken to refer to the publication of the defamatory matter by a respondent, such that the subsection is concerned with the collective effect of the publication by a respondent of the same defamatory matter in respect of which a cause of action is otherwise established. The collective effect may result from the publication by a respondent of the same or substantially the same matter on multiple occasions where each actionable publication gives rise to a separate cause of action. Therefore, harm to reputation caused by separate publications of the same or substantially the same matter, as with a mass media publication, may be aggregated: see Amersi v Leslie [2023] EWCA Civ 1469 (Amersi) at [56] (Warby LJ, Underhill LJ agreeing). However, the serious harm element must be established for each particular defamatory matter on which the applicant sues and otherwise establishes liability, and not by reference to the accumulated consequences of various publications of different matters, some of which I have held not to be defamatory in the way claimed by the applicant: see Economou v De Freitas [2018] EWCA Civ 2591 at [41] (Sharp LJ), Amersi at [54].

382    That does not mean that other publications, whether by a respondent or others, may not have a relevant bearing on whether the matter sued on caused serious harm to an applicant’s reputation. Prior bad reputation, if put in issue, may be relevant to whether any incremental serious harm to reputation was caused by the publication of the matter sued on: Sivananthan v Vasikaran [2022] EWHC 2938 (KB) at [56] (Collins Rice J); Peros at [193] (Applegarth J). For the purpose of assessing damages, prior bad reputation must be proven by admissible evidence in the form of the type of evidence referred to by Gleeson JA in Fairfax Digital Australia and New Zealand Pty Ltd v Kazal [2018] NSWCA 77; (2018) 97 NSWLR 547 at [176]–[184]. The mere existence of other defamatory publications is not ordinarily treated as admissible evidence of prior bad reputation for the purposes of the assessment of damages: see Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports ¶80-691 at 68,951–68,955 (Moffitt P, Samuels JA and Priestley JA agreeing) where it was held that on the question of damages evidence in the form of earlier newspaper articles was not admissible to prove a prior tarnished reputation. See also, Hayson v The Age Company Pty Ltd [2019] FCA 1538 at [14] (Bromwich J), and Peros at [168] (Applegarth J). The same limitation on the admissibility of evidence of prior publications on the question of bad reputation for the purpose of the assessment of damages continues in the United Kingdom: see Banks v Cadwalladr [2023] KB 524; [2023] EWCA Civ 219 at [59] (Warby LJ, Sharp P and Singh LJ agreeing); Shakil-Ur-Rahman v ARY Network Ltd [2017] 4 WLR 22; [2016] EWHC 3110 (QB) at [11] (Sir David Eady).

383    However, prior publications may in some cases be relevant and therefore admissible on the question of causation, as shown by the extensive discussion of these issues by Applegarth J in Peros at [201]–[248] and the application of the principles by his Honour at [415] and [439]–[450], where it was held in the particular circumstances of that case which involved sequential podcast episodes, that prior publications and other existing circumstances established a baseline for the plaintiff’s reputation, and that the plaintiff had not established that the one podcast upon which he sued caused serious harm to his reputation. If it is permissible to draw an inference of actual harm to reputation on the basis of the nature of the imputations and the extent of publication of the defamatory matter sued on, then it might follow that it is permissible to evaluate whether that inference should be drawn in the context of all the surrounding circumstances, including other and prior publications to similar effect, at least where those publications were to the same persons. There may be other causation issues that arise in the law of torts generally that may bear upon the requirement in s 10A of the Defamation Act that an applicant must prove that the publication of a defamatory matter sued upon caused serious harm to reputation. Applegarth J adverted to some of these issues in Peros, including whether causation for the purposes of s 10A is made out by proving a material contribution to indivisible harm to the applicant’s reputation: see Peros at [75]. See also: Bonnington Castings Ltd v Wardlaw [1956] AC 613; Amaca Pty Ltd v Ellis [2010] HCA 5; 240 CLR 111 at [66]–[68] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); Amaca Pty Ltd v Booth [2011] HCA 53; 246 CLR 36 at [64]–[70] (Gummow, Hayne and Crennan JJ). However, it is important to bear in mind that harm to reputation is not like a bodily injury. A person’s reputation exists in the minds of others, and it may not be homogeneous. It is the impact of the defamatory matter on those to whom it was published that falls for consideration. That impact may result in serious harm without being uniform.

384    Secondly, components of the allegations in paragraphs (iv) and (v) of the applicant’s particulars extend beyond damage to the reputation of the applicant to include distress, or concern held by the applicant. These considerations are outside the scope of the serious harm element, which is directed to actual damage to reputation, which is concerned with the impact of the defamatory matter on those to whom it was published: Cooke v MGN Ltd [2015] 1 WLR 895; [2014] EWHC 2831 at [30] (Bean J); Sobrinho v Impresa Publishing SA [2016] EWHC 66 (QB) at [46] (Dingemans J); Rader at [28] (Brereton JA); Peros at [97] (Applegarth J).

385    Thirdly, the substance of the applicant’s particulars of serious harm, which is found in paragraphs (i), (ii), and (iii), allege primary facts from which serious harm might be inferred. This reflects the applicant’s case at trial, where there was very little direct evidence of serious harm to the applicant’s reputation.

Serious harm – 5 May 2021 articles

386    I have held that the 5 May 2021 articles are not actionable because they did not convey any defamatory meanings that are fairly within the scope of the pleadings. I therefore do not need to consider whether any ongoing publication of those matters occurring after 1 July 2021 meet the serious harm element in s 10A of the Defamation Act.

Serious harm – 13 December 2021 and 18 February 2022 articles

Serious harm – the applicant’s submissions

387    As with the applicant’s particulars of serious harm, the applicant’s submissions on the serious harm element did not differentiate between the different matters sued upon, but addressed in a global way all of the matters, including the continued online publication of the 5 May 2021 matters.

388    The applicant relied on an inference of serious harm, together with what was submitted to be direct evidence of actual harm that should contribute to a finding of serious harm. In relation to the applicant’s circumstantial case, the applicant submitted that there were five considerations that supported an inference of serious harm to the applicant’s reputation in relation to the publications that occurred on and after 1 July 2021 –

(1)    It was submitted that the relevant publications contained serious defamatory imputations. It was submitted that the applicant’s professional reputation depended on his integrity, good judgment and management skills within a conservative field, namely, tax and related business endeavours. It was submitted that each publication conveyed imputations likely to cause significant damage to the applicant’s professional reputation in the Australian business community, within the Liberal Party, and his religious life.

(2)    The applicant submitted that the articles were published via mass media to hundreds of thousands of readers. I will refer to the circulation figures when addressing the parties’ submissions further below.

(3)    The applicant submitted that the articles amounted to a campaign of denigration of the applicant. It was submitted that there was a suite of articles over a 10-month period in the CBD Column, which was a prominent “gossip column”. It was submitted that it can be readily inferred that the respondents’ conduct in hyperlinking the 5 May 2021 articles in the later online publications embedded in the minds of readers negative impressions of the applicant.

(4)    The applicant submitted that the online publications had remained available on the Internet after almost two years.

(5)    The applicant submitted that a significant grapevine effect is to be expected by reason of the matters referred to in the submissions, which meant that the libels had travelled beyond those who read the publications.

389    In relation to direct evidence, the applicant relied on the following –

(1)    On the morning of the 5 May 2021 publications, the applicant’s brother, Mr Barry Mond, was standing in line at Glick’s Bakery in Glenferrie Road, Malvern to buy bread. In front was a friend, Mr Max Singer, who turned and said to him, “with a smirk on his face”, “your brother … is in The Age today”.

(2)    On 9 May 2021, at the Jerusalem Day Event, when the applicant stood at the door of the synagogue to welcome guests, “30 per cent just brushed past”.

(3)    Rabbi Rabin did not mention the applicant at all in his 12 February 2022 inauguration, for which Rabbi Rabin later apologised and told the applicant that whenever he mentioned his name, he had “a really bad reaction from congregants”.

(4)    The applicant referred to evidence of Ms Mihalovich that talk around the synagogue was definitely negative: “Well, people don’t really know what’s going on, so when they read something, they believe that to be true. So the talk around the place was, “What’s going on with Mond?”. It was submitted that while some of this evidence related to a period that preceded the introduction of the serious harm element, they could not be discounted.

(5)    The applicant relied on the fact that the respondents published the 5 May 2021 articles again by hyperlink after 1 July 2021, and submitted that inferences could be drawn based on the actual reactions of people who read the first publications. It was further submitted that such readers no doubt read the subsequent articles, thereby compounding their initial negative reactions.

Serious harm – the respondents’ submissions

390    The respondents referred to the relevant principles, and in particular the need to assess the actual impact of the publications of the matters, and to assess serious harm separately in relation to each distinct defamatory matter where there are multiple publications.

391    The respondents submitted that the difficulty for the applicant in this case is that the more serious imputations alleged by the applicant were not conveyed, and that if any defamatory imputations were conveyed, they were not of sufficient gravity to enable the Court to infer serious harm to his reputation in the absence of evidence.

392    The respondents submitted that in this context, it was also relevant that the tone of the CBD column was sometimes tongue-in-cheek, and that some people referred to it as a “gossip column”, even though that was a description rejected by Mr Brook.

393    The respondents submitted that notwithstanding the way in which the case was opened on behalf of the applicant and the contents of his concerns notice on the topic of serious harm, there was no direct evidence given by the applicant of any harm caused in the nature of lost business or other opportunities, such as assisting the Liberal Party. In relation to Ms Mihalovich’s evidence of talk around the Shule, the respondents submitted that there was no evidence that this talk was in response to the items published by the respondents, and certainly no evidence that the talk was in response to the imputations about which the applicant complained. The respondents submitted that a striking feature of the case was that no evidence was given by the applicant or his wife of anyone raising any of the matters with them. It was submitted that no members of the Caulfield Hebrew Congregation, the broader Jewish community or anyone else other than the limited evidence of Mr Barry Mond concerning the May 2021 item, was called to give the usual type of evidence about people talking about the publications sued upon.

394    The respondents submitted that delay in the service of a concerns notice or commencement of proceedings is relevant as to whether serious harm has, in fact, occurred, citing Rader at [35]-[40] (Brereton JA) and Supaphien v Chaiyabarn [2023] ACTSC 240 at [115] (Curtin AJ).

395    The respondents made submissions about the extent of publication, stating that it was not as extensive as might otherwise be expected, particularly in relation to the online publications. I will address the extent of publication below.

396    Finally, the respondents submitted that no serious harm could be said to have been caused by the publication in the online version of the 18 February 2022 article in the Sydney Morning Herald given that the applicant never asserted he had any reputation in Sydney. This submission was not developed.

Serious harm – consideration

397    I will address the direct evidence relied upon by the applicant before turning to the applicant’s circumstantial case.

398    The slender evidence about Mr Barry Mond’s encounter at Glick’s bagel shop on 5 May 2021, and the applicant’s evidence that some people brushed past him at the Jerusalem Day event on 9 May 2021, are not probative of any serious harm to the applicant’s reputation, still less that the articles of 13 December 2021 or 18 February 2022 caused any harm to the applicant’s reputation.

399    The evidence of the applicant that Rabbi Rabin told him on 14 February 2022 that whenever he mentioned the applicant’s name, he had “a really bad reaction from congregants” is hearsay in relation to the underlying prior representation, and equivocal. The conversation occurred after the 13 December 2021 articles, and before the 18 February 2022 articles. If the evidence carried any weight, it would suggest that the applicant did not have a good reputation before the publication of the 18 February 2022 articles, thereby bearing on the question whether those articles could have caused any serious harm. To carry any weight, Rabbi Rabin would have to have been called to give evidence in an admissible form about the applicant’s reputation around the Shule before and after the publication of the two separate sets of articles in question. That did not occur. In fact, a striking feature of the case is that apart from Ms Mihalovich and the applicant’s brother Mr Barry Mond, no witnesses were called to give evidence of the applicant’s reputation at the Shule. Furthermore, the form of the applicant’s evidence about his conversation with Rabbi Rabin does not enable a causal connection to be made between the publication of the articles and the reaction from the congregants. It is just as likely that the reaction of the congregants was caused by other factors, such as the applicant’s email of 13 August 2021, and the subsequent legal dispute that arose that led to the apology to Mr Slonim.

400    The evidence of Ms Mihalovich on which the applicant relied is of limited weight, because it is not clear from her evidence by reference to what articles she was speaking in relation to the talk around the Shule because there was no differentiation between the different publications in the questions that were put to her.

401    The fact that the 13 December 2021 and 18 February 2022 articles contained hyperlinks to the 5 May 2021 articles does not add appreciably to any direct evidence of actual harm to the applicant’s reputation. I also view that evidence through the lens that the 5 May 2021 articles did not convey any defamatory imputations of which the applicant complains.

402    Therefore, the applicant’s case that the 13 December 2021 and the 18 February 2022 articles caused serious harm to his reputation rests on inferences rather than any direct cogent evidence. This might be said to be unremarkable, because the authorities recognise that there can be difficulties for an applicant in marshalling direct evidence going to causation of actual harm to reputation. That is because of the nature of harm to reputation, which may lie lurking in unknown places: see Cassell & Co Ltd v Broome [1972] AC 1027 at 1071 (Lord Hailsham). But unlike the assessment of general damages where a court may take a robust approach to ensure vindication because a person has been defamed, s 10A is directed to causation of actual serious harm, which must be proven on the balance of probabilities. In a sense, it is no different to the requirement to prove on the balance of probabilities any other actual damage as a result of defamatory publication, such as economic loss: see Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154; (2018) 56 VR 674 (Bauer Media) at [545], [571] (Tate, Beach and Ashley JJA). In that regard, it has been held that any inherent difficulties of proof may be taken into account in assessing the quality of the evidence that is adduced. Thus, in Ratcliffe v Evans [1892] QB 524, which concerned proof of actual damage as an element of the tort of malicious falsehood, Bowen LJ stated at 532-533 –

In all actions accordingly on the case where the damage actually done is the gist of the action, the character of the acts themselves which produce the damage, and the circumstances under which these acts are done, must regulate the degree of certainty and particularity with which the damage done ought to be stated and proved. As much certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.

403    In relation to the inferences that are available from the fact of publication, it is necessary to make findings about the extent of publication. The evidence about the extent of publication of the 13 December 2021 articles was the subject of a statement of agreed facts –

(a)    the estimated circulation of The Age newspaper within Australia on 13 December 2021 was 48,474;

(b)    the estimated readership of The Age newspaper within Australia on 13 December 2021 was approximately 369,000;

(c)    the estimated number of people who viewed the online 13 December 2021I article between 13 December 2021 and 19 July 2022 was 5,697; and

(d)    the 13 December 2021 online article remained available for viewing on The Age website.

404    Although the relevant paragraph of the statement of agreed facts dealing with readership of the 13 December 2021 articles referred to online numbers for the 5 May 2021 article as being 5,697, I construe this as a typographical error that was intended to refer to the online 13 December 2021 article, because the number of views for the online 5 May 2021 article was stated elsewhere in the document to be 2,577.

405    The corresponding figures for the 18 February 2022 articles were as follows –

(a)    the estimated circulation of The Age newspaper within Australia on 18 February 2022 was 97,613;

(b)    the estimated readership of The Age newspaper within Australia on 18 February 2022 was approximately 247,000;

(c)    the estimated number of people who viewed the online 18 February 2022 article between 18 February 2022 and 19 July 2022 –

(i)    via The Age website was 2,713; and

(ii)    via The Sydney Morning Herald website was 14,118; and

(d)    the 18 February 2022 online article remained available for viewing on The Age and The Sydney Morning Herald websites.

406    Not without some hesitation, I conclude that the applicant has established that the respondents’ publication of the 13 December 2021 and 18 February 2022 articles, when considered as two separate sets of matters, caused serious harm to his reputation.

407    As I have identified, the context of s 10A, understood in its broadest sense, indicates that the high-level object of the provision is to preclude claims that are frivolous or trivial. Of course, insisting on proof of “serious harm” does more than simply require proof that the harm to reputation caused by a publication is more than frivolous or trivial. Nevertheless, the object of the provision informs the proper construction that should be given to the statutory concept of “serious harm”.

408    I do not consider it profitable or appropriate to essay a judicial gloss on the language of s 10A. I have expressed my agreement with Basten AJA in Rader on this point. Accordingly, I will not attempt to parse the statutory expression “serious harm” in terms of other, equally vague words, such as “grave” or “substantial”. The question is whether the applicant has proved that he suffered harm to his reputation that was “serious”. The word “serious” is imprecise, and it calls for the Court to reach an evaluative conclusion in the exercise of its own judgment, having regard to what I have said about the context of s 10A.

409    Based on the agreed facts set out at [403]–[405] above, I infer that the December and February articles were likely read by tens of thousands of people in Melbourne, Sydney and around Australia. While the defamatory sting of the December and February articles, relating to the applicant’s conduct towards Mr Slonim and the consequences of that conduct, would have been known to most members of the Caulfield Shule because they were the subject of the 13 August 2021 email and the board’s apology, it would not have been common knowledge in the broader community, including the broader Orthodox Jewish community. As a matter of fact, I infer that thousands of people would have been exposed to the defamatory claims about Mr Mond for the first time by reading each of the articles in question. Because there is likely a lack of identity between the readerships of the December and February articles, and because of the different focus of the articles, I do not consider on the facts of this case that the repetition between those articles undermines the inference that the later articles also caused serious harm to the applicant’s reputation.

410    Not all the readers of the 13 December 2021 and 18 February 2022 articles would have been ordinary or reasonable. Accordingly, I will not assume that these readers would have read the articles and taken away the precise meanings that I have found to be conveyed. Nevertheless, the meanings that actual readers in fact took away from the articles are likely to have clustered around those I have attributed to the ordinary reasonable reader. The defamatory stings I have identified in those articles, which involve the applicant causing trouble at the Shule by failing to consult the Rabbi over hosting a convicted spy, and sending a poorly conceived email for which the board of the Caulfield Shule was later forced to issue an apology, sit in the lower end of the spectrum of seriousness, although not at the bottom. The mild nature of the imputations that were conveyed would be reflected in any award of damages made to the applicant. In that regard, it is worth noting that s 35(2) of the Defamation Act, which provides that the maximum damages amount for non-ecomonic loss is to be awarded only in a most serious case, necessarily contemplates that seriousness will be on a spectrum which will include harm that is not the most serious harm.

411    Importantly, the 13 December 2021 and 18 February 2022 articles would have conveyed meanings to their readers that were defamatory of the applicant in an area that was an objectively important aspect of his reputation, being his reputation as a leader in the Orthodox Jewish community, and as president of a major Melbourne Shule. The articles did not defame the applicant in an aspect of his reputation that was of incidental significance to his standing in the community, but rather in a central aspect of that standing.

412    For these reasons, I consider that the cumulative effect of publishing the 13 December 2021 articles, and the separate cumulative effect of publishing the 18 February 2022 articles to tens of thousands of readers, is likely in each case to have caused serious harm to the applicant’s reputation. I consider it likely that the impression that the broader community, including the Orthodox Jewish community beyond the Caulfield Shule, held about the applicant was harmed in a way that warrants the label “serious”. That includes the separate publication of the 18 February 2022 article by Fairfax Media on The Sydney Morning Herald website in respect of which, in any event, Fairfax Media has a concurrent liability because it is vicariously liable in respect of any liability of Ms Hutchinson. It can be inferred that the editors of the website thought that the article was of sufficient interest to its readers to warrant publication, and the agreed publication figures bear that out. The extent of publication was significant, and sufficient to support a finding that the applicant suffered serious harm to his reputation as a result. Accordingly, although the issue is not clear-cut given the absence of direct evidence, I consider that the applicant has made out this element in relation to each of the 13 December 2021 and 18 February 2022 articles.

Issue (4): justification

413    The respondents rely on the common law and statutory defences of justification in relation to the publication of the 13 December 2021 and 18 February 2022 articles. Within those defences are pleas of justification which address the imputations or the variations of imputations that I have upheld that relate to the applicant’s 13 August 2021 email that was disparaging of Mr Slonim.

414    The common law defence of justification is made out if the publisher establishes that the words, in the relevant defamatory meanings of which the applicant complains and which are found by the Court to have been conveyed, are true in substance and in fact. This involves demonstrating that the relevant sting, or stings conveyed by the matter are made out: Sutherland v Stopes [1925] AC 47 at 79 (Lord Shaw). Not every element of the matter needs to be proven as true. Immaterial aspects of the matter that make no difference to the quality of the imputation need not be justified: Rofe v Smith’s Newspapers Ltd (1924) 25 SR (NSW) 4 at 20 (Street ACJ); Sutherland v Stopes at 79; Howden v Truth & Sportsman Ltd (1937) 58 CLR 416 at 420–421 (Dixon J).

415    The statutory defence of justification under s 25 of the Defamation Act is much the same, although the starting point in working out the elements of the defence is the text of the statute, rather than the common law. The focus of the text of s 25 is explicitly on the substantial truth of the imputations carried by the matter of which the plaintiff complains –

25    Defence of justification

It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.

416    The term “substantially true” is defined in s 4 of the Act as “true in substance or not materially different from the truth”. The definition has the effect that it is unnecessary to establish that every part of an imputation is literally true, it being sufficient to show that the sting of the imputation is true: Palmer v McGowan (No 5) [2022] FCA 893; 404 ALR 621 at [278] (Lee J). The defence is directed to the substantial truth of “the defamatory imputations carried by the matter of which the plaintiff complains”. The substantial truth of any defamatory imputations upheld by the Court as being within an applicant’s case because they are permissible variants of the terms of the pleaded imputations would be within s 25, because such imputations would likewise be “defamatory imputations carried by the matter of which the plaintiff complains”. Given the role of pleadings in framing the boundaries within which a defamation proceeding is conducted as explained in ABC v Wing, it is difficult to see that there is any practical difference between the common law and statutory defences of justification.

417    The defence of justification is not confined to justification of facts. Sometimes, there may be difficulty drawing a distinction between a defamatory statement of opinion or comment, and a defamatory statement of fact, such as a conclusion or judgment based upon other facts. The distinction may be blurred in many communications: see Manock at [4] (Gleeson CJ). An imputation might be referrable to a statement that is capable of being an assertion of fact or a comment. That is because a comment may be a statement of fact if it is a deduction from other facts: see Manock at [35] (Gummow, Hayne and Heydon JJ). An illustration of the capacity of words to convey opinion and fact is O'Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166 where in a review of a production of Othello the reviewer referred to the “dishonesty of this production”. The High Court held that it was open to regard the reference to dishonesty in the review as an allegation of fact, and that the trial judge had been in error in taking that issue away from the jury and directing them as a matter of law that the whole review was comment and not fact. Windeyer J at 177 said of “dishonesty” –

Dishonesty does not necessarily mean cheating or fraud. It may denote other forms of improbity—conduct that is dishonourable because not straightforward but designed to serve an unworthy end. In whatever sense it is used, it is a defamatory word. It is no doubt a judgment upon conduct. It is a judgment that in some contexts is a comment upon facts stated or well known: in other contexts, when the facts on which it is based are not fully stated or known, it is an allegation of a fact. Whether in a given case it is a statement of fact or merely the expression of an opinion, a comment on facts, must depend upon all the circumstances: [citations omitted].

418    Thus, whether a particular statement is one of fact or opinion is context-sensitive. If a conclusion or judgment is understood by the ordinary reasonable reader as a statement of fact rather than opinion then a defence of fair comment or honest opinion is not available. A fair comment or honest opinion defence may also fail for other reasons, including a failure adequately to incorporate or prove the truth of the factual foundation for the comment, or the proper basis for the opinion.

419    A justification defence, and the defences of fair comment or honest opinion, are not mutually exclusive. A statement that is capable of being a comment may be justified. In Cooper v Lawson (1838) 8 A and E 746; 112 ER 1020 at 1023, Coleridge J stated that “there are cases ... where the inference is so fair, that, if you prove the fact, you prove the correctness of the comment”. In Sutherland v Stopes at 62–63, Viscount Findlay contrasted the rolled-up fair comment plea with the defence of justification under which, “the defendant has to prove not only that the facts are truly stated but also that any comments upon them are correct”. In Sharma v Singh [2007] EWHC 2988 (QB), Tugendhat J stated at [24] –

Comment may include inferences or statements of fact, and it may be defended in either of two ways. Comment may be defended as honest opinion, or it may be defended as the truth. The fact that words complained of are comment does not preclude their being defended as true.

420    On the other hand, in Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171 at 179, which was a case about a book review, Jordan CJ spoke of difficulties in proving that what was essentially an opinion was true or false.

Justification – the 13 December 2021 articles

421    The respondents pleaded justification to the 13 December 2021 articles in their alternative meaning 27(a), and in the applicant’s meanings 11(c), 11(d), 11B(b), and 11B(c). These are the meanings that I have held were conveyed in substance by the 13 December 2021 articles.

422    The respondents’ particulars of justification were extensive, and included core factual allegations in paragraphs 22 and 23 of the further amended defence, which was supplemented by further allegations tailored to the justification of the particular matters in the meanings alleged by the applicant and in the alternative meanings alleged by the respondents. Many of the factual allegations were relevant to justifying the 5 May 2021 articles, which I have held were not defamatory in any meaning that the applicant alleges.

423    In relation to the 13 December 2021 articles, there were two core claims, or stings within the articles from which the defamatory meanings hang, and which the respondents sought to justify. The first is that the applicant failed to appropriately consult Rabbi Genende prior to the applicant and the board agreeing to host the Jerusalem day event at which Mr Pollard would speak. The second is that the applicant had caused damage to the Shule by sending the August 2021 email that was defamatory of Mr Slonim in respect of which the board issued an apology.

424    The respondents also sought in their particulars of justification to allege the truth of a different case, namely that the applicant had caused damage to the Shule by embroiling it in controversy by agreeing to host Jonathan Pollard. This type of broader allegation was not directed to the relevant sting in relation to the decision to host Jonathan Pollard, which is concerned with the applicant’s claimed failure to consult Rabbi Genende. Both the 13 December 2021 and the 18 February 2022 articles make plain that the “rift” was over the applicant’s claimed failure to consult the Rabbi.

The applicant did consult Rabbi Genende before agreeing to host the Jerusalem Day event with Jonathan Pollard

425    In accordance with the findings I have made about the imputations, the 13 December 2021 and 18 February 2022 articles conveyed, as an assertion of fact, that the applicant did not consult Rabbi Genende in relation to the decision to host the Jerusalem Day event featuring Mr Pollard. Contrary to submissions made by the respondents and a suggestion made by Mr Brook in his evidence, the articles did not convey that there was inadequate consultation, or a lack of “appropriate” consultation, but conveyed that there was no consultation. The articles conveyed this claim in a way that was defamatory of the applicant because they implied that the applicant should have consulted the Rabbi, and that the applicant was the cause of the “rift”.

426    There are several features of this case that persuade me that the respondents have not proven that the applicant agreed to host the Jerusalem Day event, hosting Jonathan Pollard, without consultation, and in particular without consulting Rabbi Genende. On the contrary, I am satisfied that the applicant did consult the Rabbi as and when the occasion arose.

427    First, the applicant’s understanding of Rabbi Genende’s role within the Caulfield Shule is important context. The applicant said in evidence that the role of a rabbi within a synagogue is to act as spiritual leader. This general understanding was shared by Rachel Mihalovich, the Chief Executive Officer of the Congregation at the relevant times, who described the role of a rabbi at the Shule as being concerned with pastoral care rather than management. Under the constitution of the Caulfield Hebrew Congregation, the rabbi was not vested with authority to manage the day-to-day affairs of the Shule.

428    Secondly, the respondents placed particular reliance on the applicant’s evidence given in cross-examination that I have extracted at [205]-[207] above. The respondents submitted that the applicant had admitted that he did not consult Rabbi Genende about whether to host the event involving Jonathan Pollard. I do not accept that the applicant made the admission as claimed, which is the reason that I have set out the relevant passages of evidence. As I stated at [208], the applicant’s answers in the passages of evidence set out at [207] must be seen against how the first question in the sequence of questions was framed, which was whether the applicant consulted Rabbi Genende “about moving forward with the event”, and not consultation in the broad sense. Approached fairly, the substance of the applicant’s evidence in this exchange was that he did consult the Rabbi, but that he did not go back to the Rabbi after receiving the views of the board and before confirming the event in the WhatsApp exchange with Dr Lamm.

429    Thirdly, in Rabbi Genende’s email to the board of 3 May 2021 he made no claim that he had not been consulted.

430    Fourthly, the respondents submitted that there was no “meaningful” consultation between the applicant and Rabbi Genende before the applicant confirmed the event with Dr Lamm. The respondents relied on the applicant’s evidence about the content of his conversation with Rabbi Genende to which I referred at [191] above. In substance, the submission was that the applicant did not interrogate the Rabbi about the nature of his concerns or those of Mr Mark Leibler, and that in seeking the board’s views, the applicant did not state that either the Rabbi or Mr Leibler had expressed concerns. These submissions go to the quality and extent of the consultation, rather than whether consultation occurred. No doubt the applicant could have been more inquisitive in his conversation with the Rabbi on 22 April 2021. However, I have found at [191] that the applicant understood that the issues that Rabbi Genende raised were resolved on the basis that the applicant would seek the views of the board in the context that the board was charged with the management of the Congregation. That was the nature and the extent of the consultation that the Rabbi sought at that point.

431    Fifthly, the Caulfield Shule’s agreement to host the Jerusalem Day event occurred in stages, and the concerns expressed by Rabbi Genende evolved over time, resulting in the escalation of his concerns in the email that he sent to the board of 3 May 2021, which the Rabbi said was sent after obtaining legal advice –

(1)    The initial agreement to host the Jerusalem Day event occurred on 14 April 2021 during the conversation between the applicant and Dr Lamm. At that point, Dr Lamm had not informed the applicant of the identity of the proposed speaker, and therefore no occasion for any relevant consultation arose.

(2)    Dr Lamm informed the applicant on 21 April 2021 that the guest speaker for the Jerusalem Day event would be Jonathan Pollard, and that he would present by way of a recorded video on the topic, “What Jerusalem means to me”. On the following day, the applicant spoke to Rabbi Genende, who expressed reservations about the event, and conveyed the view of Mr Mark Leibler that the Shule should cancel the event. The applicant informed the Rabbi that he would seek the views of the board, in response to which the Rabbi said that he was very happy with that approach and thanked the applicant.

(3)    The applicant then emailed the members of the board and sought their comments on the proposal that Jonathan Pollard would be the guest speaker. Many of the responses acknowledged the controversy around the choice of speaker. The applicant formed the view that the responses were generally supportive.

(4)    The next stage is the “onwards and upwards” WhatsApp message that the applicant sent to Dr Lamm during the evening of 22 April 2021. That message was sent after the applicant had sought the views of the board members, which he did as a consequence of his conversation with Rabbi Genende earlier that day.

(5)    Rabbi Genende next raised his concerns in his report to the board that was circulated on 29 April 2021. In response, the applicant telephoned the Rabbi and they had a conversation in terms of my findings at [212] above.

(6)    The applicant next spoke to Rabbi Genende on 3 May 2021, prior to the board meeting scheduled later that day, in which the applicant enquired of the Rabbi’s intentions which he had previously expressed, in response to which the Rabbi said that he did not want any negative publicity and that he would attend and speak at the Jerusalem Day event.

(7)    Within an hour of the above conversation, Rabbi Genende sent the email to the board, which was described in The Age article of 5 May 2021 as the “angry missive”. The applicant responded to this email in the terms that I have set out at [216] above.

(8)    The board then met early in the evening of 3 May 2021 with Rabbi Genende in attendance. The Rabbi addressed the board, and the board members by majority voted against a motion to withdraw from the Jerusalem Day event.

(9)    Following the publicity that was given to Rabbi Genende’s email to the board, the Rabbi stated privately to the applicant, and publicly on several occasions, that there was no “rift” between him and the applicant.

432    The above account demonstrates that the applicant consulted Rabbi Genende at the relevant stages, on terms that accommodated the Rabbi, and in a way that was consistent with the board being responsible for the management of the Congregation. It was therefore false for the respondents to publish in the 13 December 2021 and 18 February 2022 articles that the applicant had failed to consult Rabbi Genende in relation to the decision to host the Jerusalem Day event with Jonathan Pollard as guest speaker.

The apology to Mr Adam Slonim

433    I have made findings of primary fact at [248] to [290] in relation to the apology issued by the board of the Caulfield Hebrew Congregation to Mr Adam Slonim.

434    The respondents submitted that the applicant’s personal attack on Mr Slonim in the email to the congregants of the Caulfield Shule was unnecessary, negative, and unfair. The respondents relied on the following references in the email –

(a)    the “conflicted open antipathy of Mr Slonim against the Rabbinic Couple” which the applicant said would not be countenanced, against another “labelled group”;

(b)    the “feigned hysteria of Mr Slonim”;

(c)    Mr Slonim being a “person of discord”; and

(d)    Mr Slonim’s “cameo” appearance as a board member.

435    The respondents submitted that the insults that were directed to Mr Slonim were entirely unnecessary and out of place in an email from the outgoing president of the Shule seeking to highlight the good work done by the board over the previous three years. The respondents submitted that it could not be doubted that the references to Mr Slonim were negative. This was not disputed by the applicant in evidence. The respondents submitted that the references to Mr Slonim were also unfair for the following reasons-

(1)    Mr Slonim’s opposition to the appointment of the Rabins was not based on any antipathy towards the Rabins personally. The opposition was principled and reasonable. The applicant was aware of this given that, as recorded in the minutes of the Special General Meeting of 8 July 2021, Mr Slonim had said that, from what he had heard, the Rabins were good people.

(2)    It was very unfair for the applicant to allege in the email that Mr Slonim had a conflict without putting that issue to him. The accusation was based upon a number of assumptions which were wrong. If the applicant could not put that issue to Mr Slonim (because of confidentiality), he should not have made the accusation in a public document.

(3)    Mr Slonim did not know that the resumés of his daughter and son-in-law had been put forward for the role as the rabbinic couple at the Caulfield Hebrew Congregation. The applicant accepted in evidence that this was so but still maintained that Mr Slonim had a conflict.

(4)    Similarly, Mr Slonim’s views that the board should not have appointed a new rabbi and then resigned or retired were also principled and reasonable. As Mr Slonim explained, he held the view that it was inappropriate to make a significant appointment and then not follow through. Whether one agreed with those views, and whether one agreed that they should or should not have been expressed to The Australian Jewish News, did not justify the personal vilification that the applicant subjected him to in the 13 August 2021 email.

(5)    Mr Slonim was not hysterical, and his opposition to the appointment of the Rabins and the retirement of the board, were not feigned. They were genuinely held views based on matters of principle. Whether the applicant agreed with them or not was irrelevant. The applicant could have engaged with the issues without undertaking the personal attack on Mr Slonim.

(6)    Mr Slonim was not a person of discord, and demeaning Mr Slonim’s contribution to the Congregation as a “cameo” was unjustifiable and unnecessary.

(7)    The applicant abused his position of authority as president of the Congregation in personally attacking Mr Slonim. Mr Slonim had no capacity to respond other than in the manner he did, by sending a concerns notice.

(8)    The applicant’s email had resulted in a “mess” that the new board of the Congregation had to deal with, which was plainly true.

436    The applicant’s submissions hardly engaged with the underlying facts relied upon by the respondents to justify the defamatory imputations to the extent they concerned the conduct leading to the board’s apology to Mr Slonim. In written closing submissions in reply the applicant claimed that the apology to Mr Slonim was not forced, and that while the applicant’s observations about Mr Slonim were negative, they had not been proven to be unfair. The applicant submitted that the respondents had not demonstrated that material damage was inflicted on the Caulfield Hebrew Congregation by reason of the applicant’s email, or that it was lingering.

437    I find that the applicant’s email of 13 August 2021 to the members of the Shule, to the extent that it was disparaging of Mr Slonim, was negative, unfair, unnecessary, and caused damage to the Shule that lingered beyond the applicant’s term as president. The negative and unfair references to Mr Slonim were unnecessary in a circular email to the members of the Shule to deal with the article in The Australian Jewish News, which incorrectly stated that the board had resigned and which expressed Mr Slonim’s basis of opposition to the appointment of Rabbi Rabin. A more measured response was that of Mr Robert Weil in his letter that was published by The Australian Jewish News.

438    The damage that lingered was that the sending of the email created a situation of disputation involving lawyers and a threat of litigation that the new board had to deal with. Proof of these underlying facts was proof of the comment or conclusion that the sending of the email resulted in a “mess” for the new board to clean up.

439    Based upon the findings of primary fact that I have made, I consider that it was objectively unfair for the applicant to have made the ad hominem attacks on Mr Slonim in the 13 August 2021 email that are referred to at [270]. The applicant’s evidence was that those attacks were based upon his perception that Mr Slonim had a conflict of interest, and that he was motivated by “sour grapes”. I have accepted that Mr Slonim did not know that the resumés of his daughter and son-in-law had been sent to the Shule until shortly before he gave evidence in the proceeding. I also find, having reviewed Mr Slonim’s written submission to the selection committee, that Mr Slonim expressed his opposition to the appointment of the Rabins in terms that were reasoned, considered, and which evidenced a philosophical difference of opinion. I make the same finding in relation to Mr Slonim’s address to the Special General Meeting of the Congregation. The views attributed to Mr Slonim in The Australian Jewish News were more pithy than his written submission to the selection committee, but no less genuine. In these circumstances, to describe Mr Slonim to the whole Congregation as having “conflicted open antipathy” was objectively unfair. The applicant’s suggestion that Mr Slonim’s views amounted to “feigned hysteria” for reasons including his supposed conflict of interest and “sour grapes” was also objectively unfair. The applicant’s reference to Mr Slonim’s “cameo appearance” as a board member was, by the applicant’s admission, a “put-down”, and was not based on any actual knowledge of Mr Slonim’s service as a board member. It is hardly surprising in these circumstances that Mr Slonim engaged solicitors to send a concerns notice to the Shule and to threaten legal proceedings.

440    As I have mentioned, the applicant submitted that the board was not “forced” to apologise to Mr Slonim. There is nothing in this submission. The combination of circumstances, which involved a circular email that was disparaging of a Shule member, the service of a concerns notice, and the threat of imminent legal proceedings, forced the hand of the new board to clean up the legal mess that had arisen by apologising to Mr Slonim.

441    For the above reasons, the substance of the defamatory meanings conveyed by the 13 December 2021 articles to the extent that they concern the sting that the applicant sent a negative and unfair email about Mr Slonim to Shule members in respect of which the board was forced to issue an apology has been justified as being substantially true. However, this does not amount to justification of the matter in all the defamatory meanings that I have found were conveyed, and therefore the other defences to the publication of the 13 December 2021 articles also fall to be considered.

Justification – the 18 February 2022 articles

442    I can be brief in relation to the statutory and common law defences of justification to the 18 February 2022 articles.

443    The respondents have failed to justify that the applicant did not consult Rabbi Genende in relation to the decision to have Jonathan Pollard as a guest speaker at the Jerusalem Day event. This was an essential sting of the 18 February 2022 articles, and provided the foundation for other elements of the articles such as the reference to the “bad times” and the claim that there were continuing divisions at the Shule.

444    The respondents have justified the sting that the applicant sent an email about Mr Slonim that was “negative and unfair” in respect of which the new board was forced to issue an apology.

445    However, the respondents have not justified all the stings, including that the applicant had caused divisions within the Shule that continued. The respondents have therefore failed to make out a justification defence in relation to the publication of the matters.

Issue (5): honest opinion and fair comment

446    The respondents relied on the common law defence of fair comment and the statutory defences of honest opinion.

The common law defence of fair comment

447    The common law defence of fair comment on a matter of public interest applies to the publication of words to the extent that they are recognisable by the ordinary reasonable reader as comment rather than fact. This is an objective enquiry, and does not require proof that the opinion was actually held by the publisher. For the purposes of the defence, a comment may be an expression of opinion, deduction, or conclusion. I stated earlier that the distinction between fact and comment may be blurred. Because fair comment is a defence of confession and avoidance, it must respond to the publication of the words in the defamatory meanings found by the court to have been conveyed: Manock at [83] (Gummow, Hayne and Heydon JJ).

448    The facts on which the comment is based must be stated or referred to in the matter, or be notorious to those to whom the matter was published: Manock at [47]–[49], [68], [72] (Gummow, Hayne and Heydon JJ). Sufficient facts on which the comment is based must be proven to be true or protected by privilege. The comment must be one that an honest person might reasonably draw from the facts, and it is in that sense that the comment must be fair: Manock at [90] (Gummow, Hayne and Heydon JJ). The subject-matter of the comment must be one of public interest. What is a matter of public interest for the purpose of the defence is not to be confined within narrow limits: London Artists Ltd v Littler [1969] 2 QB 375 at 391 (Lord Denning MR).

449    The common law defence of fair comment may be defeated by showing malice in the sense that the respondent did not honestly hold the opinion expressed, at least where the respondent who is alleged to be liable is the originator of the comment: Cheng Albert v Tse Wai Chun Paul [2000] HKCFA 35; [2000] 4 HKC 1 at 22 (Lord Nicholls of Birkenhead); Manock at [85] (Gummow, Hayne and Heydon JJ). In the case of the publication of the comment of another, such as a newspaper publishing a letter to the editor, if the defence of fair comment is objectively established, it is not defeated by showing that the newspaper publisher did not hold the opinion conveyed, but may be defeated if the publisher was aware of the malice of the originator of the comment, or is vicariously liable such as in the case of an employed writer: see the discussion in Gatley on Libel and Slander (11th edition, Sweet and Maxwell, 2004) at [12.26]. The discussion in Gatley finds some support in the approval in Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 329 (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ) of the principles stated in the dissenting judgment of Dickson J in Cherneskey v Armadale Publishers Ltd [1979] 1 SCR 1067 at 1095–1096. In relation to the subsequent position in Canada, see: WIC Radio Ltd v Simpson [2008] 2 SCR 420 at [1] and [63] (Binnie J).

The statutory defences of honest opinion

450    The statutory defences of honest opinion are the subject of s 31 of the Defamation Act which provides for separate defences in the cases of an opinion of the defendant, an opinion of an employee or agent of the defendant, and an opinion of a commentator. Section 31 was amended, effective 1 July 2021, so as to substitute a new s 31(5) concerning proper material for comment. Because I have found that the 5 May 2021 articles were not defamatory of the applicant in a meaning fairly within any of the pleaded imputations, I am concerned only with s 31 of the Defamation Act in the form it took after the amendments.

451    Section 31 provides –

31    Defences of honest opinion

(1)    It is a defence to the publication of defamatory matter if the defendant proves that—

(a)    the matter was an expression of opinion of the defendant rather than a statement of fact; and

(b)    the opinion related to a matter of public interest; and

(c)    the opinion is based on proper material.

(2)    It is a defence to the publication of defamatory matter if the defendant proves that—

(a)    the matter was an expression of opinion of an employee or agent of the defendant rather than a statement of fact; and

(b)    the opinion related to a matter of public interest; and

(c)    the opinion is based on proper material.

(3)    It is a defence to the publication of defamatory matter if the defendant proves that—

(a)    the matter was an expression of opinion of a person (the commentator), other than the defendant or an employee or agent of the defendant, rather than a statement of fact; and

(b)    the opinion related to a matter of public interest; and

(c)    the opinion is based on proper material.

(4)    A defence established under this section is defeated if, and only if, the plaintiff proves that—

(a)    in the case of a defence under subsection (1)—the opinion was not honestly held by the defendant at the time the defamatory matter was published; or

(b)    in the case of a defence under subsection (2)—the defendant did not believe that the opinion was honestly held by the employee or agent at the time the defamatory matter was published; or

(c)    in the case of a defence under subsection (3)—the defendant had reasonable grounds to believe that the opinion was not honestly held by the commentator at the time the defamatory matter was published.

(5)    For the purposes of this section, an opinion is based on proper material if—

(a)    the material on which it is based is—

(i)    set out in specific or general terms in the published matter; or

(ii)    notorious; or

(iii)    accessible from a reference, link or other access point included in the matter (for example, a hyperlink on a webpage); or

(iv)    otherwise apparent from the context in which the matter is published; and

(b)    the material—

(i)    is substantially true; or

(ii)    was published on an occasion of absolute or qualified privilege (whether under this Act or at general law); or

(iii)    was published on an occasion that attracted the protection of a defence under this section or section 28 or 29.

(6)    An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material.

452    In the case of each of the three honest opinion defences, a defendant must prove that: (a) the matter was an expression of opinion rather than a statement of fact; (b) the opinion related to a matter of public interest; and (c) the opinion was based on proper material. If a defence under s 31(1), (2), or (3) is established on a prima facie basis, then the onus shifts to the plaintiff to prove the corresponding element in s 31(4) by way of defeasance.

453    Section 31 directs attention to the matter, and whether the matter was an expression of opinion. This does not mean that the defence is concerned with the matter at large. What is relevant is the matter in its defamatory sense: see [81] above. And as I also mentioned earlier, the matter is not to be equated with the form of the court’s findings as to defamatory meaning, including its acceptance of the form of the meanings pleaded by the parties.

Comment or Opinion – the 13 December 2021 articles

454    The respondents gave particulars of their comment and opinion defences. It is often the case that a respondent will give particulars of the substance of the comment or opinion relied on: see Anderson v Nationwide News Pty Ltd [2001] VSC 335; 3 VR 619 at [58]–[59] (Ashley J). Particulars of this type have utility in circumstances where honest opinion is a defence to the publication of the matter in the defamatory sense found by the Court, rather than to the imputations in the form found by the Court to have been conveyed.

455    In relation to the 13 December 2021 articles, the respondents pleaded the following –

To the extent (if at all) that the words of the December 2021 Age Articles conveyed the imputations alleged or the Respondents’ variant imputations, the December 2021 Age Articles would have been understood by the ordinary reasonable reader:

(A)     as an expression of Brook’s opinion that:

(1)    it was misguided for the Applicant to agree to host a speech by a polarising figure (Pollard) at the Caulfield Shule without consulting Rabbi Genende:

(2)    the Applicant’s conduct caused a rift with Rabbi Genende;

(B)    as an expression of Stephen Brook’s opinion that the Applicant’s email sent to the members of the Shule when he was President, had resulted in a mess which the new President of the Caulfield Shule had to clean up by the issuing of an apology to Mr Slonim; and/or

(C)    as an expression of opinion of the members of the Board of the Caulfield Shule that the references in the Applicant’s email to Mr Slonim were negative and unfair and should not have been included in the email.

456    In submissions, the respondents focused primarily on the statutory defences of honest opinion, which require that the opinions be those of the persons referred to in ss 35(1), (2), or (3) of the Defamation Act, being the defendant, an employee or agent of the defendant, or a commentator. The applicant raised the question whether Ms Hutchinson would engage s 35, given that she was not involved in the writing of the articles. For reasons that will become apparent, that question is not material. However, I tentatively venture the view that Mr Brook, as a joint publisher, is to be regarded as Ms Hutchinson’s agent, and therefore s 35(2) could be engaged if the other elements are established. The issue does not arise for the purposes of the common law defence of fair comment, because the relevant enquiry is objective as discussed at [447] above.

457    The respondents’ submissions were generally consistent with their pleadings. The respondents submitted that the opinions held by Mr Brook that were embedded in the imputations pleaded for the December 2021 items were that –

(a)    it was “misguided” for the applicant to agree to host a speech by Mr Pollard without consulting Rabbi Genende;

(b)    the disagreement between Rabbi Genende and the applicant constituted a “rift”; and

(c)    the 13 August 2021 email from the applicant to the Congregation that concerned Mr Slonim had resulted in a “mess” which the new president of the Congregation had to clean up by issuing an apology to Mr Slonim.

458    The respondents submitted that the 13 December 2021 articles also contained the opinion of the members of the board of the Caulfield Hebrew Congregation that the references in the 13 August 2021 email were “negative and unfair and should not have been included in the email”.

459    The respondents relied on Mr Brook’s evidence that he believed the situation in relation to the apology to Mr Slonim was a “mess” because it was a very unusual example of poor corporate governance to have a board have to apologise for an email sent by the president. The respondents pointed to Mr Brook’s evidence that he assumed that lawyers had been involved, although he did not have anyone on the record who confirmed that fact, and that as a result, he said that it “sounded like” lawyers at 10 paces.

460    The respondents submitted that the opinions were based on proper material. So far as the articles referred to the Pollard matter, the respondents relied on the material which was expressly set out or at least referred to in the 13 December 2021 articles. So far as the matter involving the apology to Mr Slonim was concerned, the respondents relied on the following facts as being proper material that were true –

(a)    the applicant sent the 13 August 2021 email to the members of the Congregation; and

(b)    as a result of that email, the new president of the Congregation issued an apology to Mr Slonim which was sent to all members of the Congregation which was in the terms set out in the items.

461    The respondents submitted that both the issue of consultation relating to the hosting of Mr Pollard and the apology to Mr Slonim were matters of public interest in the sense required for the defence of honest opinion.

462    The honest opinion defence, relating to the opinions relied on as being conveyed by the 13 December 2021 articles concerning the claim that the applicant failed to consult Rabbi Genende, are not made out. They fail because the claim that the applicant did not consult the Rabbi, and that he had thereby caused a “rift”, would have been understood by the ordinary reasonable reader as statements of fact rather than opinion. I referred earlier when addressing Mr Brook’s evidence to the confusion that his evidence exhibited between a belief as to the existence of a fact, and a true opinion. Any belief by Mr Brook that the applicant had not consulted the Rabbi was not an opinion for the purposes of the defence of honest opinion. The claims were conveyed by the articles as assertions of fact, and the respondents have not proven them to be substantially true.

463    In relation to the opinions that relate to the apology to Mr Slonim, I have held that the relevant sting conveyed by the 13 December 2021 articles has been justified as substantially true. I find that to the extent that the articles went further and characterised this situation as a “mess”, this was an opinion that Mr Brook held, based upon facts referred to in the articles that were substantially true, and that it related to a matter of public interest. The public interest arose because the initial publication of the 13 August 2021 email concerning Mr Slonim, and the publication of the board’s apology, were in the public domain, and were legitimate matters of public comment. As discussed below, there was no persuasive submission put by the applicant to the contrary.

464    It was submitted by the applicant that there was no public interest in publishing unfounded or distorted criticism of the applicant’s role in the process of choosing a speaker for the Jerusalem Day event. However, a submission of this type is more a complaint about the factual basis for the opinion, or whether the opinion was honestly held or capable of being reasonably held, which relate to other elements of the defences. The applicant also submitted that any potential public interest had to be balanced against the likelihood that the articles would foster antisemitism among readers. An assumption underlying this submission was that the respondents had published antisemitic material. The applicant relied on an email sent by a member of the public to the letters section of The Age following the publication of the 5 May 2021 articles. The email fed into the very antisemitic trope which Rabbi Elton, Rabbi Genende, Mr Jeremy Leibler and others had feared, namely that celebrating a person who was convicted of spying for Israel and imprisoned for 30 years would, in some eyes, call into question the commitment of members of the Jewish community to Australia. However, the risk that the publication might foster antisemitism did not support a submission that publication of any opinions the subject of the articles were not on a matter of public interest. If anything, the email to the letters section of The Age on which the applicant relied tended to support the proposition that the subject of the articles, to the extent they concerned Mr Pollard and the exposure of an antisemitic trope, was a matter of public interest. Moreover, the applicant’s submissions on this topic confused the question whether the publication was on a matter of public interest for the purpose of an honest opinion or comment defence with the question whether, for other purposes, the publication was in the public interest.

465    The result is that although the respondents have established that one of the stings in the 13 December 2022 articles was substantially true, and that a related element of the articles would qualify for a defence of honest opinion and by parity of reasoning the common law defence of fair comment, the respondents have not established defences of opinion, comment, or justification to the publication of the matters taken as a whole.

Comment or Opinion – the 18 February 2022 articles

466    In relation to the 18 February 2022 articles, the respondents pleaded the following as being opinions alleged to have been conveyed by the articles –

To the extent (if at all) that the words of the Hard Copy 2022 Age Article and Online 2022 Age/SMH Articles conveyed the imputations alleged or the Respondents’ variant imputations, the Articles would have been understood by the ordinary reasonable reader:

(A)    as an expression of Stephen Brook’s opinion that it was misguided for the Applicant to agree to host a speech by such a polarising figure (Pollard) at the Caulfield Shule without consulting Rabbi Genende, and it caused a rift with Rabbi Genende which appeared to not be healed;

(B)    as an expression of Stephen Brook’s opinion that the Applicant’s email sent to the members of the Shule when he was President, had compelled the Board of the Caulfield Shule to issue an apology to Mr Slonim;

(C)    as an expression of opinion of Stephen Brook that the Applicant failed to undertake “appropriate” consultation before agreeing to host Pollard at the JD Event;

and/or

(D)    as an expression of opinion of the members of the Board of the Caulfield Shule that the references in the Applicant’s email to Mr Slonim were negative and unfair.

467    In support, the respondents submitted that the relevant opinions held by Mr Brook were that –

(a)    it was “misguided” (and therefore wrongful) for the applicant to agree to host a speech by Mr Pollard without “appropriately” consulting with Rabbi Genende;

(b)    the disagreement between Rabbi Genende and the applicant constituted a “rift”;

(c)    the rift appeared to have not healed;

(d)    the applicant’s actions towards Mr Slonim were “negative and unfair” (which opinion was also an expression of the new board of the Congregation);

(e)    the board was “forced” or compelled to issue an apology as a result of Mr Mond’s actions towards Mr Slonim.

468    The respondents submitted that the proper material included that Rabbi Genende and many other rabbis did not attend the induction of Rabbi Rabin, and that Rabbi Genende, in particular, did not want to be there. The claim that Rabbi Genende and many other rabbis did not attend the induction of Rabbi Rabin was supported by the evidence. As for the reasons they did not attend, I accept the evidence of Ms Mihalovich that this was due to other commitments that likely arose in the nature of weddings, bar mitzvahs and other lifecycle events that had become more frequent following the ending of COVID lockdowns in Melbourne. As for Rabbi Genende, Ms Mihalovich did not recall whether he had given a reason for his apology. The respondents relied on the draft email of the applicant to Rabbi Rabin to which I referred at [298] in support of their submission that Rabbi Rabin did not want to attend the inauguration. I was not assisted by submissions as to what to make of the representation in the draft email. It is a hearsay representation that Rabbi Genende did not wish to attend the inauguration, and provides some basis for inferring that there might have been a basis to explore the reasons. However, the applicant was not cross-examined about this representation in the draft email, and so it remains somewhat cryptic.

469    The fair comment and honest opinion defences are not established in relation to the publication of the 18 February 2022 articles for similar reasons that I have given in relation to the 13 December 2021 articles, namely –

(a)    the articles conveyed to the ordinary reasonable reader as a fact, and not as an opinion or comment, that the applicant did not consult Rabbi Genende over hosting a speech by a convicted spy;

(b)    the claim that the applicant did not consult Rabbi Genende thereby causing a rift is false;

(c)    the sting in the claim that the applicant made negative and unfair references to Mr Slonim in his farewell email to members of the Congregation as a result of which the board was forced to issue an apology to Mr Slonim has been justified as substantially true; and

(d)    notwithstanding that one of the stings has been justified, the respondents have not established the defences of opinion, comment, or justification to the publication of the 18 February 2022 articles taken as a whole.

Issue (6): public interest – s 29A defence

470    The defence of publication of a matter in the public interest under s 29A of the Defamation Act was introduced with effect from 1 July 2021 and applies to matters published after that date, and in this case to the publication of the 13 December 2021 and 18 February 2022 articles.

471    In Russell, Lee J considered with great care the defence’s legislative context, including its antecedents. I will draw upon his Honour’s analysis.

472    One point that I highlight is that at common law the publication of defamatory matter is a tort of strict liability. The intention of the publisher is generally not relevant. Several common law defences such as justification, conventional qualified privilege, and fair comment rest on objective facts where the publisher’s actual state of mind is not relevant to establishing the defences. Of course, the publisher’s state of mind may be put in issue by a claimant by way of defeasance of the defences of qualified privilege or fair comment, but the starting point is that these common law defences are generally established objectively.

473    Section 29A of the Defamation Act is different. The defence is dependent upon a defendant proving the two elements set out in s 29A(1) –

(a)    the matter concerns an issue of public interest; and

(b)    the defendant reasonably believed that the publication of the matter was in the public interest.

474    As Lee J discussed in Russell at [318]–[323], s 29A(1) deploys the term “public interest” in two different senses. The first sense, which is deployed in (a), involves an objective determination of the relationship of the matter to an issue of public interest. The second sense, which is deployed in (b), is concerned with the publisher’s actual state of mind that the publication was in the public interest, in the sense that the public would benefit from the matter being published. Because of the use of the past tense “believed” in (b), the publisher must prove that this state of mind existed at the time of publication, and not as an ex post rationalisation.

475    Section 29A(1)(b) directs attention to the state of mind of the individual defendant who seeks to invoke the defence. This has the result that in the case of joint or concurrent tortfeasors each defendant who seeks to rely on the defence must engage s 29A(1)(b). Lee J specifically adverted to this requirement in Russell at [342]. The point has relevance here because Ms Hutchinson gave no evidence that would support a finding that she reasonably believed that the publication of the 13 December 2021 or 18 February 2022 articles was in the public interest at the time of their publication, and in the absence of direct evidence from Ms Hutchinson that fact cannot be inferred. And apart from Mr Brook, The Age and Fairfax called no witnesses such as editorial staff on the question of what state of belief is to be attributed to the corporate respondents. In this regard, Mr Brook stated in cross-examination that he offered up the articles for publication, and they were then approved by the editors, so that the editors, in effect, agreed to publish them. At another point, and in the context of the 5 May 2021 articles, Mr Brook identified his editors as the people who made the decision to publish.

476    Given Mr Brook’s evidence that his role was effectively to offer up a draft column to his editors, who then made the decision to publish, I do not consider his evidence that he believed the publication of the relevant articles was in the public interest to be sufficient to make a finding that the corporate respondents also had the requisite belief. The editors were a necessary step in the chain of causation leading to the decision to publish. The editors may have had the view that an objective observer might have had, which was the CBD column was a whimsical, and at times mocking daily gossip column, and that they did not reasonably believe that publication was in the “public interest” as that term is to be understood for the purpose of s 29A(1)(b). I infer that the evidence of the relevant editorial staff of The Age and Fairfax would not have assisted the corporate respondents in establishing the requisite state of belief to be attributed to them.

477    This brings me to the requirement of s 29A(1)(b) that the publisher must reasonably believe that publication of the matter was in the public interest. In determining whether the defence is established, the Court must take into account all of the circumstances of the case: s 29A(2). The court may take into account the factors listed in s 29A(3) to the extent that the court considers them applicable in the circumstances –

(a)    the seriousness of any defamatory imputation carried by the matter published;

(b)    the extent to which the matter published distinguishes between suspicions, allegations and proven facts;

(c)    the extent to which the matter published relates to the performance of the public functions or activities of the person;

(d)    whether it was in the public interest in the circumstances for the matter to be published expeditiously;

(e)    the sources of the information in the matter published, including the integrity of the sources;

(f)    if a source of the information in the matter published is a person whose identity is being kept confidential, whether there is good reason for the person's identity to be kept confidential (including, for example, to comply with an applicable professional code or standard);

(g)    whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person;

(h)    any other steps taken to verify the information in the matter published;

(i)    the importance of freedom of expression in the discussion of issues of public interest.

478    The court is not required to take account of each of the factors referred to in s 29A(3), and the enumeration of those factors does not limit the matters that the court may take into account: s 29A(4). This has the consequence that after considering all the circumstances of the case as required by s 29A(2), there may be some factors which are sufficient to determine the question of reasonableness one way or the other.

479    I am satisfied that the articles of 13 December 2021 and 18 February 2022 concerned matters of public interest. In the case of the 13 December 2021 articles, the matter of public interest was principally the 13 August 2021 email that the applicant had sent to the Congregation members and the board’s apology. Not every collateral feature of the articles concerned matters of public interest, but on the whole they did. In the case of the 18 February 2022 articles, the position is less clear, but on balance I am persuaded that the effect of previous events on claimed divisions within one of Melbourne’s largest Jewish congregations concerned a matter of public interest.

480    There was no real challenge to Mr Brook’s evidence that he believed that publication of the 13 December 2021 and 18 February 2022 articles was in the public interest. In the circumstances, I accept Mr Brook’s evidence and find that he subjectively believed at the time of publication that the publication of the articles was in the public interest. The real battleground was whether Mr Brook’s belief was reasonable having regard to all the circumstances.

481    The requirement of reasonableness was considered comprehensively by Lee J in Russell at [324]–[340]. Lee J made the important point at [337] that almost all the factors in s 29A(3) are concerned with the publisher’s conduct, which in this case directs attention to the steps that Mr Brook took prior to publication.

482    The picture painted by Mr Brook’s evidence was that he was being fed information by “sources” who had agendas and who were using Mr Brook for their own purposes. I find that by reason of the content of the information that his sources gave him, Mr Brook must have appreciated that his sources had agendas that were adverse to the applicant. These agendas found reflection in the content of the 13 December 2021 and 18 February 2022 articles, which focused on the applicant.

483    For the purpose of considering the s 29A defence there is a material difference between the 5 May 2021 articles (which are not in issue for this purpose), and the later articles. The 5 May 2021 articles, although conveying that fingers were being pointed at Dr Lamm and the applicant, at least presented both sides of a debate about a serious issue that had entered the public domain. The 13 December 2021 and 18 February 2022 articles were not about debating or exposing any serious issue of public importance but were focused on targeting the applicant and defaming him. This is quite apparent from the content and mocking tone of those articles. The fact that the applicant was being targeted by the 13 December 2021 articles was supported by one of the questions that Mr Brook submitted by email to the Caulfield Shule prior to publication, which asked whether the applicant had been disciplined. It was also emphasised by the prominent colour photograph of the applicant that accompanied the online version, although I find that the editorial staff and not Mr Brook were responsible for the inclusion of the photograph. The inclusion of the photograph of the applicant with such prominence shows that the editorial staff appreciated that the applicant was the target of the article.

484    The allegation that there was a rift had been made by Mr Brook in his 5 May 2021 articles, but in those articles the allegation related to the decision to host Mr Pollard, and not to any failure to consult Rabbi Genende. The Haaretz article, parts of which Mr Brook used as his starting point in writing his 5 May 2021 article, referred to a rift in the Jewish community over the invitation extended to Mr Pollard, but not to any rift between the applicant and Rabbi Genende over any failure to consult. The claim that there was a rift over the applicant’s failure to consult was first made by Mr Brook towards the commencement of the 13 December 2021 articles and was repeated in the 18 February 2022 articles. Mr Brook did not contact the applicant prior to the publication of the 13 December 2021 or 18 February 2022 articles. He never foreshadowed the claim to the applicant, such as by email, so as to give him any opportunity to respond. Mr Brook did not include in the questions that he sent to Ms Mihalovich at the Shule by email on 9 December 2021, which are set out at [334] above, any questions that were directed to the claim that the applicant failed to consult Rabbi Genende in relation to the invitation to Mr Pollard, resulting in a rift between them.

485    The reasons for Mr Brook’s lack of inquiry of the applicant, or anybody else, in relation to the claims of a rift over the applicant failing to consult Rabbi Genende are revealed by the written questions that Mr Brook asked Ms Mihalovich. Those questions related to the apology to Mr Slonim, which was the subject-matter of the information that Mr Brook had then recently been given by his anonymous sources and which was the greater focus of the 13 December 2021 articles. I find that prior to publishing the 13 December 2021 and 18 February 2022 articles Mr Brook was not concerned to make any enquiries about the claim that the applicant had not consulted Rabbi Genende over the Pollard matter resulting in a rift, because that was not the issue that provoked the publications. What is more likely is that in writing these later articles Mr Brook had regard to his earlier 5 May 2021 articles as a source of information to introduce the applicant. In doing so he compressed the information in the earlier matter and distorted the position by linking the claimed rift to a lack of consultation. He did not endeavour to make any up-to-date enquiry of anybody about the claim that the applicant had not consulted Rabbi Genende, or of the status of the claimed “rift” because that was not the issue of currency. As a result, Mr Brook did not conduct any enquiries that might have revealed to him that following the publication of the 5 May 2021 articles, Rabbi Genende had publicly refuted the idea that there was any rift between him and the applicant.

486    I referred at [353] to Mr Brook’s evidence that he had been told by some confidential sources following the publication of the 5 May 2021 articles that it was correct that there was a rift between Rabbi Genende and the applicant over the applicant’s claimed failure to consult the Rabbi. This evidence was given in cross-examination in relation to the 18 February 2022 articles and had not been led from Mr Brook in relation to the 13 December 2021 articles. Given the vague and imprecise nature of Mr Brook’s evidence about what his sources told him, I am not persuaded to accept that Mr Brook received information as specific as confirming that there was a rift between the applicant and Rabbi Genende over the applicant’s failure to consult. The “rift” as originally reported in the Haaretz article was a rift within the Jewish community over the decision to invite Mr Pollard as guest speaker, whereas the “rift” referred to by Mr Brook in his 5 May 2021 articles was represented by what Rabbi Genende wrote in his “angry missive” and was not connected to any failure to consult. Rabbi Genende would have known that he was consulted and he had publicly refuted the claim in the 5 May 2021 articles that there was any “rift”.

487    Even though the topic of currency addressed by the 13 December 2021 articles was the apology to Mr Slonim, and the topic of currency addressed by the 18 February 2022 articles was the claimed low attendance at Rabbi Rabin’s inauguration, the reference to the applicant’s claimed lack of consultation over Mr Pollard, and the resultant “rift” with Rabbi Genende, were important components. I find that Mr Brook did not make any reasonable enquiries about the truth of these matters prior to the publication of the articles. The articles, being gossip targeted at the applicant and written in a mocking tone, were not of such public importance that the failure to make these basic enquiries should be disregarded as inconsequential.

488    For the above reasons, in making the evaluative judgment that s 29A(1)(b) invites, I am not satisfied that Mr Brook’s belief that publication of the articles was in the public interest was reasonable. I also find that there is insufficient evidence to attribute to the corporate respondents a subjective belief that publication was in the public interest given that no editorial staff were called. If there had been sufficient evidence to attribute a subjective belief to the corporate respondents, then I would consider attributing to them Mr Brook’s conduct and finding that their belief was not reasonable. Finally, I have found that there is insufficient evidence to support a finding that Ms Hutchinson reasonably believed that publication of the articles was in the public interest.

Issue (7): damages

489    The purposes served by an award of damages for non-economic loss as a result of defamation are well-known. They were identified by Mason CJ, Deane, Dawson and Gaudron JJ in Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 (Carson) at 60 as: (i) consolation for the personal distress and hurt caused to the applicant by the publication; (ii) reparation for harm done to the applicant’s personal and (if relevant) business reputation; and (iii) the vindication of the applicant’s reputation. These purposes overlap. The first two are often considered together. Vindication looks to the attitude of others to the applicant. The sum awarded must be at least the minimum necessary to signal to the public the vindication of the applicant’s reputation.

490    There are six features of the Defamation Act that are relevant to the assessment of the applicant’s damages in the present case.

491    First, s 34 requires that there must be an appropriate and rational relationship between the harm sustained by the applicant and the amount of damages awarded.

492    Secondly, under s 35(1) the maximum damages that may be awarded to the applicant in this proceeding for non-economic loss in relation to all causes of action is $478,500: see the declaration of the Victorian Attorney-General published in the Victoria Government Gazette No G 26, on 27 June 2024.

493    Thirdly, s 35(2) provides that the maximum damages amount may be awarded only in a most serious case, thereby establishing a scale rather than merely a cap which was the position in Victoria before the amendments to s 35 of the Defamation Act that commenced on 1 July 2021: see Bauer Media at [182]–[213] (Tate, Beach and Ashley JJA). If there were any ambiguity, the establishment of a scale is confirmed by the note to clause 36 of the Justice Legislation Amendment (Supporting Victims and Other Matters) Bill 2020 (Vic) in the explanatory memorandum that was before the Victorian Parliament.

494    Fourthly, under s 36, in awarding damages for defamation the court is to disregard the malice or other state of mind of the respondents except to the extent that it affects the harm sustained by the applicant.

495    Fifthly, under s 37 an applicant cannot be awarded exemplary or punitive damages.

496    Sixthly, under s 39 the court may assess damages for multiple causes of action in a single sum.

Aggravation

497    The applicant made an extensive claim for “aggravated damages” which relied on various claimed conduct of the respondents and their legal representatives.

498    There is an important difference between damages that take account of aggravation of harm, and exemplary damages, which are no longer available in defamation cases. The former serve the purpose of compensating an applicant for increased harm. Damages on account of aggravation are a form of general damages, given by way of compensation for injury to the plaintiff, which may be intangible, resulting from the circumstances and manner of the wrongdoing: see Lewis v Australian Capital Territory [2020] HCA 26; 271 CLR 192 at [112] (Gordon J), and the cases cited therein.

499    Exemplary damages are not compensatory. They are punitive. Where available, they are awarded to mark the court’s disapproval of some conduct that was in conscious and contumelious disregard of an applicant’s interests. If available, they are awarded “if, but only if” the award of compensatory damages is insufficient as a measure of punishment: Backwell v AAA [1997] 1 VR 182 at 207–208 (Ormiston JA, Brooking JA agreeing); Amalgamated Television Services Pty Ltd v Marsden (No 2) [2003] NSWCA 186; 57 NSWLR 338 at [16]–[24] (Beazley, Giles and Santow JJA). The separate nature of an award of exemplary damages is also borne out by the fact that different assessments may be made against different tortfeasors: see XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd (1985) 155 CLR 448.

500    While the distinction between aggravated and exemplary damages may be stated, in the application of the principles it is not always easy to preserve a rigid distinction between them because the factors that inform their assessment often overlap: see Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 (Uren) at 149 (Windeyer J). However, the distinction is important in defamation cases because exemplary or punitive damages may not be awarded. As I have identified, what marks out damages on account of aggravation is that they must relate to the injury, and must compensate the applicant for some harm caused.

501    At common law a separate award of damages on account of aggravating conduct of a publisher is not usually made, because unlike exemplary damages it is not a discrete head of damage: Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; (2003) 9 VR 1 at [385] (Gillard AJA); Palmer v McGowan (No 5) at [490] (Lee J). The reasons for this are obvious. In a defamation case, a separate award on account of aggravating conduct is usually difficult to assess, as the amount of an award of damages for non-economic loss “is the product of a mixture of inextricable considerations”: Uren at 150 (Windeyer J); Carson at 72 (Brennan J); Lower Murray Urban and Rural Water Corporation v Di Masi [2014] VSCA 104; (2014) 43 VR 348 (Lower Murray) at [116] (Warren CJ, Tate and Beach JJA). Those inextricable considerations may include the conduct or malice of the publisher to the extent that it affected the harm sustained by the person defamed: see s 36 of the Defamation Act. Thus, any distinction between compensatory damages generally and increased damages on account of aggravation is also difficult to identify and apply in practice. An award of general damages will in any event be directed to compensating an applicant for injury to feelings and damage to reputation. And in assessing a fair and reasonable sum by way of compensation, the court is entitled to look at the whole conduct of the publisher up until judgment: Praed v Graham (1889) 24 QBD 53 at 55 (Lord Esher MR, Lindley and Lopes LJJ concurring); and see the discussion in Nationwide News Pty Ltd v Rush [2020] FCAFC 115; 380 ALR 432 (Rush) at [429] (White, Gleeson and Wheelahan JJ).

502    While I am on this topic, ss 35(2A) and (2B) of the Defamation Act provide for “aggravated damages” in the following terms –

(2A)    Subsection (1) does not limit the court’s power to award aggravated damages if an award of aggravated damages is warranted in the circumstances.

(2B)    An award of aggravated damages is to be made separately to any award of damages for non-economic loss to which subsection (1) applies.

503    The object of these provisions is that the maximum damages amount does not preclude an award of “aggravated damages” on top of an award of damages for non-economic loss to which the limit in s 35(1) applies. I do not construe these provisions as requiring that a separate award of “aggravated damages” must be made in any case where aggravating conduct contributes to the harm suffered by an applicant which informs the assessment of damages for non-economic loss in the conventional and accepted way. The subsections do not mandate that consequence where the maximum damages amount is not exceeded. Rather, the subsections are concerned with a situation where the maximum damages amount would be exceeded by an award of “aggravated damages”. In that situation, the award must be separate, and the cap does not apply to the separate award of aggravated damages. However, other requirements will apply to an any award of “aggravated damages”, namely the requirement in s 34 that there must be an appropriate and rational relationship between the harm sustained by the applicant and the amount of damages awarded, and the requirement in s 36 that the court is to disregard the malice or other state of mind of the respondents except to the extent that it affects the harm sustained by the applicant.

504    Any conduct of a publisher supporting an award of increased damages on account of aggravation must be unjustified, improper or lacking bona fides, but does not have to be actionable in itself: Rush at [441]. Damages on account of aggravation may be founded upon conduct of a respondent that occurs after publication, such as in the course of litigation. The conduct of a defence to a defamation proceeding “may be taken into consideration not only as evidencing malice at the time of publication, or afterwards, as, for instance, filing a plea, but also as improperly aggravating the injury done to the plaintiff, if there is a lack of bona fides in the defendant’s conduct or it is improper or unjustifiable”: Triggell v Pheeney (1951) 82 CLR 497 at 514 (Dixon, Williams, Webb and Kitto JJ); Carson at 65 (Mason CJ, Deane, Dawson and Gaudron JJ). One of the reasons for the threshold referred to in Triggell v Pheeney is the unfairness that would result if proper conduct in the pursuit of a legitimate defence exposed a publisher to increased damages on that account: Coyne v Citizen Finance Ltd (1991) 172 CLR 211 at 237 (Toohey J), citing Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 379 (Samuels JA).

505    There may be many things that an applicant might resent about a defamation proceeding. An applicant might resent that the publisher denies the imputations alleged by the applicant when meaning is usually a triable issue. An applicant might resent the fact that a publisher advances positive defences. An applicant might resent having to give discovery. An applicant might resent the publisher making submissions to the court by way of opposing the applicant’s claim. An applicant might resent giving evidence including by way of cross-examination. Questions in cross-examination might be direct. Lines of defence might misfire. But absent some lack of justification, or impropriety, or lack of bona fides, these ordinary features of litigation do not sound in increased damages on account of aggravation.

506    To make a finding that particular conduct of a publisher, relied on by an applicant in aggravation, increased the harm to an applicant requires evidence. The evidence may be direct evidence, but like any fact in issue, increased harm may be an inference drawn from all the circumstances. Damages on account of aggravation are often awarded for increased hurt to feelings, but they may also be awarded on account of increased damage to reputation or increased injury generally: Lower Murray at [118] (Warren CJ, Tate and Beach JJA). Absent cogent evidence that conduct claimed to be aggravating caused increased harm to an applicant, claims of aggravation have a tendency to slide into impermissible claims of a punitive character which focus on a critique of the conduct of the publisher and its legal representatives rather than the injury suffered by the applicant.

507    In this case, the applicant included in his further amended statement of claim extensive particulars of aggravated damages. These particulars had all the hallmarks of a “kitchen sink” approach to a claim of aggravation. I will not set out the particulars, because they are so lengthy. Many of the claims can be described as lawyers’ points. The particulars included a detailed appraisal of the respondents’ pleading of their defences and convey a level of indignation that the respondents would defend the proceeding. That level of indignation was misplaced in circumstances where there were many contestable issues that have required careful consideration. Those contestable issues start with the applicant’s imputations directed to the 5 May 2021 articles which I have found were not conveyed. They include the respondents’ claim that the applicant did not consult Rabbi Genende in relation to the decision to host Mr Pollard, which had a proper basis in the way it was argued at trial notwithstanding that I have rejected it. The particulars also include a detailed attack on the respondents’ conduct in publishing the matters and in defending the proceeding in circumstances where there were triable issues of primary fact and evaluation.

508    The applicant made sweeping claims in the further amended statement of claim that the respondents had alleged truth and comment defences in their original defence filed 22 July 2022 that were unjustifiable, and claiming that the defences were abandoned. The applicant’s claims in this regard were pleaded as depending upon facts alleged by the applicant in his reply which “if true made the truth defences unjustifiable”, and otherwise by reference to the applicant’s answers to interrogatories and discrete facts admitted by the respondents in response to a notice to admit. All the matters alleged in the particulars in this regard relied to some extent upon acceptance of the applicant’s case to falsify the defences that had been alleged. Further, I do not accept the applicant’s characterisation that all the defences were abandoned. The defences were re-fashioned, but key elements survived. The matters alleged in relation to the respondents’ defences did not provide a secure basis on which to allege aggravating conduct of the respondents in the conduct of the proceeding in circumstances where that conduct must rise to conduct that was unjustifiable, improper, or lacking bona fides in order to support a claim of increased damages.

509    In evidence-in-chief, the applicant was taken to the particulars of the opinions expressed in the matters in support of the defence of honest opinion and fair comment. Those opinions were alleged to include that the applicant was “lacking in judgment”, that the applicant’s decision to agree to host the address by a convicted spy was “reckless” and “autocratic”, that the applicant’s personality was “reckless and “autocratic”, that the applicant failed to undertake “appropriate” consultation, that the applicant was a “disruptive person”, and that the applicant “condones treason”. The applicant gave evidence that he was devastated when he read those particulars of the defence, that it made him feel terrible and worthless, and that he read it as the complete destruction of his reputation. I do not consider that the applicant’s reaction to the respondents’ pleading of their fair comment defence warrants an increase in compensatory damages on account of aggravation. For the large part, the pleaded statements of opinion were responsive to the imputations that the applicant pleaded, some aspects of which I have rejected. There was nothing improper about the respondents pleading at least a common law defence of fair comment based upon objective meanings that were founded upon elements of the applicant’s imputations.

510    The applicant claimed that the pleading and then abandonment by the respondents of the statutory defence of triviality to the 5 May 2021 articles was an aggravating factor. In evidence-in-chief the applicant was taken to this plea and gave evidence that he had read it, and that he was very upset about it, explaining that the matter was serious and not trivial. In circumstances where I have found that the 5 May 2021 articles were not defamatory of the applicant in a meaning pleaded by the applicant, I give no weight to the pleading by the respondents of a defence of triviality as an aggravating factor.

511    The applicant was also taken in evidence-in-chief to a passage of transcript of the opening of senior counsel for the respondents where a paragraph of the 5 May 2021 articles was addressed, submitting –

We say this paragraph is accurate, your Honour. Mr Mond did agree to host the event, and he did so without consulting Rabbi Genende.

512    The applicant was asked about how he felt when he heard that part of the opening, and he responded by stating that it was not true, and that he had felt sick. Now, there was nothing unjustified or improper about the above submission. Although I have rejected the respondents’ claim that the applicant agreed to host the event involving Jonathan Pollard without consulting Rabbi Genende, there was a proper basis to make the allegation. This was an instance where the applicant felt aggrieved by the content of the respondents’ defence, but by itself that is not sufficient to sound in an increase in compensatory damages on account of aggravation.

513    A claim of aggravation that featured prominently in the applicant’s closing submissions was that the respondents had given an inaccurate and incomplete account in framing assumed facts that were provided to the expert witness, Rabbi Elton. Senior counsel for the applicant clarified in oral closing submissions that no criticisms of counsel or their instructing solicitors were made, but that the criticisms were directed to their clients. I find that the assumed facts given to Rabbi Elton were incomplete, although they did include reference to the applicant’s telephone conversation with Rabbi Genende on 22 April 2021 which was an important component of the case. But the assumptions did not include further telephone conversations between the applicant and Rabbi Genende, or the fact that Rabbi Genende addressed the board of the Congregation at its meeting on 3 May 2021. Why Rabbi Elton was not given the complete statement of agreed facts but only an incomplete summary was not addressed by evidence. However, I am not prepared to find that the conduct of the respondents’ legal representatives in briefing the expert witness was unjustifiable, improper, or lacking bona fides where senior counsel for the applicant disclaimed criticism of them, and where an equally probable explanation is a combination of carelessness, and a failure to think through the consequences in a way that was actually injurious to the respondents’ interests and likely to misfire. It was not in the respondents’ interests to provide Rabbi Elton with an incomplete statement of assumed facts because it was liable to render his opinions inadmissible or at the very least as carrying little weight, which is what has occurred. Moreover, there was no evidence adduced from the applicant that the instructions provided to Rabbi Elton increased his hurt. Further, I do not infer that there was any additional harm caused to the applicant’s reputation in circumstances where this was not put to Rabbi Elton in cross-examination, and where Rabbi Elton had in any event expressed firm views in the public domain about the wisdom of having any association with Jonathan Pollard. In the absence of any cogent evidence that the applicant suffered increased harm on account of the instructions given to Rabbi Elton, this is an example of a lawyer’s point, amounting to little more than a critique of the conduct of the case by the legal representatives of the respondents.

514    The applicant submitted that further grounds of aggravation arose as a result of the respondents’ closing submissions, which “rubbed salt into the wound”. Only one aspect of the respondents’ submissions requires individual consideration. Otherwise, there was nothing in this submission. The respondents’ closing submissions were measured, and were based upon proper material. The suggested indignation of the applicant as a consequence of the respondents’ closing submissions is not a sufficient ground for increasing damages on account of aggravation.

515    The one aspect of the respondents’ closing submissions that I will consider separately is the respondents’ submission in relation to the applicant’s telephone conversation with Rabbi Genende on 29 April 2021. I addressed that submission at [211] above and rejected it, finding that it lacked foundation. However, I do not find that the making of the submission was unjustified, improper or lacking bona fides in the sense required to support a claim of increased damages. Rather, this was an instance of a submission that had an ostensible foundation, but in fact lacked a foundation, and was likely the product of a forensic decision that was ill-conceived and in circumstances where senior counsel for the applicant disclaimed any personal criticism of those acting for the respondents.

516    As for the lengthy particulars of aggravated damages directed to the circumstances of publication, they can be dealt with by addressing the evidence of the applicant. There was very little evidence that was adduced to address the subject matter of the particulars of aggravated damages concerning the process of publication, as distinct from the applicant’s general evidence about the hurt that he suffered as a result of the fact of publication of each of the matters. For instance, the applicant gave no evidence that he suffered additional hurt because Mr Brook did not contact him. Rather, the applicant’s evidence was that he did not speak to journalists. The applicant gave no evidence that he suffered additional hurt because the respondents published the matters in contravention of the Code of Conduct, which was one of the claims made. Other matters relied on in aggravation were just part and parcel of the fact of publication, including the breadth of publication, the tone of the articles, and the fact that the sources were not disclosed. The applicant claimed that the publication of the matters was part of a campaign by the respondents against the applicant. This was not put to Mr Brook in cross-examination. The applicant claimed that the respondents were motivated by profit, which having regard to s 36 of the Defamation Act I do not regard as an aggravating feature of the act of publication because that state of mind did not increase the harm suffered by the applicant. The applicant claimed that the respondents’ failure to apologise and remove the articles from online access, or to make any offer of amends in response to the concerns notice were aggravating factors. In circumstances where I have found that the 5 May 2021 articles were not defamatory of the applicant in the way claimed, and where there were tenable defences to the publication of the other matters, and a tenable defence that the applicant failed to show that he suffered serious harm, I do not accept the submission that the failure to apologise and take down the articles were aggravating factors.

The assessment of damages

517    Although I give little weight to the applicant’s claims of aggravation, it is important to emphasise that the hurt that the applicant suffered as a result of the publication of the 13 December 2021 and 18 February 2022 articles is a matter for compensation, and I do take significant account of it.

518    There are issues that arise in relation to whether the hurt that the applicant suffered as a result of the publication of the articles and about which he gave evidence can be disentangled from other potential causes. Disentanglement issues might also be said to arise in relation to other things that were liable to have caused the applicant anxiety and hurt, such as other publications concerning the hosting of Mr Pollard, the new board’s apology to Mr Slonim which the applicant said in cross-examination reflected badly upon him, Rabbi Rabin’s failure to acknowledge the applicant at his inauguration, and Rabbi Rabin’s statement to the applicant about the reactions of people when he mentioned the applicant’s name. However, the applicant was not cross-examined about the effect of these other circumstances on the hurt, anxiety, depression, and feelings of doom about which he gave evidence, and therefore I give them little weight: see Purkess v Crittenden (1965) 114 CLR 164.

519    The applicant gave evidence about the effects of the publication of the 5 May 2021 articles upon him. As a result of those articles he experienced feelings of unhappiness, he felt dispirited, and said that he ceased attending the Shule after he finished his presidency. He felt that there were people unhappy about him as a result of what was reported. Others observed the applicant’s unhappiness. Mr Barry Mond, Ms Mihalovich, and the applicant’s wife gave evidence about their observations of the applicant’s level of upset. The applicant perceived that the 5 May 2021 articles caused medical conditions for which he attended upon his local doctor and specialists. He was later diagnosed as suffering from depression and anxiety.

520    The publication of the 13 December 2021 and 18 February 2022 articles aggravated the hurt and anxiety from which the applicant was already suffering. The applicant is entitled to compensation for this aggravation.

521    As a result of the publication of the 13 December 2021 articles the applicant was observed by Ms Mihalovich to be very anxious, upset, and uptight, and she heard him express a belief that the articles were an unfair portrayal of everything. Mr Barry Mond gave evidence that a few days after the publication the applicant did not attend work, and had been unable to get out of bed, citing depression. Mrs Mond said that the 13 December 2021 articles made the situation worse, and that she overheard the applicant speaking about it to others. Mrs Mond heard the applicant crying. It affected their social life. The applicant became forgetful, angry and could not cope.

522    Mrs Mond described the 18 February 2022 articles as the nail in the coffin, giving evidence that the applicant was not the same person. Mrs Mond was extremely upset in giving this evidence. Mr Barry Mond perceived that the applicant was upset about what The Age was doing to the applicant, and was shocked to hear that the applicant had been seeing a psychiatrist, although the applicant did not give evidence as to this. Nor did the applicant give evidence that he was undergoing any treatment, such as by medication, to treat any of his conditions. Ms Mihalovich gave evidence that the applicant was really consumed with being upset and anxious about the continuous slurs at the end of his presidency of the Congregation that were occurring in a public forum.

523    The three sets of articles generally had significant effects on the applicant’s relationship with his wife and family. He became socially withdrawn. He had feelings of anxiety and doom. He had other physical symptoms that persisted that he attributed to the publications, including feelings of dizziness for which he consulted a specialist in March 2023. The effect of the 13 December 2021 and 18 February 2022 articles was to exacerbate and prolong the feelings of depression and hurt that the applicant was experiencing as a result of the 5 May 2021 articles in the context of other events. I take account of the aggravating effect of the 13 December 2021 and 18 February 2022 articles on the applicant’s situation.

524    The respondents submitted that the applicant had delayed in commencing proceedings, and had served a concerns notice only shortly prior to the expiry of the 12 month limitation period. The respondents submitted that this was evidence that the applicant was not unduly troubled by the articles, citing Rader at [22]. There are three significant problems with this submission. The first is that the idea that the applicant was not unduly troubled by the articles is against the weight of the evidence. The second is that this was never put to the applicant in cross-examination. The third is that the respondents’ citation of Rader is misplaced. What the respondents cited from Rader was the consideration of a factual issue that went to whether delay was relevant to the evaluation of whether serious harm had been demonstrated in that case. Findings of fact in other cases are not precedents: Teubner v Humble (1963) 108 CLR 491 at 503 (Windeyer J), cited in Bus v Sydney County Council (1989) 167 CLR 78 at 89 (Mason CJ, Deane, Dawson and Toohey JJ).

525    The applicant is entitled to an award of damages by way of vindication. In relation to the 13 December 2021 articles, they conveyed that the applicant had failed to consult Rabbi Genende in relation to deciding to host a speech by a convicted spy, which I have found was false. That sting contributed to the overall impression conveyed by the articles that the applicant had caused trouble at the Caulfield Shule which still lingered, and which in combination with the reference to the negative and unfair email about Mr Slonim was a foundation for the cutting remark at the end of the articles which questioned the applicant’s emotional intelligence. Now, in assessing damages I do take account of my finding that the applicant’s email about Mr Slonim was negative and unfair: see the discussion in ABC v Wing at [89]–[93]. The award of damages should not accommodate vindication of that element of the articles. But the justification of that element is not a defence to the publications. The false reference to the failure to consult Rabbi Genende was a contributing component to a publication that was disparaging and mocking of the applicant in relation to his work as president of the Caulfield Shule which was such a significant part of his life, and to which he had devoted so much time and energy.

526    The applicant is also entitled to have his reputation vindicated in relation to the publication of the 18 February 2022 articles. Those articles repeated the false claim that the applicant did not consult Rabbi Genende in relation to the decision to host a speech by a convicted spy resulting in a rift. That claim was linked to the impression conveyed by the articles that the applicant’s failure to consult contributed to “bad times” and long-lasting divisions. All versions of the article conveyed that impression, but it was particularly clear in the print article as a result of the headline, “RABBI RIFT SEEMS NOT FULLY HEALED”. As with the 13 December 2021 articles, I do take into consideration the fact that one of the stings of the 18 February 2022 articles has been justified, namely the negative and unfair references to Mr Slonim in the August 2021 email. The award of damages should be ameliorated on that account. However, the publication of the whole of the article was tortious, and the applicant is entitled to vindication in relation to the failure to consult sting, and the overall sting that the applicant caused bad times and divisions in the Shule which had endured.

527    The respondents submitted that there were substantial mitigating factors that should be taken into account in assessing damages. The respondents submitted that the applicant courted controversy by agreeing to host a speech by Mr Pollard, and that on the assumption that the Court found that there was consultation with Rabbi Genende, the consultation was not fulsome. The respondents also submitted that the applicant’s 13 August 2021 email that referred to Mr Slonim was condescending, ill-considered, and defamatory, and that it was not surprising that it attracted media attention, and that the fact of the email and the apology were already known to the members of the Caulfield Hebrew Congregation.

528    I have already dealt with the 13 August 2021 email, and I do take it into consideration as a matter in mitigation of damage. As for the other matters urged by the respondents in mitigation of damage, I do not see that by agreeing to host Mr Pollard that the applicant brought upon himself an attack of the type made in the 13 December 2021 and 18 February 2022 articles. Nor do I consider that a sting that the applicant failed to consult with the Rabbi resulting in a rift is mitigated by the suggestion that there might have been more consultation than there was. The applicant certainly invited controversy and invited the critical opinions that were reported in the 5 May 2021 articles, but the personal nature of the attacks on the applicant in the latter articles were a step too far.

529    The applicant’s written closing submissions annexed a table of damages awarded in other cases over the last few years. There is little utility in looking at awards of damages in other cases and drawing comparisons. Damage to reputation is not a commodity having a market value. No two cases are truly comparable, and one award is never really a precedent for another case: see Rogers at [66] and [69] (Hayne J, with whom in relation to the question of damages, Gleeson CJ and Gummow J at [35] agreed). Further, judgments about damages “are not to be overborne by what other minds have judged right and proper for other situations”: Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 at 125 (Barwick CJ, Kitto and Menzies JJ). In addition, assessments of damages in previous cases are of limited value for the further reason that the maximum damages amount in s 35(2) of the Defamation Act since 1 July 2021 has the effect of creating a scale with the maximum amount reserved for the most serious case, where no scale imposed by statute previously existed.

530    Taking account of the statutory provisions to which I referred at [491]–[496], the extent of publication, and all the inextricable considerations to which I have referred above including the mitigating factors, I assess the applicant’s damages in the global sum of $120,000.

Conclusions

531    There will be judgment for the applicant against the respondents in the sum of $120,000 plus statutory interest.

532    I will hear the parties on the calculation of interest, costs, and the remedy of permanent injunction that is sought by the applicant.

Associate:

Dated:    8 May 2025

FIRST SCHEDULE

5 MAY 2021 ARTICLES

PRINT ARTICLE

Uproar over invitation to convicted spy

1.    Melbourne’s Orthodox Jewish community is in uproar after a convicted spy was invited to be the keynote speaker at an event on Sunday marking the annual Jerusalem Day.

2.    Fingers are being pointed at two senior members of the Orthodox community after Johathan Pollard, a US citizen who spied for Israel and other countries and served 30 years in jail, was invited to deliver an online address to mark the anniversary of the reunification of the Old City of Jerusalem during the 1967 Six-Day War.

3.    Pollard, who emigrated to Jerusalem after his release from the US, is a polarising figure in Jewish circles.

4.    He was invited to speak by prominent dentist Danny Lamm, outgoing president of Synagogue Mizrachi in Caulfield.

5.    David Mond, the former Victorian Liberal Party treasurer who is president of the board of Caulfield Shule, agreed to host the event, prompting a rift with Rabbi Ralph Genende, the senior Caulfield Shule rabbi, who fired off an angry missive describing the action as “misguided and potentially damaging”.

6.    The controversy has gone global, with Jeremy Leibler, president of the Zionist Federation of Australia, telling Israel’s Haaretz newspaper that “one has to question the judgment of selecting him as a keynote speaker for such an event”.

7.    Lamm told CBD that he invited Pollard to speak at a religious event. “My invitation to him was not a political message whatsoever. On the basis of his love of Jerusalem, I invited him to speak”.

ONLINE ARTICLE

Orthodox uproar over invitation to convicted spy

1.    Melbourne’s Orthodox Jewish community is in uproar after a convicted spy was invited to be the keynote speaker at an event on Sunday marking the annual Jerusalem Day.

2.    Fingers are being pointed at two senior members of the Orthodox community after Jonathan Pollard, a US citizen who spied for Israel and other countries and served 30 years in jail, was invited to deliver an online address to mark the anniversary of the reunification of the Old City of Jerusalem during the 1967 Six-Day War.

3.    Pollard, who emigrated to Jerusalem after his release from the US, is a polarising figure in Jewish circles.

4.    He was invited to speak by prominent dentist Danny Lamm, outgoing president of Synagogue Mizrachi in Caulfield.

5.    David Mond, former Victorian Liberal Party treasurer who is president of the board of Caulfield Shule, agreed to host the event, prompting a rift with Rabbi Ralph Genende, the senior Caulfield Shule rabbi, who was not consulted and fired off an angry missive describing the action as “misguided and potentially damaging”.

6.    “It sends a message to the Jewish community and especially to young Jews, that it is acceptable to betray one’s country, one’s staunchest ally and friend.”

7.    The controversy has gone global, with Jeremy Leibler, president of Zionist Federation of Australia, telling Israel’s Haaretz newspaper that “one has to question the judgment of selecting him as a keynote speaker for such an event”.

8.    Lamm told CBD that he invited Pollard to speak at a religious event. “My invitation to him was not a political message whatsoever. On the basis of his love of Jerusalem, I invited him to speak.”

SECOND SCHEDULE

13 DECEMBER 2021 ARTICLES

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Trouble across the board in Caulfield

1.    As one bystander puts it: “The fun at Caulfield Shule never ends.”

2.    When last we caught up with the synagogue in May, CBD noted a rift between board president David Mond, a former Victorian Liberal Party Treasurer, and Senior Rabbi Ralph Genende, over Mond’s lack of consultation in deciding to host a speech by a convicted spy.

3.    Now both men have moved on, and Rabbi Daniel Rabin is in charge, while the board president is Howard Zeimer.

4.    But the impact of Mond’s previous actions lingers. In August, he emailed Shule members and detailed his pride at his achievements as president over the previous three years.

5.    But as a result of that missive, last week the board of Caulfield Hebrew Congregation was forced to issue an extraordinary apology to member Adam Slonim.

6.    “These references to Mr Slonim were negative and unfair and shouldn’t have been included in the email,” the board said.

7.    “The board wishes to apologise to Mr Slonim for this and express its sincere regret for any hurt or embarrassment caused.”

8.    Sounds like lawyers at 10 paces, but neither Slonim nor CMC chief executive Rachel Mihalovich would comment. What a mess for President Zeimer to clean up.

9.    Incidentally, Slonim is an adjunct fellow at Victoria University, and founder of Blended Learning Group, which “assists organisations with leadership through emotional intelligence”. Presumably, he is available for hire.

ONLINE ARTICLE

Trouble across the board at Caulfield Schule

1.    As one bystander puts it: “The fun at Caulfield Shule never ends.”

2.    When last we caught up with the synagogue in May, CBD noted a rift between board president David Mond, a former Victorian Liberal Party treasurer, and Senior Rabbi Ralph Genende, over Mond’s lack of consultation in deciding to host a speech by a convicted spy.

3.    Now both men have moved on, and Rabbi Daniel Rabin is in charge, while the board present is Howard Zeimer.

4.    But the impact of Mond’s previous actions lingers. In August, he emailed Shule members and detailed his pride at his achievements as president over the previous three years.

5.    But as a result of that missive, last week the board of Caulfield Hebrew Congregation was forced to issue an extraordinary apology to member Adam Slonim.

6.    “These references to Mr Slonim were negative and unfair and shouldn’t have been included in the email,” the board said.

7.    “The board wishes to apologise to Mr Slonim for this and express its sincere regret for any hurt or embarrassment caused.”

8.    Sounds like lawyers at 10 paces, but neither Slonim nor CHC chief executive Rachel Mihalovich would comment. What a mess for president Zeimer to clean up.

9.    Incidentally, Slonim is an adjunct fellow at Victoria University, and founder of Blended Learning Group, which “assists organisations with leadership through emotional intelligence”. Presumably, he is available for hire.

THIRD SCHEDULE

18 FEBRUARY 2022 ARTICLES

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RABBI RIFT SEEMS NOT FULLY HEALED

1.    Down in the Bagel Belt, Caulfield Shule is attempting to put the bad times behind it.

2.    Readers will recall that last May, CBD noted a rift at the synagogue between board president David Mond, a former Victorian Liberal Party Treasurer, and Senior Rabbi Ralph Genende, over Mond’s failure to consult the rabbi over hosting a speech by a convicted spy.

3.    Both men moved on, but in December the board of Caulfield Hebrew Congregation was forced to issue an apology to member Adam Slonim after Mond made “negative and unfair” references in his farewell email.

4.    Last Sunday Rabbi Daniel Raben had his official induction.

5.    Alas, the divisions at the synagogue still exist and attendance wasn’t quite the full house it could have been. Fellow rabbis were thin on the ground. One notable absentee was Raben’s predecessor, Rabbi Grenende. Otherwise engaged some said. A snub, others said. And Rabbi Grenende himself? No comment.

ONLINE ARTICLES (BOTH THE AGE AND SMH)

RENEWAL

1.    Down in the Bagel Belt, Caulfield Shule is attempting to put the bad times behind it.

2.    Readers will recall that last May, CBD noted a rift at the synagogue between board president David Mond, a former Victorian Liberal Party Treasurer, and Senior Rabbi Ralph Genende, over Mond’s failure to consult the rabbi over hosting a speech by a convicted spy.

3.    Both men moved on, but in December the board of Caulfield Hebrew Congregation was forced to issue an apology to member Adam Slonim after Mond made “negative and unfair” references in his farewell email.

4.    Last Sunday Rabbi Daniel Raben had his official induction.

5.    Alas, the divisions at the synagogue still exist and attendance wasn’t quite the full house it could have been. Fellow rabbis were thin on the ground.

6.    One notable absentee was Raben’s predecessor, Rabbi Grenende. Otherwise engaged some said. A snub, others said. And Rabbi Grenende himself? No comment.

FOURTH SCHEDULE

(1)    5 MAY 2021 PRINT ARTICLE

(2)    5 MAY 2021 ONLINE ARTICLE

(3)    13 DECEMBER 2021 PRINT ARTICLE

(4)    13 DECEMBER 2021 ONLINE ARTICLE

(5)    18 FEBRUARY 2022 PRINT ARTICLE

(6)    18 FEBRUARY 2022 THE AGE ONLINE ARTICLE

(7)    18 FEBRUARY 2022 SMH ONLINE ARTICLE

SCHEDULE OF PARTIES