Cohen v Sir Moses Montefiore Jewish Home & 3 Ors

[2003] NSWSC 502

CITATION:	Cohen v Sir Moses Montefiore Jewish Home & 3 Ors [2003] NSWSC 502
HEARING DATE(S):	19 May 2003
JUDGMENT DATE:	13 June 2003
JUDGMENT OF:	Simpson J
DECISION:	(i) Imputations (a)(ii), (a)(iii), (a)(iv) and (a)(v) are struck out; (ii) imputations (b)(ii), (b)(iii), (b)(iv) and (b)(v) are struck out; (iii) imputation (c)(ii) is struck out; (iv) imputations (d)(i), (d)(ii), (d)(v), (d)(x), (d)(xi), (d)(xiii), (d)(xiv) and (d)(xvi) are struck out; (v) imputations (e)(xx) and (e)(xxi) are struck out; (vi) imputations (f)(xx) and (f)(xxi) are struck out; (vii) imputation (g)(i) is struck out; (viii) imputations (h)(ii) and (h)(iv) are struck out; (ix) imputation (i)(iv) is struck out; (x) imputations (j)(i), (j)(ii), (j)(iii), (j(iv), (j)(v), (j)(vi), (j)(vii), (j)(viii), (j)(ix), (j)(xiv) and (j)(xvi) are struck out; (xi) imputations (k)(ii), (k)(iii), (k)(v), (k)(vii) and (k)(viii) are struck out; (xii) paragraph 13 will be struck out in relation to the first, second, third, fourth, seventh, eighth and eleventh matters complained of; (xiii) in the ninth and tenth matters complained of imputations 13(a), (b), (c), (d) and (e) will be struck out; (xiv) the plaintiff is to have liberty to replead.
CATCHWORDS:	defamation - imputations - capacity to convey imputations - capacity to defame - differences in substance
LEGISLATION CITED:	Defamation Act 1974, (NSW) s7A Supreme Court Rules Part 67, Rule 11(3)
CASES CITED:	Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Greek Herald Pty Ltd v Nikolopolous [2002] NSWCA 41; 54 NSWLR 165 Ma Ching Kwan v John Fairfax Publications Pty Ltd, NSWCA, unreported, 30 July 1998
PARTIES :	Y L Cohen - Plaintiff Sir Moses Montefiore Jewish Home - 1st Defendant Robert Orie - 2nd Defendant Leonard Karpin - 3rd Defendant Brian Levitan - 4th Defendant
FILE NUMBER(S):	SC 20029/03
COUNSEL:	A Blank - Plaintiff TD Blackburn - Defendants
SOLICITORS:	HM Symonds & Britten - Plaintiff Minter Ellison - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

SIMPSON J

Friday 13 June 2003

20029/03 Rabbi Y L Cohen v

Sir Moses Montefiore Jewish Home & 3 Ors

JUDGMENT

1 HER HONOUR: By statement of claim filed on 7 February 2003, the plaintiff, Rabbi Y L Cohen, claims damages against four named defendants: the Sir Moses Montefiore Jewish Home; Robert Orie; Leonard Karpin; and Brian Levitan.

2 The plaintiff asserts that, in each of eleven separate publications between March and October 2002, one or more of the defendants defamed him. By way of background, the plaintiff pleads that at all material times he was a rabbi and was appointed rabbi of the first defendant, a company incorporated by statute; that the second defendant was at all material times the Chief Executive Officer of the first defendant; that the third defendant was at all material times president of the first defendant’s Board; and that the fourth defendant at all material times had control over the content published on the internet website identified as JewsINOZ.

3 From the content of the various publications of which the plaintiff complains, it may be inferred that the first defendant conducts and manages a nursing home or something similar.

4 For the purpose of the present proceedings the accuracy of these assertions may be assumed.

5 It is convenient to set out in summary form the circumstances and content of the publications alleged by the plaintiff, and the imputations he claims to have been conveyed by them.

the first matter complained of

6 The plaintiff pleads that the first matter complained of was published by the first and second defendants in the form of a letter dated 19 March 2002, addressed “Dear Residents”.

7 The first matter complained of (as the plaintiff proposes to amend the pleadings) is in the following terms:

“You are probably aware that Rabbi Cohen is leaving us. Rabbi Cohen commenced with the Home in January 2000 and has now completed his two year contract.
When Rabbi Cohen’s contract came to an end the Board decided, for various reasons, to look for a replacement that would foster a warm and friendly atmosphere for all as well as community spirit amongst the residents and staff therefore fulfilling the Home’s requirements.”

8 The plaintiff pleads that five imputations were conveyed by this publication. He pleads them as follows:

“(a)(i) The plaintiff was incompetent in his employment with the first defendant;

(a)(ii) The plaintiff is incompetent as a spiritual leader;

(a)(iii) The plaintiff was not capable of and did not foster a warm friendly atmosphere at the first defendant (referred to hereafter as the home);
(a)(iv) The plaintiff was not capable of and did not create a community spirit at the home;
(a)(v) The plaintiff did not care for the residents of the home.”

9 The defendants (relevantly, the first and second defendants) challenge the capacity of the matter complained of to convey each of the imputations. Their first objection concerns the words “with the first defendant” (in imputation (a)(i)) “at the first defendant” (in imputation (a)(iii)), “at the home” (in imputation (a)(iv)) and “of the home” (in imputation (a)(v)). They point out that, in the matter complained of, as pleaded, there is no mention of the first defendant or of any establishment or home conducted by it. There is substance in this complaint, but on behalf of the plaintiff in response, it is asserted that this matter complained of was published on the first defendant’s letterhead and that, on the hearing, a copy of the actual publication will be tendered. There is nothing presently pleaded that suggests that the statement was published on any kind of letterhead or is in any way linked with the first defendant or the Home conducted by it.

10 The pleadings need amendment to make clear what it is that the plaintiff intends to prove, but if they are amended in such a way as to assert that the first matter complained of was published on the defendant’s letterhead then the defect identified by the defendants may, depending upon what appears on the letterhead, be cured.

11 As the plaintiff pointed out, the opening words of the first matter complained of state that the plaintiff “is leaving us”. This is followed by a reference to his having “commenced with the Home”, and to a two year contract; this is sufficient, once the publication is properly linked to the first defendant, to be capable of conveying to the ordinary reasonable reader that the plaintiff was employed by the first defendant.

12 There were additional challenges to the individual imputations as pleaded.

imputations (a)(i) and (ii)

13 In imputations (a)(i) and (ii), the word “incompetent” features. The defendants submitted that there was nothing in the matter complained of which would justify the drawing of any inference that incompetence was alleged against the plaintiff. I do not think this submission can be accepted. It will be open to a reader to infer that the plaintiff, in the eyes of the defendants, had failed to foster a warm and friendly atmosphere and community spirit. The final words “therefore fulfilling the Home’s requirements” are capable of suggesting that doing so is part of the function of the rabbi appointed to the first defendant, and, in any event, a reader might legitimately infer, even without those words, that that was part of the role of a rabbi appointed to a facility such as the Home appears to be. A combination of the inference that the role of the rabbi included fostering a warm and friendly atmosphere and community spirit and that the plaintiff had failed to achieve those desirable goals could give rise to the inference that the plaintiff was incompetent in his employment with the defendant. Imputation (a)(i) is capable of being conveyed.

14 The same point was taken in relation to imputation (a)(ii), together with the argument that there was nothing in the matter complained of to identify the plaintiff as a “spiritual leader”, or his functions as including that role. I do not agree that it would not be open to a jury to conclude that the role of a rabbi was to operate as a spiritual leader. It is not so clear that fostering a warm and friendly atmosphere and community spirit is part of the role of a spiritual leader. The notion of “spiritual leader” is somewhat elusive but I am not satisfied that competence as a spiritual leader is negated by a failure to foster a warm and friendly atmosphere and community spirit. The only failing identified in the plaintiff’s performance of his duties was his imputed failure to foster the appropriate atmosphere. It is, therefore, only if fostering that atmosphere is part of the duties of a spiritual leader, as distinct from the duties of a rabbi, that this imputation could be conveyed. There is nothing else which would justify the imputation that the plaintiff is incompetent as a spiritual leader. On balance, I have concluded that the matter complained of is not capable of conveying the imputation. Imputation (a)(ii) will be struck out.

imputations (a)(iii) and (iv)

15 I have already concluded that the matter complained of is capable of conveying the imputations that the plaintiff failed to foster a warm and friendly atmosphere or create a community spirit at the first defendant. However, this imputation as pleaded goes further and asserts that the matter complained of conveys the additional imputation that the plaintiff was not capable of so doing. There is nothing in the matter complained of that is capable of conveying that part of the imputation. A failure to perform a duty is one thing; an incapacity to perform the duty is another. For this reason imputations (a)(iii) and (iv) will be struck out.

imputation (a)(v)

16 I accept the defendants’ submission that there is nothing in the matter complained of that conveys the imputation that the plaintiff did not care for residents of the Home. Imputation (a)(v) will be struck out.

the second matter complained of

17 The plaintiff alleges that the second matter complained of was published by the first and second defendants on 20 March 2002 in the form of a memorandum to all staff, and placed on the first defendant’s notice board and made available to the press and the community at large. It is in identical terms to the first matter complained of. The imputations pleaded are in identical terms to those with which I have just dealt. Axiomatically, imputations (b)(ii), (b)(iii), (b)(iv) and (b)(v) will be struck out.

the third matter complained of

18 The third matter complained of is a letter said to have been published, also by the first and second defendants, on 26 March 2002 and addressed to “Dear Residents”. The plaintiff pleads that it was circulated to residents of the Home, placed on the first defendant’s notice board, and made available to the press and to the community at large. As pleaded, the letter consists of one short sentence, in the following terms:

“The Rabbi understands and appreciates the concerns the Board expressed regarding his conduct and has apologised publicly to all residents he may have offended.”

19 The plaintiff pleads that the letter conveyed three imputations defamatory of him. He pleads them as follows:

“(c)(i) The plaintiff conducted himself inappropriately as a rabbi;

(c)(ii) the plaintiff conducted himself inappropriately in his employment with the first defendant;

(c)(iii) the plaintiff was offensive to residents.”

20 As to imputations (c)(i) and (ii), the defendants contend that the use of the word “inappropriately” is imprecise, and wholly fails to capture any precise act or condition which is said to be attributed to the plaintiff. Reliance was placed upon the decision of the Court of Appeal in Ma Ching Kwan v John Fairfax Publications Pty Ltd, unreported, 30 July 1998. There the court had under consideration an imputation in the following terms:

“The first plaintiff established a newspaper for the purpose of wrongfully exerting pressure on authorities not to pursue drug trafficking allegations against his father and uncle.”

21 Of this, Handley JA, with whom Mason P and Meagher JA agreed, wrote:

“The term ‘wrongfully’ is inherently ambiguous. The imputation does not indicate why the purpose referred to was wrongful and the possibilities range from breach of the law, criminal or civil, to breach of some moral or ethical standard. For this reason [the imputation as pleaded] fails to define the imputation with sufficient precision and should be struck out …”

22 It is the defendants’ contention here that the word “inappropriately” stands in an analogous position to the word “wrongfully” in Kwan. In Kwan, Handley JA identified the range of possibilities stemming from the use of the word “wrongfully”. The range of possibilities stemming from the use of the word “inappropriately” is not so clear-cut, but is equally wide. The difficulty for a defendant is that, depending upon what is published, a plaintiff may not be able to be more precise or specific about the imputation he/she/it alleges has been conveyed by the matter complained of: see Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135. That is precisely the position here. What the defendants are alleged to have published is an assertion that the plaintiff acknowledged “the concerns” expressed by the first defendant “regarding his conduct” and had apologised for any offence he may have caused. How, it may be asked, can a plaintiff refine the slur when the slur is cast in such general terms? This was not the case in Kwan where one possible kind of “wrongful conduct” was explicitly hypothesised in the matter complained of.

23 The third matter complained of is clearly capable of conveying the message that the plaintiff accepted that his conduct had been criticised, and justifiably criticised. The fact that the precise nature of the conduct was not specified in the matter complained of means that it is not possible for the plaintiff further to refine the imputation.

24 I reject the challenge to imputation (c)(i).

imputation (c)(ii)

25 For the same reasons as I have just given, I reject the complaint that imputation (c)(ii) is bad in form.

26 The defendants have also argued that this imputation is “manifestly incapable of arising”. This is because there is no mention, in the third matter complained of, of any employment with the first defendant or anybody else. There is substance in the defendants’ contention. There is no suggestion, in the very limited matter complained of, that the plaintiff was employed by the first defendant or indeed by anybody. The matter complained of is limited in its application to “his conduct” which is not specified to be employment related. Taken alone, the matter complained of is incapable of conveying any imputation about employment. To perceive that the matter complained of alluded to employment, a reader would have to be aware of one or both of the first and second matters complained of, or some other extrinsic facts. Neither is pleaded. Moreover, although it was not raised on behalf of the defendants, the plaintiff is not named, or otherwise identified in the publication, other than by reference to the earlier publications. Although pleaded conjunctively with the other matters, the claims made in relation to this publication are separate causes of action and, unless otherwise pleaded, must be capable of standing alone. Imputation (c)(ii) is not. It will be struck out.

imputation (c)(iii)

27 The complaint made about this imputation is that it fails to capture any precise defamatory act or condition concerning the plaintiff. The argument was that, while some individuals may have been offended as a consequence of the plaintiff’s conduct, without more, that does not impute that the offence was justified. In my opinion that is negated by the assertion that the plaintiff understood and appreciated the concerns raised and apologised for the offence caused. In any event I am satisfied that an imputation that a plaintiff is offensive is indeed capable of being defamatory.

28 The imputation has to be interpreted in the context of the matter complained of: Greek Herald Pty Ltd v Nikolopolous [2002] NSWCA 41; 54 NSWLR 165.

29 I will not strike out imputation (c)(iii).

the fourth matter complained of

30 The fourth matter complained of is alleged to have been published by the first defendant in the form of a media release dated 1 October 2002. It is asserted on behalf of the plaintiff that it was produced to the press, and in particular to The Australian Jewish News newspaper.

31 The media release consists of six paragraphs. In the first an announcement is made that the plaintiff’s services had been terminated by the Board of Management of the first defendant. It goes on to state that, despite a number of concerns regarding his performance, the Board had agreed to give the plaintiff an opportunity to demonstrate his ability to fulfil his duties and that he had been offered a new service agreement in June 2002 but had “steadfastly delayed” either signing the document or providing the Board with comments on it. It stated that the plaintiff had agreed, in response to a request, to provide the Board with signed service agreements or comments on the proposed agreement by 17 September 2002, but that despite being reminded of this obligation, he had failed “to honour this undertaking” by that date.

32 Subsequently, the document said, the plaintiff had accepted a nomination to become a member of the Board of Management. The first defendant said that it was “widely accepted” that it was “inappropriate” for an employee of the Home to nominate for a position on the Board of Management. The release stated that the nomination was perceived by members of the Board as a clear indication that the plaintiff had no intention of entering into a new service agreement based on the terms and conditions offered. It stated that the plaintiff’s political campaigning was particularly destabilising within the Home and causing obvious stress to a number of residents.

33 Originally the plaintiff pleaded that seventeen defamatory imputations were conveyed by this document. At the hearing, the seventeenth was not pressed. The imputations, as originally pleaded, are:

“(d)(i) The plaintiff was incompetent in his employment with the first defendant;

(d)(ii) The plaintiff was incompetent as a spiritual leader;

(d)(iii) The plaintiff is dishonourable;

(d)(iv) The plaintiff is unreliable;

(d)(v) The plaintiff is dishonest;

(d)(vi) The plaintiff is not trustworthy;

(d)(vii) The plaintiff lacks integrity;

(d)(viii) The plaintiff is a person who does not abide by undertakings;

(d)(ix) The plaintiff conducted himself inappropriately in his employment with the first defendant;

(d)(x) The plaintiff reneged/repudiated his contractual obligations;

(d)(xi) The plaintiff abandoned his duties to the first defendant and its residents;

(d)(xii) The plaintiff was rebellious;


(d)(xiii) The plaintiff deliberately set out to destabilise the first defendant;

(d)(xiv) The plaintiff deliberately set out to cause distress to residents;

(d)(xv) The plaintiff was uncaring;

(d)(xvi) The plaintiff was cruel;
(d)(xvii) The plaintiff was callous.”

34 Objection is taken on behalf of the first defendant to each of these imputations.

imputation (d)(i)

35 The first defendant argued that this imputation was not capable of being conveyed by the matter being complained of. It pointed out that, while the matter complained of referred to “a number of concerns regarding his performance in the execution of his duties”, that was immediately followed by the information that the Board had agreed to give the plaintiff an opportunity to demonstrate his ability to fulfil his duties, and had offered him a new service agreement. This, it was argued, negated any suggestion of incompetence which might otherwise have arisen.

36 In response, counsel for the plaintiff argued that it is inherent in an offer to an employee of an opportunity to demonstrate his ability to fulfil his duties, that that employee had, in the past, failed to do so.

37 I accept the first defendant’s submissions. In my opinion the imputation overstates what could reasonably be drawn from the whole of the matter complained of. It is, as the defendant pointed out, of significance that the matter complained of states that the plaintiff had been given a further opportunity in his employment and had, indeed, been offered a new service agreement. The reader might well derive from the matter complained of the message that the plaintiff’s performance was, in some unidentified respects, less than satisfactory, but that same reader could hardly conclude that the first defendant would offer an incompetent employee a new service agreement. The matter complained of falls short of being capable of conveying an imputation of incompetence. Imputation (d)(i) will be struck out.

imputation (d)(ii)

38 For the same reasons, imputation (d)(ii) will be struck out. Further, there is no reference in the matter complained of to the plaintiff’s performance of his role as “spiritual leader”.

imputation (d)(iii)

39 The first defendant submits that the matter complained of is incapable of conveying this imputation. The plaintiff has submitted to the contrary. Nothing further was put by way of elaboration.

40 Three separate aspects of the matter complained of could provide the foundation for an imputation of dishonourable conduct. The first is the statement that the plaintiff had agreed to provide the Board with signed agreements or comments by a particular date but had, despite being reminded of his obligation, failed to do so. Although this is capable of conveying something discreditable about the plaintiff, I do not think it goes so far as to be capable of asserting anything dishonourable. The second possibility lies in the criticism of the plaintiff’s having accepted a nomination to become a member of the Board of Management together with the assertion that this was widely accepted as inappropriate. There is nothing in that alone that would suggest that to do so was dishonourable as distinct from inappropriate. An imputation of dishonourable conduct is far more serious than an imputation of inappropriate conduct. However, it was also stated that the nomination was perceived as an indication that the plaintiff had no intention of entering into a new service agreement. Together with the assertion that the plaintiff had agreed to sign the agreement or provide comments, this is, in my view, capable of conveying an imputation of dishonourable character. It is capable of suggesting that the plaintiff was devious in his dealings with the first defendant. Imputation (d)(iii) will be allowed to stand.

imputation (d)(v)

41 The only basis on which an imputation of dishonesty could be conveyed is the reference to the perception by members of the Board that the plaintiff’s nomination to become a member of the Board of Management was a clear indication that, notwithstanding his agreement, he had had no intention of entering into a new service agreement based on the terms and conditions offered by the Board. It is never stated in the matter complained of that the plaintiff had undertaken to enter into a new service agreement on the terms and conditions offered by the Board; what was earlier said was that he had undertaken to enter into the agreement or provide his comments on the proffered agreement by a specified date.

42 While it is plain that the press release is critical of the plaintiff, I think to claim that it imputes dishonesty to him is to overstate its effect. Inherent in this conclusion is an interpretation of “dishonesty” that differs from the interpretation of “dishonourable”, an imputation I have held to be capable of arising from the publication. It will be necessary, in due course, to consider whether imputations (d)(iii) and (d)(v) differ in substance for the purposes of SCR Part 67, Rule 11(3). At present it is only necessary to consider whether a decision to strike out imputation (d)(v) as incapable of being conveyed would be inconsistent with the decision to allow imputation (d)(iii) to stand – the publication being capable of conveying that imputation. I do not think there is an inconsistency. The Macquarie Dictionary (Revised edition, 1985) defines “dishonourable” as:

“showing lack of honour; ignoble; base; disgraceful; shameful … having no honour or good repute”

and “dishonest” as:
“not honest; disposed to lie, cheat or steal; … proceeding from or establishing lack of honesty; fraudulent”.

43 While the publication is capable of conveying of the plaintiff a lack of honour in his dealings with the first defendant, that is different to conveying a lack of honesty, or a disposition to lie, cheat or steal, or fraudulence.

44 I am satisfied that imputation (d)(v) is not capable of being conveyed by the fourth matter complained of. It will be struck out.

imputation (d)(ix)

45 The complaint made about imputation (d)(ix) is in substance the same as was made about, and dealt with in relation to, imputations (c)(i) and (ii): that is, that it is inappropriate to use the words “inappropriate” or “inappropriately” in an imputation because of the lack of precision. However, it does not follow that, in relation to a differently expressed publication, the success or failure of the challenge will be the same as on the previous occasion. Everything depends upon the content of the words published. The challenge to imputations (c)(i) and (ii) failed specifically because of the generality of the words (allegedly) published. In relation to imputation (d)(ix) some complications exist. The two opening paragraphs are essentially in the same general terms as the third matter complained of and are capable of conveying an imputation of inappropriate conduct otherwise unspecified. If that is the material on which the plaintiff relies to support imputation (d)(ix), then, for the reasons given in relation to imputations (c)(i) and (ii), imputation (d)(ix) should be allowed to stand.

46 But there is more in the fourth matter complained of. The word “inappropriate” is expressly used, in the context of the plaintiff’s asserted nomination to the Board of Management and the view that that is “inappropriate” for an employee of the Home. In other words, one form of so-called inappropriate conduct is specified.

47 A further specific instance of the plaintiff’s conduct that may be perceived as “inappropriate” is mentioned in the last paragraph of the matter complained of, where reference is made to “his political campaigning”, described as “particularly destabilising” and “causing obvious distress to a number of residents”.

48 There is room for the view that the “concerns regarding [the plaintiff’s] performance and the execution of his duties” are not merely his “inappropriate” nomination for a position on the Board of Management, or “his political campaigning”, but something additional to those matters – that is, that the opening paragraphs deal with a subject matter different from, and more general than, the later paragraphs.

49 Much depends upon the manner in which the plaintiff proposes to put his case to the jury, which will ultimately determine the matters committed to a jury under s7A of the Defamation Act 1974. It would be quite wrong to allow the plaintiff to plead an imputation in the terms in which imputation (d)(ix) is currently pleaded, and then rely upon the specific instances of inappropriate conduct identified in the fourth matter complained of, which I have mentioned. On the other hand, if the plaintiff proposes to rely, in support of that imputation, only on the reference to “concerns regarding his performance and the execution of his duties”, then the ruling already made in relation to imputations (c)(i) and (ii) should be applied. The plaintiff will have to determine which course he wishes to pursue. If he wishes to rely on the assertion of “inappropriate” nomination for the Board, or the assertion of the destabilising political campaigning, then it will be necessary for him to plead the imputation more specifically.

50 At this stage I will not strike out imputation (d)(ix).

imputation (d)(x)

51 Two criticisms are made of this imputation, which may be dealt with now. The first concerns the capacity of the matter complained of to convey the imputation. In support of the imputation the plaintiff referred to those passages in the media release which state that he had been offered a new service agreement but had “steadfastly delayed” in signing it or offering his comments; that he had failed to honour his undertaking to do one or other of those things; and that his nomination for the Board of Management was widely perceived as a clear indication that he had no intention of entering into a new service agreement.

52 These objections to this imputation are made good. What is clearly stated in the matter complained of is that the plaintiff’s services had been terminated and that he had been offered a new contract which he had declined to sign. Although there is material capable of conveying criticism of the plaintiff’s performance of his duties (presumably under a former contract of employment), there is nothing that suggests repudiation of his contractual obligations. Certainly his refusal to sign, or delay in signing, the proffered new contract cannot amount to a repudiation of contractual obligation.

53 This imputation is incapable of being conveyed. It will be struck out.

54 That makes it unnecessary to do more than note the criticism of the form in which the imputation is pleaded, by reason of the use of the alternative terms “reneged/repudiated”. It is sufficient to note that that complaint also is made good.

imputation (d)(xi)

55 The plaintiff argued that this imputation arises from the suggestion that he had failed to take up the new service agreement, had acted in a way that was inconsistent with the role of an employee by nominating for the Board of Management, and had destabilised the Home and caused distress to residents. These matters, even taken in combination, do not and cannot convey the imputation that the plaintiff abandoned his duties. There is no suggestion that he was under a duty to take up the new service agreement: to the extent that he had any duty, it was to comply with his promise either to sign the agreement or offer his comment. This does not involve duties to the residents. Nor can it be said that, by acting in a manner believed to be inconsistent with the role of an employee by nominating for the Board of Management, he had abandoned his duties either to the first defendant or to the residents. While the assertion that his conduct was causing destabilisation and distress was plainly critical of him, it is not capable of suggesting that he had abandoned his duties.

56 Imputation (d)(xi) will be struck out.

imputation (d)(xii)

57 This is an imputation that the plaintiff was rebellious. The defendant’s argument is that it imputes no clear act or condition to the plaintiff. In oral submissions it was argued that a description of a person as “rebellious”, far from being regarded as defamatory, might be regarded as commendatory. On the principles stated in Nikolopolous, it is necessary to construe the imputation in the context of the matter complained of. A reading of the matter complained of could leave the reader in no doubt that the plaintiff’s conduct was the subject of criticism, and stern criticism, by the first defendant in the publication of the fourth matter complained of. By no stretch of the imagination could it be thought that an imputation that the plaintiff was rebellious was seen as a matter deserving of praise. I reject the defendant’s submissions in this respect.

imputations (d)(xiii) and (xiv)

58 The first defendant has submitted that the matter complained of contained nothing capable of conveying either of the imputations that the plaintiff deliberately set out to destabilise the first defendant or to cause distress to residents. In response, the plaintiff has submitted that the destabilisation and distress was attributed, in the matter complained of, to the plaintiff’s “political campaigning” and that, inherent in political campaigning, is the idea of plan and strategy. From that, the plaintiff suggests that a reader would draw the inference that the plaintiff’s conduct was deliberate.

59 I reject the plaintiff’s submission. What the plaintiff is said to have done deliberately is to engage in political campaigning; not that the end result for which he aimed was destabilisation or distress. It is far fetched to suggest that, as part of his political campaign, the plaintiff deliberately set out to destabilise the Home or cause distress to residents.

60 Imputations (d)(xiii) and (d)(xiv) will be struck out.

imputation (d)(xvi)

61 The first challenge to this imputation is that it is incapable of arising. There is nothing in the matter complained of that directly imputes that the plaintiff was cruel. In the plaintiff’s written submissions, it is suggested that the imputation that he destabilised the Home, and the imputation that he caused distress to residents, in turn permit an inference that he was acting in a cruel and uncaring way. It is worth noting that there was no submission on the part of the first defendant that imputation (d)(xv), that he was uncaring, was incapable of being conveyed.

62 I reject the plaintiff’s argument. There is nothing in the matter complained of capable of conveying the imputation that the plaintiff was cruel.

63 Imputation (d)(xvi) will be struck out.

difference in substance

64 The first defendant argued that imputations (d)(iii), (iv), (vi), (vii) and (viii) do not differ in substance. These are, respectively, that the plaintiff is dishonourable, that he is unreliable, that he is not trustworthy, that he lacks integrity, and that he is a person who does not abide by undertakings. I accept the defendant’s contention that imputations (d)(iii), (vi), (vii) and (viii) do not, at least in the context of the matter complained of, differ in substance. I reach this conclusion notwithstanding the submissions offered on behalf of the plaintiff suggesting that “trustworthy” denotes deliberate dishonesty in dealings with others, that “integrity” is a wider concept, including dealings with others but also one’s own internal morality and that, whilst the person who is not trustworthy and lacks integrity may not abide by undertakings, the converse is not automatically true.

65 The latter point, as with a number of others in relation to this argument, has to be seen in the context of the matter complained of. The undertaking by which the plaintiff is said not to have abided is the undertaking concerning the signing of the new service agreement or provision of comments in relation thereto.

66 In the context of the matter complained of, I am satisfied that these imputations do not differ in substance. It will be necessary for the plaintiff to elect which of these he wishes to pursue.

67 In respect of imputation (d)(iv), that the plaintiff is unreliable, I do not accept the defendant’s submission that this is the same in substance as imputations (d)(iii), (vi), (vii) and (viii). Imputation (d)(iv) will stand.

68 It was also argued that imputations (d)(xv), (xvi) and (xvii) do not differ in substance. As imputation (d)(xvii) is not pressed, it is unnecessary to consider this submission. As imputation (d)(xvi) is to be struck out, it is strictly unnecessary to consider the submission in relation to imputations (d)(xv) and (xvi). I will merely note that I am of the view that the imputations do differ in substance. I would not strike out either imputation for that reason. Imputation (d)(xv) will stand.

the fifth matter complained of

69 The fifth matter complained of is said to have been published by the first and third defendants on 22 October 2002 in the form of a document headed “Statement on the termination of the services of Rabbi Y L Cohen” and distributed outside the gates of the venue of the first defendant’s annual general meeting held in October 2002. In this document it was asserted that, during a two year period prior to the election of the current Board, the previous Board had encountered issues with the plaintiff and had received many written and verbal complaints concerning his behaviour towards residents, complaints from professional staff, and that he had been counselled by management and the Board on many occasions.

70 It was asserted that the new Board was reluctant to take an immediate decision, wishing to reach a conclusion based upon their own experiences, and that it therefore entered into a new temporary arrangement on a monthly basis with the plaintiff, which was subject to review. It was stated that during March 2002 there was a serious altercation between the plaintiff and some residents which resulted in the first defendant being threatened with litigation by relatives “of the distraught residents”. It was stated that in the light of these matters the Board advised the plaintiff that a new contract would not be offered and gave him one month’s notice, but that following representations from the plaintiff, the Board resolved to give him a second chance and that during April 2002 he was reinstated on condition that he apologise publicly to the residents concerned, that he agree to abide by a code of conduct incorporated in a new agreement, and that he confirm that he had obtained independent legal advice that the contract was fair and reasonable.

71 It stated that the Board offered the plaintiff a new contract in June 2002, on the understanding that he would obtain independent legal advice and either execute the contract or suggest appropriate modifications. Notwithstanding this, the plaintiff had still neither signed the contract nor communicated to the Board the reasons why the contract was not acceptable. Following a request from the Board to finalise the matter, the plaintiff agreed to provide the Board with a signed service agreement or comment by 17 September 2002, but failed to do so.

72 The document stated that the plaintiff had still not undertaken all the conditions of his reinstatement of April 2002 and that, despite a number of warnings, he had refused to respond to reasonable directives from management concerning his conduct. It stated that the Board came to the conclusion that the plaintiff did not have the appropriate skills required of a rabbi of the Home. It stated that it had carefully considered all matters regarding the plaintiff’s employment and had resolved to terminate his employment.

73 Initially the plaintiff pleaded that no less than twenty-two imputations were conveyed by this publication. At the hearing three of these were not pressed. All others except the first were subject to objection on the part of the first and third defendants.

74 The imputations as originally pleaded are as follows:

“(e)(i) The plaintiff was incompetent in his employment with the first defendant;

(e)(ii) The plaintiff was incompetent as a spiritual leader;

(e)(iii) The plaintiff conducted himself in a way that gave rise to many written complaints from residents;

(e)(iv) The plaintiff conducted himself in a way that gave rise to many verbal complaints from residents;

(e)(v) The plaintiff conducted himself in a way that gave rise to many written complaints from staff;

(e)(vi) The plaintiff conducted himself in a way that gave rise to many verbal complaints from staff;

(e)(vii) The plaintiff was volatile;

(e)(viii) The plaintiff was unworthy of permanent employment;

(e)(ix) The plaintiff conducted himself in a way that made him a risk to employ;

(e)(x) The plaintiff was argumentative;

(e)(xi) The plaintiff was a trouble maker;

(e)(xii) The plaintiff cannot control himself;

(e)(xiii) The plaintiff is dishonourable;

(e)(xiv) The plaintiff is unreliable;

(e)(xv) The plaintiff is dishonest;

(e)(xvi) The plaintiff is not trustworthy;

(e)(xvii) The plaintiff lacks integrity;

(e)(xviii) The plaintiff is a person who does not abide by undertakings;

(e)(xix) The plaintiff conducted himself inappropriately in his employment with the first defendant;

(e)(xx) The plaintiff reneged/repudiated his contractual obligations;

(e)(xxi) The plaintiff abandoned his duties to the first defendant and its residents;

(e)(xxii) The plaintiff is rebellious.”

75 At the hearing, the plaintiff abandoned reliance on imputations (e)(xii), (xiii) and (xvi).

76 Objection on the ground of asserted incapacity of the matter complained of to convey the imputations is taken in respect of imputations (e)(ii), (xi), (xx) and (xxi). Objection on the ground of form is taken in respect of imputations (e)(iii), (iv), (v), (vi), (vii), (x), (xix), (xx) and (xxii). Objection on the ground that they do not differ in substance is taken in respect of imputations (e)(i) and (viii); imputations (e)(iii) – (xii); and imputations (e)(xiii) to (xviii). Objection on the ground that they are not capable of being defamatory is taken in respect of imputations (e)(vii) and (e)(x).

capacity

imputation (e)(ii)

77 By accepting (as they do) that the matter complained of is capable of conveying imputation (e)(i), the defendants accept that incompetence (in the plaintiff’s employment) is suggested by the publication. In considering a similar objection to imputation (a)(ii), I held that it would be open to a jury to infer that the role of a rabbi encompasses acting as a “spiritual leader”. In this publication it is asserted that the Board came to the conclusion that the plaintiff lacked “the appropriate skills” required of a rabbi of the Home. That is sufficient, in my view, to establish the capacity of the matter complained of to convey imputation (e)(ii). I reject the defendants’ challenge to this imputation.

imputation (e)(xi)

78 I also reject the contention that imputation (e)(xi) is not capable of being conveyed by the matter complained of. The publication is replete with references to the conduct of the plaintiff that allegedly caused trouble – it referred to receipt of many written and verbal complaints concerning the plaintiff’s behaviour towards residents, and complaints from professional staff; to a serious altercation between the plaintiff and some residents which resulted in threats of litigation; to numerous occasions on which the plaintiff had been counselled; to a number of warnings from the Board of Management concerning the plaintiff’s conduct, and to the decision to terminate the plaintiff’s employment. I am satisfied this is sufficient to convey the imputation that the plaintiff was a troublemaker.

imputation (e)(xx)

79 For the reasons given in relation to imputation (d)(x) the matter complained of is not capable of conveying this imputation. There is no difference of substance between the content of the fifth publication and the fourth. The tenor of each is that negotiations for a new contract were under way, but that all that existed at the time of publication was a temporary employment arrangement. The imputation is, in any event, bad in form.

80 Imputation (e)(xx) will be struck out.

imputation (e)(xxi)

81 For the reasons given in relation to the complaint concerning imputation (d)(xi), this imputation is not capable of being conveyed by the fifth matter complained of. As was the case in relation to the previous imputation, there is nothing additional contained in the fifth matter complained of that is capable of conveying an imputation that the plaintiff abandoned his duties. The criticism is of the manner in which he performed his duties, not abandonment of them. The plaintiff contends that the suggestion made in the matter complained of, that he failed or refused to sign the new service agreement offered to him, is the basis for the imputation. I reject that submission. There is, in the publication, no assertion that he was under a duty to sign the new contract.

82 Imputation (e)(xxi) will be struck out.

objections as to form

83 Objection was taken as to the form of imputations (e)(iii), (iv), (v) and (vi). The objection taken to the form of each of these imputations is that, while it amounts to an imputation of actual misconduct, the precise misconduct is unspecified in the imputation. This is, again, familiar territory. The plaintiff’s response is that he himself does not know (from the content of the matter complained of) the nature of the misconduct alleged against him, making it impossible for him to frame the imputations more specifically. It is clear that the publication is capable of conveying an imputation of misconduct, in general terms, but it is unspecific as to the nature of the misconduct asserted. In saying this I am conscious that in the matter complained of, there is specific reference to one instance of “a serious altercation” between the plaintiff and some residents, but this does not in any way elucidate any conduct of the plaintiff that gave rise to the altercation. Further, there is reference only to one incident; yet, in other parts of the matter complained of, reference is made to “many written and verbal complaints” concerning the plaintiff’s behaviour to residents; to complaints from professional staff; to many occasions of counselling; to the plaintiff’s “previous record”; to “numerous issues of dissatisfaction” with the plaintiff’s conduct and execution of his duties. These references make it plain that the criticism of the plaintiff goes well beyond the single, otherwise unspecified, instance of an “altercation”. It is quite impossible for the plaintiff further to refine these unspecified allegations of misconduct. The defendants’ objection fails.

imputation (e)(vii)

84 This imputation is that the plaintiff was “volatile”. The objection is that it is imprecise and incapable of being defamatory. I do not see any imprecision in the word “volatile”. It is a word readily comprehensible to a jury. Whether, in the ordinary course, it is capable of being defamatory is debatable, but applying the Nikolopoulos principle and interpreting the imputation in the context of the publication, it is in this instance plainly so capable. I reject the challenge to this imputation.

imputation (e)(x)

85 The objection taken to this imputation is that it conveys no precise act or condition and is in any event incapable of being defamatory. For the reasons given in relation to imputation (e)(vii) I reject each of these objections.

imputation (e)(xix)

86 For the reasons given in relation to imputation (c)(ii) I reject the challenge to the form of this imputation. In the context of the matter complained of it is capable of being defamatory.

imputation (e)(xx)

87 I have already indicated that imputation (e)(xx) will be struck out on capacity grounds. It is also bad in form.

imputation (e)(xxii)

88 For the reasons given in relation to imputation (d)(xii), I reject the complaint as to form.

difference in substance

89 The submissions put in relation to the asserted absence of difference in substance in relation to various groupings of imputations arising from the fifth matter complained of were a little confused. However, the defendants have argued that imputations (e)(i) and (viii) do not differ in substance from one another; that imputations (e)(iii) to (e)(xii) do not differ in substance from one another. The defendants addressed no written submissions to the question of difference in substance, but, in oral argument, submitted that there is a qualitative difference between written and oral complaint, and between complaints from staff and complaints from residents. This may, in some circumstances, be so, but, in the context of this publication, it is not. The substance of what was published of the plaintiff concerned the fact that he was the subject of complaint; it is incidental that these complaints were both written and oral, from residents and staff. The plaintiff will have to elect between these imputations, or alternatively reframe an imputation that more accurately captures the substance of what was published of him.

90 I am satisfied that imputations (e)(i) and (viii) do differ in substance; the former is an imputation of incompetence, the latter of unworthiness. The notion of unworthiness has a moral dimension different from incompetence. I am, however, also satisfied that imputation (e)(xi) does not differ in substance from imputations (e)(iii) – (vi); and nor does imputation (e)(ix). Imputations (e)(vii) and (e)(x) are in a different category. Imputation (e)(viii), of employment unworthiness, is different in substance. Imputations (e)(xii), (xiii) and (xvi) are not pressed.

91 The plaintiff will have to elect between imputations (e)(ii) – (vi), (e)(ix) and (e)(xi).

92 The remaining complaint concerns, therefore, imputations (e)(xiv), (xv), (xvii) and (xviii). The notions of dishonesty, lack of integrity and a failure to abide by undertakings are capable, in appropriate circumstances, of conveying different things, however, in the context of this matter complained of they do not.

93 The plaintiff will have to elect between imputations (e)(xv), (xvii) and (xviii).

94 I am of the view that imputation (e)(xiv), of unreliability, is in a slightly different category and will be allowed to stand.

the sixth matter complained of

95 The plaintiff pleads that the sixth matter complained of was published on 22 October 2002 by the first, third and fourth defendants, in the form of a document posted on a web site identified as JewsINOZ, and was published at large. The content is identical with the fifth matter complained of and the imputations pleaded as having been conveyed by it are also identical. Not surprisingly, the objections and the responses are likewise identical. They will be resolved in the same way as those relating to the fifth matter complained of. Imputations (f)(xx), and (f)(xxi) will be struck out. The plaintiff will be required to elect between imputations (f)(iii) – (vi), (ix) and (xi); and between imputations (f)(xv), (xvii) and (xviii).

the seventh matter complained of

96 The plaintiff pleads that the seventh matter complained of was published on 22 October 2002 by the first and third defendants in the form of a document addressed to “Dear Friends and Supporters of the Home” and was distributed to addressees, by being placed on the first defendant’s notice board, and, being made available to the press and to the community at large.

97 The document opens by stating that the plaintiff and another named person had nominated for “the Board” (an obvious reference to the Board of Management of the first defendant). The document states that each of the individuals “has a narrow agenda based upon dictating the level of religious observance at the Home” and that they wish to impose their agenda upon all residents of the Home and that the Board vigorously opposes such an agenda. It states:

“We believe that the Home should exist for all Jewish people to practice (sic) whatever level of religious observance that they may choose. It is our view that no one should be given a mandate to dictate the level of religious observance or (sic) our residents.”

98 The document concludes by urging recipients to attend and vote at a forthcoming annual general meeting.

99 The plaintiff pleads that seven imputations defamatory of him were conveyed by this publication. They are:

“(g)(i) The plaintiff is a religious extremist;

(g)(ii) The plaintiff seeks to impose his level of religion on all residents of the first defendant;

(g)(iii) The plaintiff is intolerant of others level of observance;

(g)(iv) The plaintiff is narrow minded;

(g)(v) The plaintiff is dictatorial in his style of leadership;

(g)(vi) The plaintiff is autocratic in his style of leadership.”

At the hearing the last imputation was abandoned.

100 A capacity challenge is taken to each of the imputations. Objection on the ground that they do not differ in substance is taken in relation to imputations (g)(iii), (iv), (v) and (vi). Objection on the ground that the imputation is not capable of being defamatory is taken in respect of imputation (g)(ii).

capacity

imputation (g)(i)

101 I am satisfied that imputation (g)(i) overstates the effect of the publication. Certainly, the content of the document expresses criticism of the plaintiff in relation to his religious views, or, more particularly, the extent to which it is said he seeks to impose those on others. However, in my opinion, it falls short of having the capacity to suggest that the plaintiff is “a religious extremist”.

102 Imputation (g)(i) will be struck out.

imputation (g)(ii)

103 Just why a challenge is propounded to the capacity of the matter complained of to convey an imputation which is in terms virtually wholly drawn from the matter complained of is not clear to me. The document states in terms that:

“they” [meaning the plaintiff and the other individual] “wish to impose this agenda upon all residents of the Montefiore Home”.


The matter complained of is capable of conveying the imputation as pleaded. It will be allowed to stand.

imputation (g)(iii)

104 Intolerance of the level of religious observance elected by others is a concomitant of an attempt to impose a level of religious observance on others. Although the terminology used in the imputation as pleaded is not directly drawn from the matter complained of, the document is clearly capable of conveying that imputation. I reject the challenge based on capacity.

imputation (g)(iv)

105 I am also satisfied that imputation (g)(iv) is capable of being conveyed. The matter complained of suggests intolerance, and a narrow approach to religious views. Imputation (g)(iv) is capable of being conveyed.

imputation (g)(v)

106 I am satisfied that this imputation is capable of being conveyed by the publication. The foundation for the imputation is the assertion that the plaintiff has a narrow agenda based upon dictating the level of religious observance at the Home, and that he wishes to impose his agenda on all residents of the Home.

difference in substance

107 The defendant also took objection to imputations (g)(iii), (iv), (v) and (vi) on the basis that they do not differ in substance from the others.

108 No similar challenge was made to imputations (g)(ii) and (iii). Notwithstanding the absence of such objection, I am satisfied that imputations (g)(ii) and (iii) do not differ in substance from one another. I have already observed that the one is merely the concomitant of the other. The plaintiff will have to elect on which of these imputations he wishes to proceed.

109 I am also satisfied that imputation (g)(iv) does not differ in substance from these imputations and neither does imputation (g)(v). Each of the imputations pleaded in relation to this matter complained of is merely a different way of conveying the same concept. The plaintiff will have to elect on which imputation he wishes to proceed.

the eighth matter complained of

110 The eighth matter complained of is attributed to the first and second defendants and is said to have been published on 14 October 2002 in the presence of a Mrs Coral Daubney. The plaintiff pleads that the matter complained of took the form of a telephone conversation between the plaintiff and the second defendant. The plaintiff asserts that the second defendant said that he was trying to figure out why, when he dialled the mobile telephone number previously provided to the plaintiff, he still reached the plaintiff’s home. To this the plaintiff replied that he did not know and that he had returned the SIM card as requested. The second defendant said that the telephone still rang at the plaintiff’s home when he dialled the number. To that the plaintiff asked if the second defendant was accusing him of theft. The second defendant denied this, but said that he did not understand why the telephone still rang at the plaintiff’s home. The plaintiff asked if the second defendant was accusing him of being dishonest to which the second defendant replied that he was only trying to resolve the problem.

111 Initially objection was taken on behalf of the defendants on the basis that, prima facie, any defamatory imputation made by the second defendant was published only to the plaintiff himself and that the particularisation of the presence of Mrs Daubney did not extend to asserting that she could hear both sides of the conversation. In his written submissions, counsel for the plaintiff said that Mrs Daubney was in the plaintiff’s office and picked up another extension during the conversation. The defendants did not then press that objection. Initially, the plaintiff pleaded that four imputations were conveyed by this conversation. They were:

“(h)(i) The plaintiff does not act in accordance with his position as rabbi;

(h)(ii) The plaintiff is dishonest;

(h)(iii) The plaintiff is not trustworthy;

(h)(iv) The plaintiff lacks integrity.”

112 At the hearing, imputations (h)(i) and (iii) were abandoned leaving only the imputations of dishonesty and lack of integrity.

113 Objection was taken to both imputations on capacity grounds, and on the ground that they do not differ in substance.

114 For reasons given in relation to imputations (e)(xv) and (xvii) above, these two imputations do not differ in substance.

115 More fundamental is the capacity argument. The pleading shows that, to the extent that any suggestion was made about dishonesty or lack of integrity on the part of the plaintiff, it was made by the plaintiff himself and denied by the second defendant. In my opinion, a mere query as to why the telephone continued to ring at the plaintiff’s home is not capable of conveying an imputation of dishonesty or lack of integrity to anyone other than a person with an unduly suspicious mind. Nor are the second defendant’s responses to the plaintiff’s questions sufficient to convey such an imputation – the second defendant specifically denied any such accusation.

116 Imputations (h)(ii) and (h)(iv) will be struck out.

the ninth matter complained of

117 The ninth matter complained of is said to have been published in September 2002 by the first and third defendants in the form of a conversation between the third defendant and two rabbis of the Jewish community whose identities are presently not known to the plaintiff. The words attributed to the third defendant are:

“Rabbi Cohen is imposing his religious attitudes on the residents. The other night he insisted that the evening meal be served at 6.20 pm instead of the usual 5.00 pm. Many of the residents require medication and the change in meal times is upsetting and distressing.”

118 From this short statement the plaintiff pleaded that six defamatory imputations (of which one was subsequently abandoned) were conveyed. He pleads them as follows:

“(i)(i) The plaintiff is dictatorial in his duties with the first defendant;

(i)(ii) The plaintiff is intolerant;

(i)(iii) The plaintiff acts contrary to Jewish law (by placing performance of commands above health and welfare of residents);

(i)(iv) The plaintiff is cruel;

(i)(v) The plaintiff is callous;

(i)(vi) The plaintiff is insensitive to the needs of the residents.”

119 The plaintiff conceded that imputation (i)(iii) could not be conveyed by the natural and ordinary meaning of the statement attributed to the third defendant and would have to be pleaded as a true innuendo; he abandoned reliance on imputation (i)(v). Each remaining imputation was challenged as to capacity. Imputations (i)(i), (ii), (iv) and (v) were challenged as not differing in substance. Imputation (i)(iii) was challenged as to its capacity to be defamatory.

120 I am satisfied that imputations (i)(i) and (ii) are capable of being conveyed by the statement. Having regard to the concession made on behalf of the plaintiff, it is unnecessary to consider the capacity of the statement to convey imputation (i)(iii); I am satisfied that the statement is incapable of conveying imputation (i)(iv). The matter complained of falls short of conveying any assertion of cruelty. It is, however, capable of conveying an imputation of insensitivity as pleaded in imputation (i)(vi). Imputation (i)(iv) will be struck out. It was also contended that imputations (i)(i) and (ii) do not differ in substance and I accept this submission. The plaintiff will have to elect between these imputations. It is unnecessary to consider a similar submission made in relation to imputations (i)(iv) and (v).

the tenth matter complained of

121 The tenth matter complained of is said to have been published on 6 January 2003 by the first and third defendants in the form of an interview between the third defendant and a journalist with the Sydney Morning Herald. As originally pleaded the matter complained of appears to be taken directly from a news report in the Sydney Morning Herald. In response to the defendants’ criticism, the plaintiff has sought to replead this matter by pleading only the words attributed to the third defendant. I will deal with the challenges on the basis of the proposed amendment.

122 The third defendant was reported to have said that the plaintiff had been asked to leave the first defendant’s Home “because he is too religious”; that the Board had not succeeded in evicting him from the facility’s adjoining residence and that he remained inside the house despite being ordered to vacate by the previous Monday; that the Board had informed the plaintiff early the previous year that it would not be renewing his employment contract and that the plaintiff had responded by circulating a petition against his dismissal among the residents, some of whom may not have comprehended what they were signing. It was reported that the plaintiff had been advised not to enter the facility’s synagogue nor to approach any of the residents.

123 The third defendant is reported to have said:

“The rabbi is too zealous in pushing his orthodox practices, including his efforts to persuade male residents to don yarmulka’s (sic) for the evening meal.
In one instance, he attempted to postpone a meal for almost ninety minutes to accommodate a minor religious festival.
He was trying to push onto residents, elderly residents, a level of religion and religious observance many were not even interested in hearing about … People of that age are entitled not to be pressured. Some of the residents were very upset and distressed by it all. …
The decision to demand his departure from the house had to be taken as a measure of last resort. We have been asking him to vacate in as nice a way as we could under the circumstances since the beginning of October. We even offered to pay removal fees, and the first sixty days’ rent. We’ve shown him every opportunity and courtesy, yet we’ve had nothing but heartache and headache from a spiritual leader.”

124 From this, the plaintiff pleaded that nineteen defamatory imputations were conveyed. They were:

“(j)(i) The plaintiff was incompetent in his employment with the first defendant;

(j)(ii) The plaintiff was incompetent as a spiritual leader;

(j)(iii) The plaintiff has no regard for the law;

(j)(iv) The plaintiff is obstructive;

(j)(v) The plaintiff conducts himself in a way that suggest (sic) he is above the law;

(j)(vi) The plaintiff takes advantage of the elderly for his own gain;

(j)(vii) The plaintiff is dishonest;

(j)(viii) The plaintiff is not trustworthy;

(j)(ix) The plaintiff lacks integrity;

(j)(x) The plaintiff is a religious zealot;

(j)(xi) The plaintiff is a religious extremist;

(j)(xii) The plaintiff is intolerant of others level of observance;

(j)(xiii) The plaintiff acts contrary to Jewish law (by placing performance of commands above health and welfare of residents);

(j)(xiv) The plaintiff is dictatorial in his leadership of the home;

(j)(xv) The plaintiff is insensitive to the needs of the elderly;

(j)(xvi) The plaintiff is greedy;

(j)(xvii) The plaintiff is obstinate;

(j)(xviii) The plaintiff is rude;

(j)(xix) The plaintiff is obnoxious.”

125 On the hearing the plaintiff abandoned reliance on imputations (j)(xi), (xiii), (xviii) and (xix).

126 On behalf of the defendants it was submitted that no imputations other than imputations (j)(x), (xi) (which was not pressed), (xv) and (xvii) are capable of being conveyed by the matter complained of. It was further argued that imputation (j)(x) was not capable of being defamatory, and that imputations (j)(vii) – (ix) do not differ in substance.

capacity

imputations (j)(i) and (ii)

127 These are imputations of incompetence in employment or as a spiritual leader. The tenor of the words attributed to the third defendant concern over-zealousness in religious observance, and attempts by the plaintiff to impose his own level of religious observance on others. This does not and cannot amount to an accusation of incompetence of any kind, and not in either of the other respects pleaded.

128 The matter complained of is incapable of conveying an imputation of incompetence either in employment or as a spiritual leader. Imputations (j)(i) and (ii) will be struck out.

imputation (j)(iii)

129 This imputation is that the plaintiff “has no regard for the law”. Presumably, the drafter of the imputation read the reference in the matter complained of to an order to vacate the house he occupied as having the force of law, or a court order. There is, however, nothing in the matter complained of that could reasonably give rise to that inference. Imputation (j)(iii) is incapable of being conveyed. It will be struck out.

imputation (j)(iv)

130 This is an imputation that the plaintiff is obstructive. The word “obstructive” does not adequately capture what is imputed to the plaintiff. The plaintiff relied upon those parts of the matter complained of in which it is said that he refuses to vacate the premises but I do not think that these convey an imputation of obstructiveness. Imputation (j)(iv) will be struck out.

imputation (j)(v)

131 This imputation is said to depend upon the same matters as imputation (j)(iii) and for the reasons given in relation to that imputation, I am satisfied that it is not capable of being conveyed. It will be struck out.

imputation (j)(vi)

132 This is an imputation that the plaintiff takes advantage of the elderly for his own gain. There is not the slightest suggestion in the matter complained of that the plaintiff took advantage of the elderly, much less that he did so for his own gain. The matter complained of is incapable of conveying this imputation. Imputation (j)(vi) will be struck out.

imputations (j)(vii) – (ix)

133 There is no suggestion of dishonesty on the part of the plaintiff. Imputation (j)(vii) will be struck out. It follows (consistently with the reasoning in relation to imputations (d)(v) and (vii)) that the matter complained of is also incapable of conveying an imputation that the plaintiff lacks integrity. Imputation (j)(ix) will be struck out.

134 Nor is the matter complained of capable of conveying an imputation that the plaintiff is not trustworthy. Imputation (j)(viii) will be struck out.

imputation (j)(xii)

135 This is an imputation that the plaintiff is intolerant of the level of observance practised by others. I am satisfied that this imputation is capable of being conveyed. The third defendant is reported to have said that the plaintiff was trying to push onto elderly residents a level of religion and religious observance many were not interested in hearing about. This is capable of conveying the imputation as pleaded.

imputation (j)(xiv)

136 The matter complained of falls short of imputing that the plaintiff is dictatorial in his leadership of the Home, although it is plainly critical of his level of zealotry. The imputation as pleaded overstates what is capable of being conveyed by the matter being complained of. Imputation (j)(xiv) will be struck out.

imputation (j)(xvi)

137 This is an imputation that the plaintiff is greedy. Presumably, it is drawn from the final paragraph in the matter complained of, indicating that, notwithstanding what might be interpreted as a reasonably generous financial offer in relation to removal expenses, the plaintiff had refused to vacate the premises which he had occupied. In the context of the whole of the matter complained of, I am satisfied that any imputation conveyed by the matter complained of does not include greed, but is to do with the plaintiff’s determination to maintain his position. Imputation (j)(xvi) will be struck out.

138 Imputations (j)(vii) to (ix) having been struck out, it is unnecessary to consider the argument that they do not differ in substance.

imputation (j)(x)

139 It was not contended that the matter complained of is not capable of conveying this imputation, but rather that it is not capable of being defamatory. I reject this. The word “zealot” has connotations which are unfavourable.

the eleventh matter complained of

140 The eleventh matter complained of is said to have been published on 3 October 2002 by the first and second defendants in the form of an interview between the second defendant and a journalist with The Australian Jewish News. It is pleaded as follows:

“There were two reasons – Rabbi Cohen had repeatedly failed to sign the new employment contract, and he had nominated for election to the Montefiore board of management. Rabbi Cohen’s contract was up in January 2002. He was offered a new contract in June. He had neither signed it, nor even commented on it, despite promising to do so by September 17. He then nominated for the board which was inappropriate given that he was an employee of the home. The board believed this was a clear indication that he had no intention of entering a new agreement. We feel we gave him enough time to sign the agreement.”

141 The plaintiff pleaded that this publication conveyed eight imputations defamatory of him. He pleaded them in the following terms:

“(k)(i) The plaintiff is dishonourable;

(kj)(ii) The plaintiff is unreliable;

(k)(iii) The plaintiff is dishonest;

(k)(iv) The plaintiff is not trustworthy;

(k)(v) The plaintiff lacks integrity;

(k)(vi) The plaintiff is a person who does not abide by undertakings;

(k)(vii) The plaintiff reneged/repudiated his contractual obligations;

(k)(viii) The plaintiff abandoned his duties to the home and its residents.”

142 At the hearing the plaintiff abandoned reliance upon imputations (k)(i) and (iv).

143 The defendant has raised capacity arguments in relation to each imputation and also argued that imputations (k)(i) – (vi) do not differ in substance and that imputation (k)(vii) is bad in form.

capacity

144 I accept the submission advanced on behalf of the defendants that there is nothing in the matter complained of capable of conveying imputations of unreliability, dishonesty or lack of integrity. Accordingly, imputations (k)(ii), (iii) and (v) will be struck out. The matter complained of is capable of conveying the imputation that, on at least one occasion, the plaintiff did not abide by an undertaking. Imputation (k)(vi) will stand.

145 It is therefore unnecessary to consider whether the imputations differ in substance.

146 For reasons given in relation to imputation (d)(x), imputation (k)(vii) is not capable of being conveyed and is bad in form. It will be struck out.

imputation (k)(viii)

147 There is nothing in the matter complained of that is capable of suggesting that the plaintiff abandoned his duties to the Home or its residents. This imputation will be struck out.

true innuendo

148 The plaintiff has also pleaded that, by reason of certain extrinsic facts, known to some recipients of the various matters complained of, all eleven matters complained of conveyed additional defamatory imputations. The additional imputations are pleaded as follows:

“13(a) The plaintiff is a hypocrite;

(b) The plaintiff is not worthy of the title of rabbi;

(c) The plaintiff is not worthy of holding the position of rabbi;

(d) The plaintiff does not act in accordance with fundamental principles and tenants (sic – tenets) of his faith, which by virtue of his position, he is obliged to uphold;

(e) The plaintiff does not act in accordance with fundamental principles and tenants (sic – tenets) of his faith, which by virtue of his position, he is obliged to impart to his congregants;

(f) The plaintiff acts contrary to Jewish law by elevating the importance of observance of festivals and the rituals associated therewith over the health and welfare of his congregants.”

149 The defendants argued that imputations 13(b) and (c) and imputations 13(d) and (e) do not differ in substance. Imputations 13(b) and (c) are that the plaintiff is not worthy of the title ((b)) or of holding the position ((c)) of rabbi. Counsel for the plaintiff sought to show that there is a difference in substance between worthiness to hold the title and worthiness to hold the position. The attempt failed. There is no difference in substance between contextual imputations 13(b) and (c). Imputations 13(d) and (e) each contain an assertion that the plaintiff does not act in accordance with fundamental principles and tenets of his faith, which, by virtue of his position, he is obliged to uphold and impart to his congregants. I accept the submission made on behalf of the defendant that these two imputations do not differ in substance from one another. The plaintiff will be required to elect between imputations 13(b) and (c), and imputations 13(d) and (e).

150 Also argued on behalf of the defendants was that, even taking into account any assumed knowledge of the extrinsic facts pleaded, the matters complained of are incapable of conveying any of the pleaded imputations. The extrinsic facts are pleaded as follows:

“14 An orthodox rabbi must abide by the fundamental principles and tenants (sic – tenets) of the Jewish faith, which include:
(a) being kind;
(b) being caring;
(c ) being generous;
(d) being honest;
(e) being decent;
(f) being law abiding;
(g) resolving disputes not fostering them;
(h) placing the health and life of a person above the fulfilment or observance of festivals and commands.”

151 It is somewhat regrettable that the true innuendo imputations are pleaded in the global fashion that they are. However, no point was taken in this regard, and, it seems to me, that the pleadings should be read as intending to assert that each individual matter complained of, when read in the light of the extrinsic facts pleaded, conveys the true innuendo imputations pleaded. It is therefore necessary to return to each publication of which complaint is made.

the first and second matters complained of

152 There is not a word in the first and second matters complained of that, even taken together with the extrinsic facts pleaded, suggests that the plaintiff is a hypocrite, that he is unworthy of the title or position of rabbi, that he fails to act in accordance with the fundamental principles of his faith, or that he acts contrary to Jewish law in the manner described. So far as it relates to the first matter complained of paragraph 13 of the statement of claim will be struck out.

the third matter complained of

153 Similarly, there is nothing in the third matter complained of that, even with knowledge of the extrinsic facts, could convey any of the imputations pleaded. Paragraph 13, so far as it relates to the third matter complained of, will be struck out.

the fourth matter complained of

154 The extrinsic facts add nothing to the fourth matter complained of which would enable it to convey the imputations. There is nothing that could convey any of these imputations. Paragraph 13, so far as it relates to the fourth matter complained of, will be struck out.

the fifth and sixth matters complained of

155 Each of these publications contains an assertion of a serious altercation between the plaintiff and some residents which resulted in the first defendant being threatened with litigation. That matter suggests a contradiction between the fundamental principle and tenets of the Jewish faith set out in paragraph 14, and the plaintiff’s behaviour. I do not accept that these publications, in the light of the extrinsic facts, are capable of conveying imputations 13(a) or (f), but they are capable of conveying imputations 13(b) or (c) and 13(d) or (e).

the seventh matter complained of

156 The seventh matter complained of, even taken together with the extrinsic facts, is not capable of conveying any of the imputations. Paragraph 13, so far as it relates to the seventh matter complained of, will be struck out.

the eighth matter complained of

157 For reasons already given, the eighth matter complained of, even taken together with the extrinsic facts, is incapable of conveying any of the imputations. Paragraph 13, so far as it relates to the eighth matter complained of, will be struck out.

the ninth matter complained of

158 The ninth matter complained of consists of the short statement attributed to the third defendant. There is an explicit reference therein to the plaintiff insisting that the evening meal be served much later than normal, despite the medication requirement of many residents. Taken together with the extrinsic facts, this publication is capable of conveying imputation 13(f), but no other true innuendo imputation.

the tenth matter complained of

159 For the reasons given in relation to the ninth matter complained of, this publication is capable, when taken with the extrinsic facts, of conveying imputation 13(f) but no other true innuendo imputation.

the eleventh matter complained of

160 There is nothing in the eleventh matter complained of, even taken with the extrinsic facts, that could convey any of the true innuendo imputations. So far as it relates to the eleventh matter complained of, paragraph 13 of the statement of claim will be struck out.

161 The orders I make are:

(i) Imputations (a)(ii), (a)(iii), (a)(iv) and (a)(v) are struck out.

(ii) Imputations (b)(ii), (b)(iii), (b)(iv) and (b)(v) are struck out.

(iii) Imputation (c)(ii) is struck out.

(iv) Imputations (d)(i), (d)(ii), (d)(v), (d)(x), (d)(xi), (d)(xiii), (d)(xiv) and (d)(xvi) are struck out.

(v) Imputations (e)(xx) and (e)(xxi) are struck out.

(vi) Imputations (f)(xx) and (f)(xxi) are struck out.

(vii) Imputation (g)(i) is struck out.

(viii) Imputations (h)(ii) and (h)(iv) are struck out.

(ix) Imputation (i)(iv) is struck out.

(x) Imputations (j)(i), (j)(ii), (j)(iii), (j(iv), (j)(v), (j)(vi), (j)(vii), (j)(viii), (j)(ix), (j)(xiv) and (j)(xvi) are struck out.

(xi) Imputations (k)(ii), (k)(iii), (k)(v), (k)(vii) and (k)(viii) are struck out.

(xii) Paragraph 13 will be struck out in relation to the first, second, third, fourth, seventh, eighth and eleventh matters complained of.

(xiii) In the ninth and tenth matters complained of imputations 13(a), (b), (c), (d) and (e) will be struck out.

(xiv) The plaintiff is to have liberty to replead.

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Last Modified: 06/24/2003