Barach v The University of New South Wales

Supreme Court of NSW|2010-12-14|Before: Kirby J

JUDGMENT 1In or about September 2008 the University of New South Wales (the first defendant) appointed Dr Paul Randall Barach (the plaintiff) as the Director of the New South Wales Injury Risk Management Research Centre. The appointment was for a period of five years. The plaintiff asserts that he was to be made the Professor of Injury Risk Management at the University at the expiration of that term. However, in 2009 allegations were made against him. On 5 June 2009 the Deputy Vice Chancellor, Professor Richard Henry (the sixth defendant), wrote to Dr Barach providing particulars of each allegation. He invited a response. Ultimately, on 23 June 2009, the University terminated his employment. 2Dr Barach, by an amended statement of claim dated 14 July 2010, commenced an action in defamation naming eight defendants and identifying seventeen matters complained of. The matters complained of, in many cases, were conversations between academics and personnel at the University. It may be useful, at this point, to identify the eight defendants: first defendant : The University of New South Wales second defendant : Professor Raphael Hilary Grzebieta, the Professor of Road Safety at the New South Wales Injury Risk Management Research Centre ("IRMRC") third defendant : Professor Ann Williamson, the Professor of Aviation at the University fourth defendant : Associate Professor Andrew McIntosh at the School of Risk and Safety Sciences within the Faculty of Science fifth defendant : David Michael Ward, the Director of Human Resources at the University sixth defendant : Professor Richard Henry, a Professor of Paediatrics and Deputy Vice Chancellor (Academic) at the University seventh defendant : Harold Karaka, a private investigator said to live in the United States of America eighth defendant : Lori Mooren, Senior Research Fellow at the IRMRC 3Appearances have been filed by all but the seventh defendant. On the 22 September 2010 an order for substituted service on the seventh defendant was made by Rothman J. A separate notice of motion has been filed on behalf of the seventh defendant seeking to set aside service by that means and declare that the Court has no jurisdiction in respect of him. That motion has not yet been heard. 4The remaining defendants have objected to a number of imputations in the amended statement of claim. Mr Sibtain of counsel appears for the University (first defendant). Mr Richardson of counsel appears for the remaining defendants, apart from the seventh defendant. There was no appearance for the seventh defendant. 5Mr Richardson, at least in respect of the imputations which depend upon true innuendo (in six of the matters complained of), adopted a slightly different position to Mr Sibtain. In his view the capacity argument in respect of such imputations should await the evidence of extrinsic facts to be called by the plaintiff and will ultimately depend upon the facts proved (T4). Mr Richardson confined his submissions, at this stage, to a number of particular matters. 6Let me deal with each matter in turn.

First matter complained of. 7The first matter complained of identifies a conversation in or about May 2009 between Professor Raphael Grzebieta (the second defendant) and Professor Chris Winder, that was said to be in these terms: "Paul Barach is a fraud and has lied and misused funds of the Injury Risk Management Research Centre. He does not have a Masters degree, and although he claimed in his CV to have served in the Army he didn't do so. He has not written certain of the articles that he claimed to have written in his CV. He is a narcissistic bully." 8The plaintiff pleaded the following imputations said to arise from the natural and ordinary meaning of the words spoken: "12.1 Paul Barach is a fraud; 12.2 Paul Barach is a liar; 12.3 Paul Barach is a thief; 12.4 Paul Barach embezzled money from the IRMRC; 12.5 Paul Barach is a conman; 12.6 Paul Barach falsely claimed that he had a Masters Degree; 12.7 Paul Barach fraudulently claimed in his CV to have served in the Army; 12.8 Paul Barach falsely claimed in his CV to have written and published certain articles; and 12.9 Paul Barach is a narcissistic bully." 9The first defendant, in written submissions, objected to all but 12.1, 12.5 and 12.7. During argument, the objections to 12.6 and 12.8 were not pressed (T7). Dealing with the remaining objections, it was said that imputation 12.2 ( the plaintiff is a liar ) does not differ in substance from imputation 12.1 ( the plaintiff is a fraud ). It was submitted that fraud is deception. Lying is simply one form of deception, although the defendant acknowledged that lying is a discrete act, separate from its consequences, whereas fraud tends to suggest that a benefit has been obtained by means of the deception (T3). 10The plaintiff responded by drawing attention to the words spoken. The second defendant began by saying: "Paul Barach is a fraud and has lied", making an emphatic distinction between lying and fraud. Moreover, the remaining words spoken include the misuse of funds, adding to the notion of fraud. They are two different concepts, fraud and lying. 11I accept the plaintiff's submissions. To label someone "a fraud" is to comment upon his or her general character. The expression has a pervasive quality. Lying is a far more restricted concept. A person of good character may tell a lie and be described as "a liar". No doubt much will depend upon the nature of the lie and the circumstances in which it was told. Lying is some evidence that a person is "a fraud". Here, the speaker, in the matter complained of, makes the general charge ("a fraud") and then assembles the evidence. The evidence includes, but is not restricted to, lying. The two imputations, I believe, are different in substance. Imputation 12.2 should go to the jury. 12Moving to imputation 12.3 ( the plaintiff is a thief ) the first defendant submitted that the imputation was not reasonably capable of arising. The context was important. It was a discussion between two academics. The plaintiff was an academic managing the funds of the Injury Risk Management Research Centre. He was not a "fly by night thief". There is no suggestion that the plaintiff had committed theft or larceny. The speaker used the word "misuses", meaning that he had inappropriately used. He did not use the word "misappropriated". The imputation therefore puts a strained interpretation upon the words "misused funds of the Injury Risk Management Research Centre" (T5 and T6). 13The plaintiff responded by drawing attention to the test set out in the judgment of Hunt CJ at CL in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165. The issue is capacity and the test is relatively undemanding. The defendant is only entitled to have the imputation rejected if it is a "strained or forced or utterly unreasonable interpretation" of the words spoken. The plaintiff acknowledged that the context was important. The context was a list of pejoratives, describing the plaintiff's character, furnishing examples of the lies said to have been told (no Masters Degree, no Army service and not the author of articles he claimed to have written). In the same breath, he was condemned for having "misused funds" of the Research Centre. In that context, according to the plaintiff, the words were capable of suggesting that he had stolen money; that he had misused research funds, as though they were his own, when it was the money of the Research Centre. According to the plaintiff, the words in context were capable of supporting the general charge that he was a thief (T6). 14Dealing with these submissions, the imputation is, I believe, reasonably capable of arising. I agree that the context is important and does include the general charges that he is a fraud and a liar. The issue may perhaps be tested in this way: were the words spoken capable of suggesting, for instance, that the plaintiff misused the funds of the Research Centre for long lunches or for private research, that is research which had nothing to do with the important public policy objectives of the Centre. I believe they could. With a certain amount of loose thinking, such expenditure is capable of being regarded as "theft" and the person responsible, a thief. I would allow imputation 12.3 (cf para 20 infra). 15Imputation 12.4 ( Paul Barach embezzled money from the IRMRC ) is objected to by the first defendant on the basis of capacity. There is not, according to the defendant, any suggestion of embezzlement. The plaintiff responded by drawing attention to the judgment in Jones v Skelton (1963) SR (NSW) at 644, where the ordinary reasonable meaning included, not only the literal meaning of the words published, but those meanings that may be implied or inferred (at 650). 16Dealing with these submissions, my first reaction was that the imputation was strained and unreasonable. The word "embezzle" suggests a specific criminal offence and a matter for the police. The conversation is between two academics. The flavour is scandal and disciplinary (long lunches and inappropriate research) rather than a specific crime. 17What assistance, if any, do the dictionaries provide? The Oxford Dictionary includes the following meaning of "embezzle": "To make away with (provisions, money, etc.); esp. to carry off secretly (what belongs to another person) for one's own use." 18The Oxford goes on to provide, as "the only current sense", the following definition: "To divert to one's own use (money, etc.) in violation of trust or official duty." 19The Macquarie Dictionary provides a definition in these terms: "to appropriate fraudulently to one's own use, as money or property entrusted to one's possession." 20There is certainly the suggestion that the plaintiff misused for his own purposes (and perhaps the purposes of others) funds entrusted to him. Nonetheless, the words used in the matter complained of are fairly mild. He "misused" funds. The speaker did not say he "misappropriated" funds. Although the dictionary definitions have made me hesitate, I believe nonetheless that the imputation is not reasonably capable of arising. I am conscious of the fact that I have allowed the last imputation (12.3) and that theft is a crime. However, in ordinary discourse, where someone wrongly or inappropriately uses another's money, some, to make a point, will call it "theft", even though they would not see it as a matter for the police or a matter warranting criminal proceedings. I believe therefore that imputation 12.3 is rather different from imputation 12.4. I would reject imputation 12.4. 21The final imputation, the subject of objection in respect of the first matter complained of, is imputation 12.9 ( Paul Barach is a narcissistic bully ). The imputation, according to the first defendant, is bad in form. It does not identify an "act or condition". Rather, it rolls up two separate and unrelated concepts, narcissism and bullying. It's rather like saying someone is a murderer and has bad fashion sense (T7) or that the plaintiff is a tax -avoiding thug (T59). Such imputations lack cohesion, just as "narcissistic bully" lacks cohesion or "inaptly captures a single condition". 22There is an obligation in these circumstances, according to the defendant, to separate the two concepts. An additional concept may only be introduced into an imputation where it relevantly qualifies the core concept in the imputation. Here, narcissism is a complex medical condition (T9), which does not qualify in any meaningful way the suggestion of bullying. Further, the fact that the speaker chose to combine the two words is not determinative. 23Reference was made to a number of authorities that have condemned the reproduction of the words used in the matter complained of. In Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 Hunt J said this (at 678): "What the plaintiff must plead as the imputation upon which he relies is, in my opinion, the precise act or condition asserted of, or attributed to, him, or with which he is charged. Words are but instruments which men use to express and convey their meaning: Lewis v Daily Telegraph Ltd . (99), but, outside of legal documents, it is recognised that words are imprecise instruments for that purpose: Slim v Daily Telegraph Ltd. (100). Yet it is the meaning alleged to have been conveyed by the words, rather than the words themselves which it is important to have precisely defined in the imputation complained of by the plaintiff. In very few cases would it be sufficient merely to repeat the wording of the matter complained of itself. Very rarely is that act or condition stated expressly in the matter complained of; rather is it more usually implied or to be inferred: Jones v Skelton (101)." (emphasis added) 24Some years later, Hunt AJA returned to the issue in Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255, where at [122] he made reference to Feros v West Sydney Radio Pty Ltd (Court of Appeal, 22 June 1982, unreported). In that case, Samuels JA (Moffitt P and Reynolds JA agreeing) said this (at 5): "It is not always sufficient that an imputation should repeat the language of the matter published. Sometimes that will be enough, but more often an imputation must distil rather than recapitulate". 25Samuels JA went on to say (at 6): "There are two matters of general relevance which the proceedings raise. It is essential that imputations should be clear and precise. This standard will often not be met merely by adopting the language of the matter published. It must be borne in mind that the purpose of an imputation is to specify the meaning which the language of the matter, which may be imprecise or rambling and prolix, is alleged to convey. I add also that the elucidation of the meaning of an imputation should not be left to an application for particulars. Hence an imputation may need to be couched in terms significantly different from those which the matter employs." (emphasis added) 26In Harvey , Hunt AJA, commenting upon the issue, added these words at [121]: "121 In Petritsis [ Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174], Samuels JA said (at 191) that imputations will invariably be a distillation rather than a restatement of the words which were published. That this must be so is a necessary consequence of the facts that (a) words are but instruments by which people express and convey their meaning ( Lewis v Daily Telegraph Ltd , at 266), but that (b) outside of legal documents, it is recognised that the words used by people are imprecise instruments for that purpose: Slim v Daily Telegraph Ltd at 171. Very rarely is the act or condition attributed to the plaintiff expressly stated in the matter complained of, rather is it more usually implied or to be inferred: Jones v Skelton [1963] SR 644 at 650. The charge is often to be read only between the lines ( Lewis at 258), or by insinuation (Ibid at 280), or it may be so near the surface that it is hardly hidden at all, or it may be more difficult to detect: Ibid at 278. But what is clear, beyond the possibility of any contradiction, is that in very few cases will the words of the matter complained of plainly identify the act or condition attributed to the plaintiff of which he complains ." (emphasis added) 27The plaintiff answered these arguments by drawing attention to the words used in the matter complained of. The second defendant described the plaintiff as a "narcissistic bully". Hunt J in Monte and (as Hunt AJA) in Harvey , does not say that it is never permissible to use the words of the matter complained of in the imputation. Rather, he says that it will "very rarely" be sufficient merely to repeat those words ( Monte at 678 and Harvey at para 121). Here, the relevant authority, according to the plaintiff, is not Monte or Harvey but Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 where Gleeson CJ said this (at 137): "The requirement that a plaintiff must "specify" the act or condition which he claims was attributed to him, that is to say, the statement which he says was made about him, which follows from the scheme of the Defamation Act , the provisions of the Supreme Court Rules , and the ordinary rules of pleading, is one which, in its practical application, raises questions of degree. Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology." 28The practical application of the principles may depend upon the circumstances and the manner of publication. The Chief Justice added (at 137): "The requirement upon a plaintiff cannot go beyond doing the best that can reasonably be done in the circumstances. If a defendant has posted in a public place a sign that simply says "X is disgusting", the degree of specificity with which it is appropriate to require X to formulate the defamatory imputation will need to be related to the nature and content of the defamatory matter." 29Gleeson CJ then gave an illustration drawn from John Fairfax & Sons Ltd v Foord (1998) 12 NSWLR 706. The imputation in that case arose from a newspaper billboard in these terms: "Govt's war on corrupt judges" 30The plaintiff pleaded the imputation that the plaintiff was a corrupt judge. The court determined it to be a proper imputation to leave to the jury. Clarke JA (Hope JA agreeing) said this (at 726): "If the complaint is that the imputation as pleaded lacks clarity because the word 'corrupt' is ambiguous then that deficiency flows naturally from the material published. It was the defendant who used the word 'corrupt' and, provided that the respondent in an unqualified manner can satisfy the test on identification and there is no issue about that in these proceedings, then there can be no argument but that the poster is describing the respondent as a corrupt judge." 31Here, the speaker in the matter complained of used the expression "narcissistic bully" without qualification or elaboration. There may, the plaintiff acknowledged, be a degree of imprecision in that phrase, just as there was in the word "corrupt" in Foord . Nonetheless, that was the expression which the second defendant chose. It was submitted that the plaintiff was entitled to incorporate these words into the imputation provided they did not fall foul of the test formulated by Hunt J in Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148, namely (at 155): "... The issue which has to be decided in the particular case is whether there is likely to be confusion either at the pleading stage or at the trial in relation to the meaning for which the plaintiff contends." 32The plaintiff maintained that imputation 12.9 satisfied that test. The concepts were not unrelated. The combination of these two words gave rise to a comprehensible sting. In written submission the plaintiff said this: "It is idle to suggest that there is any ambiguity about an accusation that someone is a selfish bully, a conceited bully, a violent bully or a narcissistic bully. The latter, highly pejorative, charge is perfectly comprehensible." 33Dealing with these submissions I am persuaded that the imputation is not bad in form. I agree that in the context of the first matter complained of, the proper analogy is with the imputation in John Fairfax & Sons Ltd v Foord rather than the imputations in Drummoyne Municipal Council v Australian Broadcasting Corporation (which are set out at 139). Further I agree that the expression "narcissistic bully" is comprehensible and the sting arguably arises from the combination of the two words, which would be lost were they separated. Let me elaborate. 34The text of the first matter complained of is brief. As the plaintiff pointed out, there was no elaboration or qualification provided by the speaker. He simply described the plaintiff as a "narcissistic bully", just as there was no elaboration in the billboard, the subject of John Fairfax & Sons Ltd v Foord . In contrast, in Drummoyne Municipal Council, the ambiguity and potential for confusion arose from the elaboration upon the allegation of corruption in the ABC programme. Gleeson CJ described the broadcast in these terms (at page 140): "... notwithstanding the general reference to the ICAC at the commencement of the first broadcast, the case does not seem to me to be analogous to the matter about "corrupt judges" on the billboard relevant to the general imputation sustained in John Fairfax & Sons Ltd v Foord . It is fairly arguable that the matter attributes corruption or corrupt conduct in one or more forms to the Council , but the issue as to whether the matter is capable of conveying the imputations alleged has not yet been argued, and I do not intend to express any concluded view on that point. The difficulty arises from the fact that an examination of the detail of the broadcasts discloses that there are various significantly different forms of corruption that could possibly be taken from them . Without intending to be exhaustive, they include abuse of power to victimise and harass a ratepayer, giving unjustifiable preferential treatment to another ratepayer in consideration for a large financial contribution to the Council, and improperly expending public funds for the private benefit of the Mayor." (emphasis added) 35Even though the introduction to the program made general references to corruption, the later elaboration provided a potential for uncertainty unless the imputations identified the corrupt actions which the plaintiff suggested the ordinary reasonable reader would detect from the words published. Gleeson CJ said this (at 140): "Nevertheless it is possible to discern certain particular forms of misconduct that might be said to be attributed to the Council by the matter published, and it is possible to be more specific than the pleader has been as to the forms of corruption said to have been imputed to the Council. It is also appropriate to require the pleader to be more specific because, unless that is done, there is likely to be confusion in relation to the meaning for which the appellant contends. It is to the end of avoidance of confusion and uncertainty that the requirement of specificity is directed, and the practical content of the requirement in the present case is to be determined in that light." 36I accept that the expression "narcissistic bully" does make a comprehensible charge. Bullying involves the concept of pushing people around in the exercise of power. A person is narcissistic if he or she is excessively self regarding or self righteous. So the sting, arising from the combination of these two words, involves the smug and self righteous exercise of power, exhibiting a certainty on the part of the plaintiff that he is right, as he pushes people around. The sting is lost or at least attenuated by separating the two words and requiring the plaintiff to plead two separate imputations. Imputation 12.9 should go to the jury.

The second matter complained of. 37The second matter complained of is said to be a further conversation the following month (June 2009) in which the second defendant repeated the same words to a wider audience. Whereas the first conversation was said to be with Professor Chris Winder alone, the later conversation is alleged to have been with Professor Winder, Dr Carlos Caponecchia and Associate Professor Andrew McIntosh (the fourth defendant). The plaintiff relied upon similar imputations (para 16). I make the same rulings, namely that all but imputation 16.4 ( Paul Barach embezzled funds from the IRMRC ) should go to the jury.

The third matter complained of. 38The third matter complained of relies upon a conversation on 5 June 2009 between Professor Anne Williamson (third defendant) and Professor Peter Lovibond. The conversation (allegedly, as a natural and probable consequence) was then republished to Professor Archer. The conversation was in these terms: "Paul Barach's CV contains false and misleading information about himself. Paul Barach lied to the NHMRC in order to obtain research funding. He has falsely claimed in his CV to have published a "book" - which is in fact nothing more than material in a ring binder. He falsely claimed in his CV that a certain publication was an entire book, where in fact it was simply a chapter of a book. Paul Barach is a bad director of the Centre. He has misused funds, he has mismanaged personnel relations and has misrepresented himself. He has imposed himself on the benefits of a grant that was not his. He has mismanaged relations with funders of the Centre. He is destroying the relationship between the University and NSW Health. Staff in the Injury Risk Management Research Centre have made complaints of bullying and intimidation against him." 39The plaintiff asserts that imputations arise either from the natural and ordinary meaning of the words spoken or as true innuendos based upon extrinsic facts. The imputations asserted are as follows: "23.1 Paul Barach is incompetent in his job as director of the IRMRC; 23.2 Paul Barach as director has misused funds of the IRMRC; 23.3 Paul Barach as director has embezzled money of the IRMRC; 23.4 Paul Barach as director has mismanaged personnel relations at the IRMRC; 23.5 Paul Barach as director of the IRMRC has mismanaged the relationship with funders of the Centre; 23.6 Paul Barach knowingly made misrepresentations about himself to the University; 23.7 Paul Barach falsely represented that he was involved in the preparation of a certain Grant Application in order to obtain personal benefit for himself; 23.8 Paul Barach as director was destroying the relationship between the IRMRC and NSW Health; 23.9 Paul Barach as director had engaged in bullying and intimidation of the staff at the IRMRC." 40The extrinsic facts, relied upon in respect of each of the imputations as a true innuendo, are as follows: "1. The Plaintiff 1.1 Is an anaesthetist with a clinical background in cardiac anaesthetics, critical care medicine and human factors; 1.2 Was appointed by the First Defendant in or about September 2008 as Director of the NSW Injury Risk Management Research Centre (IRMRC) for a period of 5 years pursuant to an agreement with the First Defendant that, when his appointment as Director ceases, he would return to a full -time continuing position in the IRMRC as Professor of Injury Risk Management; PARTICULARS See email of Flory Alviola, Human Resources Consultant for the Faculty of Science of the First Defendant, to the Plaintiff on Tuesday, 9 September 2008 at 16:35:50+1000, and letter dated 8 September 2008 from the Fifth Defendant to the Plaintiff. 1.3 Was the acting Head of the School of Risk and Safety Sciences (SRSS) of the Faculty of Science of the First Defendant from approximately 17 November 2008 until 23 June 2009; 1.4 Remained employed by the First Defendant in the positions described in paragraphs 1.2 and 1.3 above from about September 2008 until 23 June 2009, when his employment with the First Defendant was terminated by the First Defendant." 41The first defendant objected to imputations 23.3, 23.6, 23.7, 23.8 and 23.9. 42In respect of imputation 23.3 ( Paul Barach as Director has embezzled money of the IRMRC ) the first defendant argued that the imputation was not reasonably capable of arising, whether from the natural and ordinary meaning of the words spoken or as a true innuendo. Alternatively, it was said to be bad in form, because it did not specify the body in respect of which the plaintiff was a Director. However the extrinsic facts, if they were needed, make it clear that the plaintiff was a Director of the NSW Injury Risk Management Research Centre (IRMRC). I assume that will be common ground at the trial, so that there is hardly the need, on that issue, to resort to extrinsic facts. 43So far as the substance of the defendant's argument is concerned, it was submitted, as in the previous imputation (12.4), that there was no suggestion of embezzling money, that is secretly taking the money of the Research Centre. At its highest, the plaintiff misused funds. 44The plaintiff responded that the words were a "catalogue of misdeeds involving dishonesty". This was a slander in which the words were spoken and then not available for study. What was important, according to the plaintiff, was the impression created upon the ordinary reasonable listener. Again, it was emphasised that, at a capacity level, the test was relatively undemanding. The capacity of the listener to read between the lines and for loose thinking must be recognised. 45Dealing with these submissions, it will be remembered that a similar imputation was relied upon in the context of the first and second matters complained of. In that context I determined that the imputation was incapable of arising, although the publications could impute that the plaintiff was a thief. 46Here, the plaintiff does not rely upon an imputation that he was thief. Unquestionably there are differences between the third matter complained of and the first and second. The allegations in respect of his dishonesty in the context of his qualifications are more explicit. On the question of funding, the allegations go well beyond simply a misuse of funds, although those words are repeated. Relevantly, the following is asserted in the course of the conversation: That the plaintiff lied; That he was a bad director of the Centre; That he had misused funds; That he had "imposed himself on the benefits of a grant that was not his" 47The last of these comments is somewhat obscure. What, in context does it mean? Counsel for the first defendant offered the following suggestion (T11): "SIBTAIN: My friend draws from the line he imposed himself on the benefits of a grant that was not his, that is the only matter other than the explicit statement he misused funds. He imposed himself on the benefit of a grant that was not his would carry to the ordinary reasonable reader some notion that he has involved himself in, he has taken funds intended to be used in relation to a particular project and used them in another project, or taken an oversight role." 48On balance, on a capacity basis, I believe the imputation is capable of arising. In the context of the dishonesty implicit in the remainder of the conversation, the words "imposed himself on the benefits of a grant that was not his" are, in my view, capable of conveying that he diverted, to his own use, in violation of a trust or official duty, a grant that did not belong to him. Imputation 23.3 should go to the jury. 49Objection is made, as a matter of capacity, to imputation 23.6 ( Paul Barach knowingly made misrepresentations about himself to the University ). The defendant drew attention to the nature of the conversation. It concerned the plaintiff's conduct in relation to the Research Centre. The first time the University is mentioned is towards the end where it was said that the plaintiff was "destroying the relationship between the University and NSW Health". 50The plaintiff responded by suggesting that the defendant was making a jury submission. The conversation, according to the plaintiff, was obviously about the plaintiff's conduct in his employment at the University. 51Imputation 23.6 should be allowed. The context, I believe, provides the link to the University, which the defendant asserted was missing. It was a conversation between the Professor of Aviation and Professor Lovibond. The conversation was then repeated by Professor Lovibond to Professor Archer. The text of the conversation itself began with a reference to Paul Barach's CV which was said to contain false and misleading information. There followed particulars of the information said to be false. He was described as a "bad director of the Centre". I believe, even without extrinsic evidence, the ordinary reasonable listener, reading between the lines, would infer from the context (a conversation between Professors) and the text of the conversation, that the Research Centre, where Paul Barach was the Director, was part of the University. You would expect, when evidence is given of the extrinsic facts, that these matters would become explicit. 52Moving to imputation 23.7 ( Paul Barach falsely represented that he was involved in the preparation of a certain Grant Application in order to obtain personal benefit for himself ), the first defendant objected upon the basis of capacity, that is, that the imputation was not reasonably capable of arising from the third matter complained of. The imputation, according to the defendant, involved a number of separate elements including the preparation of the grant application. The imputation, in that context, was unreasonable and strained. 53In defence of the imputation the plaintiff emphasised the general charge made by the speaker of false and misleading information in the plaintiff's CV as well as lying to obtain research funding. These allegations were followed by an allegation the plaintiff had "imposed himself on the benefits of a grant that was not his". The plaintiff in written submissions added: "...the matter complained of was a slander, which the hearers were unable to contemplate or re -examine; and was vituperative and breathless in tone. The consequences are likely to be a degree of loose thinking and jumping to conclusions, for which the third defendant must take the consequences." 54Dealing with these submissions, the imputation, I believe, is strained and unreasonable. The expression "imposed himself on the benefits of a grant" is odd and somewhat obscure. The impression these words make upon me is that funds were obtained by someone associated with the Research Centre, which the plaintiff wrongly directed to himself. I see nothing that suggests that he falsely represented that he had been involved in the preparation of a grant application. That is an element of the imputation as framed. 55I would therefore reject imputation 23.7. 56Imputation 23.8 ( Paul Barach as director was destroying the relationship between the IRMRC and NSW Health ) was objected to upon the basis of form. The first defendant asserted that it failed to specify the body of which the plaintiff was the director. Counsel acknowledged that one would infer that he was a director of the "IRMRC". But the passage of the third matter complained of spoke of the plaintiff "destroying the relationship between the University and NSW Health". It was submitted that the imputation should be amended to read that Paul Barach, as director of the IRMRC, was destroying the relationship between the University and NSW Health (T16). Counsel acknowledged that there could be no objection if it were pleaded as a true innuendo. The evidence to be called in support of the innuendo would no doubt explain the relationship between the University, the IRMRC (that is the Research Centre) and the Department of Health. 57This is a minor objection. By the time the tribunal of fact (whether judge or jury) gets to the third matter complained of, there will surely be common ground as to the context within which these conversations between academics were taking place. One imagines that, by that stage, there will be no dispute that each participant in the conversation understood that the plaintiff was the director of the Research Centre (the IRMRC) and later Acting Head of the School of Risk and Safety Sciences, that these institutions operated within the University and had a relationship with the University. It seems hardly appropriate to require the plaintiff to amend in order to include a true innuendo based upon extrinsic facts. The imputation may go to the jury. If, at the trial, there is not common ground as to context, the plaintiff may amend to assert the extrinsic facts. 58Finally, in respect of the third matter complained of, the first defendant objected to imputation 23.9 ( Paul Barach as director had engaged in bullying and intimidation of the staff at the IRMRC ). According to the defendant, there was no suggestion in the matter complained of that the complaints were well founded or otherwise. The speaker simply makes the comment that there had been complaints. References were made to Lewis v Daily Telegraph Ltd [1964] AC 234. The words in the matter complained of were spare. They did not necessarily endorse the truth of the complaint (T16). Their tentative nature is underlined by the fact that the conversation included a number of firm statements where facts, rather than allegations, were recited. In contrast, the suggestions of bullying and intimidation were described as "complaints". 59The plaintiff responded by once more pointing to the context. A number of highly pejorative accusations were made against the plaintiff. He emphasised that the defendant's counsel, in argument, had said that the complaints were "not necessarily an endorsement of the charge" (T17). In the context of a slander, and the listener reading between the lines and indulging in a certain amount of loose thinking, the imputation was reasonably capable of arising. 60I accept the plaintiff's submission. The third matters included one serious accusation after another, each to the discredit of the plaintiff. It included the general description that he was a bad director of the Research Centre and that he had mismanaged personal relations. The final accusation was that staff in the IRMRC had made complaints of bullying and intimidation against him. The implication was that several staff had made such complaints. In other words, it was not an isolated complaint. In Lewis v Daily Telegraph , (supra) Lord Devlin said this (at 285): "...it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded." 61Here, I believe the matter complained of is capable of conveying that the plaintiff had, indeed, engaged in bullying and intimidation. Imputation 23.9 should go to the jury.

The fourth matter complained of. 62The statement of claim alleges that between June 2009 and September 2009 Associate Professor Andrew McIntosh (an Associate Professor at the School of Risk and Safety Sciences) (the fourth defendant) stated to a number of individuals, including Dr Green, Dr Christian Khalil and Mr Robert Parker, the following: "Paul Barach ran the School very poorly. His management was very bad. He lied to us. He deserved to be sacked." 63These words, in their natural and ordinary meaning, or alternatively, in the context of the extrinsic facts (supra para 40), were said to give rise to a number of imputations, including the following to which objection is taken: "27.4 Paul Barach deserved to be sacked as director of the SRSS." 64The first defendant submitted that the imputation was bad in form. It failed to plead a relevant act or condition with adequate precision. The imputation served as a mere rhetorical flourish. The plaintiff, in response, drew attention to the statement of principle by Hunt J in Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36, where the following was said (at 41): " In my view, the question of whether an imputation has correctly captured the act or condition asserted of or attributed to the plaintiff is best resolved by considering what must be proved in order to justify the truth of that imputation so far as it concerns the plaintiff ." (emphasis in the original) 65In my view the imputation is capable of arising, although the use of an acronym rather than the full title (School of Risk and Safety Sciences) is an inhibition to understanding. The full title makes it clear that the school referred to in the brief conversation is the School of Risk and Safety Sciences. The imputation is not a rhetorical flourish. The speaker, in the conversation, states that he deserved to be sacked. The ordinary reasonable listener could infer from the matter complained of that the plaintiff had so conducted himself that he deserved to be sacked. The imputation is sometimes expressed in that form. However, in its present form I believe it is acceptable. It should go to the jury.

The fifth matter complained of. 66The fifth matter complained of is a short slander, said to have been conveyed by Professor Raphael Grzebieta (the second defendant) in or about August 2009 to various people including Dr Jacob Olivier, Ms Mary Potter Forbes and Mr Shanley Chong. It is alleged that Professor Grzebieta said the following: "You should be more careful who you support. Paul Barach is a liar, a conman and a plagiarist." 67The publication, according to the plaintiff, in the natural ordinary meaning of the words used, gave rise to the following imputations: "31.1 The Plaintiff is a liar; 31.2 The Plaintiff is a cheat; 31.3 The Plaintiff is a plagiarist; 31.4 The Plaintiff is a disreputable person." 68The first defendant objected to imputation 31.2 as not differing in substance from 31.1. It was asserted that in context they were the same. To say the plaintiff is lying and to say he is conning, is to say the same thing in the defendant's submission. 69The plaintiff responded by pointing out that the speaker made three distinct charges. The charges included that he was a liar and a cheat. There is a difference between lying and cheating. They are circles that intersect, but they are not co -extensive. The defendants do not suggest that "cheat" is an inappropriate formulation of the sting of the word "conman". Rather they say there is no material difference between the two. 70I accept that there is a difference in substance between imputations 31.1 and 31.2. Imputation 31.2 should remain. 71There was a further objection to imputation 31.4 ( the plaintiff is a disreputable person ). Mr Richardson of counsel on behalf of the remaining defendants (apart from the seventh defendant) joined in the objection. It was said that the imputation was bad in form by reason of ambiguity. What, the defendants ask, is the act or condition that brings the plaintiff into disrepute? Mr Richardson asked rhetorically, was it enough, in justifying the imputation, to prove that the plaintiff was a cheat? Did the defendants have to prove all three disparaging remarks (T20)? 72Mr Blackburn SC, on behalf of the plaintiff, responded by stating that, as in respect of any objection, there were two issues. The first was whether the imputation was bad in form and the second whether it was a distinct charge. There is, he argued, nothing ambiguous about the imputation. It specified a condition of the plaintiff, that is, that he was a disreputable person. It was, according to the plaintiff, the distinct message of the short but damaging statement made the subject of the fifth matter complained of. Indeed Mr Blackburn SC submitted that the plaintiff was leading with his chin. The defendants could justify the imputation in any way that they saw fit ( Maisel v Financial Times Ltd (1915) 112 LT 953). 73I accept the plaintiff's submissions. Imputation 31.4 may go to the jury. 74Further, upon the basis of the extrinsic facts, the plaintiff asserted the following further imputation arising from the fifth matter complained of: "32.2 by reason that the plaintiff is a liar; a cheat and a plagiarist, he is not fit to be employed by a University." 75The first defendant objected to an imputation in that form upon the basis that there was nothing in the words spoken in the fifth matter complained of which discussed the fitness of the plaintiff to be employed at the University. 76The plaintiff, in reply, pointed to the extrinsic facts. They included that the plaintiff was employed at the University in various senior and exalted positions between September 2008 and the 23 June 2009. He expected to be appointed as a Professor after his time at the Research Centre for a further five -year term. However, his services were terminated by the University on the 23 June 2009. The allegations made against him, which included plagiarism, were plainly inconsistent with the offices he held at the University. Knowing those extrinsic facts, the ordinary reasonable listener would impute that the combination of qualities attributed to him, made him unfit to be employed by the University. 77I agree. Imputation 32.2 should remain. The parties argued the matter as though the imputation were expressed as "the University", rather than "a University" (T21 -T23). In my view, the imputation as expressed (which is obviously broader) is capable of arising.

The sixth matter complained of. 78The statement of claim asserted that in July and August 2009 Associate Professor McIntosh (the fourth defendant) said to staff at the School of Risk and Safety Science (SRSS) the following: "Paul is a liar, a cheat and a plagiarist." 79The imputations, said to arise from the natural and ordinary meaning of these words, are as follows: "36.1 The Plaintiff is a liar; 36.2 The Plaintiff is a cheat; 36.3 The Plaintiff is a plagiarist; 36.4 The Plaintiff is a disreputable person" 80These are the same imputations as those alleged in the fifth matter complained of. The first defendant makes the same objections. I believe the same rulings are appropriate. Imputations 36.1 and 36.2 are, I believe, different in substance. 81The plaintiff, in the context of the extrinsic facts, also relied upon two true innuendos. They were: "37.1 the plaintiff has engaged in academic fraud; 37.2 by reason that the plaintiff is a liar, a cheat and a plagiarist, he is not fit to be employed by a University" 82The first defendant objected to imputation 37.2. It was said to be incapable of arising. Attention was drawn to the difference between the fifth matter complained of and the sixth. The fifth included introductory words: "you should be more careful who you support." Here, according to the defendant, there was nothing in the discussion to raise the issue of fitness for employment. The imputation was bad in form in that it repeated imputations 36.1, 36.2 and 36.3. It merely served as a rhetorical flourish. Further, it did not differ in substance from those imputations. 83I believe the imputation is capable of arising. The extrinsic facts recite the context concerning the plaintiff's employment and early termination. The sixth matter complained of was a conversation between Associate Professor McIntosh, who is attached to the School of Risk and Safety Sciences and staff at that School. The conversation, in the context of the extrinsic facts, squarely raised the plaintiff's fitness for his employment. It is not a rhetorical flourish. It differs in substance from the earlier imputations.

The seventh matter complained of. 84The seventh matter relied upon the following words said to have been spoken in July 2009 by the Deputy Vice Chancellor, Professor Henry, in conversation with Professor Archer: "Paul Barach is an incorrigible liar. He is a fraud. He is a cheater. He is dishonest. And there is much more about Paul that has not yet been tabled. I pity his wife." 85The plaintiff asserted that the words in their natural and ordinary meaning conveyed the following imputations: "42.1 Paul Barach is an incorrigible liar; 42.2 Paul Barach is a cheat; 42.3 Paul Barach is a plagiarist; 42.4 Paul Barach is a disreputable person; 42.5 Paul Barach is dishonest; 42.6 Paul Barach is a person of numerous grave character flaws (in addition to those set out above); 42.7 Paul Barach is so disreputable and dishonest that his wife is to be pitied." 86The first defendant objects to all but imputation 42.1. Imputation 42.2 is said not to be different in substance from 42.1. I disagree. The speaker makes the distinction between an incorrigible liar and a cheater. I believe there is such a distinction. Imputation 42.2 is allowed. 87Imputation 42.3 ( Paul Barach is a plagiarist ), however, is somewhat different. The first defendant asserts that it is not reasonably capable of arising, whether from the natural and ordinary meaning of the words used or by innuendo. I agree. Although there is reference to fraud, cheating and dishonesty there is no reference to plagiarism. Plagiarism is a specific form of cheating. Although the context is a conversation between Professors at the University, and plagiarism has particular relevance within that context, it is still a specific charge. I do not believe, even with loose thinking, that it would be reasonable to imply such a charge from the words spoken. Imputation 42.3 should not go to the jury. 88Imputation 42.4 ( Paul Barach is a disreputable person ) is objected to by the first defendant. It is said to be ambiguous. However, for the reasons given in the context of similar imputations I believe it makes a distinct charge. The charge is available in view of the catalogue of shortcomings attributed to the plaintiff by the speaker, including that the list was simply the tip of the iceberg. 89I also believe that imputation 42.5 ( Paul Barach is dishonest ) is capable of arising and is different in substance from the other imputations. 90Imputation 42.6 is unusual. It is convenient to repeat it: "42.6 Paul Barach is a person of numerous grave character flaws (in addition to those set out above)" 91The first defendant complained that the imputation was ambiguous. Which character flaws were incorporated? What would the defendant need to prove to justify the imputation? 92Mr Blackburn SC defended the imputation by reference to statement made by Hunt J in Monte v Mirror Newspapers Ltd at 678F (supra para 23). Clearly the speaker was insinuating that the recital of character flaws was but part of the picture. There were more such flaws. 93I agree that the suggestion that this was but the tip of the iceberg does add to the sting. However, the imputation should stand on its own feet. In its present form, I believe it is unsatisfactory. One way of avoiding ambiguity is to provide multiple alternatives covering the field. Another, and perhaps better way, is to express the imputation in terms of the plaintiff being a person of numerous grave character flaws in addition to being an incorrigible liar and/or a cheat and/or dishonest (cf T30). The plaintiff has leave to amend. 94The final imputation 42.7 ( Paul Barach is so disreputable and dishonest that his wife is to be pitied ) seeks to encapsulate the sting arising from the final words in the matter complained of: "I pity his wife". The first defendant objected that the imputation was bad in form. It rolled up several imputations or inaptly captured a single condition. Alternatively, it did not differ in substance from imputation 42.4 ( Paul Barach is a disreputable person ) and 42.5 ( Paul Barach is dishonest ). According to the first defendant, it was pitched at such a high level that it did not say anything (T31). The plaintiff responded that the concluding words of the seventh matter complained of were intended to be the coup de grace. They were "condescending" and "nasty" (T31). It was a distinct charge. 95Dealing with these submissions, I believe the imputation is capable of arising. It is not bad in form and is different from the other imputations. The structure of the matter complained of is important. One flaw after another is listed. The listener is then told in effect that "that is not all" and the final coup de grace is: "I pity his wife". The plaintiff is branded as a seriously flawed individual, who is both dishonest and disreputable. The suggestion is that, whilst we, the University, need have nothing to do with him, his wife cannot escape. She is bound to him by her marriage vows. She is therefore to be pitied. The imputation should go to the jury. 96The plaintiff also relied upon two innuendos based upon the extrinsic facts. Imputation 43.1 "the plaintiff has engaged in academic fraud" is said by the first defendant not to be reasonably capable of arising. However, the matter complained of included the words: "he is a fraud". The speaker added: "He is a cheater. He is dishonest." The conversation was a discussion between two Professors, who were aware of the extrinsic facts. I believe, within that context, imputation 43.1 is capable of arising. 97Imputation 43.2 is in the following terms: "43.2 by reason that the plaintiff is a liar, a cheat and a plagiarist, he is not fit to be employed by a University." 98The conversation in the seventh matter complained of is short. There is a reference to fraud but not plagiarism. I have disallowed the imputation of plagiarism based upon the natural and ordinary meaning of the words. The extrinsic facts add the appointment of the plaintiff as the director of the Research Centre and Acting Head of the School of Risk and Safety Sciences. They also add that he was terminated on the 23 June 2009, long before his term had expired. The plaintiff also pleaded the imputation "the plaintiff has engaged in academic fraud" as a true innuendo (imputation 43.1), which I believe is capable of arising. The issue is whether, allowing for loose thinking and reading between the lines, the words complained of, in the context of the extrinsic facts, suggest plagiarism. I believe they may, except that the imputation, in its present form, does not rely upon the words "fraud", "cheater" and "dishonest" for that implication. The imputation, as drawn, makes a distinction between liar, cheat and plagiarist. I disallow imputation 43.2 in its present form. The plaintiff has leave to replead.

The eighth matter complained of. 99The eighth matter complained of was a letter of the 23 June 2009 addressed to Dr Barach. It was written on the letterhead of the University of NSW, which included the name of Professor Richard Henry, the Deputy Vice Chancellor (Academic). It was marked strictly private and confidential. However, according to the plaintiff, it was shown to Gillian Calvert. At the time it was shown, Professor Henry is alleged to have said this: "there is more than what appears in this letter" 100The letter is lengthy. It has a number of annexures. Rather than set out the letter and annexures I will refer to its contents when dealing with the defendant's objections to capacity. 101The plaintiff alleged that the words published in their natural and ordinary meaning conveyed the following imputations (adjusting the text of imputation 49.4 in accordance with a concession by counsel in argument): "49.1 Paul Barach is a fraud; 49.2 Paul Barach caused his Curriculum Vitae to contain fraudulent information about himself; 49.3 Paul Barach lied to the NHMRC in order to gain research funding; 49.4 Paul Barach claimed in his Curriculum Vitae to have published a book, when in fact the so -called book simply consisted of material in a ring binder; 49.5 Paul Barach fraudulently misrepresented in his Curriculum Vitae that a publication set out in his curriculum vitae was an entire book, whereas it was simply a chapter of a book; 49.6 Paul Barach is a person who cannot be trusted; 49.7 Paul Barach is a deeply dishonest person; 49.8 Paul Barach is a person of numerous grave character flaws (in addition to those set out above); 49.9 Paul Barach has engaged in additional deceptive and disgraceful conduct in addition to the conduct referred to in the 23 June 2009 letter (Annexure "A")." 102Mr Richardson of counsel presented the argument on behalf of the defendants, although Mr Sibtain included arguments in his written submissions. The defendants initially objected to all but the first and second imputations. Ultimately, the objections to 49.3 and 49.5 were not pressed. It was argued that imputation 49.1 ( Paul Barach is a fraud ), 49.6 ( Paul Barach is a person who cannot be trusted ) and 49.7 ( Paul Barach is a deeply dishonest person ) did not differ in substance (especially in the case of 49.6 and 49.7). Three imputations, it was submitted, were simply "too many ways to skin the cat". It was not submitted that the imputations were incapable of arising. 103Mr Blackburn responded, first, by pointing to the differences between a person being a fraud, being untrustworthy and being dishonest. They were intersecting rather than concentric circles. The text of the letter (which itself is explicit) was underlined by Professor Henry when he said to the recipient: "there is more than what appears in this letter". 104I accept the plaintiff's arguments. The three imputations differ in substance. The letter included the following (L147 -157): "...I consider the inaccurate and misleading information you provided about books and the PhD qualification to be particularly serious. All of them together contribute to my sense of unease about your honesty and transparency in presenting your credentials. Ultimately, by including inaccurate and/or misleading information, you have created an academic profile which is exaggerated and overstated. In an academic context where appointments are made and grants are given based on an academic profile, this is a serious matter. Given the number of instances and the fact that all of them exaggerated your true standing, I do not consider that oversight or mistake is a valid explanation. Rather, I consider that you have been dishonest and misleading. To put it simply, you are not who you have made yourself out to be ." (emphasis added) 105The words emphasised suggested that Dr Barach was a fraud. That is a pervasive quality and a comment upon the plaintiff's character (imputation 49.1). The letter provides the detail to support that conclusion. A number of allegations of dishonesty are made and upheld. They relate to representations made by the plaintiff in his CV and in grant applications concerning his qualifications and experience. Dishonesty was the means by which he concealed his true nature. At first I questioned the meaning of "deeply dishonest". Counsel for the plaintiff stated that he searched for a word that would reflect the deep -seated nature of the dishonesty asserted throughout the letter. On reflection, I believe that "deeply dishonest" is available. 106The letter examines and analyses the explanation by Dr Barach to each allegation. With one exception, that is not material, each explanation was rejected and all but one allegation found to be substantiated. The material is capable of suggesting, not just that the plaintiff is a fraud and dishonest but that he is untrustworthy. The suggestion that the plaintiff is a fraud and dishonest is a comment upon his character. Being untrustworthy is primarily a comment upon the way in which others view his character. 107I would allow imputations 49.1, 49.6 and 49.7. 108Dealing with imputation 49.4 ( Paul Barach claimed in his Curriculum Vitae to have published a book, when in fact the so -called book simply consisted of material in a ring binder ) attention was drawn to allegation 4 in the charges against the plaintiff. It concerned information in the plaintiff's CV and grant applications. The information was said to be inaccurate and misleading. Allegation 4 included four subparagraphs, of which the following was one: "(c) In relation to "TeamSTEPPS, Strategies and Tools to Enhance Performance and Patient Safety" referred to in (3) this is not a book. Rather, it is a ring binder containing a collection of separate articles. The information you included was inaccurate and/or misleading in that it suggests it is a book and that you were an author or co -author of the book." 109The Deputy Vice Chancellor, in his report, when he came to deal with various allegations, made no particular finding about the ring binder or the form of that item. He confined his comments primarily to the authorship of the work rather than its physical nature. His report included the following: "With regard to particular 4 (c), "TeamSTEPPS, Strategies and Tools to Enhance Performance and Patient Safety", the citation is incorrect because you are neither the editor (nor) the author of the book." 110He added: "In your response, your defence focuses on the fact that you conducted and published research rather than you fulfilled the criteria for listing yourself as author or editor of three books. Your CV lists three books that should not appear as books on your CV. This applies to the CV that you presented to UNSW at the time of recruitment and to applications to grant giving bodies such as ARC and NHMRC. As a senior academic you know that you should not list books in the books section of a CV unless you are an author or editor of the book. The fact that you included a separate section on chapters of books indicates that you were aware of this protocol." 111Mr Richardson argued that, in view of that finding, the aspect picked up by the imputation remained only an allegation. The imputation was therefore incapable of being conveyed. He acknowledged that it would have been different had the imputation incorporated the actual finding made by the Deputy Vice Chancellor (T41). 112The plaintiff, in response, emphasised the finding made at line 133 where the Deputy Vice Chancellor said: "your CV lists three books that should not appear as books on your CV". 113Dealing with these submissions, I believe the imputation is capable of arising. Whilst it is true that the determination does not, in terms, refer to the ring binder or other details, it does conclude by stating that allegation 4 is substantiated. The allegation included the description of the publication. The submission that the Deputy Vice Chancellor was really only concerned with the authorship of the publication is really a jury submission. The imputation should go to the jury. 114It is convenient to restate the imputations that remain: "49.8 Paul Barach is a person of numerous grave character flaws (in addition to those set out above); 49.9 Paul Barach has engaged in additional deceptive and disgraceful conduct in addition to the conduct referred to in the 23 June 2009 letter (Annexure "A")." 115Mr Richardson contrasted the two imputations. In respect of imputation 49.9 he said this (T44): "...49.9 is anchored in a way that (a) members of the jury or ordinary reasonable readers and (b) a person pleading a defence can properly understand, whereas in my submission 49.8 is simply not." 116Although an objection was foreshadowed to imputation 49.9, it was ultimately not pressed. It should go to the jury. The imputation, in my view, would benefit in terms of clarity, by substituting the word "further" for the word "additional" ("...engaged in further deceptive and disgraceful conduct in addition to..."). The plaintiff has leave to amend. 117As to imputation 49.8, one assumes that the contrast between 49.8 and 49.9 is that the former is directed to a condition (that is an aspect of character) whereas the latter is directed to an act of the plaintiff. However, for the reasons set out in the context of a similar imputation (supra para 93) the form of imputation 49.8 is, in my view, unsatisfactory. It is not clear to my mind what is being referred to. On that basis the plaintiff has leave to replead imputation 49.8.

The ninth matter complained of. 118In June or July 2009 it is said by the plaintiff that Associate Professor Anne Simmons made the following statement to members of the Injury Risk Management Research Centre (IRMRC) Board: "I have heard from Richard Henry that there are many more serious issues than appear in Paul Barach's dismissal letter which justify his dismissal. Those are matters that are beyond the scope of the IRMRC Board." 119The statement of claim alleges that these words, in their natural and ordinary meaning, gave rise to the following imputations: "55.1 Paul Barach is a person of numerous grave character flaws in addition to those referred to in the 23 June 2009 letter (Annexure "A"); 55.2 Paul Barach has engaged in additional deceptive and disgraceful conduct in addition to the conduct referred to in the 23 June 2009 letter (Annexure "A")." 120The defendant objected to both these imputations, pointing out that the letter of 23 June 2009 was not part of the matter complained of and would need to be repleaded as extrinsic facts. 121The plaintiff, in written submissions, conceded that objection and sought leave to replead imputation 55.1, relying on the extrinsic facts, in these terms: "Paul Barach is a person of numerous grave character flaws in addition to those set out in the letter which dismissed him." 122The plaintiff did not press imputation 55.2. 123When the matter was argued, these concessions appear to have been overlooked. Arguments were put back and forth concerning the original imputations. 124I will address the proposed amendment to imputation 55.1. The extrinsic facts do not assume knowledge of the letter of dismissal, simply the fact of termination. The proposed amendment appears to assume the letter of dismissal identified character flaws, which were set out. The matter complained of, however, speaks of "many more serious issues than appear in Paul Barach's dismissal letter". It would be unusual to dismiss someone for character flaws. Rather, character flaws may manifest themselves in misconduct or impropriety. If serious enough that may provide a basis for dismissal. Here, one may infer that the letter of termination described misconduct or impropriety. In doing so it may have revealed (rather than set out) character flaws. The proposed amendment does not seem appropriate. The plaintiff has leave to replead the imputation.

The tenth matter complained of. 125In June or July 2009, Professor Henry, the Deputy Vice Chancellor made the following comment to Professor Raina McIntyre, the Head of the School of Public Health and Community Medicine: "Paul Barach is a liar and misrepresented himself to the University." 126The plaintiff alleges that these words, in their natural and ordinary meaning, gave rise to the following imputations: "59.1 Paul Barach is a liar; 59.2 Paul Barach is a person who knowingly made false representations about himself to the University; 59.3 Paul Barach behaved in such a manner as to cause himself to be sacked from the University of New South Wales; 59.4 Paul Barach is a person who cannot be trusted." 127The first defendant objects to imputations 59.3 and 59.4. The objection to 59.3 ( Paul Barach behaved in such a manner as to cause himself to be sacked from the University of New South Wales ) is that the conversation makes no reference to the sacking. If it is to be relied upon, the plaintiff must allege it as an extrinsic fact. I agree. The plaintiff has leave to replead imputation 59.3 as a true innuendo based upon extrinsic facts. 128Imputation 59.4 ( Paul Barach is a person who cannot be trusted ) is objected to on the basis that it does not differ in substance from imputation 59.1 ( Paul Barach is a liar ). Someone who is a liar is someone who cannot be trusted. Why cannot they be trusted? Because they do not tell the truth. The defendant submitted that in substance, they were the same (T48). 129Similar objections have been taken in respect of similar imputations in relation to other publications. However, whilst the two concepts may be related, they are different. Whether a person who is a liar can be trusted may depend upon the lie and the circumstances in which it was told. Lying describes the actions of the person telling the lie. Whether a person is to be trusted may depend upon the reaction and perspective of persons other than the person telling the lie. Others may judge his conduct and whether he cannot be trusted. Imputation 59.4 should go to the jury.

The eleventh matter complained of. 130In June or July 2009 the Deputy Vice Chancellor, Professor Henry, is alleged to have said the following words to Professor Jeremy Wilson, the Head of the Clinical School at the Liverpool Hospital: "Paul Barach is a liar and a person who cannot be trusted. He is not suitable to be part of the University of New South Wales, and you should not support him." 131The plaintiff asserted that these words, in their natural and ordinary meaning, gave rise to the following imputations: "63.1 Paul Barach is a liar; 63.2 Paul Barach is a person who cannot be trusted; 63.3 By reason of the fact that he is a liar and a person who cannot be trusted, Paul Barach is not suitable to be part of the University of New South Wales; 63.4 Paul Barach is a person of such low character that he is not worthy of support by his peers in the medical profession." 132The first defendant objected to imputations 63.2, 63.3 and 63.4. However, in the course of arguments the objections to 63.3 and 63.4 were withdrawn. For the reasons I have given in respect of similar imputations, I believe imputation 63.2 is available to the plaintiff.

The twelfth and thirteenth matters complained of. 133On 25 September 2009 it is said that the second defendant, Professor Raphael Grzebieta, published the following words to a number of persons (identified in paragraph 65 of the statement of claim): "Paul Barach kidnapped his son." 134That publication, according to the plaintiff, gave rise to the following imputations, in the natural and ordinary meaning of the words used: "67.1 Paul Barach is a kidnapper; 67.2 Paul Barach is a criminal; 67.3 Paul Barach is a thoroughly disreputable person who cannot even be trusted with his own son; 67.4 Paul Barach is a person who cannot be trusted." 135The thirteenth matter complained of concerned the republication of the same or almost the same statement by a Senior Research Fellow at the IRMRC (the eighth defendant). She is alleged to have published the following words: "Paul Barach kidnapped his own son." 136The same imputations have been pleaded (imputations 73.1 to 73.4). The only difference between the twelfth and thirteenth matters complained of is the addition of the word "own" in the thirteenth matter. Neither counsel suggested that anything turned upon that difference. Both matters can therefore be dealt with together. 137Counsel for the first defendant objected to all but the first imputation in respect of each matter (that is imputation 67.1 and 73.1 respectively). In submissions counsel said this (T51): "SIBTAIN: "Paul Barach kidnapped his son." That has produced four imputations. It would seem in my submission the only one that is reasonably sustainable is the first of those "Paul Barach is a kidnapper". If he is a criminal, it poses the rhetorical question: In what sense? He is a kidnapper. 67.3, "He is thoroughly disreputable." In what way? He is a kidnapper. 67.4. "He is a person who can't be trusted even by his own son because he is a kidnapper." There is only one imputation that arises from those words in my submission." 138Counsel for the plaintiff responded that the imputations plainly differed in substance. 139Dealing with imputation 67.2, I accept that it does differ in substance from imputation 67.1. Indeed, to my mind, an issue arises whether the words (" Paul Barach kidnapped his son ") suggest a criminal offence as opposed to being a hyperbole describing a matrimonial difference. It would be different were it suggested that the plaintiff had kidnapped a complete stranger. 140Assuming it does suggest an offence, I have difficulty with the word "criminal". It is capable of being used in a number of different senses. Is a person criminal because he or she commits a criminal act with intent? Does it need to be a serious offence? If so, plainly that would be satisfied in this context, kidnapping being a serious offence. Importantly, is a person a criminal before they have been convicted, given the presumption of innocence? The problem with the imputation is that the word "criminal", like the word "corrupt", is ambiguous. It may lead to confusion and therefore does not satisfy the test of Hunt J in Whelan v John Fairfax & Sons Ltd (supra para 31) (cf Vella v TCN Channel 9 Pty Ltd [2000] NSWSC 759 at para 18). I disallow imputations 67.2 and 73.2 in their present form. The plaintiff has leave to replead. 141Whilst the remaining imputations (67.3 and 67.4) (as well as 73.3 and 73.4) differ in substance, 67.3 and 73.3 appear to be strained and unreasonable. The reference in 67.3 (and 73.3) to "thoroughly disreputable" has such emphasis that it appears to assume knowledge of other things said about Paul Barach. The matter is not put upon the basis of extrinsic facts. Imputations 67.4 (and 73.4) are capable of arising, whether the circumstances are assumed to be criminal or matrimonial. On the most charitable interpretation, the implication is that he had access to his son, and in violation of the arrangements, did not return him. Imputations 67.4 and 73.4 should go to the jury.

The fourteenth matter complained of. 142The fourteenth matter complained of relies upon an electronic message sent in September 2009 to the Myspace site of Michael Johnson in Florida in the United States. The message according to the plaintiff was sent by Harold Karaka (the seventh defendant) of HK Enterprises, Confidential Investigative and Professional Services. The message was in these terms (Annexure "B"): "Michael: Harold Karaka here. I am a private investigator and I represent the University of New South Wales (UNSW), located in Sydney, Australia. I am conducting a background investigation on behalf of the University on Dr. Barach due to his recent firing from the institution. After interviewing numerous co -workers, colleagues, and "other interested" parties, I am still in search of individuals who had first hand interaction with the doctor. Several persons I interviewed in Miami mentioned your name to me as someone who experienced a first hand relationship with the doctor. As you may be aware of, he has a pattern of (bringing) legal action against institutions who discover the "true" nature of the good doctor and UNSW is taking a stand, not bending over, and is preparing to fight him in court. It would be much appreciated if you would contact me so I can conduct an interview. I can e -mail you the authorization letter provided me by the legal department at UNSW as well as my credentials. I hope to hear from you soon. Respectfully, Harold Karaka" 143It is alleged that the following imputations were conveyed by these words in their natural and ordinary meaning: "78.1 Paul Barach concealed his true disreputable nature from his employer, the University of New South Wales; 78.2 The true disreputable nature of Paul Barach was such that when it was revealed, it caused him to be fired from his employment at the University of New South Wales; 78.3 Paul Barach engaged in a pattern of suing his previous employers, after they had justifiably fired him after discovering his true disreputable nature; 78.4 Paul Barach had a pattern of attempting to conceal his true disreputable nature; 78.5 Paul Barach is a disreputable and dishonest person." 144The first defendant objected to all but imputation 78.4. Dealing with imputation 78.1, counsel for the defendant drew attention to the timing of the message. It was written after Dr Barach's dismissal by the University. Counsel acknowledged, in the course of argument, that there was something "nasty lurking" in the words "...he has a pattern of bring[ing] legal action against institutions who discover the "true" nature of the good doctor...", that is he brings actions against those who find out the truth about him and the truth was "not something nice" (T53 -T54). 145However, it was submitted that there was nothing in the letter concerning the circumstances of his dismissal. The imputation was not reasonably capable of arising. It was, in any event, bad in form in that it was ambiguous. 146In answering the submission, counsel for the plaintiff drew attention to the following passage in Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 where the majority (Gleeson CJ, McHugh, Gummow and Heydon JJ) said this (at 190): "[10] In determining what reasonable persons could understand the words complained of to mean, the court must keep in mind the statement of Lord Reid in Lewis v Daily Telegraph Ltd : The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs." 147Reference was then made to the speech of Lord Devlin in Lewis v Daily Telegraph Ltd (supra) where his Lordship emphasised that it was the broad impression conveyed by the libel that had to be considered and not the meaning of each word under analysis. The majority in the High Court said this (at 190): "[11] Lord Devlin pointed out, in Lewis v Daily Telegraph Ltd , that whereas, for a lawyer, an implication in a text must be necessary as well as reasonable, ordinary readers draw implications much more freely, especially when they are derogatory. That is an important reminder for judges. In words apposite to the present case, his Lordship said: It is not ... correct to say as a matter of law that a statement of suspicion imputes guilt. It can be said as a matter of practice that it very often does so, because although suspicion of guilt is something different from proof of guilt, it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded." 148Attention was drawn to the private investigator's resort to sarcasm and heavy irony. When using the word "good doctor", the ordinary reasonable reader would understand that he meant "the bad doctor". The bad doctor had a pattern of suing institutions that discovered his "true nature". The words "discover the true nature" are capable of suggesting concealment, a secret that was covered up. 149I accept the plaintiff's submissions. The ordinary reasonable reader, reading between the lines and with a certain amount of loose thinking, may infer that Paul Barach was disreputable and that he had obtained employment with the University through concealing his true nature. Imputation 78.1 should go to the jury. 150Imputation 78.2 ( The true disreputable nature of Paul Barach was such that when it was revealed, it caused him to be fired from his employment at the University of New South Wales ) is objected to on the basis of capacity, form (that it is ambiguous) and that it does not differ in substance from imputation 78.1. Counsel drew attention to the question of timing. He had already been dismissed by the time of this message. Now the investigator was undertaking a background check. Counsel posed the following question (T54): " How could it have caused him to be fired from his employment if they are doing the check now, after dismissing him." 151The plaintiff submitted that the objection was a jury submission. The issue was whether the meaning was so strained or false or unreasonable that it should be taken from the jury. It was submitted that it was capable of arising. 152I accept that the imputation is different in substance from 78.1. Imputation 78.1 is dealing with the way in which Dr Barach got the job at the University. He did so by concealing his true nature. Imputation 78.2 is dealing with how he lost the job. The University became aware of the disreputable nature that he had concealed. But can it be inferred, even with loose thinking, that he lost his job because of his disreputable nature? The interpretation is said to depend upon inference (from what was said) and implication (that is, the reader's understanding of what the publisher intended to say). However, people are not usually dismissed because of their disreputable nature. They are dismissed because of their actions. Here, the reader knows that the plaintiff was dismissed. I think it reasonable, in the context of the sarcasm and heavy irony, that the ordinary reasonable reader may also infer that the "truth will out": that the plaintiff's true nature inevitably surfaced and manifested itself in serious misconduct, justifying dismissal. The question of timing, emphasised by the defendant, does not seem to me to be a problem. The investigation was not related to his dismissal. It was being undertaken to gather information that might buttress a decision already taken by the University. Imputation 78.2 should go to the jury. 153Imputation 78.3 ( Paul Barach engaged in a pattern of suing his previous employers, after they had justifiably fired him after discovering his true disreputable nature ) was objected to on the basis of capacity, form and that it did not differ in substance from 78.1. On the issue of capacity, it was submitted that a critical element was missing, namely any notion as to the way in which the plaintiff was "fired" by his previous employers. Also missing was any notion concerning the justification for such firings or dismissals (T54). 154However, in my view, the imputation is capable of arising. The use of the phrase "pattern of (bringing) legal action against institutions who discover the "true" nature of the good doctor..." is capable of suggesting, in the context of the letter, that the experience at the University of NSW was not unique. It had happened before. Dr Barach had been dismissed before, after his "true disreputable nature" was "discovered". He responded by bringing actions against the institutions that had dismissed him. 155I accept the form of the imputation and that it does differ in substance. It should go to the jury. 156The last imputation to which objection is taken, in respect of the fourteenth matter, is imputation 78.5 ( Paul Barach is a disreputable and dishonest person ). The defendant objected to the coupling of "disreputable and dishonest". The general charge that he is disreputable has been rolled up with a specific charge that he is dishonest. 157There was, according to the defendant, nothing to suggest deception. No positive act is attributed to Dr Barach let alone an act of dishonesty. The plaintiff responded that it was absurd to suggest that the coupling of "disreputable and dishonest" meant the imputation was bad in form. Further, it differed in substance from imputation 78.1, which was concerned with concealment, whereas imputation 78.5 was a general charge. 158I accept the plaintiff's submissions. Imputation 78.5 should go to the jury.

The fifteenth matter complained of. 159The statement of claim alleged that in September 2009 Mr Harold Karaka (the seventh defendant) made the following statement to Ms Ruth Kamar, the plaintiff's former wife: "Paul was terminated from his employment with the University of New South Wales due to his dishonesty. He misrepresented himself to the University and he lied to the University when he was hired." 160The publication, in its natural and ordinary meaning, was said to give rise to the following imputations: "84.1 Paul Barach is a dishonest person; 84.2 Paul Barach was fired by the University for dishonesty; 84.3 Paul Barach knowingly misrepresented himself to the University; 84.4 Paul Barach lied to the University when he was hired by it; 84.5 Paul Barach is a disreputable person; 84.6 By reason of his dishonesty, Paul Barach is not fit to be employed by a University." 161Counsel for the first defendant objected to imputations 84.4, 84.5 and 84.6. In respect of 84.4 ( Paul Barach lied to the University when he was hired by it ) it was said not to be different in substance from 84.3 ( Paul Barach knowingly misrepresented himself to the University ). The plaintiff responded by pointing to the words spoken by the investigator. He stated that he "misrepresented himself to the University and he lied to the University when he was hired". The speaker made the distinction. According to the plaintiff, there was a distinction between the two. 162I accept the plaintiff's submission. There is a distinction. The imputations differ in substance. The phrase "misrepresented himself to the University" is apposite in the context of having misstated his qualifications in his CV when applying for the job, whereas "lied to the University when he was hired" suggests (as one would infer) falsehoods in the interview before being offered the job. Imputation 84.4 should go to the jury. 163The defendant also objected to the general charge 84.5 ( Paul Barach is a disreputable person ). However, for the reason given in respect of similar objections to similar imputations, I accept that it is capable of arising and should go to the jury. 164The final imputation 84.6 ( By reason of his dishonesty, Paul Barach is not fit to be employed by a University ) is objected to by the defendant as not differing in substance from 84.1 ( Paul Barach is a dishonest person ). The plaintiff responded to that objection as follows: "This is a general charge, to the effect that the plaintiff is not fit to be employed by any university, not merely the University of New South Wales. It is a different and graver charge than imputation 84.1" 165In argument, counsel added that the imputation was speaking to the future, that the plaintiff was not fit to be employed by any university. The defendants responded by pointing out that only the University of New South Wales was mentioned. There was no warrant, as a matter of capacity, for a more general imputation in relation to fitness for work at any university (T62). 166Dealing with these submissions, first, I agree with the plaintiff that there is a difference in substance between imputations 84.6 and 84.1. Secondly, as a matter of capacity, I believe imputation 84.6 is capable of arising. The accusations made in the fifteenth matter complained of are serious. The plaintiff is said to have been dismissed by the University of New South Wales for dishonesty. It is said that he misrepresented himself to the University and lied when he was hired. That history, in the context of a professional man whose work required integrity, is capable of suggesting general unfitness for such positions. The imputation should go to the jury.

The sixteenth matter complained of. 167In July 2009, Professor Grzebieta (the second defendant) is alleged to have published to Professor Colin Sutherland the following words: "Paul Barach mismanaged the Injury Risk Management Research Centre and mismanaged funds of the Centre." 168These words in their natural and ordinary meaning, or by reason of the extrinsic facts, were said to have conveyed the following imputations: "88.1 Paul Barach in his role as director grossly mismanaged the IRMRC; 88.2 Paul Barach in his role as director mismanaged the funds of the IRMRC." 169The defendant withdrew its objection to imputation to 88.1 as a true innuendo, since knowledge of Paul Barach's dismissal would colour one's perception of the nature of mismanagement, such that he would be capable of being described as having "grossly mismanaged" the IRMRC. 170I agree. Imputation 88.1 would be, I believe, strained and unreasonable, if based simply upon the words spoken in the sixteenth matter complained of. However, as the defendant conceded, it is capable of arising if, in addition, the extrinsic facts are known. It should go to the jury upon that basis. 171As to imputation 88.2 ( Paul Barach in his role as director mismanaged the funds of the IRMRC ), the defendant asserted that it did not differ in substance from 88.1. The defendant submitted that the assertion of mismanagement of funds would be subsumed within the general allegation of mismanaging the Research Centre. The plaintiff responded that the distinction was made by the speaker in the matter complained of and there is a difference between mismanaging the Centre, that is running the Centre, and mismanaging the funds of the Centre. 172Again I accept the plaintiff's submissions. I believe imputation 88.2 is available.

The seventeenth matter complained of. 173The final matter complained of concerned a communication which is said to have taken place in September 2009 between the investigator (the seventh defendant) and Professor J Wilson, Associate Vice President, Health Law, Policy and Safety, University of South Florida. The conversation is alleged to have been in these terms: "The University of New South Wales has fired Paul Barach. He has been unethical and dishonest and I have discovered that he has a pattern of being a liar." 174The words spoken, in their natural and ordinary meaning, are alleged to have conveyed the following imputations: "91.1 Paul Barach has been unethical and dishonest in his employment at the University of New South Wales; 91.2 Paul Barach was fired by the University of New South Wales for being unethical and dishonest; 91.3 Paul Barach was a person who had a pattern of being a liar; 91.4 Paul Barach is a disreputable person." 175The first defendant objected to imputations 91.1 and 91.4. The objection to 91.1 ( Paul Barach has been unethical and dishonest in his employment at the University of New South Wales ) is that the two concepts, lack of ethics and dishonesty, had been rolled together. Counsel acknowledged that there could be no objection to imputations which separated the two. Together, as a concept, they were said to be ambiguous and uncertain as to their ambit. On the other hand it was permissible for the plaintiff to combine the two (unethical and dishonest) in imputation 91.2 because the plaintiff could have been fired for two reasons. However, no such justification existed in respect of 91.1. It did not matter that the speaker chose to combine the two words. They were different concepts (T64 -T65). 176The plaintiff responded by stating that the imputation made a clearly identifiable charge against the plaintiff, which was neither bad in form nor ambiguous. 177I agree with the plaintiff. The two concepts, dishonesty and being unethical, are related, although different. Together they paint a picture of the person who worked for the University. To use the test suggested by the defendant in the context of imputation 12.9 (supra para 21), they do not lack cohesion in the way that a murderer with bad fashion sense lacks cohesion (supra para 21). Imputation 91.1 should go to the jury. 178The final imputation 91.4 ( Paul Barach is a disreputable person ) was met with the same objection which the defendant made to earlier imputations in the same form. The slander relied upon a number of discreditable characteristics. I believe the imputation is capable of arising and differs in substance. It should go to the jury.

Orders 179I therefore make the following orders:

The imputations pleaded by the plaintiff should go to the jury, apart from the following: Imputation 12.4 Imputation 16.4 Imputation 23.7 Imputation 42.3 Imputation 67.3 Imputation 73.3
Imputation 88.1 should go to the jury as an innuendo, based upon the extrinsic facts.
The plaintiff has leave to replead: Imputation 42.6 Imputation 43.2 Imputation 49.8 Imputation 55.1 Imputation 59.3 Imputation 67.2 Imputation 73.2
Balancing wins and losses, the plaintiff successfully defended most imputations. The defendants should pay 80 per cent of the plaintiff's costs. If the defendants require, I will, after argument, make an apportionment between them. Alternatively, the defendants may agree upon an apportionment. The defendants have leave to have any such apportionment entered as an order or to approach my associate within 14 days to obtain a date for argument.
After correspondence it is noted that the first defendant is to pay the costs of the plaintiff.

Amendments 16 March 2011 - Order 5 added. Amended paragraphs: 179 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 March 2011

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Judgment (19 paragraphs)

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