Cohen v Sir Moses Montefiore Jewish Home & 3 Ors

Cohen v Sir Moses Montefiore Jewish Home & 3 Ors - [2003] NSWSC 502 - NSWSC 2003 case summary — Zoe

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(a)(iii) The plaintiff was not capable of and did not foster a warm friendly atmosphere at the first defendant (referred to hereafter as the home); (a)(iv) The plaintiff was not capable of and did not create a community spirit at the home; (a)(v) The plaintiff did not care for the residents of the home." 9 The defendants (relevantly, the first and second defendants) challenge the capacity of the matter complained of to convey each of the imputations. Their first objection concerns the words "with the first defendant" (in imputation (a)(i)) "at the first defendant" (in imputation (a)(iii)), "at the home" (in imputation (a)(iv)) and "of the home" (in imputation (a)(v)). They point out that, in the matter complained of, as pleaded, there is no mention of the first defendant or of any establishment or home conducted by it. There is substance in this complaint, but on behalf of the plaintiff in response, it is asserted that this matter complained of was published on the first defendant's letterhead and that, on the hearing, a copy of the actual publication will be tendered. There is nothing presently pleaded that suggests that the statement was published on any kind of letterhead or is in any way linked with the first defendant or the Home conducted by it. 10 The pleadings need amendment to make clear what it is that the plaintiff intends to prove, but if they are amended in such a way as to assert that the first matter complained of was published on the defendant's letterhead then the defect identified by the defendants may, depending upon what appears on the letterhead, be cured. 11 As the plaintiff pointed out, the opening words of the first matter complained of state that the plaintiff "is leaving us". This is followed by a reference to his having "commenced with the Home", and to a two year contract; this is sufficient, once the publication is properly linked to the first defendant, to be capable of conveying to the ordinary reasonable reader that the plaintiff was employed by the first defendant. 12 There were additional challenges to the individual imputations as pleaded.

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imputations (a)(i) and (ii) 13 In imputations (a)(i) and (ii), the word "incompetent" features. The defendants submitted that there was nothing in the matter complained of which would justify the drawing of any inference that incompetence was alleged against the plaintiff. I do not think this submission can be accepted. It will be open to a reader to infer that the plaintiff, in the eyes of the defendants, had failed to foster a warm and friendly atmosphere and community spirit. The final words "therefore fulfilling the Home's requirements" are capable of suggesting that doing so is part of the function of the rabbi appointed to the first defendant, and, in any event, a reader might legitimately infer, even without those words, that that was part of the role of a rabbi appointed to a facility such as the Home appears to be. A combination of the inference that the role of the rabbi included fostering a warm and friendly atmosphere and community spirit and that the plaintiff had failed to achieve those desirable goals could give rise to the inference that the plaintiff was incompetent in his employment with the defendant. Imputation (a)(i) is capable of being conveyed. 14 The same point was taken in relation to imputation (a)(ii), together with the argument that there was nothing in the matter complained of to identify the plaintiff as a "spiritual leader", or his functions as including that role. I do not agree that it would not be open to a jury to conclude that the role of a rabbi was to operate as a spiritual leader. It is not so clear that fostering a warm and friendly atmosphere and community spirit is part of the role of a spiritual leader. The notion of "spiritual leader" is somewhat elusive but I am not satisfied that competence as a spiritual leader is negated by a failure to foster a warm and friendly atmosphere and community spirit. The only failing identified in the plaintiff's performance of his duties was his imputed failure to foster the appropriate atmosphere. It is, therefore, only if fostering that atmosphere is part of the duties of a spiritual leader, as distinct from the duties of a rabbi, that this imputation could be conveyed. There is nothing else which would justify the imputation that the plaintiff is incompetent as a spiritual leader. On balance, I have concluded that the matter complained of is not capable of conveying the imputation. Imputation (a)(ii) will be struck out.

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(c)(iii) the plaintiff was offensive to residents." 20 As to imputations (c)(i) and (ii), the defendants contend that the use of the word "inappropriately" is imprecise, and wholly fails to capture any precise act or condition which is said to be attributed to the plaintiff. Reliance was placed upon the decision of the Court of Appeal in Ma Ching Kwan v John Fairfax Publications Pty Ltd, unreported, 30 July 1998. There the court had under consideration an imputation in the following terms: "The first plaintiff established a newspaper for the purpose of wrongfully exerting pressure on authorities not to pursue drug trafficking allegations against his father and uncle." 21 Of this, Handley JA, with whom Mason P and Meagher JA agreed, wrote: "The term 'wrongfully' is inherently ambiguous. The imputation does not indicate why the purpose referred to was wrongful and the possibilities range from breach of the law, criminal or civil, to breach of some moral or ethical standard. For this reason [the imputation as pleaded] fails to define the imputation with sufficient precision and should be struck out …" 22 It is the defendants' contention here that the word "inappropriately" stands in an analogous position to the word "wrongfully" in Kwan. In Kwan, Handley JA identified the range of possibilities stemming from the use of the word "wrongfully". The range of possibilities stemming from the use of the word "inappropriately" is not so clear-cut, but is equally wide. The difficulty for a defendant is that, depending upon what is published, a plaintiff may not be able to be more precise or specific about the imputation he/she/it alleges has been conveyed by the matter complained of: see Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135. That is precisely the position here. What the defendants are alleged to have published is an assertion that the plaintiff acknowledged "the concerns" expressed by the first defendant "regarding his conduct" and had apologised for any offence he may have caused. How, it may be asked, can a plaintiff refine the slur when the slur is cast in such general terms? This was not the case in Kwan where one possible kind of "wrongful conduct" was explicitly hypothesised in the matter complained of. 23 The third matter complained of is clearly capable of conveying the message that the plaintiff accepted that his conduct had been criticised, and justifiably criticised. The fact that the precise nature of the conduct was not specified in the matter complained of means that it is not possible for the plaintiff further to refine the imputation. 24 I reject the challenge to imputation (c)(i).

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the fourth matter complained of 30 The fourth matter complained of is alleged to have been published by the first defendant in the form of a media release dated 1 October 2002. It is asserted on behalf of the plaintiff that it was produced to the press, and in particular to The Australian Jewish News newspaper. 31 The media release consists of six paragraphs. In the first an announcement is made that the plaintiff's services had been terminated by the Board of Management of the first defendant. It goes on to state that, despite a number of concerns regarding his performance, the Board had agreed to give the plaintiff an opportunity to demonstrate his ability to fulfil his duties and that he had been offered a new service agreement in June 2002 but had "steadfastly delayed" either signing the document or providing the Board with comments on it. It stated that the plaintiff had agreed, in response to a request, to provide the Board with signed service agreements or comments on the proposed agreement by 17 September 2002, but that despite being reminded of this obligation, he had failed "to honour this undertaking" by that date. 32 Subsequently, the document said, the plaintiff had accepted a nomination to become a member of the Board of Management. The first defendant said that it was "widely accepted" that it was "inappropriate" for an employee of the Home to nominate for a position on the Board of Management. The release stated that the nomination was perceived by members of the Board as a clear indication that the plaintiff had no intention of entering into a new service agreement based on the terms and conditions offered. It stated that the plaintiff's political campaigning was particularly destabilising within the Home and causing obvious stress to a number of residents. 33 Originally the plaintiff pleaded that seventeen defamatory imputations were conveyed by this document. At the hearing, the seventeenth was not pressed. The imputations, as originally pleaded, are: "(d)(i) The plaintiff was incompetent in his employment with the first defendant;

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imputation (d)(ix) 45 The complaint made about imputation (d)(ix) is in substance the same as was made about, and dealt with in relation to, imputations (c)(i) and (ii): that is, that it is inappropriate to use the words "inappropriate" or "inappropriately" in an imputation because of the lack of precision. However, it does not follow that, in relation to a differently expressed publication, the success or failure of the challenge will be the same as on the previous occasion. Everything depends upon the content of the words published. The challenge to imputations (c)(i) and (ii) failed specifically because of the generality of the words (allegedly) published. In relation to imputation (d)(ix) some complications exist. The two opening paragraphs are essentially in the same general terms as the third matter complained of and are capable of conveying an imputation of inappropriate conduct otherwise unspecified. If that is the material on which the plaintiff relies to support imputation (d)(ix), then, for the reasons given in relation to imputations (c)(i) and (ii), imputation (d)(ix) should be allowed to stand. 46 But there is more in the fourth matter complained of. The word "inappropriate" is expressly used, in the context of the plaintiff's asserted nomination to the Board of Management and the view that that is "inappropriate" for an employee of the Home. In other words, one form of so-called inappropriate conduct is specified. 47 A further specific instance of the plaintiff's conduct that may be perceived as "inappropriate" is mentioned in the last paragraph of the matter complained of, where reference is made to "his political campaigning", described as "particularly destabilising" and "causing obvious distress to a number of residents". 48 There is room for the view that the "concerns regarding [the plaintiff's] performance and the execution of his duties" are not merely his "inappropriate" nomination for a position on the Board of Management, or "his political campaigning", but something additional to those matters - that is, that the opening paragraphs deal with a subject matter different from, and more general than, the later paragraphs. 49 Much depends upon the manner in which the plaintiff proposes to put his case to the jury, which will ultimately determine the matters committed to a jury under s7A of the Defamation Act 1974. It would be quite wrong to allow the plaintiff to plead an imputation in the terms in which imputation (d)(ix) is currently pleaded, and then rely upon the specific instances of inappropriate conduct identified in the fourth matter complained of, which I have mentioned. On the other hand, if the plaintiff proposes to rely, in support of that imputation, only on the reference to "concerns regarding his performance and the execution of his duties", then the ruling already made in relation to imputations (c)(i) and (ii) should be applied. The plaintiff will have to determine which course he wishes to pursue. If he wishes to rely on the assertion of "inappropriate" nomination for the Board, or the assertion of the destabilising political campaigning, then it will be necessary for him to plead the imputation more specifically. 50 At this stage I will not strike out imputation (d)(ix).

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difference in substance 64 The first defendant argued that imputations (d)(iii), (iv), (vi), (vii) and (viii) do not differ in substance. These are, respectively, that the plaintiff is dishonourable, that he is unreliable, that he is not trustworthy, that he lacks integrity, and that he is a person who does not abide by undertakings. I accept the defendant's contention that imputations (d)(iii), (vi), (vii) and (viii) do not, at least in the context of the matter complained of, differ in substance. I reach this conclusion notwithstanding the submissions offered on behalf of the plaintiff suggesting that "trustworthy" denotes deliberate dishonesty in dealings with others, that "integrity" is a wider concept, including dealings with others but also one's own internal morality and that, whilst the person who is not trustworthy and lacks integrity may not abide by undertakings, the converse is not automatically true. 65 The latter point, as with a number of others in relation to this argument, has to be seen in the context of the matter complained of. The undertaking by which the plaintiff is said not to have abided is the undertaking concerning the signing of the new service agreement or provision of comments in relation thereto. 66 In the context of the matter complained of, I am satisfied that these imputations do not differ in substance. It will be necessary for the plaintiff to elect which of these he wishes to pursue. 67 In respect of imputation (d)(iv), that the plaintiff is unreliable, I do not accept the defendant's submission that this is the same in substance as imputations (d)(iii), (vi), (vii) and (viii). Imputation (d)(iv) will stand. 68 It was also argued that imputations (d)(xv), (xvi) and (xvii) do not differ in substance. As imputation (d)(xvii) is not pressed, it is unnecessary to consider this submission. As imputation (d)(xvi) is to be struck out, it is strictly unnecessary to consider the submission in relation to imputations (d)(xv) and (xvi). I will merely note that I am of the view that the imputations do differ in substance. I would not strike out either imputation for that reason. Imputation (d)(xv) will stand.

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the fifth matter complained of 69 The fifth matter complained of is said to have been published by the first and third defendants on 22 October 2002 in the form of a document headed "Statement on the termination of the services of Rabbi Y L Cohen" and distributed outside the gates of the venue of the first defendant's annual general meeting held in October 2002. In this document it was asserted that, during a two year period prior to the election of the current Board, the previous Board had encountered issues with the plaintiff and had received many written and verbal complaints concerning his behaviour towards residents, complaints from professional staff, and that he had been counselled by management and the Board on many occasions. 70 It was asserted that the new Board was reluctant to take an immediate decision, wishing to reach a conclusion based upon their own experiences, and that it therefore entered into a new temporary arrangement on a monthly basis with the plaintiff, which was subject to review. It was stated that during March 2002 there was a serious altercation between the plaintiff and some residents which resulted in the first defendant being threatened with litigation by relatives "of the distraught residents". It was stated that in the light of these matters the Board advised the plaintiff that a new contract would not be offered and gave him one month's notice, but that following representations from the plaintiff, the Board resolved to give him a second chance and that during April 2002 he was reinstated on condition that he apologise publicly to the residents concerned, that he agree to abide by a code of conduct incorporated in a new agreement, and that he confirm that he had obtained independent legal advice that the contract was fair and reasonable. 71 It stated that the Board offered the plaintiff a new contract in June 2002, on the understanding that he would obtain independent legal advice and either execute the contract or suggest appropriate modifications. Notwithstanding this, the plaintiff had still neither signed the contract nor communicated to the Board the reasons why the contract was not acceptable. Following a request from the Board to finalise the matter, the plaintiff agreed to provide the Board with a signed service agreement or comment by 17 September 2002, but failed to do so. 72 The document stated that the plaintiff had still not undertaken all the conditions of his reinstatement of April 2002 and that, despite a number of warnings, he had refused to respond to reasonable directives from management concerning his conduct. It stated that the Board came to the conclusion that the plaintiff did not have the appropriate skills required of a rabbi of the Home. It stated that it had carefully considered all matters regarding the plaintiff's employment and had resolved to terminate his employment. 73 Initially the plaintiff pleaded that no less than twenty-two imputations were conveyed by this publication. At the hearing three of these were not pressed. All others except the first were subject to objection on the part of the first and third defendants. 74 The imputations as originally pleaded are as follows: "(e)(i) The plaintiff was incompetent in his employment with the first defendant; (e)(ii) The plaintiff was incompetent as a spiritual leader;

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difference in substance 89 The submissions put in relation to the asserted absence of difference in substance in relation to various groupings of imputations arising from the fifth matter complained of were a little confused. However, the defendants have argued that imputations (e)(i) and (viii) do not differ in substance from one another; that imputations (e)(iii) to (e)(xii) do not differ in substance from one another. The defendants addressed no written submissions to the question of difference in substance, but, in oral argument, submitted that there is a qualitative difference between written and oral complaint, and between complaints from staff and complaints from residents. This may, in some circumstances, be so, but, in the context of this publication, it is not. The substance of what was published of the plaintiff concerned the fact that he was the subject of complaint; it is incidental that these complaints were both written and oral, from residents and staff. The plaintiff will have to elect between these imputations, or alternatively reframe an imputation that more accurately captures the substance of what was published of him. 90 I am satisfied that imputations (e)(i) and (viii) do differ in substance; the former is an imputation of incompetence, the latter of unworthiness. The notion of unworthiness has a moral dimension different from incompetence. I am, however, also satisfied that imputation (e)(xi) does not differ in substance from imputations (e)(iii) - (vi); and nor does imputation (e)(ix). Imputations (e)(vii) and (e)(x) are in a different category. Imputation (e)(viii), of employment unworthiness, is different in substance. Imputations (e)(xii), (xiii) and (xvi) are not pressed. 91 The plaintiff will have to elect between imputations (e)(ii) - (vi), (e)(ix) and (e)(xi). 92 The remaining complaint concerns, therefore, imputations (e)(xiv), (xv), (xvii) and (xviii). The notions of dishonesty, lack of integrity and a failure to abide by undertakings are capable, in appropriate circumstances, of conveying different things, however, in the context of this matter complained of they do not. 93 The plaintiff will have to elect between imputations (e)(xv), (xvii) and (xviii). 94 I am of the view that imputation (e)(xiv), of unreliability, is in a slightly different category and will be allowed to stand.

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the tenth matter complained of 121 The tenth matter complained of is said to have been published on 6 January 2003 by the first and third defendants in the form of an interview between the third defendant and a journalist with the Sydney Morning Herald. As originally pleaded the matter complained of appears to be taken directly from a news report in the Sydney Morning Herald. In response to the defendants' criticism, the plaintiff has sought to replead this matter by pleading only the words attributed to the third defendant. I will deal with the challenges on the basis of the proposed amendment. 122 The third defendant was reported to have said that the plaintiff had been asked to leave the first defendant's Home "because he is too religious"; that the Board had not succeeded in evicting him from the facility's adjoining residence and that he remained inside the house despite being ordered to vacate by the previous Monday; that the Board had informed the plaintiff early the previous year that it would not be renewing his employment contract and that the plaintiff had responded by circulating a petition against his dismissal among the residents, some of whom may not have comprehended what they were signing. It was reported that the plaintiff had been advised not to enter the facility's synagogue nor to approach any of the residents. 123 The third defendant is reported to have said: "The rabbi is too zealous in pushing his orthodox practices, including his efforts to persuade male residents to don yarmulka's (sic) for the evening meal. In one instance, he attempted to postpone a meal for almost ninety minutes to accommodate a minor religious festival. He was trying to push onto residents, elderly residents, a level of religion and religious observance many were not even interested in hearing about … People of that age are entitled not to be pressured. Some of the residents were very upset and distressed by it all. … The decision to demand his departure from the house had to be taken as a measure of last resort. We have been asking him to vacate in as nice a way as we could under the circumstances since the beginning of October. We even offered to pay removal fees, and the first sixty days' rent. We've shown him every opportunity and courtesy, yet we've had nothing but heartache and headache from a spiritual leader." 124 From this, the plaintiff pleaded that nineteen defamatory imputations were conveyed. They were: "(j)(i) The plaintiff was incompetent in his employment with the first defendant;

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(f) The plaintiff acts contrary to Jewish law by elevating the importance of observance of festivals and the rituals associated therewith over the health and welfare of his congregants." 149 The defendants argued that imputations 13(b) and (c) and imputations 13(d) and (e) do not differ in substance. Imputations 13(b) and (c) are that the plaintiff is not worthy of the title ((b)) or of holding the position ((c)) of rabbi. Counsel for the plaintiff sought to show that there is a difference in substance between worthiness to hold the title and worthiness to hold the position. The attempt failed. There is no difference in substance between contextual imputations 13(b) and (c). Imputations 13(d) and (e) each contain an assertion that the plaintiff does not act in accordance with fundamental principles and tenets of his faith, which, by virtue of his position, he is obliged to uphold and impart to his congregants. I accept the submission made on behalf of the defendant that these two imputations do not differ in substance from one another. The plaintiff will be required to elect between imputations 13(b) and (c), and imputations 13(d) and (e). 150 Also argued on behalf of the defendants was that, even taking into account any assumed knowledge of the extrinsic facts pleaded, the matters complained of are incapable of conveying any of the pleaded imputations. The extrinsic facts are pleaded as follows: "14 An orthodox rabbi must abide by the fundamental principles and tenants (sic - tenets) of the Jewish faith, which include: (a) being kind; (b) being caring; (c ) being generous; (d) being honest; (e) being decent; (f) being law abiding; (g) resolving disputes not fostering them; (h) placing the health and life of a person above the fulfilment or observance of festivals and commands." 151 It is somewhat regrettable that the true innuendo imputations are pleaded in the global fashion that they are. However, no point was taken in this regard, and, it seems to me, that the pleadings should be read as intending to assert that each individual matter complained of, when read in the light of the extrinsic facts pleaded, conveys the true innuendo imputations pleaded. It is therefore necessary to return to each publication of which complaint is made.

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Judgment (114 paragraphs)

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Cases Cited (2)