New South Wales Supreme Court CITATION : COHEN v SIR MOSES MONTEFIORE JEWISH HOME [2003] NSWSC 1094 HEARING DATE(S) : Monday 24 November 2003 JUDGMENT DATE : 24 November 2003 JUDGMENT OF : Levine J DECISION : 1. The fourth matter complained of is incapable as a matter of law of conveying the pleaded imputation in (d)(i) as amended. Verdict entered for the defendant in relation to imputation (d)(i) with no leave to replead.; 2. Imputation (j)(i) amended to read: "the plaintiff was insensitive to the needs of his congregants as evidenced by the fact that he sought to impose a degree of religious observance which they did not wish to adopt".; 3. The plaintiff to pay the defendants' costs of the proceedings before Simpson J.; 4. The plaintiff is to pay the defendant's costs in respect of imputation (d)(i). CATCHWORDS : Imputations - capacity - costs CASES CITED : Cohen v Sir Moses Montefiore Jewish Home [2003] NSWSC 502 RABBI Y L COHEN (Plaintiff) v SIR MOSES MONTEFIORE JEWISH HOME (First Defendant) PARTIES : ROBERT ORIE (Second Defendant) LEONARD KARPIN (Third Defendant) BRIAN LEVITAN (Fourth Defendant) FILE NUMBER(S) : SC 20029 OF 2003 A Blank (Plaintiff) COUNSEL : A Dawson (Defendants) Verekers (Plaintiff) SOLICITORS : Minter Ellison (Defendants) - 4 - Ex tempore: revised [2003] NSWSC 1094 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST JUSTICE DAVID LEVINE MONDAY 24 NOVEMBER 2003 20029 OF 2003 RABBI Y L COHEN ( Plaintiff ) v SIR MOSES MONTEFIORE JEWISH HOME (First Defendant) ROBERT ORIE (Second Defendant) LEONARD KARPIN (Third Defendant) BRIAN LEVITAN (Fourth Defendant) JUDGMENT (Imputations – capacity – costs) 1 In her judgment of 13 June [2003] NSWSC 502 in relation to what is the fourth matter complained of, Simpson J struck out imputation d(i) that read "The plaintiff was incompetent in his employment with the first defendant". 2 In paragraph 37 of her reasons her Honour said: "The reader might well derive from the matter complained of the message that the plaintiff's performance was in some unidentified respects less than satisfactory. But that same reader could hardly conclude that the first defendant would offer an incompetent employee a new service agreement." 3 The import of the fourth matter complained of, when read reasonably, is, as her Honour said, that whilst there might be a message of there having been concerns regarding performance and execution of duties, the opportunity to demonstrate ability was declined, according to the matter complained of, by the failure of the plaintiff to enter into the offered service agreement. 4 The plaintiff now seeks to plead as imputation d(i): d(i) The plaintiff had failed to perform his duties with the first defendant satisfactorily, evidenced by the fact that it was now necessary to provide him with an opportunity to do so. 5 The first objection taken to the imputation is that it is nonsensical. It is certainly inelegant. If it is read as "The plaintiff had failed to perform his duties with the first defendant satisfactorily is evidenced" or "as evidenced by the fact that it was now necessary to provide him with an opportunity to do so" elegance might be added but not, in any real substantive way, sense. 6 The problem is that on a fair reading of the matter complained of, to extract any connection in a real sense between what her Honour described as the article saying the plaintiff's performance was in some unidentified respects less than satisfactory and the provision of an opportunity for him to demonstrate his ability, in a way that would constitute first, an imputation proper in form and second, one which, if proper in form, could be capable of being found to be defamatory. I myself, viewing the matter reasonably, am unable to see the connection, being in agreement with her Honour as to the nonavailability of a notion of incompetence. I have come to the view that the fourth matter complained of is incapable as a matter of law of conveying the pleaded imputation in d(i) as amended to give it some elegance and I enter a verdict for the defendant in relation to that pleaded imputation. 7 I do not propose to grant leave to replead. 8 Reading the balance of the imputations pleaded in relation to that matter complained of, it is clear that they go to the nub of what the document is all about. 9 I turn to the second imputation that was in dispute. That has now been resolved, it relates to the tenth matter complained of, and is now to be taken to be in the following terms: j(i) The plaintiff was insensitive to the needs of his congregants as evidenced by the fact that he sought to impose the degree of religious observance which they did not wish to adopt. 10 It will be noted that I have added two words. 11 The second matter with which I am concerned today is the question of costs, principally of the proceedings before Justice Simpson on 19 May this year resulting in her judgment of 13 June to which I have already referred. I have had the benefit of outlines of submissions from counsel on each side which, amongst other things, purport in some way mathematically to divide up the spoils. 12 The usual approach taken in this list to arguments of this kind is, unless the court is concerned with an express and clear application for amendment, to deal with costs on the basis that there is before it a notional motion under the practice note dealing with objections taken to a pleading, whether it be the original statement of claim, an amended statement of claim or a further amended statement of claim. Further, it is the usual practice that the party that predominantly succeeds, whether it be the moving party or the respondent party, has the benefit in the end of an order for costs. 13 I have not sought to check the integrity of the mathematical calculations arriving at the figure of 79.9 per cent in Mr Dawson's submissions, nor have I gone through every paragraph of the substantial judgment of her Honour of 13 June, as referred to by Mr Blank. Adopting the practice of this list to which I have referred it seems to me clear that the defendants before her Honour were predominantly successful and I order the plaintiff to pay the defendants' costs of the proceedings before Justice Simpson. 14 As to the proceedings before me today, they had to continue to resolution notwithstanding the amended pleading reflected compliance with earlier stated objections. There was but one real issue constituted by one imputation in respect of which the defendant was successful and the usual order will follow that the plaintiff is to pay the defendants' costs. 15 I would add that in the scheme of things, if it ever comes to an assessment, an appropriate sense of proportion should be maintained. ********** Last Modified: 11/26/2003 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.