Supreme Court New South Wales Medium Neutral Citation: Hochroth v Milecki; Mann v Milecki; Naumburger v Milecki (No 2) [2018] NSWSC 620 Hearing dates: 2 March 2018 Decision date: 02 March 2018 Jurisdiction: Common Law Before: McCallum J Decision: Each of imputations A and N in respect of the first matter complained of in the Hochroth proceedings and B, C and D in respect of the third matter complained of in the Hochroth proceedings, which is the first matter complained of in each of the other proceedings, will go to the jury Catchwords: DEFAMATION – rulings as to imputations – no question of principle Category: Procedural and other rulings Parties: Proceedings 2017/292255: James Hochroth (plaintiff) Rabbi Benzion Milecki (defendant) Proceedings 2017/292321 Curtis Mann (plaintiff) Rabbi Benzion Milecki (defendant) Proceedings 2017/292322 Rodney Naumburger (plaintiff) Rabbi Benzion Milecki (defendant) Representation: Counsel: M Richardson (plaintiff in each proceeding) R Tassell (solicitor for defendant in each proceeding) Solicitors: Harris & Co (plaintiff in each proceeding) Pikes & Verekers Lawyers (defendant in each proceeding) File Number(s): 2017/2922552017/2923212017/292322 Publication restriction: None Judgment 1. HER HONOUR: Before the Court are three proceedings for defamation commenced by three individuals against Rabbi Benzion Milecki arising out of a dispute between the Rabbi and office holders of the South Head Synagogue at which he was then the Rabbi. 2. The proceedings are before the Court today for the first listing. The parties have brought forward a number of objections as to the imputations relied upon by each plaintiff. 3. In proceedings brought by James Hochroth, two separate letters written by the Rabbi are sued on. In the proceedings brought by Rodney Naumburger and Curtis Mann, only the second of the two letters is sued on. The argument proceeded on the agreed premise that the rulings in respect of the second letter in each proceeding would be the same. Accordingly, it is convenient to determine the objections by reference to the Hochroth proceedings on the basis that those rulings will also govern the Naumburger and Mann proceedings. 4. Turning first to the Rabbi's first letter, the letter distributed a letter sent by the Rabbi to Mr Hochroth setting out in strong and relatively passionate terms the Rabbi's complaints as to the manner in which he had been treated by the board in what the Rabbi characterised as their attempts to terminate his position. 5. Following correspondence between the parties regarding the form of the imputations, only two objections remain. The first is to imputation A, which is that the plaintiff dishonestly pretended to be the president of the South Head Synagogue in a letter he wrote to the community. That imputation is alleged to arise principally from the first part of the first paragraph of the letter, which states: "I was shocked by the audacity of the letter that you wrote to the community yesterday, purportedly as President, although according to the Constitution (Article 24.1i) your position as president was vacated the moment you took a personal mortgage on the shule." 1. By reference to that paragraph alone, I think the ordinary reasonable reader would understand that the author was taking a smart point rather than accusing Mr Hochroth of making a deliberate or dishonest representation to be the president. However, as submitted by Mr Richardson, the following three paragraphs elevate the tone and make plain that the Rabbi is accusing Mr Hochroth of misleading the community to which he wrote in various ways. 2. I am mindful in this context of the high bar a defendant must meet in order to have an imputation relied upon by a plaintiff struck out on the grounds that it is incapable of arising, as reiterated in a number of recent decisions of the Court of Appeal. Whilst I think there is some force in Mr Tassell's submission that the imputation is incapable of arising, I think on balance it is an issue I must leave to the jury in accordance with those authorities. 3. The second imputation objected to on the grounds of capacity is N, which is: "The Plaintiff, who is aware of an injunction by the Beth Din preventing him taking irreversible action, is prepared to place himself in Contempt of the Beth Din by voting for the liquidation of the South Head Synagogue." 1. That imputation arises principally from par 18 of the matter complained of, which states: "As you very well know, the Chief Rabbi has appointed the Beth Din. The Beth Din has issued an injunction preventing anyone from taking irreversible action. This would most certainly preclude you from voting for the liquidation, as you threatened to do in your letter. Should you ignore the injunction and vote for liquidation you would be in Contempt of Beth Din, an extremely serious matter in Halacha generally, and especially with a Beth Din of such eminence." 1. Mr Tassell submitted that the letter is not capable of conveying an imputation as to what the plaintiff is presently prepared to do since it is issuing a warning to the plaintiff not to take a course in the future. That is an over simplification of the submission, but that is the burden of it, as I understood it. 2. In my view, the reference in the letter to the plaintiff having threatened to do the very discreditable thing captured in the imputation indicates that it is at least capable of being conveyed, and that I must leave it to the jury. 3. The second set of objections relates to all three proceedings and the second letter written by the Rabbi. That letter continued the debate about the circumstances of the Rabbi's termination and the steps allegedly taken by the board to that end. 4. Imputation B is: "The plaintiff breached his duties as a Board member of the South Head Synagogue by placing it into administration for the sole purpose of terminating the Defendant's position as Rabbi." 1. There is no reference in the letter explicitly to any breach of duty as a director. Mr Tassell submitted, with some force, that while the letter is plainly critical of the plaintiff, it is incapable of conveying an imputation that the acts attributed to the plaintiff amounted to a breach of his duties as a member of the board of the synagogue. 2. The difficulty I have with the submission, although as I have indicated I thought it had some force, is the difficulty of assessing the extent to which the ordinary reasonable reader would be taken to have a measure of understanding of the duties of a director. There is a high measure of criticism of the plaintiff in the letter and he is attributed with conduct which the ordinary reasonable reader might think was wrong or inconsistent with some obligation towards the board. 3. On balance, whilst I have some reservations about the imputation, I think I am required by the authorities to which I have referred to leave it to the jury to determine that question. 4. Imputation C is: "The plaintiff acted negligently as a Board member of the South Head Synagogue by deciding to place the Synagogue into administration, thereby causing it to incur huge debt." 1. In response to the defendant's objections, the plaintiffs propose an alternative imputation C(1), that "the Plaintiff acted incompetently as a board member of the South Head Synagogue by deciding to place the Synagogue into administration, thereby causing it to incur huge debt." 2. The objection as to the capacity of the matter complained of to convey either of those imputations has some resonance with the objection in respect of imputation B, specifically, that at no point does the letter expressly or impliedly allege that the conduct attributed to the plaintiff amounted to conduct which was negligent or which fell short of any duty to act with due care or diligence. That is an issue which must be left to the jury. 3. There is a high level of criticism directed at the plaintiff by the letter. In my view the ordinary reasonable reader must be taken to be capable of inferring that the kind of conduct referred to was either negligent or incompetent. 4. Finally, there is an objection to imputation D: "The Plaintiff's immoral actions as a Board member and secured creditor have destroyed the South Head Synagogue." 1. The submissions in respect of that imputation focus critically on a specific aspect of the structure of the matter complained of. The letter sets out contributions the Rabbi claims that he had made to prevent the synagogue from going into liquidation by refraining from making due demand for payment to which he is entitled. 2. Paragraph 9 of the letter then sets out the Rabbi's demands which in sum amount to ways in which the three plaintiffs could similarly make a contribution to prevent the synagogue from going into liquidation. 3. Paragraph 11 then sets out a series of moral assertions along the following lines: "From the above, it should be abundantly clear that Messrs Hochroth, Naumburger and Mann have: (a) no moral right to vote for liquidation; (b) no moral right to withdraw their funds from the synagogue which would trigger the sale of the property…" and so on. 1. Mr Tassell objects that the imputation is incapable of being conveyed to the ordinary reasonable reader because the references to moral obligations are in respect of possible future courses of action that may be taken by each plaintiff but not to any action taken to date. 2. However, as submitted by Mr Richardson on behalf of the plaintiffs, the letter is replete with criticism of the steps taken to date and appears fairly clearly to attribute the plaintiffs with having already taken an immoral position in respect of their duties towards the synagogue. 3. I think again this is an imputation which I am required by the authorities to leave to the jury. 4. For those reasons, each of imputations A and N in respect of the first matter complained of in the Hochroth proceedings and B, C and D in respect of the third matter complained of in the Hochroth proceedings, which is the first matter complained of in each of the other proceedings, will go to the jury. ********** 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: 08 May 2018