NWDS CEO sues for Defamation
|
A reply to this statement of claim is set out below in blue.
Only relevant parts of the statement of claim are shown. |
|
STATEMENT OF CLAIM
COURT DETAILS
District Court of NSW, Defamation List, Sydney, 2020/00098529
TITLE OF PROCEEDINGS
Plaintiff DEBORAH GERSBACH
Defendant MICHAEL COLE
NOTICE OF LISTING
This matter has been listed for Directions (Defamation) at Sydney on 30 April 2020 at 09:00 AM. Filed: 31 March 2020 10:36 AM
RELIEF CLAIMED
First Matter Complained of
On … a date within April 2019, the defendant published an article titled ‘A disturbing story from the not-for-profit sector’ (First Matter Complained of).
Particulars of publication
a screenshot of the First Matter Complained of is attached at Annexure A; The First Matter Complained of was part of an online publication known as ‘The Whistle’, issue number 98 for the month of April 2019; The First Matter Complained of was of and concerning the plaintiff.
Particulars of identification
the First Matter Complained of was published to persons who knew that the plaintiff was the Chief Executive Officer of NWDS, including the following persons [Directors of NWDS]:
John Colebatch
Justin Dowd
John Brawley,
Anne Leech,
All these persons are directors of NWDS. In that capacity they, and all directors and Deborah Gersbach, were sent a copy of the text prior to publication for comment and correction. They did not dispute any facts in the text. In addition, directors of NWDS had been aware of these facts for years prior to publication and had ignored, and failed in their duty to act on, the facts complained of in this statement of claim. The documents proving this are outlined below.
The First Matter Complained of in its natural and ordinary meaning carried the following imputations each of which was defamatory of the plaintiff:The plaintiff as CEO of NWDS, exercised control over all policy and direction decisions of the board of NWDS by appointing compliant individuals to the board and forcing board members to leave if they displeased her (whole matter but especially paragraphs 2, 18 and 21).
Answered below.
In breach of her duties as CEO of NWDS, the plaintiff refused to permit the board of NWDS to conduct an investigation into complaints of staff bullying by the plaintiff (whole matter but especially paragraph 4).
True. A senior staff member approached the board complaining that she had been bullied by Deborah Gersbach CEO. The NWDS Complaints Policy 1.7 required any complaint about the CEO to be made directly to the board. Deborah Gersbach insisted that all complaints must be directed to herself in the first instance and that she would resign “if this ever happened again”. The board resolved to comply. A letter to this effect was sent to the complainant. That complaint and later complaints were never investigated.
The plaintiff falsely claimed that the defendant had assaulted her (whole matter but especially paragraphs 7-12).
True. Deborah Gersbach lied. Deborah Gersbach did falsely claim that I had assaulted her. Deborah Gersbach’s claim was defamatory.
The plaintiff deliberately lied when she claimed that an assault on her by the defendant was witnessed by two witnesses (whole matter but especially paragraphs 7-9).
True. Deborah Gersbach lied when she claimed that the assault had been “clearly seen by two witnesses”. There was only one other person in the room; not two. And that person had a clear view and did not witness anything. (my italics).
The plaintiff deliberately lied when she claimed that an assault on her by the defendant required medical attention (whole matter but especially paragraphs 7-9).
True. Deborah Gersbach lied. Deborah Gersbach’s allegations were independently investigated by Paul McLeay of Janice McLeay Consulting (JMC) (Excerpts in Annexure B) and reported on 13 July 2017. Deborah Gersbach did not provide them with any evidence of visits to doctors or X-rays or any medical appointments when JMC asked her to do so. Nor did Deborah Gersbach provide this evidence to the NWDS board.
The plaintiff deliberately lied when she claimed that she had reported to police an assault on her by the defendant (whole matter but especially paragraphs 7-9).
True. Deborah Gersbach lied. The police confirm that Deborah Gersbach did not make any report to the police. Deborah Gersbach claimed to have reported two events to the police. One was the assault which she claimed occurred in her office and the other was an apprehension of violence that I might attack her, perhaps at home, after a board meeting. Both claims were untrue. Deborah Gersbach was never attacked and she made no reports to police.
Despite findings of an independent investigation that it was not true that the defendant had assaulted her, or that the assault was witnessed by two witnesses, or that the defendant required medical attention or that the defendant had reported the assault to police, the plaintiff continued to lie about these allegations (whole matter but especially paragraphs 7-11).
True. Deborah Gersbach continued to lie. She wrote to the board on 25 July 2017 re-stating her allegations and claiming they were all true. “The fact that both witnesses present at the meeting when my hand was hurt were not interviewed … I do not know whether she [the witness] saw it or not … I did attend the Doctor and told … that in my interview. He failed to confirm that in his report … the information regarding me going to the police … The continued inconsistencies in Michael’s statement - amounting to gross and deliberate attempt to alter the facts … has not been commented on or investigated. There has been no attempt to confirm Michael’s wording as truthful or not.” (my italics).
The plaintiff deliberately obstructed and closed down an investigation by a director of NWDS into staff bullying by the plaintiff (whole matter but especially paragraphs 12 -13).
True. A senior member of staff made an appropriate complaint to the board about being bullied by Deborah Gersbach CEO, as required by NWDS policy 1.7 - Complaints. The policy required that all complaints about the CEO should be made directly to the board, not to the CEO. Deborah Gersbach who attended that, and every, board meeting refused to allow the board to address the complaint and changed board policy such that complaints about the CEO should be directed to (investigated by) the CEO. She threatened to resign “if this ever happens again”.
The plaintiff forced a director of NWDS to resign by falsely accusing him of leaking confidential information (whole matter but especially paragraphs 12 -13).
True. The director was forced to resign by John Colebatch, the NWDS Chairman, after Deborah Gersbach found out that the director was investigating complaints of staff being bullied by Deborah Gersbach as far back as 2012. No confidential information was leaked. (See board minutes).
The plaintiff took advantage of an intellectually disabled director by manipulating him to vote against his actual intentions (whole matter but especially paragraph 14).
True. Deborah Gersbach and Lawrence Kenny, a director of NWDS and employee of NDIS, manipulated an intellectually disabled director to vote against his actual intentions. The parents of the manipulated director submitted a complaint in writing to the board. Nothing was done. The disabled director left the board.
From above:
The plaintiff as CEO of NWDS, exercised control over all policy and direction decisions of the board of NWDS by appointing compliant individuals to the board and forcing board members to leave if they displeased her (whole matter but especially paragraphs 2, 18 and 21).
True. Deborah Gersbach, an employee of NWDS, maintained control of the board and NWDS in a number of ways, including:
Second Matter Complained of On … a date within the month of April 2019, the defendant published via the internet, a post on the website www.nwdscandal.com at the URL: nwdscandal.com/a-disturbing-article-about-mis- governance.html (Second Matter Complained of). ... The Second Matter Complained of was of and concerning the plaintiff.
Third Matter Complained of On … a date within the month of April 2019, the defendant published via Facebook a post embedding a hyperlink to an article titled ‘A disturbing story from the not-for-profit sector’ (Third Matter Complained of).
Particulars of identification
the Third Matter Complained of was published to persons who knew that the plaintiff was the Chief Executive Officer of NWDS, …By reason of the publication of the Matters Complained of, the plaintiff has been brought into hatred, ridicule and contempt and has been greatly injured in her character and reputation and has suffered hurt and embarrassment and has and will continue to suffer loss and damage.The damages in relation to each matter complained of are increased as a result of the grapevine effect of the repetition of each of the defamatory imputations.The plaintiff’s hurt as a result of the publication of the Matters Complained of was aggravated by:The plaintiff’s (‘the defendant’s?) knowledge of the falsity of the imputations in each matter complained of.
No. I believe that all imputations are true. I have documents to support all the statements here and in the article.
SIGNATURE OF LEGAL REPRESENTATIVE I certify under clause 4 of schedule 2 of the Legal Profession Uniform Law Application Act 2014 that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim for damages in these proceedings has reasonable prospects for success.
I have advised the plaintiff that court fees may be payable during these proceedings. These fees may include a hearing allocation fee.
Signature
Name
Capacity Solicitor for the plaintiff by his partner
Date of signature 31 March 2020
FURTHER DETAILS ABOUT PLAINTIFF
Plaintiff DEBORAH GERSBACH
Address 168 Mulgrave Road
MULGRAVE NSW 2756
COURT DETAILS
District Court of NSW, Defamation List, Sydney, 2020/00098529
TITLE OF PROCEEDINGS
Plaintiff DEBORAH GERSBACH
Defendant MICHAEL COLE
NOTICE OF LISTING
This matter has been listed for Directions (Defamation) at Sydney on 30 April 2020 at 09:00 AM. Filed: 31 March 2020 10:36 AM
RELIEF CLAIMED
- Damages including aggravated damages for defamation.
- Interest.
- Costs.
- At all material times the plaintiff [Deborah Gersbach] was the Chief Executive Officer of North West Disability Services Inc (NWDS) a provider of disability services in NSW
- At all material times the defendant was a former director of NWDS.
First Matter Complained of
On … a date within April 2019, the defendant published an article titled ‘A disturbing story from the not-for-profit sector’ (First Matter Complained of).
Particulars of publication
a screenshot of the First Matter Complained of is attached at Annexure A; The First Matter Complained of was part of an online publication known as ‘The Whistle’, issue number 98 for the month of April 2019; The First Matter Complained of was of and concerning the plaintiff.
Particulars of identification
the First Matter Complained of was published to persons who knew that the plaintiff was the Chief Executive Officer of NWDS, including the following persons [Directors of NWDS]:
John Colebatch
Justin Dowd
John Brawley,
Anne Leech,
All these persons are directors of NWDS. In that capacity they, and all directors and Deborah Gersbach, were sent a copy of the text prior to publication for comment and correction. They did not dispute any facts in the text. In addition, directors of NWDS had been aware of these facts for years prior to publication and had ignored, and failed in their duty to act on, the facts complained of in this statement of claim. The documents proving this are outlined below.
The First Matter Complained of in its natural and ordinary meaning carried the following imputations each of which was defamatory of the plaintiff:The plaintiff as CEO of NWDS, exercised control over all policy and direction decisions of the board of NWDS by appointing compliant individuals to the board and forcing board members to leave if they displeased her (whole matter but especially paragraphs 2, 18 and 21).
Answered below.
In breach of her duties as CEO of NWDS, the plaintiff refused to permit the board of NWDS to conduct an investigation into complaints of staff bullying by the plaintiff (whole matter but especially paragraph 4).
True. A senior staff member approached the board complaining that she had been bullied by Deborah Gersbach CEO. The NWDS Complaints Policy 1.7 required any complaint about the CEO to be made directly to the board. Deborah Gersbach insisted that all complaints must be directed to herself in the first instance and that she would resign “if this ever happened again”. The board resolved to comply. A letter to this effect was sent to the complainant. That complaint and later complaints were never investigated.
The plaintiff falsely claimed that the defendant had assaulted her (whole matter but especially paragraphs 7-12).
True. Deborah Gersbach lied. Deborah Gersbach did falsely claim that I had assaulted her. Deborah Gersbach’s claim was defamatory.
The plaintiff deliberately lied when she claimed that an assault on her by the defendant was witnessed by two witnesses (whole matter but especially paragraphs 7-9).
True. Deborah Gersbach lied when she claimed that the assault had been “clearly seen by two witnesses”. There was only one other person in the room; not two. And that person had a clear view and did not witness anything. (my italics).
The plaintiff deliberately lied when she claimed that an assault on her by the defendant required medical attention (whole matter but especially paragraphs 7-9).
True. Deborah Gersbach lied. Deborah Gersbach’s allegations were independently investigated by Paul McLeay of Janice McLeay Consulting (JMC) (Excerpts in Annexure B) and reported on 13 July 2017. Deborah Gersbach did not provide them with any evidence of visits to doctors or X-rays or any medical appointments when JMC asked her to do so. Nor did Deborah Gersbach provide this evidence to the NWDS board.
The plaintiff deliberately lied when she claimed that she had reported to police an assault on her by the defendant (whole matter but especially paragraphs 7-9).
True. Deborah Gersbach lied. The police confirm that Deborah Gersbach did not make any report to the police. Deborah Gersbach claimed to have reported two events to the police. One was the assault which she claimed occurred in her office and the other was an apprehension of violence that I might attack her, perhaps at home, after a board meeting. Both claims were untrue. Deborah Gersbach was never attacked and she made no reports to police.
Despite findings of an independent investigation that it was not true that the defendant had assaulted her, or that the assault was witnessed by two witnesses, or that the defendant required medical attention or that the defendant had reported the assault to police, the plaintiff continued to lie about these allegations (whole matter but especially paragraphs 7-11).
True. Deborah Gersbach continued to lie. She wrote to the board on 25 July 2017 re-stating her allegations and claiming they were all true. “The fact that both witnesses present at the meeting when my hand was hurt were not interviewed … I do not know whether she [the witness] saw it or not … I did attend the Doctor and told … that in my interview. He failed to confirm that in his report … the information regarding me going to the police … The continued inconsistencies in Michael’s statement - amounting to gross and deliberate attempt to alter the facts … has not been commented on or investigated. There has been no attempt to confirm Michael’s wording as truthful or not.” (my italics).
The plaintiff deliberately obstructed and closed down an investigation by a director of NWDS into staff bullying by the plaintiff (whole matter but especially paragraphs 12 -13).
True. A senior member of staff made an appropriate complaint to the board about being bullied by Deborah Gersbach CEO, as required by NWDS policy 1.7 - Complaints. The policy required that all complaints about the CEO should be made directly to the board, not to the CEO. Deborah Gersbach who attended that, and every, board meeting refused to allow the board to address the complaint and changed board policy such that complaints about the CEO should be directed to (investigated by) the CEO. She threatened to resign “if this ever happens again”.
The plaintiff forced a director of NWDS to resign by falsely accusing him of leaking confidential information (whole matter but especially paragraphs 12 -13).
True. The director was forced to resign by John Colebatch, the NWDS Chairman, after Deborah Gersbach found out that the director was investigating complaints of staff being bullied by Deborah Gersbach as far back as 2012. No confidential information was leaked. (See board minutes).
The plaintiff took advantage of an intellectually disabled director by manipulating him to vote against his actual intentions (whole matter but especially paragraph 14).
True. Deborah Gersbach and Lawrence Kenny, a director of NWDS and employee of NDIS, manipulated an intellectually disabled director to vote against his actual intentions. The parents of the manipulated director submitted a complaint in writing to the board. Nothing was done. The disabled director left the board.
From above:
The plaintiff as CEO of NWDS, exercised control over all policy and direction decisions of the board of NWDS by appointing compliant individuals to the board and forcing board members to leave if they displeased her (whole matter but especially paragraphs 2, 18 and 21).
True. Deborah Gersbach, an employee of NWDS, maintained control of the board and NWDS in a number of ways, including:
- Making it difficult, or impossible, for anyone to become a member of NWDS or be voted on to the board, without the intervention of herself.
- The form labeled as the application of new members (Appendix C) was not actually the form for the application of new members. Thus, any person applying for membership using that form could be, and was, rejected because of this defect in their application (unless Deborah Gersbach gave them the correct form). e.g. board minutes September 2014 for an example of rejection of applicants.
- The correct form for application of membership (Appendix D) was not on the NWDS computer or office forms. To find the form it was necessary to know that the application for NWDS membership was an appendix to the NWDS Constitution; and therefore not used by many, or probably no one, except Deborah Gersbach.
- The form mentioned in (2) was mislabeled so that the wrong form was always given to potential applicants by staff, or sent out with notices, except by Deborah Gersbach.
- Debora Gersbach played a major role in nominating directors.
- The membership of NWDS was made up almost exclusively of friends of Deborah Gersbach or family members and friends of the board. Thus, the board she controlled was returned to office at the AGM by their family and friends.
- Deborah Gersbach played a major role in nominating life members for serving NWDS for 10 years. Life members supported Deborah Gersbach having stayed at NWDS for 10 years. Life membership was not a legitimate membership class, paid no fees and had no voting rights. Never the less Deborah Gersbach and the board allowed them to vote for directors at the AGM, usually by voting for themselves or giving their proxies to the directors already approved by Deborah Gersbach, (1) to (6) above.
- In 2016 there were 11 members of NWDS, only 6 of them not on the board. There were 20 ‘life members’ who were allowed to vote at the AGMs although they had no voting rights and were not a legitimate class of membership of NWDS. Four life members were on the board.
- In 2017 seven members of NWDS including five former directors, who were concerned about misgoverance and bullying, nominated for director positions. In response the board attempted to enroll 24 of their friends and family to membership of NWDS. None were validly nominated by two legitimate members of NWDS as required. These 24 family and friends and 20 life members were allowed to vote, together with 8 other legitimate members of NWDS. The board approved by Deborah Gersbach was re-elected.
- When a senior staff member complained of being bullied by Deborah Gersbach, Deborah Gersbach refused to allow the board to comply with the NWDS Complaints Policy 1.7 and threatened to resign if it was complied with. She insisted on herself investigating any complaints made to NWDS about herself. That included complaints that she was or had been bullying staff and parents. The board complied. See board minutes.
- Deborah Gersbach, whose secretary typed the board minutes, had her name put first in the list of those ‘present’ (ie as a director) rather than as ‘attended’ (ie a staff member), despite attempts by some board members to redress this practice. (See board minutes).
- Deborah Gersbach attended practically all board meetings and was on the board email list.
- The board habitually followed Deborah Gersbach’s directions and turned a blind eye. (See comments by independent investigator Annexure B).
- One director was minuted as saying ‘he doesn’t believe the board is independent and we are all Deborah Gersbach’s puppets’ (See board minutes).
- Directors who opposed Deborah Gersbach were removed from directorship. Usually by a process incompatible with the constitution and policies of NWDS.
Second Matter Complained of On … a date within the month of April 2019, the defendant published via the internet, a post on the website www.nwdscandal.com at the URL: nwdscandal.com/a-disturbing-article-about-mis- governance.html (Second Matter Complained of). ... The Second Matter Complained of was of and concerning the plaintiff.
Third Matter Complained of On … a date within the month of April 2019, the defendant published via Facebook a post embedding a hyperlink to an article titled ‘A disturbing story from the not-for-profit sector’ (Third Matter Complained of).
Particulars of identification
the Third Matter Complained of was published to persons who knew that the plaintiff was the Chief Executive Officer of NWDS, …By reason of the publication of the Matters Complained of, the plaintiff has been brought into hatred, ridicule and contempt and has been greatly injured in her character and reputation and has suffered hurt and embarrassment and has and will continue to suffer loss and damage.The damages in relation to each matter complained of are increased as a result of the grapevine effect of the repetition of each of the defamatory imputations.The plaintiff’s hurt as a result of the publication of the Matters Complained of was aggravated by:The plaintiff’s (‘the defendant’s?) knowledge of the falsity of the imputations in each matter complained of.
No. I believe that all imputations are true. I have documents to support all the statements here and in the article.
SIGNATURE OF LEGAL REPRESENTATIVE I certify under clause 4 of schedule 2 of the Legal Profession Uniform Law Application Act 2014 that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim for damages in these proceedings has reasonable prospects for success.
I have advised the plaintiff that court fees may be payable during these proceedings. These fees may include a hearing allocation fee.
Signature
Name
Capacity Solicitor for the plaintiff by his partner
Date of signature 31 March 2020
FURTHER DETAILS ABOUT PLAINTIFF
Plaintiff DEBORAH GERSBACH
Address 168 Mulgrave Road
MULGRAVE NSW 2756
Download the original article here:
| a_disturbing_story_of_mis-governance_in_the_nfp_disability_sector.pdf |
|
|
Share if you Care
|
Home
A disturbing story from the disability not-for-profit sector
NWDS CEO sues for defamation
A Letter from the CEO
The NWDS Board
Become a member of North West Disability Service
Contact us. Tell us what you know
Resources and Help (for bullying and reprisals)
Alert the ABC if you have concerns about NWDS
Protecting Charities from Fraud
About Us
A disturbing story from the disability not-for-profit sector
NWDS CEO sues for defamation
A Letter from the CEO
The NWDS Board
Become a member of North West Disability Service
Contact us. Tell us what you know
Resources and Help (for bullying and reprisals)
Alert the ABC if you have concerns about NWDS
Protecting Charities from Fraud
About Us