Cha v Oh

CATCHWORDS: TORT - defamation - publication in Korean language newspapers allege misappropriation and personal misconduct by chairman of Australia Korean 2000 Sydney Olympics Supporting Committee - plaintiff brings proceedings for defamation against seven defendants for 14 publications in Korean newspapers - defences of truth, contextual truth, qualified privilege at common law and pursuant to s 22 Defamation Act 1974 pleaded by remaining two defendants - justification of imputations of misappropriation - whether proof of 'contextual misappropriation' sufficient evidence to establish truth - imputations of personal failings such as self-righteousness - whether evidence of specific acts of conduct required - whether imputations fact or comment - whether defence of comment should be pleaded to imputations or to matter complained of - whether defences of qualified privilege available for documents asserted to be audit reports, and to the newspaper which published these reports - whether published on a protected occasion and, if so, whether malice established - damages - limited publication - lack of specific evidence concerning individual publications due to lapse of time since publication - impact of substantial settlement with third defendant - impact of similarity of imputations in multiple publications - practice and procedure - substantial amendment of particulars of justification throughout the trial - application by defendants to amend defence after evidence concluded - application by defendants for right of reply on issues on which the plaintiff bears the onus - case management issues - "mega-litigation"

Access to Justice (Civil Litigation Reform) Amendment Bill 2009 (Cth) Associations Incorporation Act 1984 (NSW), s 70 Charitable Fundraising Act 1991 (NSW) Charitable Fundraising Act Regulations 1998 (NSW) Civil Procedure Act 2005 (NSW), s 56 Corporations Law (Cth), s 189 LEGISLATION CITED: Crimes Act 1900 (NSW), ss 175 and 178A Defamation Act 1974 (NSW), ss 7A, 15, 22, 30, 32, 33, 34, 46A, 48 and 48A Defamation Act 2005(NSW), s 40 Evidence Act 1995 (NSW), ss 46, 79, 84, 135 and 140 Financial Management and Accountability Act 1997 (Cth), s 5 Public Finance and Audit Act 1983 (NSW), s 4 Uniform Civil Procedure Rules 2005 (NSW), Pt 14 r 14.31(3), Pt 17 r 17.2(2), Pt 29 r 29.6 and Pt 47 Div 2

Ainsworth v Burden [2005] NSWCA 174 Aktas v Westpac Banking Corp Ltd [2009] NSWCA 9 Ali v Nationwide News Pty Ltd [2008] NSWCA 183 Allen v Tobias (1958) 98 CLR 367 Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 Antoniadis v TCN Channel Nine Pty Ltd (Supreme Court of NSW, Abadee J, 5 February 1996, unreported) Antoniadis v TCN Channel Nine Pty Ltd (Supreme Court of NSW, Levine J, 18 February 1997, unreported) Antoniadis v TCN Channel Nine Pty Ltd (Supreme Court of NSW, Levine J, 24 April 1997, unreported) AON Risk Services Australia Ltd v Australian National University [2009] HCA 27 ASIC v Rich [2005] NSWSC 149 ASIC v Rich [2009] NSWSC 1229 Associated Leisure Ltd v Associated Newspapers Ltd [1970] 2 QB 450 Australia and New Zealand Banking Group Ltd v Bechely-Crundell (Supreme Court of NSW, Sperling J, 11 June 1996 unreported) Australian Securities Investments Commission; re Richstar Enterprises P/L v Carey (No. 13) [2007] FCA 57 Australian Securities and Investments Commission (ASIC) v MacDonald (No 11) [2009] NSWSC 287 Bacon v Pianta (1966) 114 CLR 634 Bailey v Truth & Sportsman Ltd (1938) 60 CLR 700 Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; (2004) 204 ALR 193; (2004) 78 ALJR 346; (2004) Aust Torts Reports 81-727; [2004] HCA 5 Bell Group Limited (in liquidation) v Westpac Banking Corporation (No. 9) [2008] WASC 239 Bennette v Cohen [2009] NSWCA 60 Blacktown City Council v Hocking [2008] NSWCA 144 Bishop Mar Meelis Zaia v David Tiglath Chibo [2005] NSWSC 917 Briginshaw v Briginshaw (1938) 60 CLR 336 Browne v Dunn (1893) 6 R 67 Carson v John Fairfax & Sons Ltd (1992 - 3) 178 CLR 44 Celestino v Celestino [1990] FCA 299 Cha v Oh (No. 10 & No. 11) (District Court of NSW, Gibson DCJ, 4 October 2007, unreported) Cha v Oh (No. 12) (District Court of NSW, Gibson DCJ, 5 October 2007, unreported) Cha v Oh (No. 21) [2009] NSWDC 130 Cha v Oh (No. 22) (Part 2) [2009] NSWDC 300 Chakravarti v Advertiser (1998) 154 ALR 294 Chinatown Enterprises Pty Ltd v Maxims Entertainment Pty Ltd (Supreme Court of NSW, Levine J, 13 December 1996) Clark v Ryan (1960) 103 CLR 486 Comalco Ltd v Australian Broadcasting Corporation (1985) 64 ACTR 1 Commonwealth of Australia v Davis Samuel Pty Ltd (No 6) [2009] ACTSC 12 Coopers Brewery Limited v Panfida Foods Limited (1992) 26 NSWLR 738 Cornwall & Ors v Rowan [2004] SASC 384 Crampton v Nugawela (1996) 41 NSWLR 176 Croll v McRae (1930) 30 SR (NSW) 137 Cropper v Smith (1884) 26 Ch D 700 Cross v Queensland Newspapers Pty Ltd [2006] NSWCA 80 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Digby v Financial News Ltd [1907] 1 KB 502 Dingle v Associated Newspapers [1964] AC 371 Drabsch v Switzerland General Insurance Company Limited (Supreme Court of New South Wales, Santow J, 16 October 1996, unreported) Drabsch v Switzerland General Insurance Co Ltd (1996) 130 FLR 127 Egger v Viscount Chelmsford [1965] 1 QB 248 French v United Telecasters (1986) 5 NSWLR 425 Galloway v Telegraph Group Ltd [2004] EWHC 2786 QB Gli-Don Pty Ltd v Nominal Defendant [2002] NSWCA 308 Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187 Goyan v Motyka (2008) Aust Torts Reports ¶81-939; [2008] NSWCA 28 GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15 Greig v Win Television NSW Pty Ltd [2009] NSWSC 632 Guise v Kouvelis (1947) 74 CLR 102 Habib v Nationwide News Pty Ltd [2007] NSWCA 91 Habib v Nationwide News Pty Ltd (2008) Aust Torts Reports ¶81-938; [2008] NSWSC 181 Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161 Hobbs v Tinling [1929] 2 KB 1 IOL Petroleum Ltd v O'Neill (Supreme Court of NSW, Young J, 17 November 1995, unreported) Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13 Jeans v Commonwealth Bank of Australia (2003) 204 ALR 327 John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 706 John Fairfax & Sons Pty Ltd v O'Shane [2005] NSWCA 164 John Fairfax Publications Pty Ltd v Blake; David Syme & Co Ltd v Blake (2001) 53 NSWLR 541 CASES CITED: John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 Jones v Dunkel (1959) 101 CLR 298 Keramianakis v Regional Publishers Pty Ltd (2007) 70 NSWLR 395; [2007] NSWCA 375 Keramianakis v Regional Publishers Pty Ltd (No 2) [2008] NSWCA 3 Ketteman v Hansel Properties Ltd [1987] AC 189 King v Telegraph Group [2004] EWCA Civ 613; [2005] 1 WLR 2282 Kuligowski v Metrobus (2004) 220 CLR 363 Lane v Reid [2005] NSWCA 198 Lee v Cha [2006] HCA Trans 132 Mair v Public Accountants Registration Board (Supreme Court of NSW, Hunt J, 2 February 1989, unreported) Maisel v Financial Times Ltd [1915] 3 KB 336 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Marsden v Amalgamated Television Services Pty Ltd (Supreme Court of NSW, Levine J, 17 December 1996, unreported) Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 619 Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 1120 Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510 Television Services Pty Ltd v Marsden (No 2) (2003) 57 NSWLR 338; [2003] NSWCA 186 Martin v Bruce [2007] NSWDC 264 McClelland v Burning Palms Surf Life Saving Club (2002) 191 ALR 759 McCombie v Bennett (1886) NSWR 151 Michael Wilson & Partners Ltd v Nicholls [2008] NSWSC 501 MindShare Communications Limited v Orleans Investments Pty Ltd (2007) NSWSC 637 Mobileciti v Vodaphone Pty Ltd [2009] NSWSC 891 Morgan v John Fairfax Pty Ltd (1990) 23 NSWLR 374 Musgrave v Commonwealth (1937) 57 CLR 514 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 Obeid v John Fairfax Group Pty Ltd [2006] NSWSC 1059 Obeid v Australian Broadcasting Corporation [2007] NSWDC 26 Pacific Acceptance Corporation Ltd v Forsyth (1970) 92 WN (NSW) 29 Page v Vanker [1990] NSWCA 142 Papakosmos v R (1990) 196 CLR 297 Pavy v John Fairfax Publications Pty Ltd [2004] NSWCA 177 Price v Manning (1889) 43 Ch. D 372 Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71; (1997) 151 ALR 505 R v Logue (NSW Court of Criminal Appeal, 31 March 1994, Gleeson CJ, McInerney and Mathews JJ, unreported) Re Nottage; Jones v Palmer [1895] 2 Ch 649 Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 Rose v Boxing NSW Incorporated [2007] NSWSC 20 Rowan v Cornwall [2002] SASC 160 Royal National Agricultural and Industrial Association v Chester (1974) 3 ALR 486 Rural and General Insurance Broking Pty Ltd (ACN 093483928) v Australian Prudential Regulation Authority [2009] ACTSC 67 Seary v Molomby (1999) Aust Torts Reports 81-536; [1999] NSWSC 981 Seven Network Limited v News Ltd [2007] FCA 1062 Seven Network Limited v News Ltd [2009] FCAFC 166 Silver v Dome Resources NL (2005) NSWSC 265 Sims v Wran [1984] 1 NSWLR 317 Singleton v Ffrench (1986) 5 NSWLR 425 Skalkos v Assaf [2002] NSWCA 14 SLE Worldwide Australia Pty Ltd v Wyatt Gallagher Bassett Pty Ltd [2005] NSWSC 816 State Rail Authority of NSW v Earthline Constructions Pty Ltd (1999) 60 ALR 588 Suzy David v David Tiglath Chibo [2006] NSWSC 1257 Tahche v Abboud [2002] VSC 42 Tasmania v Lee [2006] TASSC 58 TCN Channel Nine Pty Ltd v Antoniadis (1998) 44 NSWLR 682 Tedeschi v Franklins Ltd (Supreme Court of New South Wales, Levine J, 23 September 1994, unreported) The Nominal Defendant v Kostic [2007] NSWCA 14 The State of Queensland & Ors v J L Holdings (1997) 189 CLR 146 The State of Western Australia v Colin Maxwell Watson (Supreme Court of Western Australia Full Court, Malcolm CJ, Brinsden & Seaman JJ, 4 November 1988, unreported) Trantum v McDowell [2007] NSWCA 138 TVNZ Ltd v Ah Koy [2002] 2 NZLR 616 Urban Traders Pty Ltd v Proceris Pty Ltd [2005] NSWSC 1192 Waterhouse v Broadcasting Station 2GB Pty Ltd (Supreme Court of NSW, Hunt J, 20 October 1986) Weaver v Lloyd [1824] 2 B & C 678 Webb v Bloch (1928) 41 CLR 331 Westbus Pty Ltd (Administrators Appointed) v Ishak [2006] NSWCA 198 Whalan v Kogarah Municipal Council [2007] NSWCA 5 Yoon Shin Lee v Bob Chae-Sang Cha [2005] NSWCA 279

Brown, The Law of Defamation in Canada, 2nd ed. (Scarborough, Ont.: Carswell, 1994) Gatley on Libel and Slander, 10th Edition (London: Sweet and Maxwell, 2008) Greenhow, A, "The Statutory Business Judgment Rule: Putting the Wind into Director's Sails" [1999] BondLRev 3; (1999) 11(1) Bond Law Review 33 The Honourable Justice Hayne, "The Vanishing Trial" (2008) The Judicial Review 33 The Honourable Justice Heydon, "Practical impediments to the fulfilment of judicial duties" in "The Role of the Judge", Judicial Commission of New South Wales, 2004 TEXTS CITED: The Honourable Justice Ipp, "Problems with Fact-finding" (2 September 2006) Lawlink, Supreme Court of New South Wales The Honourable Justice McHugh, "What is an actionable defamation?", Aspects of the Law of Defamation in New South Wales, Law Society of NSW, 1990 The Honourable Justice Pagone, "Lost in Translation: The Judge From Provider to Consumer of Legal Services" in "The Art of Judging", Southern Cross University Law Review, Vol. 12, 2008 The Honourable Justice Sackville in "Meeting the Challenges of Complex Litigation: Some Further Questions" (2009) The Judicial Review 197 Tobin & Sexton, Australian Defamation Law & Practice (Butterworths, Sydney, looseleaf) Odgers, Uniform Evidence Law (8th ed, 2009), Lawbook Co

Plaintiff / First Cross-Defendant: Bob Chae-Sang Cha First defendant: Jik Il Oh Second defendant: Jae Kyung Lee Third defendant: Yoon Shin Lee PARTIES: Fourth defendant: Hak Joo Park Fifth defendant: Han Yong Lee Sixth defendant: Duk In Kim Seventh defendant: Hak Soo Cho Second Cross-Defendant: Chung Yup Kim

Plaintiff / First Cross-Defendant: Mr C Dibb (s 7A jury trial); Mr C A Evatt / Mr C Dibb / Ms L Evans First Defendant: No appearance Second Defendant: Mr T D F Hughes (s 7A jury trial); Mr J S Wheelhouse SC / Mr T D F Hughes / Mr M Richardson Third Defendant: Mr J S Wheelhouse SC (s 7A jury trial); Mr J S Wheelhouse SC COUNSEL: Fourth Defendant: Mr R Weaver (s 7A jury trial); Mr M Seck Fifth Defendant: Mr R Weaver (s 7A jury trial) Sixth Defendant: No appearance Seventh Defendant: Mr R Weaver (s 7A jury trial) Second Cross-Defendant: Mr C Dibb (s 7A jury trial)

Plaintiff / First Cross-Defendant: Strathfield Law (until 24/6/2002); Youngs Attorney (2/9/2003 - 28/6/04); Darryl Barlow & Co (29/6/04 - 17/4/05); Strathfield Law (18/4/05 - 2/5/07); CM Lawyers (3/5/07 - 5/5/08); Bilias & Associates (6/5/08 - 9/6/08); Hans Kim Lawyer (10/6/08 - 12/8/08); thereafter Schweizer Kobras Lawyers & Notaries First Defendant: Gilbert & Tobin Lawyers Second Defendant: Gilbert & Tobin Lawyers (up until 23/8/06); thereafter Gray & Perkins Lawyers Third Defendant: Corrs Chambers Westgarth (up until 2/8/05); thereafter Banki Haddock Fiora SOLICITORS: Fourth Defendant: David Geddes up to 17/1/07; self-represented until 2/5/08; thereafter Mr M Seck of Counsel Fifth Defendant: David Geddes up until 17/1/07; thereafter self-represented Sixth Defendant: No appearance Seventh Defendant: David Geddes (s 7A jury trial) Second Cross-Defendant: Mr C Dibb of Counsel (s 7A jury trial); thereafter self-represented

INDEX PART 1 - The Parties and the Factual Background - [1] - [583] PART 2 - Evidence and Credit issues - [584] - [753] PART 3 - The Defences of Comment and Qualified Privilege - [754] - [1073] PART 4 - The Defences of Justification and Contextual Truth - Sections 15 and 16 Defamation Act 1974 (NSW) - [1074] - [1694] PART 5 - Damages - [1695] - [1855] PART 6 - Orders PART 7 - Annexure A - Matters Complained of and s 7A Jury Answers to Questions PART 7 - Annexure B - Matters Complained of in the Cross-Claim and s 7A Jury Answers to Questions

[1] These are defamation proceedings brought by Mr Chae-Sang Cha, the Chairman of the Aus-Kor Olympic Supporting Committee ("the Supporting Committee"), concerning publications in Korean language newspapers between January - March 2001. The Supporting Committee, an unincorporated association, was set up in May 1998 to play what its Constitution called a "channelling role" (Exhibit 1, Article 2 of the Constitution "Objectives of establishment") in conjunction with the Korean Sports Council, an incorporated association in New South Wales, funded by the South Korean Government. The aim was to ensure that the 2000 Sydney Olympic Games were a success, not only for the Korean athletes and Korean community in Australia, but from the point of view of the North and South Korean governments, who had made the momentous decision that the teams of both countries should march into the stadium together under one flag.

[2] The plaintiff initially commenced proceedings for defamation against seven defendants for 14 publications in four Korean language newspapers (Hoju Dong-A, TOP, the Sydney Korean Herald and Korean Community Magazine, also known as Kyo Min Jap Ji). (These are the four main Korean language newspapers in Sydney: Daily Transcript 1477 - 1478, 20 May 2008, Day 39). A s 7A jury found that the publications of certain of the imputations by the first six defendants defamed the plaintiff, but found in favour of the second and seventh defendant on one publication.

[3] These imputations are: [3.1] Exhibit D: Publication 26 January, 2001 by the second defendant in TOP:

• That the plaintiff managed the affairs of the Committee so incompetently that while he was the Committee's President $102,000 of the Committee's money was spent without proper documentation being kept ("imputation 36(d)");

[3.2] Exhibit H: Publication 9 February, 2001 by the second defendant in TOP:

• That the plaintiff managed the affairs of the Committee so incompetently that $120,000 of the Committee's money was spent ("imputation 38(c)):

[3.3] Exhibit J: Publication 23 February 2001 by the second defendant in TOP:

• That the plaintiff failed to account for approximately $56,000 of money donated to the Committee ("imputation 39(a)");

• That the plaintiff failed in his duty as President to ensure the Committee kept proper accounts ("imputation 39(c)");

[3.4] Exhibit M: Publication 1 March 2001 by the second defendant in TOP and by the fourth and fifth defendants in TOP and two other Korean language newspapers, Honjudonga-Ilbo (published by the first defendant) and the Korean Weekly Times (the third defendant):

• That the plaintiff managed the affairs of the Committee in a way that brought shame on the Korean community in Australia ("imputation 40(a)");

• That the plaintiff impeded the working of the Committee through his self-righteous and self-indulgent behaviour ("imputation 40(d)");

• That the plaintiff failed to ensure proper records were kept of the Committee's financial affairs ("imputation 40(e)");

• That the plaintiff misused his position as President of the Committee to gain a directorship for himself (imputation 40(h)");

• That the plaintiff's arrogant and self-righteous behaviour caused distress to the Committee's staff (imputation 40(k)");

[3.5] Exhibit N: Publication 9 March 2001 by the second, fourth and fifth defendants in TOP and by the fourth and fifth defendants in the Korean language newspapers Hojudonga-Ilbo and the Korean Weekly:

• That there was [sic] reasonable grounds for the Auditors to suspect the plaintiff of making a false claim for business expenses of $9,121.40 ("imputation 41(b)");

• That the plaintiff misappropriated to his own use, money belonging to the Committee ("imputation 41(d)");

• That the plaintiff misused his position as President to favour an associate as a supplier of gifts to the Committee ("imputation 41(f)");

[3.6] Exhibit P: Publication 16 March 2001 by the second, fourth and fifth defendants in TOP and by the fourth and fifth defendants in the Korean language newspapers Hojudonga and the Korean Weekly:

• That the plaintiff falsely claimed that the Committee had provided support of $1,100 to the Uniting Church but really the plaintiff kept $700 of that money for himself ("imputation 42(d)");

[3.7] Exhibit S: Publication 30 March 2001 by the second defendant in TOP:

• That the plaintiff misappropriated public money ("imputation 43(a)").

[4] The publications in Exhibit M, N and P consist of identical publications in three different Korean newspapers. The copies of these newspaper articles for the first and second defendants have never been discovered or tendered. However, it is not in dispute that the fourth and fifth defendants published the same article in the first and second defendants' newspapers as was published in the third defendant's newspaper, as these three newspaper articles were in fact their auditors' reports.

[5] The fourth and fifth defendants also brought proceedings for defamation against the plaintiff and against the publisher of a different Korean language publication, The Korea-Oceania Business Review. The same s 7A jury found that three of these four publications published imputations defamatory of the fourth and fifth defendants.

[6] During the trial, the plaintiff entered judgment against the fifth defendant, who filed a defence identical to the fourth defendant, but failed to attend the trial to defend himself or prosecute his cross-claim. The cross-claim brought by the fifth defendant was dismissed. The cross-claim brought by the fourth defendant was discontinued. It has not been necessary to deal with the cross-claim in this judgment.

[7] In addition, the plaintiff settled the proceedings against the third defendant and obtained an order for judgment against the sixth defendant, and as the first defendant died, proceedings against him have abated. All of these publications, and the imputations the s 7A jury found were conveyed, is set out in chronological order in Schedule A to this judgment.

[8] The second defendant's amended defence of 5 February 2007 asserted the following defences: (a) justification, contextual justification and qualified privilege in relation to imputations 39(a), 39(c), 40(a), 40(d), 40(e), 40(k), 41(b), 41(d), 41(f), 42(d) and 43(b) (paragraphs 9 and 10 of the Amended Defence); and

(b) defences of comment, comment of a stranger and unlikelihood of harm (paragraphs 11 - 13). [9] The fourth defendant's second further amended defence filed on 7 May 2008 asserts the following defences: (a) justification and contextual justification in relation to imputations 40(e), 40(k), 41(b), 41(d), 41(f), 42(d) and 43(b) (paragraphs 6 and 6A);

(b) qualified privilege, comment and unlikelihood of harm (paragraphs 7 - 8). [10] It should be noted that these three publications were each made in three separate newspapers, making a total of nine publications.

[11] At the end of the trial the second defendant by Notice of Motion sought leave to rely on a further amended defence as follows: (a) the second defendant does not now admit to publication and defamatory meaning of imputations 36(d), 38(b), 39(a), 40(a), 40(e), 40(h), 40(k), 41(b), 41(d), 41(f), 42(d) and 43(a). In its previous defences of 6 December 2004 and 13 February 2007, the second defendant had failed to traverse these imputations. No explanation for this proposed amendment is set out in the affidavit is support of 30 April 2009, nor was it referred to when the application came before me on 1 May 2009.

(b) The second defendant now seeks to plead the defences of justification and contextual justification to imputations 36(d), 38(b), 40(h) and 43(a), abandoning the defence of qualified privilege in relation to imputations 36(d), 38(b), 39(c) and 43(a) - in other words, to the four publications which were not made jointly with the fourth and fifth defendants. In addition, the defence of unlikelihood of harm is abandoned. This is not opposed by the plaintiff (submissions paragraph 2.5.4(a) upon certain terms, including indemnity costs and the right to file a Reply. The plaintiff does, however, point to considerable prejudice caused by reason of both the amendments and the application to amend, noting the plaintiff framed and prepared his case and adduced evidence in accordance with the pleadings as they were before the trial and is deprived of the opportunity to adduce further evidence or to run the case differently, particularly in relation to the pleading of the Reply, drawing my attention to AON Risk Services Australia Ltd v Australian National University [2009] HCA 27.

[12] I have dealt with this application in more detail below. I shall now set out the background events leading to the publication of the matters complained of.

[13] The civil war between North and South Korea, in which millions died, is a matter of public record (Daily Transcript 941-943, 9 October 2007, Day 24). North and South Korea signed an armistice in 1959, but are still technically at war today. This affects every aspect of their dealings with each other, including sport. When the 1988 Olympic Games were held in Seoul, North Korea boycotted them.

[14] By the time of the 2000 Olympics, a different approach, one of peaceful reunification, was the policy of the South Korean government. The 2000 Olympic Games in Sydney coincided with the 50th anniversary of the war between North and South. Olympic officials in both North and South Korea decided that, for the first time, teams from North and South Korea would enter the Olympic Stadium together, and under a neutral Korean Peninsula flag.

[15] Members of the Korean community in Australia, especially sporting organisations supported or funded by the South Korean Government, were asked to help make not only the South Korean but also the North Korean Olympic team welcome. For this plan to succeed, local support and assistance by the Korean community in Australia would be important. As the Supporting Committee's activities show, this included finding and interviewing Korean-speaking volunteers for the Sydney Australian Olympic Organising Committee ("SOCOG") and for torch relays (Expenditure Resolution 388, Exhibit 56), providing "homestay" accommodation and transport for Koreans attending the Games, entertaining a stream of Korean officials and media representatives, and providing a cheer squad and commemorative flags and welcome banners for the two Koreas under one flag. This also included holding rallies and social functions, and paying special attention to Korean community groups such as war veterans and retiree associations and Korean sporting associations around Australia. The Korean media, visitors and officials came from Korea to check on progress and give advice.

[16] The Supporting Committee had six subcommittees as well as the Executive and met in regular weekly meetings with the Korean Sports Council, which initially jointly ran these activities and later contributed volunteers, snacks and general assistance. These meetings were generally held outside office hours or on weekends; some volunteers, as well as the plaintiff, put aside their businesses for a while, such as Mr Choi, whose job was to look after the stream of journalists and broadcasters from Korea (Daily Transcript 1787, 30 May 2008, Day 45). A regular feature of these committee meetings was that committee members and volunteers would have a meal at a local Korean restaurant, which would be paid for out of Supporting Committee funds.

[17] What was the Korean Sports Council's role? This is one of the disputed issues of fact in this trial. The South Korean Government had funded sports societies outside Korea for some time. One of these organisations was the Korean Sports Council. Mr Jung Hyun Park, a Sports Council member, explained (at Daily Transcript 1698, 28 May 2008, Day 43) that the Sports Council in Korea "tells us what to do". There were regular sports meets in Korea at which these Korean Sports organisations from around the world, including Australia, participated. The plaintiff, in his capacity as president of Korean Sports Council, attended these games in 1997, 1998, 1999 and 2000 (Daily Transcript 301 - 302, 13 June 2007, Day 10).

[18] It was the Korean Sports Council's former presidents and its sports association members who played an important role in setting up the Aus-Kor Olympic Supporting Committee ("the Supporting Committee") with which the Sports Council was to participate in this "channelling role" to ensure the success of this new policy of "peaceful reunification", as it was called in the Supporting Committee's Resolutions dated 18 March 2000 (Exhibit 70, Tab 4) which were published in the newspapers of the first to third defendants prior to the Olympics.

[19] The seventh defendant, who held senior positions in the Sports Council and the Korean Society (Daily Transcript 2251, 23 March 2009, Day 55), including auditor and treasurer (as well as being a former owner of TOP, the Korean language newspaper he either sold or gave to the second defendant), chaired a meeting on 1 May 1998 to set up the Supporting Committee. He also prepared a Constitution and was in charge of supervising the voting for the offices of chairman and auditors.

[20] There were two candidates for chairman: the plaintiff and the second defendant. The plaintiff was the current head of the Sports Council. A golfer with a handicap of six, he had been the Sports Council president since 1997. The second defendant was a former chairman of the Sports Council as well as being the owner of TOP and of a supermarket cleaning business. They made speeches, the sports and community association representatives voted, and the plaintiff was elected the chairman. Although he lost the election, the second defendant was still asked to be the "honorary" chairman: Daily Transcript 2079, 12 June 2008, Day 51. It is the second defendant's name, not the plaintiff's, which appears at the top of the lists of officials circulated to committee members and others for most of the life of the Supporting Committee.

[21] The seventh defendant also played an important role in the Supporting Committee. He supervised bookkeeping with Mr Sung Joo Sung as his assistant until November 1998, and even after Mr Sung Joo Sung took over this role (Daily Transcript 199 and 231, 8 June 2007, Day 8; Daily Transcript 913, 8 October 2007, Day 23; Daily Transcript 2168, 17 June 2008, Day 53) he continued to visit regularly (Daily Transcript 3068, 7 April 2009, Day 65; Exhibit 52 (see for example 17, 18 and 24 January and 4 and 17 February entries)). The seventh defendant watched the activities of the Supporting Committee "with a lot of great interest" (Daily Transcript 2168, 17 June 2008, Day 53). From February 2000 had his own desk in the Supporting Committee office (Exhibit 52 p. 8, 29 February 2000 entry), resuming the position of Secretary-General in August 2000 and keeping the accounts after Mr Sung Joo Sung left (Daily Transcript 75, 4 June 2007, Day 4). After the second defendant became president of the Korean Society, in or about June 1999 (Daily Transcript 83-84, 5 June 2007, Day 5), he remained a director, and had "many occasions" (Daily Transcript 2193, 17 June 2008, Day 53) to meet with the second defendant, who also shared his involvement in the Volleyball Association.

[22] In November 1999, Mr Sung Joo Sung and the plaintiff had a disagreement after Mr Sung Joo Sung put a loan from Vice President Paek into his own bank account and a disputed issue of fact is how long Mr Sung Joo Sung remained involved in the Supporting Committee afterwards. Just before the Olympics, at about the time the seventh defendant (who had had a desk in the office since February) was appointed as Secretary-General, the plaintiff also asked a Mr Won Kang to fill this role. He did so from 11 August 2000 (Exhibit 64, paragraph 13; Exhibit 51), although the seventh defendant also held this role at the time, according to the Minutes (Exhibit 51). Mr Kang visited Korea on 28 August at the Committee's expense. After he returned from Korea on 5 September, he had an argument with the plaintiff (the substance of which is an issue in dispute) and resigned.

[23] Between 1 May 1998 and the commencement of the Olympics in September 2000, the plaintiff and his Executive set up the Supporting Committee's office, appointed officials, set up six subcommittees, found volunteer staff and a series of three bookkeepers who, under the supervision of Committee members with accounting expertise, kept the books for $200 per week. He was in charge of a large organization of volunteers who processed hundreds of applications and offers for volunteer work, homestay, cheerleading and transport. A website was also set up. The main problem was a constant shortage of funds, so the plaintiff funded the Supporting Committee from his company's account for the first half of its life, assisted by loans and donations from other Committee members (such as Vice-President Paek, who loaned $15,000), members of the Korean community and, in mid-2000, generous donations from some sponsors in Korea.

[24] Was the Committee successful in its endeavours? Were they ready when the Olympic teams arrived? Did anything go wrong during or after the Olympics? Those are not claims that were made in this litigation. The unchallenged evidence is that the Committee did everything that was expected of it, and that its activities were such a success the Korean Government indicated it would provide the Sports Council with $100,000 extra funding (an indication of the Sports Council's joint role in these successful activities: Daily Transcript 1790, 30 May 2008, Day 45). On 30 October 2000, as the Committee wound up its affairs, it inserted an advertisement in the Korean newspapers congratulating President Kim of South Korea for being awarded the Nobel Peace Prize for his peaceful unification policy of bringing North and South Korea together (Expenditure Resolution 285) during this momentous year in Korean peninsular politics.

[25] A number of the witnesses spoke about the successful activities of the Supporting Committee. Mr Choi, the Supporting Committee officer who from 1999 dealt with the many Korean journalists and media organisations who visited Sydney, said (Daily Transcript 1790, 30 May 2008, Day 45): "A. Everybody from the Korean national team members is helping the committee is the what it done in - during the Olympics. Especially they, the athletes, thank him about what his good job for the Olympic period.

Q. Did they thank him publicly? A. Definitely, yeah, by address.

Q. Do you recall what was said in that address? A. I'm not particular [sic] remember, but the leader, the team leader, says "This is first time, to like this good helping. We have many Olympics in overseas, but Sydney Olympics during we have a great help from the community, Korean community. So really health, from the bottom of my heart." That's what he said.

Q. What was his reputation in the Korean community? A. It was great. Not only in local community, but also in South Korea. In political level or government level, was very appreciated to the Korean community, which is mentioning of a Olympic Committee. It's great help for the athletes in one way or another.

Q. How do you know that he had a good reputation overseas as well? A. I understand - not clearly, but the country and tourism ministry promised about $100,000 for the development of the Sports Council, because Cha had such a good position. Because of the good job for the Olympic Committee, they promised the support of $100,000 for the development of the Sports Council. So it's very good news for the Korean community, for the diplomat of the community."

[26] Mr Choi was not cross-examined on these statements, nor was Mrs Michelle Bae, a member of the Korean community, when she gave the following evidence: "A. INTERPRETER: Before he become the chairman of Olympic Committee, Mr Cha was the chairman of Sports Council. I would describe him as someone who was honest and very hard-working. And he wouldn't even look after his own business to devote to working for Korean Supporting Committee. And he has given - he has had a lot of burden to carry, if I can say.

Q. Concentrating on the period before the Olympics, is there anything else you'd like to say about his reputation in that period, in your opinion? A. INTERPRETER: Yes, as I said, he was the chairman of the Sports Council, and he will do whatever he can to look after people from Korea and once he fell off the ladder and he, sort of, done some damage to his brain - not, sorry, brain, his head.

Q. Could you explain what you mean by falling off the ladder - that, just for - A. INTERPRETER: He was trying to put banners on the wall, and on the ceiling and that sort of things. And he could have asked somebody else to do, but he was doing most of these things by himself, and he fell off the ladder.

Q. Could you explain why you were giving us that example in response to that question? A. INTERPRETER: What I mean is that, to be a chairman of Sports Council, you have to give a lot of yourself as a volunteer, and sacrifice yourself. So, it's not a job that you are paid money - is paid for. So, but he has given - he has given his own money and he's worked really hard for this job." (Daily Transcript 1701-1702, 28 May 2008, Day 43)

[27] Mr Lee, president of the Tennis Association and a member of the Sports Council, described not only some of the meetings followed by dinners, but the importance of the North and South Korean teams being together at the Sydney Olympics: "A. INTERPRETER: Yes, my Tennis Association and the teams we were there to support, and with that, you know, we had meetings. Through that, we would have dinners. Towards the end of the Olympics, I remember the athletes - the Korean athletes that won medals in areas - would get together with the Olympic Committee and Mr Cha, the president, and with also the Sports Council members. We all got together and I remember having a congratulation party. I remember - I recall about 100 people or so attended this party. Within those people, there was gold medallist, and silver medallist and otherwise, and each other - congratulated each other, and also thanked each parties and associations.

Also, the team leaders also give their thanks, and I remember that very - that's one of the things I remember in detail. Also, it was the first time - it was the time when the South and the North team of the Korean team were together at the Sydney Olympics, so it was a very - something that we were as a one, and it was one of those that was left in the history with the Olympics, so it was something that had a big meaning and big thing that we remember from the Olympics." (Daily Transcript 1879, 2 June 2008, Day 46)

[28] SOCOG also showed its appreciation by providing plaques and an award for the volunteers: (Daily Transcript 168-169, 7 June 2007, Day 7). There was to be a farewell function, with presentation of awards and plaques. However, this never occurred, because on 24 November 2000 the plaintiff published the Supporting Committee's financial accounts in the Korean newspapers, and this caused so much upset and concern to certain members of the Korean community (and in particular to the fourth and fifth defendants, who were the auditors appointed at the May 1998 meeting) that these volunteers never received their plaques, or had their farewell dinner. Mr Choi commented at Daily Transcript 1804 (30 May 2008, Day 45): "Lots of volunteers work very hard. I understand that as the president, chairman of the Olympics, Mr Bob Cha, wants to have some closing ceremony for the volunteers, giving us thank you letters, everything, some party put on, but he just, there no time to think about that kind of things. I'm still waiting. I did a lot of things to do, but I ought to get some thank you letter or something from him. But he never send it. Still people waiting. There's no closing ceremony for the Olympic committee. They did a lot of good things, we are still waiting for Mr Cha, simply have no idea about, because of this kind of turmoil last seven years. I am sad to see that".

[29] Why did the plaintiff publish the Supporting Committee's accounts in the Korean newspapers? He told the court that the Supporting Committee accounts were kept by bookkeepers under the supervision of the seventh defendant (until November 1998), Mr Sung Joo Sung until March 2000, and by the seventh defendant until November 2000 (Daily Transcript 591-592, 25 September 2007, Day 18; Daily Transcript 770 and 782-784, 4 October 2007, Day 21), with the help of a financial director appointed in December 1999. However, the plaintiff and Mr Sung Joo Sung had a disagreement when Mr Sung Joo Sung banked a loan made to the Supporting Committee (by the Supporting Committee's Vice-President, Mr Nam Yoon Paek) into his own personal account. The plaintiff demanded its return but Mr Sung Joo Sung kept $1,000 of it. Two weeks later, according to the Minutes for 1 December 1999 (Exhibit 51) the plaintiff appointed the treasurer of the Korean Sports Council, Mr Joo Yong Jo, as financial director of the Supporting Committee, and gave Mr Sung Joo Sung another position, that of vice chairman (see 17 and 25 January 2000 entry in Exhibit 52, Committee Activities Diary, page 2 and 3). Mr Sung Joo Sung continued to keep records until 21 December, and in his statement says he prepared financial statements "until he resigned" (Exhibit 72, paragraph 16) but inconsistently claimed to have completed financial records up to April 2000. When he left the Supporting Committee, he took with him the financial records Miss Chae, the bookkeeper, had maintained.

[30] After the Games ended, accounts had to be prepared for the auditors to check, and for presentation to the Supporting Committee. The plaintiff asked Mr Sung Joo Sung to return the Supporting Committee accounts book but he refused (Daily Transcript 85, 5 June 2007, Day 5; Daily Transcript 969, 9 October 2007, Day 24). In his evidence, Mr Sung Joo Sung said when he resigned, he returned "everything" (see also Daily Transcript 3062, 7 April 2009, Day 65). However, he considered the green book to be his "personal record book as in evidence" (Daily Transcript 3071 and 3076, 7 April 2009, Day 65). The plaintiff asked the seventh defendant to prepare these accounts, but he refused (Daily Transcript 782-783 and 804, 4 October 2007, Day 21). The current bookkeeper, Miss Yoo, had, between 26 September and 12 October 2000, prepared a summary of all expenses from the Committee's chequebooks (Exhibit 7). The plaintiff decided to prepare the financial accounts himself, and to publish the accounts in the Korean newspapers, with the telephone numbers of the Supporting Committee and one of the auditors (the fifth defendant) so that donors whose names were omitted (because he had prepared these records without Mr Sung Joo Sung's book or the seventh defendant's assistance) could ring up if there was a problem (Daily Transcript 86, 5 June 2007, Day 5).

[31] The fourth and fifth defendants did not accept this explanation. Their evidence is that the plaintiff should have called a meeting of the Supporting Committee and presented the financial report to the Supporting Committee only, not published the financial report in the paper as if the audit was a fait accompli. The fourth defendant's written submissions state that as a result of the plaintiff's "peremptory" decision to publish this information the false impression was created that the financial affairs had been audited when they had not been, and that the fourth and fifth defendants were unwillingly thrust into the public position of being held to account by persons whose donations to the Supporting Committee had been omitted (written submissions of the fourth defendant, paragraph 37).

[32] The defendants assert that the plaintiff, and only the plaintiff (not the Supporting Committee, the bookkeepers, the seventh defendant, Mr Sung Joo Sung, or the financial director Mr Joo Yong Jo) is not only responsible for poor accounting practices, but is guilty of misappropriation and also of what the defendants call in their submissions "contextual misappropriation".

[33] In particular, the many payments for meals for committee members after meetings, and for visiting Koreans, were considered excessive and unauthorised, as receipts were often not obtained from the modestly priced Korean restaurants and grocery stores from which they purchased their meals. To cite a typical example, on 26 September 2000, during the Olympic Games, the seventh defendant made a claim for 6 volunteer's lunches in the office for $52, a claim rejected by the auditors and marked "evidence required" (Expenditure Resolution 244).

[34] How much money do the defendants say the plaintiff misappropriated? This figure changed before, during and after the trial. The particulars of justification served before the trial (12 February 2007, Exhibit 81) assert the plaintiff misappropriating the sum of $184,712.00 and spent $53,315.45 for functions outside those of the Committee's purposes. Particulars served on 3 October 2007 (at the end of the plaintiff's cross-examination) put the amount misappropriated at over $500,000, although this includes some overlapping claims and far exceeds the amounts of money ever handled by the Committee. The plaintiff, the defendants claim, was responsible for everything the Committee did because the Constitution said so, and because his personality and in particular his self-righteous conduct impeded the working of the Supporting Committee.

[35] The circumstances leading to the publication of the thirteen publications the subject of these proceedings are as follows. Following meetings with the plaintiff up to 17 December 2000, at which he handed over certain Supporting Committee financial and administrative records, the auditors prepared three final reports which were published in each of the three main Korean newspapers (Exhibits M, N and P, dated 1, 16 and 30 March 2001). Their findings include allegations of misappropriation, responsibility for the failure to keep proper records and personal failings of a serious nature. These three audit reports, and four other articles published in the second defendant's newspaper (Exhibits D, H, J and S), constitute the matters complained of which form the subject of this litigation.

[36] When I call the fourth and fifth defendant's "auditors", I should note that that they had no accountancy training or prior experience in auditing. The fourth defendant is a cleaner, and the fifth defendant, who managed a sushi restaurant at the time, now lives in Korea. The Supporting Committee's records for the period 1998 - 2000 have never been audited by a certified public accountant.

[37] This is a long judgment, because the hearing took many weeks. It falls into five parts: (a) An overview of the cause of action and the parties and description of the Supporting Committee and its activities over the Olympic period, followed by a summary of the events leading to the publication of a series of Korean language newspaper articles in New South Wales by the defendants; (b) A consideration of the defendants' attack on the credibility of the plaintiff and related issues of witness credit; (c) A consideration of the defences of comment and comment of a stranger (ss 32 - 4 Defamation Act 1974 (NSW) ("the Act")) and of qualified privilege at common law and pursuant to s 22 of the Act; (d) A consideration of the principal defences, namely justification and contextual truth (sections 15 and 16 of the Act); and (e) Damages and costs.

[38] I have set out, as a schedule to this judgment, not only the matters complained of that are the subject of these proceedings, but all publications which were considered by the s 7A jury, and the imputations the jury found were conveyed and defamatory.

[39] Prior to and during the trial I handed down a series of 21 judgments, and these can be found at Cha v Oh (No. 22) (Part 2) [2009] NSWDC 300, together with the text of the Supporting Committee's Constitution and Minutes. The limitations of the District Court Caselaw website make it impractical to publish these judgments in any different format.

[40] The law of defamation is designed to resolve the conflict between two co-existent rights: the right of every citizen to enjoy a good reputation and the right of freedom of speech: Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510 ("Marsden").

[41] What is defamation, and how have these defamation proceedings come about? An actionable defamation is a publication which is not excused, protected or justified by one or more of the defences available to defendants (McHugh J, "What is an actionable defamation?", Aspects of the Law of Defamation in New South Wales, Law Society of NSW, 1990, p. xi.).

[42] If all the defences fail, the plaintiff brings a claim for damages. The purposes of an award of damages in defamation is described by Hayne J in Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at [60] as follows: "The three purposes to be served by an award of damages for defamation are identified in the joint reasons in Carson v John Fairfax & Sons Ltd : (i) consolation for the personal distress and hurt caused to the appellant by the publication; (ii) reparation for harm done to the appellant's personal, and in this case, professional reputation; and (iii) the vindication of the appellant's reputation."

[43] Section 46(2) Defamation Act 1974 (NSW) provides that: "Damages for defamation shall be the damages recoverable in accordance with the common law, but limited to damages for relevant harm."

[44] During the trial, one of the witnesses gave a layman's description of the impact of defamatory publications on the plaintiff: "Ten years ago, there were two people. They were white people, both of them were white, but today as I sit in the witness box, one of them was [sic] white and one of them black. What I mean by that is that the person who is black, he has taken all the blame on him and his arms and legs were amputated, and that means he's not - yes, he's not normal any more. He's a disabled person. That's what I meant. And I wonder how that person is going to live the rest of his life in Australia normally". (Daily Transcript 1693-1694, 28 May 2008, Day 43)

[45] While this description does not accurately reflect the elements in damages in defamation, it is an indication of the kind of evidence I received concerning the damage to the plaintiff's reputation following the publications.

[46] The principal question I must determine is whether the plaintiff is entitled to any remedy in relation to each of the seven publications made in the State of New South Wales by the second, fourth and fifth defendants.

[47] The second and fourth defendants defend these proceedings and assert that the plaintiff is not entitled to any remedy. They rely upon defences of justification (including a defence of contextual justification), qualified privilege (at common law and pursuant to s 22 Defamation Act (1974) NSW) and comment. In addition, if these defences fail, the second defendant (from who damages are sought) claims the plaintiff should only be entitled to small or nominal damages.

[48] I have received submissions from the fourth defendant on damages. The plaintiff does not seek an award of damages against the fourth, fifth and sixth defendants on the basis that they have no assets. For reasons I have explained in the section of this judgment on damages, I have not acceded to the plaintiff's request in relation to the fourth and fifth defendants.

[49] Although only the second and fourth defendants still contest this litigation, it is important to understand who all the parties to this litigation are, because they all played an important role in the events described.

[50] I shall now set out some brief information about each of the parties to this litigation. By reason of the similarity in surname of many of the parties and witnesses, I have referred to the parties hereafter as "the plaintiff", "the first defendant" and so on.

[51] The plaintiff was born in Korea in 1946. He fought in Vietnam alongside Australian and American troops between 1965 - 8, leaving the army with the rank of staff sergeant (Daily Transcript 47, 4 June 2007, Day 4) then working for an American company in Korea before immigrating to Australia in 1973. He worked in Australia for Comalco and for McFee Engineering, studying hydraulic mechanical consulting. While he was at McFee he met the second defendant.

[52] In 1976 the plaintiff married, became an Australian citizen and started work at ANI, where he remained until starting his own business CFM ("Cha Family Maintenance") (Daily Transcript 50, 4 June 2007, Day 4). He took up golf and had a handicap of six. He was made the chairman of the Korean golf club in 1991 and in 1997 became the sixth (in line) president of the Korean Sports Council, a position he held until the circumstances described in the seventh matter complained of published by the second defendant on 31 March 2001. From 1997 onwards he attended the Korean Games on behalf of the Korean Sports Council, and received plaques of appreciation for his services to Korean sport in Australia.

[53] On 1 May 1998 the plaintiff stood as a candidate for election for the new role of chairman of the Olympic Sports Committee. He won by 33 votes to 11.

[54] Between 1 May 1998 and the end of the Sydney 2000 Olympic Games, the plaintiff carried out the roles and duties of chairman of the Supporting Committee. This included arranging and attending meetings, dealing with SOCOG, arranging social functions and fundraisers, and supervising a wide range of committee activities including the six sub-committees for Olympic transport and the like. There were frequent visitors, including media and government officials, from Korea. These activities, as described in the Minutes of Meeting and Activities Book, (Exhibits 51 and 52; tendered on Day 17, Daily Transcript 521-522, 24 September 2009) , are set out in more detail below.

[55] The first defendant, Mr Oh, was the president of the Korean Journalists Association in Australia, according to a letter from the Association dated 30 September 2000 (Exhibit 56). He wrote the first, third, sixth, seventh, eighth, eleventh, twelfth and fourteenth matters complained of which went before the s 7A jury, which appeared in "Hojudonga", a Korean language newspaper. His article of 22 December 2000 (the first matter complained of) summarises the interim audit results provided to the Australian Korean Journalists Association by the fourth and fifth defendants on 21 December. Mr Park, the fourth defendant, disputes this, and says that Mr Oh came to his desk and stole documents from him (Daily Transcript 2638, 30 March 2009, Day 59). The "interim audit results" Mr Oh wrote about were not produced at the trial, nor were they provided to the plaintiff or the cross-defendant in response to their requests at the time (Daily Transcript 1767, 30 May 2008, Day 45); Mr Park says this report was mislaid (Daily Transcript 2793-2795, 1 April 2009, Day 61).

[56] Mr Oh never contested these proceedings. After the s 7A jury found imputations were conveyed by each of these publications (a schedule is set out in Part 2 of this judgment), he failed to comply with peremptory orders to file a defence. Judgment was entered against him. He died after judgment was entered. Defamation actions do not survive death, so the action abates. This is an important exception to the general rule of survivorship of actions, and is one of the reasons why delay in defamation actions should be regarded with concern by the courts.

[57] The second defendant was the other candidate for election at the meeting of 1 May 1998. He is described in the List of Persons present at this meeting, prepared by the seventh defendant (Exhibit 1), as "adviser & second president of Sports Council". The other three ex-presidents of the Sports Council are listed as "Counsellors" (Exhibit S) but Mr Jae Kyung Lee occupied a more important role. This is because, although he lost the election to the plaintiff, he was appointed (without election) to the most senior role in this committee, namely the position of Honorary Chairman. His name appears at the top of every list of members of the Supporting Committee (Exhibit SS, Exhibit 1 and Exhibit 51, page 65) except the last. His name is above the plaintiff's on all but one of these documents. He participated in Committee activities such as meeting the Korean Olympics team at the airport.

[58] The second defendant was also the publisher of TOP Weekly ("TOP"), the Korean language newspaper which published seven of the fourteen publications sued upon by the plaintiff. He was given TOP by the seventh defendant at an unknown date (Daily Transcript 2228, 19 June 2008, Day 54). TOP had its 8th anniversary of publishing in April 1999; the Supporting Committee and the Sports Council jointly sent a celebratory garland at the time (Expenditure Resolution 2 - 301). The seventh defendant said the second defendant was not interested in running a newspaper, and took it over only because the seventh defendant begged him to do so (Daily Transcript 2228, 19 June 2008, Day 54). The second defendant said that he had bought this publication (Daily Transcript 2082, 12 June 2008, Day 51) but that his visits to the newspaper office were "[n]ot even once a year, sometimes" (Daily Transcript 2086, 12 June 2008, Day 51).

[59] As well as being successive owners of TOP, the second and seventh defendants had many occasions to meet when the second defendant became chairman of the Korean Society, as the seventh defendant remained as a director (Daily Transcript 2193, 17 June 2008, Day 53). This was in addition to their contact at the Sports Council (of which the second defendant was immediate vice-president), the Volleyball Association (of which they were successively the presidents: Daily Transcript 2193, 17 June 2008, Day 53) as well as their activities concerning the Supporting Committee and their membership of the Korean Veterans Association of which the seventh defendant was the president at the time of trial.

[60] The Korean Society had given the Supporting Committee free office space when they started up. When the second defendant became the president of the Korean Society in mid-1999, the fourth defendant (who was appointed the Korean Society's Secretary-General at about this time) told Mr Sung Joo Sung, the Supporting Committee Secretary-General, that they should pay $150 per week rent (Daily Transcript 2985-2986, 6 April 2009, Day 64). The Committee had started paying $50 per week in April 1999 but this was considered insufficient and the fourth defendant told the court "we said [they should] leave" (Daily Transcript 84-85, 5 June 2007, Day 5; Daily Transcript 2745, 31 March 2009, Day 60; Daily Transcript 2985-2986, 6 April 2009, Day 64). The question of the second defendant's role in this was an issue at the trial. Counsel for the fourth defendant said no receipts were available for any rent payments, or a written lease, but asked me to infer that rent of $150 was payable (Daily Transcript 3219-3220, 15 April 2009, Day 67).

[61] Over Mr Wheelhouse SC's objections (cf Price v Manning (1889) 43 Ch. D 372), the second defendant was called to give evidence by the plaintiff (Daily Transcript 2030, 11 June 2008, Day 50). He told the court that "they" asked me to be "honorary chairman" and that "basically the honorary chairman is to help them and assist them" (Daily Transcript 2079, 12 June 2008, Day 51). He "had no responsibility for the Committee", but "could be called upon from time to time to do things." (Daily Transcript 2098, 12 June 2008, Day 51).

[62] The second defendant's defence prior to the amended defence of 13 February 2007 initially pleaded a limited plea of justification to imputations 39(c) and 40(e), namely that the plaintiff failed to keep proper accounting records. An application to amend the plea of justification to 11 of the 14 imputations was made on 5 February 2007, and on 8 February 2007 I made a peremptory order for service of particulars of justification or partial justification by 13 February 2007. There were further particulars supplied at the commencement of and during the trial and by the end of the trial these particulars were in excess of 160 pages.

[63] The second defendant was consulted by the fourth and fifth defendants, in their capacity as auditors, because he was Honorary Chairman of the Supporting Committee and Chairman of the Korean Society, according to the 1 March 2001 matter complained of. He also presided over the meeting to consider the fourth and fifth defendants' audit report (Exhibit J) and attended the Sports Council meeting at which the plaintiff was forced to resign. This is the subject matter of the 30 March 2001 publication.

[64] The third defendant publishes the Sydney Korean Herald ("Korean Herald") which, like TOP and Hojudonga, is published weekly on Fridays. The edition for 8 - 14 May 1998 (exhibit 1) shows that it was a substantial newspaper of more than 50 pages, with offices in both Campsie in New South Wales and Fortitude Valley in Queensland, devoted to news stories as well as advertising not only from Korean businesses but also stores like Brescia furniture and government bodies like Landcom. No copy of the second defendant's newspaper was discovered or tendered but descriptions of the advertising and content show they must have some similarities. The plaintiff commenced proceedings against the Korean Herald in relation to the same three publications on the same three dates (1, 9 and 16 March 2001 as the publications in TOP and Hojudonga. The Korean Herald did not publish any other articles about these events.

[65] Part way through the s 7A jury trial, on the application of counsel for the plaintiff, during the address to the jury of Mr Wheelhouse SC (counsel for the third defendants at the time), I discharged the jury. Appeals to the Court of Appeal and High Court were unsuccessful: Lee v Cha [2006] HCA Trans 132; Yoon Shin Lee v Bob Chae-Sang Cha [2005] NSWCA 279. There was a further s 7A trial at which the jury found all imputations pleaded against this defendant were conveyed for the three publications for which it was responsible. This delayed the litigation between the plaintiff and the other parties for two years. It was to avoid further delay that on 25 August 2006 I set the matter down for hearing as a four-week trial commencing 28 May 2007.

[66] In a defence filed on 10 August 2006, the third defendant pleaded a defence of justification to all imputations in these three publications (unlike the second defendant, who pleaded this defence to only two imputations). However, before the trial commenced, the third defendant settled the proceedings for $60,000 plus costs and published an apology.

[67] The fourth defendant trained in Korea at a college as a physical education teacher. He had knowledge of bookkeeping from his activities as a sports teacher in Korea, but had no prior knowledge or experience of auditing. He was the basketball association representative on the Supporting Committee. In addition, he participated in Supporting Committee social activities such as the SK Security dinner (Statement, page 108; Daily Transcript 2573-2574, 26 March 2009, Day 58; Daily Transcript 2996, 6 April 2009, Day 64).

[68] The second defendant did not tell the court what his occupation was on 1 May 1998, when he volunteered to become one of the Committee's auditors (Exhibit 70, Supplementary Statement, paragraphs 1 and 2). The plaintiff said he learned the fourth defendant had been the Korean Society's cleaner at that time after the second defendant was elected the president of the Korean Society (Daily Transcript 71, 4 June 2007, Day 4; Daily Transcript 2673, 31 March 2009, Day 60). The fourth defendant was appointed Secretary-General of the Korean Society during 1999, in which capacity he visited and contacted the Supporting Committee to obtain information and documents, according to the Activities Diary and Minutes of Meeting (exhibits 51 and 52). At or about the time when the second defendant's four-year term as president of the Korean Society ended, the fourth defendant's employment with the Korean Society ended. Since that time he has worked as a supermarket cleaner for companies owned by the second defendant (Daily Transcript 2672-2673, 31 March 2009, Day 60).

[69] In his capacity as general secretary of the Korean Society, the fourth defendant took an active role requesting information from the Committee (Minutes of 6 March 2000, Exhibit 51, page 41; Activities Diary, 31 August 2000, Exhibit 52) and asking the Committee to pay more rent (Daily Transcript 1691, 28 May 2008, Day 43) and asking them to leave when they refused.

[70] There is a disputed issue of fact as to whether the fourth and fifth defendants commenced the audit on 21 August 2000 (as recorded in Exhibit 51, the Committee Activities Diary) or on or about 10 December 2000, the date given by the fourth and fifth defendants as the date when they received the Committee records from the plaintiff.

[71] During the cross-examination of the plaintiff it was put to him that the fourth defendant was responsible for checking all the Expenditure Resolutions and that his signature and red seal appear on them (Daily Transcript 81, 4 June 2007, Day 4; Daily Transcript 194, 7 June 2007, Day 7; Daily Transcript 200-209, 8 June 2007, Day 8; Daily Transcript 270, 12 June 2007, Day 8; Daily Transcript 933, 9 October 2007, Day 24; Daily Transcript 1014, 10 October 2007, Day 25; Daily Transcript 1459, 19 May 2008, Day 38; Daily Transcript 1664, 28 May 2008, Day 43). In fact this was not the case. Mr Wheelhouse SC advised on Day 60 that the fourth defendant had "picked up" an error in the translation of his affidavit and that in fact the signatures and red seals on the Expenditure Resolutions were those of the fifth defendant. (Daily Transcript 2731, 31 March 2009, Day 60).

[72] Mr Han Yong Lee, the fifth defendant, was a vice-chairman of the Korean Sports Council (Daily Transcript 1548, 26 May 2008, Day 41). He was the president of the Judo Association (Daily Transcript 2901, 3 April 2009, Day 63)). At the time of his appointment as auditor he ran a sushi restaurant. He had no training or knowledge in accounting or auditing.

[73] The fifth defendant was represented by counsel and a solicitor at the s 7A hearing and filed a defence in the same form as the fourth defendant, pleading a defence of truth to the two imputations of failing to keep proper accounts, and providing the same three short paragraphs of particulars of truth.

[74] The fourth and fifth defendants' solicitors filed a Notice of Ceasing to Act on 17 January 2007. They attended court in person in February 2007 in response to a request from the plaintiff for production of the Supporting Committee's accounting records. These documents were then uplifted by the second defendant (Daily Transcript 151-154, 6 June 2007, Day 6).

[75] Although he filed a defence, the fifth defendant did not attend the trial to defend these proceedings. He was called to give evidence by the second defendant. Each time I asked the fourth defendant and Mr Wheelhouse about him I was told he was in Korea (Daily Transcript 25-26, 28 May 2007, Day 1; Daily Transcript 41, 4 June 2007, Day 4; Daily Transcript 108, 5 June 2007, Day 5; Daily Transcript 1426, 12 May 2008, Day 36). I severed the cross-claim on Day 36 (Daily Transcript 1425, 12 May 2008) and made directions for him to be notified (see orders dated 12 May 2008). On the application of Mr Evatt I struck out the defence of the fifth defendant and entered judgment for the plaintiff. In addition, I entered judgment in the cross-defendants' favour (plus costs) on the fifth defendant's cross-claim against Mr Kim and the plaintiff.

[76] Mr Lee did come to Australia to give evidence for the second defendant. His cross-examination was restricted because he was only able to remain in Australia for a few days (Daily Transcript 2803 and 2821-2822, 2 April 2009, Day 62).

[77] The sixth defendant was the publisher of the Korean Community magazine and published the thirteenth matter complained of on 6 July 2001. He did not participate in the s 7A trial and the plaintiff entered judgment against him after he failed to file any defence in relation to the imputations found by the s 7A jury.

[78] The seventh defendant is the former owner of the newspaper TOP, which published all of the newspaper articles the subject of these proceedings. He gave this newspaper to Mr Lee, the second defendant. He was the director of the Korean Society (Daily Transcript 2193, 17 June 2008, Day 53) and is currently the vice-president of the Korean War Veterans Association (Daily Transcript 2164, 17 June 2008, Day 53). The seventh defendant presided over the meeting on 1 May 1998 at which the plaintiff and the second defendant were candidates (Daily Transcript 156; 7 June 2007, Day 7). He published the result of the meeting in the newspaper (Daily Transcript 146, 6 June 2007, Day 6; and Exhibit 1) and prepared the list of officials who were at the meeting and also the Constitution. At the top of this list was the second defendant, who was the Honorary Chairman (Exhibit SS).

[79] The seventh defendant was Vice Chairman of the Supporting Committee at various times, keeping financial records between May - November 1998 and between April - October 2000, according to the plaintiff, who identified the seventh defendant's handwriting in the Committee's accounts for this latter period. He had his own desk in the Supporting Committee's office according to the Activities Diary, which records him as attending frequently between January and October 2000. The seventh defendant said there was no Activities Diary and that entries shown to him were "falsified" (Daily Transcript 2211-2212 and 2214, 19 June 2008, Day 54).

[80] The seventh defendant answered interrogatories denying that he made statements to TOP denying he made statements attributed to him concerning the $3,000 left over after the purchase tickets (Exhibit U) and saying he could not recall what he did say "given the passage of time". The jury found in favour of both the second and seventh defendants in relation to this publication (S 7A transcript 626 3 August 2004).

[81] Mr Kim, an engineer, was the publisher of the Korean-Oceanic Business Review ("the Oceanic Review"). He came to Australia in 1973 and worked for the Australian Bureau of Agricultural Research and Economics in Canberra, obtaining a Master of Economics degree in agricultural economics from the University of New England. In 1988 he moved to Sydney and started publishing the Korean-Oceanic Business Review, in which he translated into Korean items of interest from English newspapers. In addition to writing articles about education, immigration and law and order issues, he also reported on the activities of Korean community organisations.

[82] The cross-defendant played no role in the Supporting Committee's activities and wrote no articles about the Supporting Committee until March 2001. He said he was asked by the plaintiff not to publish articles or participate, because the second defendant, who had him expelled from the Korean Society after attaining the presidency, objected to him being there (Daily Transcript 1765-1766, 30 May 2008, Day 45).

[83] The cross-defendant published articles in the Korean Oceanic Review early in 2001 questioning the accuracy of the facts set out in matters complained of and published an interview with the plaintiff. This resulted in defamation proceedings being brought against him, and also against the plaintiff, by the fourth and fifth defendant, as a cross-claim in these proceedings. The cross-defendant gave evidence in the s 7A proceedings and in this trial.

[84] After conclusion of the s 7A jury trial, the fourth and fifth defendants never prosecuted their cross-claim against the cross-defendants. I severed it from the main action on Day 36 of the trial (12 May 2008). The fourth defendant later discontinued the cross-claim and on the application of counsel for the plaintiff and Mr Kim I gave judgment in their favour against the cross-claimant Mr Lee, who is the fifth defendant in these proceedings.

[85] It is not in dispute that when the cross-defendant and Mr Jae Sung Hwang, the editor of the Oceanic Review, attended the Sports Council meeting of 30 March 2001, the fourth defendant assaulted Mr Hwang and knocked his glasses to the ground (Daily Transcript 1770-1772, 30 May 2008, Day 45; Exhibit S - The ninth matter complained of). The matter complained of dated 30 March 2001 refers to this altercation, although it does not mention the assault. The explanation given both in this publication and by the cross-defendant in cross-examination is that the cross-defendant was expelled from the Korean Society following the election of the second defendant, which meant he was not welcome at any Korean function, including the Sports Council (Daily Transcript 1768, 30 May 2008, Day 45).

[86] Now that I have identified the parties and the issues, I should identify some procedural matters relevant to the determination of issues in this judgment.

(a) The burden and standard of proof for imputations of criminal conduct

[87] Imputations 39(a), 41(b), 41(d), 42(d) and 43(a) each identify conduct of an arguably criminal nature, such as misappropriation or failure to account.

[88] In Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510 at [24] - [38] Levine J sets out the relevant law concerning the standard of proof for imputations of conduct capable of amounting to the commission of a crime. The issue in this case, as in Marsden, is a fact-finding one of whether, on the balance of probabilities but to the level of satisfaction of proof required, the evidence establishes the truth of imputations of Levine J calls "grave misconduct" (at [38]).

[89] The parties agree (plaintiff's written submissions, 5.1.5) that the burden of proof in relation to the justification concerning the elements of each of these imputations which lies upon the defendants must be discharged on the balance of probabilities to the level of satisfaction of proof as required in Briginshaw v Briginshaw (1938) 60 CLR 336. Clear, cogent or strict proof is necessary where allegations of a serious nature such as fraud are made: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449.

[90] This standard of proof is not met if the evidence gives rise to conflicting inferences of equal degree of probability so that the choice between them is a matter of conjecture: Westbus Pty Ltd (Administrators Appointed) v Ishak [2006] NSWCA 198 at [20]. Where it is not possible to reach a conclusion either way, the court is not bound to do so, but may take the third course of finding that the party with the burden of proof has not discharged it: Kuligowski v Metrobus (2004) 220 CLR 363.

[91] Defendants in defamation proceedings are required to provide particulars of the plea of justification before the trial.

[92] At [39] - [54] in Marsden, Levine J explained the nature of admissions by conduct, including evidence in relation to the preparation of the case. I propose to approach, in the same way, the question of whether the conduct of the plaintiff complained of by the defendant amounts to evidence of this kind.

(c) Jones v Dunkel (1959) 101 CLR 298; Browne v Dunn (1893) 6 R 67; Allen v Tobias (1958) 98 CLR 367

[93] The parties have not referred to Jones v Dunkel (1959) 101 CLR 298 issues in their submissions, but if there is any question of witnesses who were not called, I propose to approach the issue in the same "common sense" way that Levine J employed in Marsden at [93] (citing Jones v Dunkel at 321 per Windeyer J).

[94] Both the plaintiff and the second and fourth defendants assert that many disputed issues of fact were not put to the relevant witnesses in accordance with the rule in Browne v Dunn (1893) 6 R 67.

[95] In some cases these problems arose because the defendants' particulars of truth were substantially enlarged throughout the trial.

[96] Because of the length of the trial, counsel for the plaintiff sensibly suggested that all the defendant's witnesses could give evidence by affidavit or statement. In their affidavits they stated evidence in reply to matters raised by the plaintiff and his witnesses. Counsel for the defendants ("defendants" in this judgment refers to the second and fourth defendants) asserted that where witnesses were not cross-examined about these allegations, the rule in Browne v Dunn had not been complied with and that the approach I should take on all these occasions should be to accept the evidence of the defendants.

[97] Once a witness has given evidence about the allegations against him or her, it is not necessary for his/her counsel to go through the exhaustive process of putting formally to all other witnesses questions designed to make them confirm or deny that evidence: Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 23. In addition, the provisions of s 46 Evidence Act 1995 (NSW) give a number of alternatives to a trial judge when dealing with evidence which is asserted not to have been challenged or led.

[98] The purpose of cross-examination is to seek admissions that evidence is incorrect or untruthful. It is not necessary to list every matter in dispute and formally put it to the witness that the other party's version is correct. In addition, many of these problems arose because of the enlargement of particulars in the defendants' justification defence during the trial.

[99] Taking matters such as these into account, I have accordingly approached Browne v Dunn issues in the same common-sense way that Levine J did in Marsden, and noting the discussion of s 46 Evidence Act 1995 (NSW) in Odgers, "Uniform Evidence Law", 8th Ed. 2009. This means considering all of the alternatives before the court when evidence is challenged under this rule, rather than simply excluding it in the manner advocated by the defendants in their submissions. The very substantial amendments to the second and fourth defendants' pleadings and particulars, the multiple adjournments, the changes of legal advisers and witness problems (such as the ill health of the second and seventh defendant) require a flexible approach to such matters.

[100] Complaints have been raised by the parties concerning failure to produce documents: Allen v Tobias (1958) 98 CLR 367 at 375 per Dixon CJ, McTiernan and Williams JJ; TCN Channel Nine Pty Ltd v Antoniadis (1998) 44 NSWLR 682.

[101] Allen v Tobias is rarely referred to in modern litigation, where parties are required to produce documents for the purpose of discovery in accordance with the Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW). The plaintiff and second defendant during this litigation have complained about each other's discovery, and the fourth and fifth defendants never gave formal discovery, so the safeguards of the discovery procedure are accordingly limited.

[102] The long delay in bringing this case to trial is no doubt responsible for the absence of many of these documents, and I shall approach the complaints of the parties on a common sense basis.

[103] The District Court roster requires accurate estimates of time from the parties before setting down all civil and criminal trials in this court. The Court of Appeal's finding that these proceedings were adjourned in June 2007 so that the plaintiff could read some documents (Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13 at [51]) is incorrect. The hearing time allocated for this trial was four weeks, but after this four-week period, the case had to be adjourned part-heard because the plaintiff's cross-examination had still not concluded and the court calendar and lawyers' commitments meant the hearing could not continue. I made orders for further particularisation of the defence of justification as this defence had clearly not been adequately particularised.

[104] Prior to the first adjournment, the parties gave the court an estimate of another four weeks to finish the matter. After four further weeks, the plaintiff's cross-examination was still not completed. The hearing was adjourned to January 2008. In the final week of this second period of hearing time, an application was brought for me to disqualify myself. That judgment was appealed: Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13. The January 2008 hearing had to be vacated pending the Court of Appeal's decision, and the hearing could not resume until May 2008. This being the third time the trial was part-heard, I asked the parties to give an estimate of the hearing time in writing.

[105] For the third time, the hearing could not be completed in the time estimated by the parties. This time the parties had no further hearing dates available until 2009.

[106] Each time the case was adjourned, there were problems with document management and changes to the court roster. Managing this case has been a strain on court resources and staff, as the transcript will demonstrate.

(e) Delay in the commencement and conduct of these proceedings

[107] Why was the s 7A jury trial not heard until 2004, why did the hearing not commence until May 2007, and why were the evidence and submissions not completed until November 2009?

(i) Delay between commencement of proceedings in March 2002, the argument as to the capacity of the imputations and the section s 7A trial in August 2004

[108] The defendants could not agree between themselves, or with the plaintiff, upon how the section s 7A trial should be run. A three-week jury trial in August 2004 resulted in the discharge of the jury in relation to the third defendant's three publications.

[109] The discharge of the jury concerning the third defendant's publications during the three-week s 7A jury trial and the third defendant's subsequent unsuccessful appeals to the Court of Appeal and High Court, followed by a second s 7A trial for the third defendant, took two years.

(iii) Failure to complete the case in the time allocated by the court

[110] The inability of the parties to start and complete the trial in the four weeks allotted in May 2007 meant that the evidence was not completed until April 2009. Part of this is due to amendments to the defence and part is due to the plaintiff changing his solicitors and barrister when the trial resumed after the Court of Appeal returned these proceedings for continuation of the hearing. The new lawyers were not ready to proceed.

(iv) Delays in the provision of written submissions

[111] All parties are responsible for this. It has taken the parties eight months (15 April to 6 November 2009) to provide submissions.

[112] Neither Mr Wheelhouse SC nor Mr Evatt can use a computer. As the trial transcript grew longer and the adjournments more numerous, finding references in the paper transcript became, for them, a lengthy process. Disputes, usually on Browne v Dunn issues, arose.

[113] For the 2009 section of the trial, I installed computer screens on the bar table. This had limited success because, as Mr Wheelhouse SC explained, he was "the Prince of Luddites" and could only use the paper transcript (Daily Transcript 1711-1712, 29 May 2008, Day 44; Daily Transcript 2319, 23 March 2009, Day 55). Mr Evatt was no better (Daily Transcript 2243, 23 March 2009, Day 55; Daily Transcript 2559, 26 March 2009, Day 58; Daily Transcript 2669 and 2679-2680, 31 March 2009, Day 60).

[114] There were complaints on both sides about delay in the case, particularly concerning the length of the plaintiff's cross-examination. Mr Wheelhouse SC said that any delay in the cross-examination was because the plaintiff "never answered any questions, ever" (Daily Transcript 862, 8 October 2007, Day 23). In response to inquiries about the length of the cross-examination, he said that interruptions by Mr Evatt and myself meant he was only able to ask the plaintiff "ten questions a day" (Daily Transcript 1221-1222, 16 October 2007, Day 28).

[115] For the purpose of efficient case management, I sought to encourage counsel to move the case along (e.g. Daily Transcript 542, 24 September 2007, Day 17; Daily Transcript 552, 24 September 2007, Day 17) or briefly adjourned the court (e.g. Daily Transcript 1753, 29 May 2008, Day 44; Daily Transcript 3065, 7 April 2009, Day 65). On 5 October 2007, I handed down a judgment (see Cha v Oh (No. 12) (District Court of NSW, Gibson DCJ, 5 October 2007, unreported), which is contained in Cha v Oh (No. 22) (Part 2) [2009] NSWDC 300) putting a five-day limitation on further cross-examination of the plaintiff by Mr Wheelhouse SC.

[116] At the end of the plaintiff's long cross-examination, there were only a few days of the trial remaining in 2007, and Mr Evatt was anxious to call witnesses who had been waiting since May (notably the plaintiff's accountant) to give evidence. The fourth defendant then told the court he wanted to cross-examine for five days, which meant the plaintiff could call no more witnesses. The fourth defendant had refused requests by both Mr Wheelhouse SC and myself to sit at the bar table for the duration of the case (Daily Transcript 123, 6 June 2007, Day 6; Daily Transcript 847, 5 October 2007, Day 22; Daily Transcript 1025, 10 October 2007, Day 25). Mr Wheelhouse SC had previously told me he would ask questions on the fourth defendant's behalf (Daily Transcript 371, 14 June 2007, Day 11) and on occasions took objections on the fourth defendant's behalf (Daily Transcript 67, 68 and 71, 4 June 2007, Day 4).

[117] In the course of dealing with this application, which I granted, I commented that the fourth defendant had refused to sit at the bar table as counsel and I had several times requested and had sat at the back of the court laughing, and that his defence needed to be amended as he had only pleaded a defence of justification to two imputations. I did, however, allow the fourth defendant to amend his defence and to cross-examine the plaintiff, which he did for the rest of the time allotted for the trial.

[118] The second and fourth defendant made an application for me to disqualify myself on the basis of both actual and apprehended bias for these remarks I made about the fourth defendant. I refused to do so.

[119] The matter was adjourned to the following year (29 January 2008), with the plaintiff still technically under cross-examination, as the fourth defendant clearly needed to consider his position concerning issues of malice and qualified privilege, which he had not dealt with, and with the plaintiff having been unable to call any of his witnesses.

[120] A Holding Summons was filed in the Court of Appeal, and an application for leave to appeal from my refusal to disqualify myself was brought in November 2007. This meant the hearing had to be adjourned. On 8 December 2007, at the request of the parties, I vacated the hearing date of 29 January 2008 and placed these proceedings in the Inactive List, pending the decision of the Court of Appeal. The Court of Appeal dismissed the appeal: Jae Kyung Lee v Bob Chae-Sang Cha & Ors [2008] NSWCA 13. The hearing was given a fresh trial date commencing on 5 May 2008.

[121] When the hearing started, I was told the plaintiff was in financial difficulties and that his former lawyers were seeking to enforce judgments on legal costs in the Bankruptcy Court. His new lawyers sought a number of adjournments. Some evidence from reputation witnesses was taken. The seventh defendant's cross-examination was commenced but had to be adjourned part-heard to March 2009 when an exhibit was found to be missing.

[122] It is not easy to case-manage a trial where there are multiple adjournments, applications to amend pleadings and enlarge particulars, and transcripts of thousands of pages, especially where there are applications to disqualify the judge for bias (the plaintiff's counsel also brought such an application on the basis that I expressed a concluded view about one fact in issue in the case). However, parties are entitled to bring applications for a judge to disqualify himself or herself in the course of hearings, and judges must be able to consider these applications in an objective fashion and not respond personally.

[123] The length of hearing time is also partly due to the fact that all but three of the witnesses gave evidence in Korean, and all relevant documents were in Korean.

[124] The Supporting Committee's financial records (which were kept by the fourth and fifth defendants after the audit) and the plaintiff's discovered documents were uplifted by the second defendant and kept at his solicitor's office, where they were translated by a translator who was retained and paid by the plaintiff. During the trial his translations were challenged on a number of occasions, by all parties. However, having heard the circumstances in which this interpreter was required to translate and type the contents of thousands of pages of documentation in difficult circumstances (discussed in more detail below), I consider blame for any errors in translation should not be laid at his door.

[125] Mr Wheelhouse SC made an allegation of misconduct about the plaintiff's court interpreter (Daily Transcript 1254-1255, 16 October 2007, Day 28), which he later withdrew, but which led to her asking to be excused from the case (see also Daily Transcript 949-950, 9 October 2007, Day 24). Her request was entirely understandable but came at a difficult time in the plaintiff's cross-examination.

[126] Mr Wheelhouse SC explained an important change in the fourth defendant's evidence about whether the red seal and signature on Expenditure Resolutions was his (Daily Transcript 2730, 31 March 2009, Day 60), as well as omissions from other witnesses' statements (Daily Transcript 2409-2410, 25 March 2009, Day 57), as arising from errors by his own client's interpreters.

[127] The third defendant also made a complaint about one of the plaintiff's interpreters.

[128] Although at the time I listened to these complaints sympathetically, with the benefit of hindsight, I do not accept any of these complaints has any merits. All of the interpreters and translators retained by the parties performed their difficult task both honestly and efficiently. Responsibility for any errors does not lie on the translators.

[129] In judgments following long trials, judges may summarise case management information such the number of trial days and adjournments (3 weeks for the s 7A jury trial and 73 days (approximately 15 weeks) for the hearing on liability and damages), the number of transcript pages (3911 for the hearing and 695 for the s 7A trial), the number of witnesses (23 for the plaintiff and 11 for the defendants), exhibits (58 for the plaintiff and 81 for the defendants) and length of the written submissions (in excess of 1,000 pages), as well outlining procedural matters such as appeals during the trials, applications to amend and difficulties with the evidence. The question is whether these figures are proportionate to the issues in the trial, or the amount of compensation claimed.

[130] In Seven Network Limited v News Ltd [2007] FCA 1062 Sackville J at [2] - [6] used the word "mega-litigation" to describe "electronic courtroom" proceedings which had taken 120 days to hear, resulting in 9,530 pages of transcript, thousands of exhibits and a "truly astonishing" (at [4]) 2,500 pages of submissions from both sides of the bar table, noting the judgment had taken nine months to write and that during that nine months he had been far from idle. What concerned Sackville J was that the legal costs (around $200 million) were likely to exceed the quantum of damages, which his Honour considered to be not only wasteful, but to border on the scandalous (at [10]). In Seven Network Limited v News Limited [2009] FCAFC 166 the Full Court dismissed Seven's appeal, noting at [1079] the size of the costs involved.

[131] The issue of proportionality is not limited to commercial cases. In fact, Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510) was longer, had more appeals, and related to a damages claim for a tiny fraction of the sum involved in the proceedings before Sackville J. The concern following Marsden and other defamation trials led to a private member's bill in parliament, which in turn led to the enactment of s 48A Defamation Act, to provide for costs penalties where appropriate. When uniform defamation legislation was introduced in all States and Territories of Australia in 2005, this important statutory reform was included in all jurisdictions, and became s 40 Defamation Act 2005(NSW).

[132] Following similar concerns expressed by the court in Bell Group Limited (in liquidation) v Westpac Banking Corporation (No. 9) [2008] WASC 239, a Bill was introduced into the Federal Parliament this year, called the Access to Justice (Civil Litigation Reform) Amendment Bill 2009 (Cth). According to its preamble, it mirrors many of the reforms set out in the Civil Procedure Act 2005 (NSW), and in particular the provisions of s 56 for the administration of justice to be "just, cheap and quick".

[133] The Civil Procedure Act is still something of a lex imperfecta, in that failure to comply is rarely penalised. The burden on court resources, as well as on parties, caused by repeatedly part-heard trials and prolix pleadings is significant. Judges in the District Court are not given secretarial assistance or time out of court to write judgments, even lengthy ones, and all judgments must be handed down within two months of judgment being reserved. While I can understand the reasons for this regime, having regard to the need for justice to be just, cheap and quick, it is difficult to achieve without assistance from computer-literate counsel who have considered the law, distilled the facts and issues and presented them in a clear and concise fashion in properly pleaded and particularised claims and defences.

[134] The causes and solutions to the problems of "mega-litigation" have been the subject of comment in articles by distinguished jurists (e.g. the Honourable Justice Pagone, "Lost in Translation: The Judge From Provider to Consumer of Legal Services" in "The Art of Judging", Southern Cross University Law Review vol. 12, 2008 at p. 160; the Honourable Justice Hayne, "The Vanishing Trial" (2008) The Judicial Review 33). The reducing number of trials actually taking place has led to fears for the future of the adversarial trial process if the trial process means litigation is "too horrible to contemplate" (to quote Sackville AJ in "Meeting the Challenges of Complex Litigation: Some Further Questions" (2009) The Judicial Review 197). Concerns about late amendments and delay have now been squarely confronted by the High Court in AON Risk Services Australia Limited v Australian National University [2009] HCA 27.

[135] As courts now publish their judgments on the internet, litigation excesses by lawyers, or courts, quickly become publicly known. When Australian (or foreign) readers read judgments where lawyers have, for example, discovered documents by the roomful (Rural and General Insurance Broking Pty Ltd (ACN 093483928) v Australian Prudential Regulation Authority [2009] ACTSC 67), or appealed eleven times during a defamation trial (Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510), or that legal costs of $200 million have been run up in circumstances the trial judge described as bordering on the scandalous, they do not admire the cleverness of the lawyers involved; they lose faith in the common law system.

[136] Both parties to this litigation, but particularly the defendants, have contributed to this trial being distorted by adjournments due to inaccurate trial time estimates, failure to give frank and fair discovery, inadequately pleaded and particularised defences and prolixity in presentation. The plaintiff's submissions are, fortunately, clear and succinct, particularly given the circumstances in which they were prepared (Cha v Oh (No. 21) [2009] NSWDC 130).

[137] Despite the large number of publications, the issues of fact, if properly pleaded and particularised at the outset, would very likely have been concluded in the four weeks time estimate for which this case was originally set down.

[138] What is necessary in this litigation is finality for all concerned. Whatever the responsibilities for the delays in preparation of the case and conducting the trial, I do not want to add to them by any further delay in handing down judgment. I am conscious that as a result, there is considerable repetition and overlap in this judgment's presentation, and probably also errors such as transcript pagination, informal language and other oversights. I have handed this judgment down as quickly as I can for the reasons expressed by Austin J in ASIC v Rich [2009] NSWSC 1229 at [14] - [15] (although Austin J has expressed this better than I can), taking into account the exhortations of Heydon J about the role of the trial judge as being the fact finder rather than the determiner of esoteric issues of law ("Practical impediments to the fulfilment of judicial duties" ("The Role of the Judge", Judicial Commission of New South Wales, 2004, pp. 31 - 42).

[139] Having noted these preliminary matters, I now set out the factual issues in the case. I have set out who the parties are, so I now propose to describe the Committee set up to make the dreams of the North and South Korean Olympic officials and team a reality.

The organisation of Korean sporting groups in New South Wales: the Korean Sports Council and unincorporated associations

[140] The Korean Sports Council was a body funded by the Korean Government. It was incorporated pursuant to the Associations Incorporation Act 1984 (NSW), which relieves a company from complying with some but not all of the requirements for a corporation.

[141] Mr Bonney Lee, an accountant who is the president of the Golf Committee, explained (at Daily Transcript 2147, 16 June 2008, Day 52) how he ran his unincorporated association: "A. INTERPRETER: Firstly, in all the Korean community's associations or committee, unlike the Australian, that it is hard to keep, or it's meant to be, but it's hard to, reality, to keep record of it, is because the income is not all recognised, and it is not enough. Like, just in my case there's the golf association. I try to keep the proper records, but sometimes the income is not enough and to keep the association going, I have to put a lot of my own money into the thing to keep it going. So I cannot say just for looking alone on this committee that, what - how it should have been done, to tell you the truth. That it's difficult."

[142] Mr Lee went on to explain (at Daily Transcript 2148, 16 June 2008, Day 52): "Q. Mr Lee, you keep a precise record of who made a donation, when the donation was made and how much a donation was made, because that's the proper way to keep books of an association like the Golf Association, isn't it? A. INTERPRETER: Yes, me personally as an accountant, yes, I keep the books. But, as an overall in the community of various associations and committees, it is difficult to keep those proper records.

Q. Do you agree, Mr Lee, that when an organisation is dealing with public money and accepting donations from members of the public, it's really important to keep a precise record of which members of the public made the donation, how much the donation was for and the date when the donation was made? A. INTERPRETER: Yes. Overall, yes, they need to record it and kept records. But, as I said, at times that this is not -

Q. Mr Lee, if I could take you back to the statement that you made that's recorded in the document in front of you."

[143] Although Mr Lee was interrupted, he made it clear that these Korean unincorporated sporting bodies' records, unlike Australian associations, are generally kept in an informal way, because there is not enough money and the president is running the organisation out of his own pocket. He went on to say that the job of keeping the records would have been the role of the treasurer, and if there was no treasurer then everybody, including the president would have been responsible: "Q. Mr Lee, are you aware who was responsible for keeping the financial books from time to time of the supporting committee? A. INTERPRETER: Yes. As far as I'm concerned, it would have been the treasurer of any committee but in the supporting committee, it was also the treasurer who would have been responsible.

Q. And if there was no treasurer, who would then be responsible? A. INTERPRETER: If that's not the case, then everybody involved, including the president and the members of the committee.

Q. Would you agree that the ultimate responsibility would be with the president?

Q. This is the responsibility for keeping the books. Would the ultimate responsibility of keeping the books have been the president's? A. INTERPRETER: Yes. Ultimately, if it came down to the crunch, yes, the president." (Daily Transcript 2151, 16 June 2008, Day 52)

[144] Mr Kun Woo Lee, president of the Tennis Association, gave similar evidence concerning the structure of the Tennis Association. He also explained the relationship of these small associations with the Sports Council (Daily Transcript 1838-1842, 2 June 2008, Day 46). In particular, he stated that the fact that the Tennis Association was a member of the Korean Sports Council did not mean that during the Olympic period (when the Supporting Committee had been set up) it was the Sports Council that should donate money to the Tennis Association rather than the Supporting Committee. This was the subject of very vigorous cross-examination, but Mr Lee held firmly to this evidence: "Q. It was not appropriate for the Supporting Committee to make payments to the Tennis Association to support annual Tennis Association events from time to time because that was not part of the role of the Supporting Committee? A. INTERPRETER: Then I'd like to ask the question, and I've said it before, that during the Olympic time the money that was raised, the donations from the Supporting Committee - the main aim, the main focus is what, to support and to assist the Olympic teams? Isn't that the main role and the aim?

Q. Yes, Mr Lee, I think you and I agree on that topic, so I'm asking you a question about that. I'm not putting something that's different to that. Do you understand? What I'm suggesting, Mr Lee - and I think you agree with this - is that it wasn't part of the role of the Supporting Committee to pay for annual events of the Tennis Association.

Q. The question I asked you was this: do you agree that it wasn't part of the role of the Supporting Committee to pay for annual events of the Tennis Association? A. INTERPRETER: Before the Olympics, as Tennis Association being the sub-association from the Sports Council, we raised monthly money to the association, or the president of each association would help and support the individual teams during the events or things that they do. But during the Olympics, he referred it as, like, a personality. It's a little bit different in the same that we did not - the Tennis Association did not use the money for their private use. It was used for the Korean team of the same to support and assist the team from Korea.

Q. At the time when you were president of the Tennis Association, Mr Lee, did the Tennis Association have its own bank account? A. INTERPRETER: At that time, no, the Tennis Association did not. At the time when I was the president, no. The reason for that is that part of the Tennis Association to get along, to support the association, normally it's the president that takes care of - the money that's involved in supporting the association, between five, seven thousand dollars, but it's normally the president that, yes, are responsible for it. I do recall having one account, but did not use it because the president pay for [sic]." (Daily Transcript 1841-1842, 2 June 2008, Day 46)

[145] As to the standards of bookkeeping in the Korean Society, Mr Sung Joo Sung, who was the Korean Society auditor for three years (Exhibit 72, paragraph 35(b)), said he attempted to prepare the accounts of the Committee "in the same form as I had experienced at the Korean Society" (Exhibit 72, paragraph 35(b)). He said that the plaintiff "would not agree with the way I proposed to record the income and expenditure" (Exhibit 72, paragraph 35(b)) but does not identify, in his affidavit or evidence, what the plaintiff did or did not want him to do. The seventh defendant also had prior experience in a financial role with the Korean Society, and following the resignation of the plaintiff from the Sports Council in March 2001 was appointed temporary auditor of the Sports Council, according to the 30 March matter complained of (Exhibit S, lines 52 - 3). Mr Joo Yong Jo, the financial controller, was also the treasurer of the Korean Sports Council. These three persons were the persons appointed to positions of financial responsibility in the Supporting Committee and presumably brought with them their knowledge an experience of bookkeeping for other Korean sporting or social associations.

[146] Finally, although set up in Australia, many of these associations functioned along lines dictated not only by Korean custom (e.g. respect to seniors, playing the Korean national anthem) but also accounting practice. For example, not only did the Supporting Committee have its audit period from January to December, the Korean financial year, but so, apparently, did the Sports Council, judging by the circumstances in which financial information was being belatedly presented in March 2001 (Exhibit S, lines 46 - 54).

[147] Having noted the nature and extent of bookkeeping in these unincorporated Korean sporting associations, I now consider the structure of the Supporting Committee.

What was the structure of the Supporting Committee?

[148] The Supporting Committee was neither a corporation nor an association registered under the Associations Incorporation Act 1984 (NSW). It was a "supporting" committee of individual members of the Korean community in Australia, set up in an informal meeting attended by: (a) the former presidents of the Korean Society; (b) the former presidents of the Korean Sports Council (a body incorporated under the Associations Incorporation Act ); (c) representatives of the unincorporated sporting associations who made up the membership of the Korean Sports Council (a body incorporated under the Associations Incorporation Act ); (d) community group representatives, notably the Korean Veterans Association; and (e) persons who appear to have held positions of importance in the Korean community.

[149] The seventh defendant, who was the temporary chairperson of the Supporting Committee prior to 1 May 1998 and author of the Constitution, described the activities of this committee as having "a lot to do with in the relationship with Australia and so on" and that he felt he had a "responsibility towards that goal" (Daily Transcript 2168, 17 June 2008, Day 53).

[150] It is not uncommon for organisations registered under the Associations Incorporation Act to be affiliates or associates with other incorporated associations, especially in the field of sport. An example is Rose v Boxing NSW Incorporated [2007] NSWSC 20 (see Brereton J at [48]). Although not imposing some of the more onerous obligations of the Companies Code, the Associations Incorporation Act still imposes requirements for the proper keeping of records, especially financial records.

[151] The members of the Korean community who set up the Supporting Committee were familiar with these requirements by reason of their membership of the Korean Council, the Korean Sports Council, or both. When they set up the Supporting Committee as an unincorporated association, did they intend the same level of record-keeping required for corporations, or incorporated associations, or the even more flexible structure of unincorporated sporting groups, such as the Korean Golf Club?

[152] The defendants assert in written submissions that the standard of record keeping should be at the standard required by the Charitable Fundraising Act 1991 (NSW) and the Charitable Fundraising Act Regulations 1998. This was raised for the first time in submissions so I did not have the benefit of evidence from the expert witness, or any of the lay witnesses, on any aspect of this legislation. I should briefly note: (i) The Committee's Constitution is very broadly phrased. There is reference to a financial director, auditors and a reporting process, but the reporting is to the Supporting Committee itself, not to any other association or government body. Clearly, there was no intention to file a tax return.

(ii) The Committee's purpose could not be broader. It is to act in concert with the Korean Sports Council and to play a "channelling role", not just for sporting matters, but community matters.

(iii) Committee positions were voluntary and unpaid, but when it was set up the clerks who kept the books and their supervisors, Mr Sung Joo Sung and the seventh defendant, were paid, as was Mr Dae Wong Kang, another office holder. This was an organisation staffed by volunteers. The lunches and dinners challenged as excessive relate largely to meals for these volunteers after meetings or in the office, their entertainment of Korean visitors and officials, and rallies or functions for the Korean community related to the Support Committee's activities.

(iv) Although the plaintiff was the chairman, he was not the most important or powerful member of the Committee, as the command structure shows.

(v) Finally, and importantly, the Constitution contained a provision that disputes or issues that were not the subject of a specific rule were to be regulated by "custom". What did this mean?

[153] In addition to the evidence of Mr Bonney Lee about differences between Korean and Australian ways of running sporting associations, the evidence shows there were important obligations of custom, arising from Korean culture.

[154] 77-year-old Mr Yong Kwang Kim, who had been both the plaintiff's (Daily Transcript 2252, 23 March 2009, Day 55) and the second defendant's commanding officer when they were young men in the Korean army, gave a helpful description of Confucian obligations of obedience to seniors and also the obligations of obedience in the Korean military structure (Daily Transcript 1475-1476, 20 May 2008, Day 39). Like other witnesses, he referred to the obligations of younger persons to be "obedient to senior" as Mr Yong Kwang Kim put it (Daily Transcript 1475, 20 May 2008, Day 39). The seventh defendant, for example, expected the plaintiff not to criticise him as he was ten years older than the plaintiff (Daily Transcript 2170-2171, 17 June 2008, Day 53; see also Mr Sung Joo Sung's evidence at Daily Transcript 3069 (7 April 2009, Day 65) and Mr Cha's evidence on Day 21 (Daily Transcript 783, 4 October 2007)). A similar relationship of obligation existed between the plaintiff and the much older second defendant; the plaintiff called the second defendant "ajeossi" ("uncle" - Daily Transcript 1490, 20 May 2008, Day 39).

[155] In addition, the plaintiff, the second and seventh defendant and some of the witnesses had all been members of the Korean army. The Korean Veterans Association, not surprisingly, given the plans North and South Korean athletes to march together, had a representative on the Supporting Committee. Committee meetings sometimes started with a moment of silence for the fallen (e.g. Exhibit 51 pp. 1) and always with a ceremonial salute (e.g. Exhibit 51 p. 16).

[156] The Supporting Committee's Constitution contained a proviso that where the Constitution was silent or there was a problem, the matter was to be settled according to custom. One of the issues in the trial is whether this meant Korean custom (as asserted by the plaintiff - see Daily Transcript 166, 7 June 2007, Day 7; Daily Transcript 927, 8 October 2007, Day 23) or Australian custom (as asserted by Mr Finney, the second defendant's expert witness - see Daily Transcript 3165, 8 April 2009, Day 66).

What was the command structure of the Supporting Committee?

[157] Three flow charts were prepared showing the structure of the Supporting Committee.

(a) The selection of executive members of the Supporting Committee

[158] The 8 May 1998 newspaper article (Exhibit 1) prepared by the seventh defendant, the acting chairman of officials election, on 8 May 1998 reports on the setting up and lists the people who were present, the people who were absent, the list of standing sub-committee members and the Constitution of the Kor-Aus Supporting Committee for Sydney Olympic Games. This gives an idea of who the members of the Supporting Committee were.

[159] Who, apart from the plaintiff and the fourth and fifth defendants, were the other officials? The seventh defendant said that he was appointed on 8 May 1998 to the position of secretary-general (Daily Transcript 2165, 17 June 2008, Day 53), with Mr Sung Joo Sung as his "assistant secretary-general" (Daily Transcript 2168, 17 June 2008, Day 53). It was while they held these positions that they supervised the bookkeepers keeping the financial records.

[160] The plaintiff described the persons he appointed and their qualifications (Daily Transcript 1548ff, 26 May 2008, Day 41). The question is when he did this. There were meetings of officials from June 1998 onwards. There are Minutes from October 1999 but earlier Minutes, if they exist, have not been produced. There were also lists of officials. Exhibit SS, which is the first list in chronological order, is apparently early 1999.

[161] Mr Wheelhouse SC objected (Daily Transcript 1566, 26 May 2008, Day 41) to Exhibit SS on the basis that a "pre-incorporation document" could not be a business record. The Committee was never incorporated, and the list in Exhibit SS clearly postdates the executive in 1998 as the seventh defendant's name is no longer on it, as the plaintiff pointed out at Daily Transcript 1548 (26 May 2008, Day 41).

[162] According to the plaintiff, the list headed "Details of Committee Members" (Exhibit SS) was prepared some time after the 1 May election but prior to the inauguration ceremony electing the plaintiff as the president of the Supporting Committee in March 1999 (see Daily Transcript Day 41). The person whose name is at the top of the list is the second defendant. The second defendant gave evidence that he considered his role as honorary chairman ornamental in nature.

[163] Although Mr Wheelhouse SC sought to object to these documents insofar as they allocated a role to his client, the second defendant's role as honorary chairman of the Supporting Committee is also referred to by the first defendant in publications dated 2 February and 6 June 2001 and by the second, fourth and fifth defendants in the matter complained of dated 1 March 2001 at lines 140 - 141 as being the person to consult when the plaintiff did not respond to their requests; see also the matter complained of dated 23 February 2001 lines 28 - 9, identifying him as "the honorary president of the Committee" (Exhibit J). In a hierarchical structure such as the Confucian-based Korean culture, the second defendant's role as honorary chairman, in addition to his other entitlements for respect, meant that he held a significant position at the top of the Supporting Committee.

[164] The list also refers to Joo Yong Jo as financial director, but not to Dae Won Kang, although the Minutes of November 1999 refer to them both being appointed to these positions at this meeting.

[165] This is one of a series of lists of office bearers; the Activities Diary in 2000 (Exhibit 52) refers to the list being updated on a regular basis to ensure the information was as current as possible. The Activities Diary also records the fourth defendant asking for such information for the Korean Society as well as staff from the newspapers run by the first, second and third defendants asking for these lists.

The List of Members of the Supporting Committee Honorary chairman Jae Kyung Lee Standing Advisor Sang Gi Kim Standing Advisor Myung Nam Kang

The Executive Chairman [Chae] Sang Cha Vice Chairman Nak Yoon Paek Vice Chairman Byung Doo Choi Vice Chairman Sung Joo Sung secretary-general Ik Hee Kim Vice SG [secretary-general] Duk Hwan Rha General Director Ok Ja Park Planning Director Yang Bae Seo Financial Director Joo Yong Jo International Director Jung Soon Lee

[167] In November 1999 new officials were appointed, and Joo Yong Jo was appointed as financial director. Mr Sung Joo Sung was now "promoted" to his new position as Vice Chairman. He agreed (Daily Transcript 3049, 7 April 2009, Day 65) in his evidence that this reflected the structure beforehand as well.

[168] This table appears in the January 2000 entry of The Minutes of Committee Meeting (Exhibit 51, at page 65): The organisation of the Supporting Committee

1. Honorary chairman 2. Advisory Group 3. Advisory Committee 4. chairman 5. Vice Chairman (administration) 6. Vice Chairman (business) 7. Vice Chairman (external cooperation) 8. Auditors (financial & administrative) 9. secretary-general (vice secretary-general) in charge of overall administration and management 10. Directors (general affairs, planning, finance, international, PR, press and liaison) 11. Sub-committees (organising, cheer, mobilisation, vehicles, women, volunteers & business) 12. Volunteers (clerical assistance)

[169] The Honorary chairman is the second defendant. He, the Advisory Group and the Advisory Committee are all superior to the plaintiff, who is number 4 on the list.

[170] This list also refers to a Finance Director. According to the Minutes, this was Joo Yong Jo, who was also the Financial Director of the Korean Sports Council.

[171] Another flow chart appears on page 19 of the Minutes of Committee Meetings (Exhibit 51) between the May and June 2000 entries. The flow chart appears as follows:

[172] The same flow chart appears in Exhibit SS but its origin is the Committee Minutes, which enables a time frame to be put on it. Mr Joo Yong Jo is still listed as the Finance Director. Miss Lee took over in April from Miss Chae. According to Mr Sung Joo Sung (Exhibit 72, paragraph [18]) Miss Chae wrote up the accounts book under his supervision up to December 1999. According to the two financial statements for March and April 2000 which Mr Sung Joo Sung claims he prepared (Exhibit 72 p. 20), Miss Migi Lee started work on 27 March. Miss Chae continued to work at the Supporting Committee until 3 April.

[173] I should briefly note a recurring error in the defendants' submissions as to who these bookkeepers were, by reason of the parties' failure to correct transcript errors or to reconcile different name spellings: (a) Huon Song Choy is identified by the defendants in the dramatis personae (Submissions chapter 1.4) as someone who performed secretarial duties assisting Mr Sung Joo Sung between 1998 - 99 and who was paid a wage. This is in fact the Miss Chae referred to above. Her name was misspelled at Daily Transcript 75 (4 June 2007, Day 4).

(b) It is clear from the Activities Diary and Expenditure resolutions that the "Mege" Lee, "Jiong" Lee and Mee Kee Lee, who are referred to in the defendants' dramatis personae , are in fact the same person, namely the bookkeeper who replaced Miss Chae on 3 April 2000 and was herself later replaced by Miss Sarah Yoo.

(c) There were three bookkeepers for the lifetime of the committee, according to the contemporaneous records, and they were paid $200 per week (although Ms Yoo's salary increased at the end). Mrs Ok Ja Park, who also worked in the office and helped keep the Activities Book, was also paid a small allowance, according to Exhibit A (the Committee's Financial Statement). Mr Sung Joo Sung claims that there was a fourth bookkeeper in late 1998 and early 1999, whose accounts keeping was so unsatisfactory he ripped these pages out and rewrote them. This person was named as Choi Jung Sun or a Ms Chae and is most likely the same Ms Chae as in (a) above.

Does the Charitable Fundraising Act 1991 (NSW) apply to the Committee, either expressly or by analogy?

[174] The defendants submit that the Charitable Fundraising Act 1991 (NSW) applies to the Supporting Committee either directly or so as to provide "guidance" (submissions, paragraph 36, p. 74) as to what records should be kept by the Supporting Committee.

[175] This was not particularised during the trial, nor was any evidence (expert or otherwise) led on the subject. The plaintiff submits (paragraph 5.2.2, page 37) that such a late amendment should not be permitted: Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 at [29] - [32] per Spigelman CJ. The plaintiff's submissions also point to other provisions of the Charitable Fundraising Act which would make every member of the committee guilty of unlawful fundraising (section 9), would prevent unqualified persons such as the fourth and fifth defendants from carrying out the audit (section 24(1)) and render them liable for prosecution for not carrying out an annual audit and reporting to the Minister (sections 24(1) and (3)).

[176] This unincorporated association's Constitution made no provision for the appointment of any appropriate personnel for the keeping of these kinds of records. There is no suggestion, even by the defendants, that it was intended to carry on any kind of income-producing activity or to lodge an income tax return. Its auditing was non-professional and internal. Its structure could never have satisfied the requirements for a charitable fundraising organisation, and the onerous obligations of record-keeping required for bodies under the Act were clearly not intended to be put into place.

[177] Further, the Supporting Committee is not capable of being a charity because its aims do not fall within the scope of charitable purpose. The purpose was to play a "channelling role" to help Korean community and sporting organisations (such as the sports organisations which had helped to set it up), in association with the Korean Sports Council (a body funded and supervised, at least in part, by the South Korean government), to bring about some very generally worded aims about the Olympic teams from North and South Korea.

[178] What were these aims? The real purpose of this committee, as the resolutions of 18 March 2000 show, was to play a small but vital role in South Korea's "peaceful reunification" programme (see the Resolution at Exhibit 70 tab 4). It was not set up to raise money to help the athletes, but to help the Korean government ensure that there were welcoming Korean faces, banners and cheer squads not only for the South Korean but also the North Korean team. The North Korean Olympic officials had clearly played some role in the decision that the teams would march into the Olympic Stadium together. Neither the North nor the South Korean governments had aims or objects of the kind that would fit within purposes of the kind set out in the definition of "charitable purpose".

[179] In particular, the defendants submit that the Supporting Committee was limited, either by this legislation or some other unspecified law, to spend no more than a certain percentage of its income on meals for volunteers after meetings, social functions and entertaining Korean visitors. This claim was never particularised and has no basis in law. The contemporaneous records show the Supporting Committee functioned like a social committee and its purpose was to plan social functions for the Korean community as well as to entertain foreign guests. The specific percentage of "reasonable" expenses chosen by the defendants is unexplained, and appears to have been plucked out of the air.

[180] If I have erred in these findings, then I should note that if I were to accept the committee was set up for the sporting and Korean community purposes identified by the defendants in their written submissions, these purposes would similarly not fall within the definition of "charitable purposes". As the plaintiff's helpful submissions point out at [5.2.15] and [5.2.16], gifts for the benefit of persons of a particular race (with the exception of Aboriginal persons) and organisations set up for the purpose of sport and recreation have been held not to be charitable unless the support is incidental to the promotion of an accepted charitable object: Royal National Agricultural and Industrial Association v Chester (1974) 3 ALR 486 at 489 per McTiernan, Menzies and Mason JJ; Re Nottage; Jones v Palmer [1895] 2 Ch 649 at 655 per Lindley LJ, at 656 per Lopes LJ and at 656 per Rigby LJ. Statutory amendments in other States of Australia to permit the provision of facilities for a sporting or recreational purpose to be classified as "charitable" have not been introduced in New South Wales.

[181] Section 4 Charitable Fundraising Act 1991 (NSW) identifies charitable purpose as including "any benevolent, philanthropic or patriotic purpose". Does that include a patriotic purpose, as the second defendant asserts in the submissions in reply (paragraph 41, Submissions in Reply, 27 August 2009 ("Reply Submissions"))? Was the association carrying out patriotic activities?

[182] As I have indicated in my discussion of the Supporting Committee's structure and purposes below, I consider the Supporting Committee's aims were not patriotic but political. The use of sporting events (and particularly the Olympics) for political aims has a long history. The Supporting Committee's function was to help in the task of bringing the teams of two once-warring nations into the Olympic arena together. As to the difficult question of the status of donations to political organisations, see Bacon v Pianta (1966) 114 CLR 634. Such purposes could never fall within the ambit of the Charitable Fundraising Act.

[183] Accordingly, if I have erred in my finding as to the purposes of the committee, then I would adopt the purposes set out in paragraph 5.2.18 of the plaintiff's submissions, as well as the reasons for which such purposes could not be considered as charitable.

[184] In the Reply Submissions (pages 11-15), the defendants assert that the plaintiff and the Supporting Committee should be regarded as trustees, with all the attendant duties of trustees, and that the plaintiff's conduct amounts to breach of trust, and/or that it is an association for the purposes of the Associations Incorporation Act (NSW). I do not accept either of these submissions and I gratefully adopt and endorse the submissions of the plaintiff in answer to these further arguments. As set out above, this was an association intentionally set up to operate informally and flexibly outside the parameters of such provisions.

Conclusions concerning the Committee's structure and purpose

[185] The following conclusions may be drawn from the Committee's structure: (a) The second defendant as honorary president had his name at the top, followed by unnamed senior counsellors, from May 1998 to June 2000. Those senior counsellors were never named, another indication of the secrecy with which this organisation wished to cloak itself. After June 2000, the increased role of the Korean consul, Mr Moon, is evident from the Minutes. It was left not up to the committee, let alone the plaintiff, to deal with something as important as making arrangements for the South, and especially the North, Korean athletes and officials. The real power in the Committee lay with the unnamed people who did this. This is another indication that the aims of this Committee were political, and were tied in with the "sunshine" policy in South Korea that had led to the proposal for the teams to march together in the Opening Ceremony, a policy for which the South Korean President won the Nobel Peace Prize that year (one of the last acts of the Supporting Committee was to publish an advertisement congratulating him: Exhibit 56, Expenditure Resolution 285).

(b) As the Minutes and Activities diary (set out in more detail below) demonstrate, the plaintiff's role was to co-ordinate Korean community social events, supervise the six sub-committees (organising home stay, transport to and from the Olympic events, Korean-speaking volunteers for SOCOG, the cheerleaders), meet on a weekly basis with the Sports Council and arrange functions for visitors and athletes up to, during and after the games. He did not put himself forward as the spokesman or leader. For example, at the final press conference for the Paralympics on 30 October (Exhibit 52 pp. 38 - 40), attended not only by the plaintiff but by Consul Suk Woo Kang, Paralympics team manager Min Gyu Han and Athens Paralympics vice president Chang Il Park, the person who spoke on behalf of the Supporting Committee was the seventh defendant, not the plaintiff (Exhibit 52 p. 40).

(c) The structure, including the three vice-chairmen and six sub-committees, remained much the same throughout the Committee's life. There are only minor changes to the official roles. The accounts were kept, successively, by two selected officials and three bookkeepers, with a financial controller having a supervisory position for the last and busiest year of the Committee's life.

(d) This contemporaneous documentary evidence is contrary to the claims in the matters complained of, and to the assertions of the defendants' witnesses in the trial. The fourth and fifth defendants assert, inconsistently, in the matters complained of, that the plaintiff did the books himself some of the time (26 January 2001, lines 60 - 62); that the bookkeepers were used but they were untrained (26 January 2001, lines 59 - 60), that there was a financial controller (26 January 2001, lines 61 - 62); that the plaintiff managed the books with secretary-general Mr Sung Joo Sung in 1999 (26 January 2001 lines 60 - 61); and that the plaintiff managed receipts and expenses all by himself and refused to appoint a secretary-general or financial controller (1 March 1999, lines 37 - 40, 48 - 52).

The evidence of the fourth and fifth defendants on these issues in the witness box was just as confusing. The fourth defendant gave the following explanation for not consulting the Committee members for information about the accounts, namely that there were so many changes on the Committee's executive that he did not know who to consult: "Q. Could you give us the names, please? A. INTERPRETER: I don't know the names.

Q. Sorry, you don't know the names of these people? A. INTERPRETER: That's right, because the executive members of the committee changed quite often, so I can't remember at that time who was these people.

Q. You don't know whose signature they are? A. INTERPRETER: Correct." (Daily Transcript 2749-2750, 1 April 2009, Day 61)

When the fifth defendant was cross-examined by Mr Evatt on Day 63 (Daily Transcript 2897, 3 April 2009), he gave evidence in almost identical terms as the fourth defendant, saying he did not know who was on the committee and referring to "rumour" as his source:

"Q. Doesn't your position as auditor require you to know who all the officials are of the committee? A. INTERPRETER: Rumour say that some people were working for one month and some others two months and all changed; they quit. So, I didn't know who they were." (Daily Transcript 2897, 3 April 2009, Day 63) Like the fourth the defendant, the fifth defendant also claimed not to know who Financial Director Joo Yong Jo was, despite his also holding the position of financial director of the Sports Council (Daily Transcript 2897, 3 April 2009, Day 63), participating in meetings and being the claimant for a number of Supporting Committee Expenditure Resolutions they had in their possession (e.g. a-27, a-28, 37, 41, 46, 4749, 50, 54, 55, 57, 60, 61, 69, 79, 131). Mr Joo Yong Jo also signed other Expenditure Resolutions and presented a financial statement at the meeting in May 2000 (contained in the Minutes of Meeting, Exhibit 51).

The fourth defendant's statement referred to receiving information about who was in charge of committee finances from "persons who had been employed by the Supporting Committee" (paragraph 71) without naming them. Both Mr Sung Joo Sung and the seventh defendant were assisting him in the preparation of the audit (paragraphs 91 and 122) and he had the Minutes of Meeting and Activities Diary (paragraph 101 of his statement). The seventh defendant and Mr Sung Joo Sung were in fact the persons who kept these records and who supervised the paid bookkeepers; one of the explanations given by Mr Sung Joo Sung for keeping $1,000 from Vice President Paek's $10,000 loan was that he needed to pay the bookkeeper's salary (Daily Transcript 3086, 7 April 2009, Day 65).

The "list" of possible Committee members referred to by the fourth defendant in paragraph 72 of his statement was not attached to his statement. As is set out above, there were lists kept of committee office bearers throughout most of the Supporting Committee's life, and these persons were easy to identify, particularly for the fourth defendant, who was given them during his visits to the Committee office in February and August 2000, according to the Activities Diary.

The fourth and fifth defendants had considerable information not only from the plaintiff but from Mr Sung Joo Sung and the seventh defendant. In addition they had (or could have obtained) information from the Sports Council, the Korean Society and the consulate. I particularly note: (a) They knew who was really doing the books. They knew there were paid bookkeepers keeping records under the supervision of the seventh defendant and Mr Sung Joo Sung, and that Mr Joo Yong Jo, the financial director, played an important role signing Expenditure Resolutions and cheques. While the seventh defendant may have told them (as he told the court, concerning Mrs Kim's donation in August 2000) that "everything, including finance, was all controlled by the plaintiff, managed by the plaintiff. There was no director-general, there was no finance director at the time, so the plaintiff did everything." (Daily Transcript 2173, 17 June 2008, Day 53), they had the Expenditure Resolutions, Minutes and other records which told them the truth. They knew Mr Sung Joo Sung (Expenditure Resolution 1), the seventh defendant (Expenditure Resolution 168, 199, 222, 240, 254, 268, 271, ) and the bookkeepers (e.g. Expenditure Resolutions 2-382, 2-386, 2-389, 27, 33, 38, 96, 111, 139, 169, 241, 251, 279, 282 ) received payment to keep the accounts. They knew Business Plans were prepared and circulated to committee members (Expenditure Resolution 2-404), and that the Minutes and Activities Diary recorded that was a financial controller as well (Exhibits 51 and 52). Written instructions were given to staff by Vice Chairman Paek that "expenses such as lunch should be paid from petty cash" (Expenditure Resolution 228), so they knew these decisions were being made by the Committee, not just the plaintiff. The fourth and fifth defendants had all these documents in their possession for the audit.

(b) They also knew this committee was intended to operate even outside the condign parameters of legislation such as the Associations Incorporations Act. They also knew that after it began operation, they had an understanding with the Committee that even the Constitution's requirement for an annual audit should be dispensed with, and they never objected to this.

(c) They knew that as organisations go, the Supporting Committee's structure was more flexible than an incorporated association, or indeed most voluntary organisations. It did not file tax returns, although it earned some income. It did not apply for an ABN in June 2000. They knew that, as "auditors", they were unpaid, untrained persons with no prior knowledge or experience of auditing. The purpose of their audit was not to prepare a tax return or report to any identified body other than itself (i.e. an internal audit). They knew its staff were volunteers or were receiving "allowances" that did not contain a PAYG or superannuation component. Its role was a "channelling" role. In other words, the Supporting Committee was not a "slush" fund, but close to being one.

(d) They knew the persons responsible for keeping the accounts in this loosely organised association were first the seventh defendant, then Mr Sung Joo Sung, then the seventh defendant again, with financial controller Joo Yong Jo having authority to sign cheques and playing a supervisory role from December 1999 onwards. All of these people had prior experience as treasurers for the Korean Society or the Sports Council, and the fourth and fifth defendants knew this as well, because they were both members for their respective sports (basketball and judo) and because the fourth defendant was a full-time employee of the Korean Society.

(e) They knew that at all times there was a paid bookkeeper. Miss Chae was the bookkeeper between late 1998 and April 2000; Miss Migi Lee replaced her and in August; Miss Sarah Yoo was appointed Head Official and took over doing the accounts. There was no period of time during which there was nobody appointed to be in charge of keeping the accounts, and the fourth and fifth defendants knew this.

(f) Most importantly, they knew the Committee was run in accordance with Korean practices and for purposes related to complying with the wishes of the North and South Korean Governments concerning important changes of policy of these two countries towards each other, one of which would involve both countries' teams marching together under one flag for the first time since the Korean War fifty years beforehand.

[186] The evidence for these findings comes from an examination of what the Committee was doing during its brief lifetime.

What did the Supporting Committee do between May 1998 and November 2000?

[187] The two main records kept by the Supporting Committee were the Minutes of Meeting ("the Minutes", Exhibit 51) and the Committee's Activities Diary ("the Activities Diary", Exhibit 52). The Minutes of meeting before October 1999 are not available, but it is clear from those Minutes that the Committee had been meeting regularly for some time; there are references in Expenditure Resolutions to committee meetings during 1998 and 1999 which were followed by a dinner, and in the matter complained of dated 1 March 2001, the fourth and fifth defendants refer to sighting "early" Minutes during their audit.

[188] The Activities Diary is a detailed account of day-to-day activities which was kept by office staff. The handwriting in it is of more than one person. General director Ok Ja Park is referred to (in the third person) in some entries such as the 1 February 2000 entry, but on 4 February it is noted that Miss Chae was given $200 per week wages by the plaintiff (and see a similar reference to Miss Chae for 8 February). Miss Chae, Miss Migi Lee and Miss Sarah Yoo were successively employed for $200 a week by the Supporting Committee for the duration of the Committee's lifetime, and may have written in it as well as Mrs Park (there are a number of references to Miss Lee suggesting she was the author from April onwards as she refers to herself, and the style changes). Nothing turns on which of these persons was the author. In many ways this document presents a 'worm's eye view' of activities from the point of view of the office staff. There are about six stamps with signatures, showing this document was read and monitored by executive members. Of particular interest is the last page, which is not translated, but where a staff member has kept notes of office hours from 1 January to 31 August. This suggests the book is intended to cover the period 1 January 2000 onwards, in which case there may have been similar Activities Diaries for 1998 and 1999 which have not been produced.

[189] The accuracy and legitimacy of the Activities Diary was challenged by the defendant's witnesses: (a) the seventh defendant on Day 54 (Daily Transcript 2211-2212, 19 June 2008); (b) the fourth defendant on Day 60 (Daily Transcript 2719 and 2724-2726, 31 March 2009); (c) the fifth defendant on Day 62 (Daily Transcript 2854, 2 April 2009); (d) Mr Dae Won Kang on Day 56 (Daily Transcript 2342-2343, 24 March 2009).

[190] Some witnesses claimed that this whole document was a forgery (Mr Park on Day 60 (Daily Transcript 2719-2725, 31 March 2009), claiming there was another, genuine, Activities Diary in existence; the seventh defendant also made this claim (Daily Transcript 2212-2214, 19 June 2008, Day 54)). These claims of fraud receive no explanations in the defendants' submissions beyond the bald statement, in the introduction, that the contents of this document were challenged.

[191] Mr Wheelhouse SC asserted during the trial that the plaintiff also claimed his signature in the Activities Diary had been forged (Daily Transcript 596 25 September 2007). However, at T 596 I noted that I did not know what documents he was referring to when he said his signature was forged, and asked his counsel to consider raising the matter in re-examination. The plaintiff was in a state of exhaustion at the time, and had just returned to court after I had adjourned because of his tired condition.

[192] Mr Wheelhouse SC also drew to my attention the fact that the plaintiff said he did not know anything about the fourth and fifth defendants coming to carry out an administrative audit in August 2000, the inference being that he challenged this entry in the Activities Diary. However, the plaintiff did not challenge this entry. He just said he did not know about any such visit. I agree that this is significant, but not for the reasons submitted by Mr Wheelhouse SC. The administrative audit was prepared by the staff, and there was a lunch at which the seventh defendant, Mr Won Kang and others, not just the plaintiff, joined in. The fact that the plaintiff did not recall this is an indication that he left the conduct of the accounts to the bookkeepers and those who supervised them. More important is the subject matter of their audit, namely "matters of harmony and unity of the Korean society" (Exhibit 52 page 23) as well as support for the team and co-operation with SOCOG, which gives an understanding of what the audit was expected to cover.

[193] The Supporting Committee also kept a correspondence register (see the 1 March 2001 matter complained of). The matter complained of dated 1 March 2001 refers to this correspondence as having been inspected by the fourth and fifth defendants. Some correspondence has accidentally come into evidence by reason of being attached to the Minutes or other documents, such as the plaintiff's letter to the Korean Traditional Arts Institute. The letter bears references to "document number" and "date enforced" and is not only signed by the plaintiff but has the official seal affixed (Exhibit 51 p. 25). In addition, there was an office computer on which business plans were made and kept, and documents relating to a website maintained by the Sub-committee from November 1999 (Exhibit 51). None of these documents are in evidence.

[194] What should a trial judge do when witnesses and parties challenge the accuracy of contemporaneous records such as Minutes of Meeting and Activities Diary, or assert that documents that appear to have been in existence have not subsequently been produced? Where there is inconsistency between a document that is a business record and a witness' recollection almost a decade later, how should I deal with that inconsistency? Mr Wheelhouse submitted (Daily Transcript 3047, 7 April 2009, Day 65) that the witnesses, including the plaintiff, had challenged the authenticity of the Activities Diary and, by inference, that it was a document of little assistance.

[195] As will become evident from the analysis of the Committee's activities set out below, the Activities Diary records, on a daily and chronological basis, routine events in the office, and the Minutes of Meeting record decisions and activities of the Committee in the same fashion. While the defendants and their witnesses challenged the accuracy of these documents in the witness box, the defendants cannot point to a single example of error in the entries giving rise to any doubt about the authenticity of the Minutes or Activities Diary.

[196] An allegation that the two sets of documents which record the Committee's activities throughout its lifetime are forgeries or otherwise unreliable is a most serious matter. It is not a conclusion I would come to without the benefit of careful submissions identifying errors in these records warranting such findings.

[197] When considering how to write this judgment and how to approach disputed issues of fact, I have had regard to two sources of assistance. The first is Ipp JA's advice in "Problems with Fact-finding" (accessible through the New South Wales Supreme Court's website at: http://www.lawlink.nsw.gov.au/lawlink/Supreme_Court/ll_sc.nsf/pages/SCO_ipp020906) concerning the greater evidentiary value of contemporaneous records, especially those kept by independent persons and which are business records or otherwise likely to be reliable. This is particularly the case in relation to the Minutes, which not only were sent out to the Committee members for approval each month, but where signed lists of persons attending give a clear picture of the roles of the various committee members. Where such contemporaneous records are contradicted by the oral testimony of witnesses, it is not necessary for each and every contradiction to be put to the witness for the reasons explained by Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation, supra. This is particularly the case where witnesses, when shown the contemporaneous records on one issue, have declared these to be a forgery.

[198] The second source of assistance upon which I have drawn is a series of Court of Appeal judgments (e.g. Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; Whalan v Kogarah Municipal Council [2007] NSWCA 5, The Nominal Defendant v Kostic [2007] NSWCA 14) where the NSW Court of Appeal has urged trial judges to pay careful attention to the chronology of events and the accuracy of contemporaneous records as opposed to less accurate matters such as courtroom demeanour, and to analyse with precision the relevant timeline of fact. My role as trial judge is to evaluate the competing claims of the parties by examining the evidence in a careful and objective fashion.

[199] Where documents that clearly did exist either no longer exist, or have not been produced, I have used my common sense. In the majority of cases, the explanation is that due to the long delays in the case documents have simply been lost. In a few cases, such as the interim auditors' reports, there may be other factors to consider.

[200] It is by examining what the Committee was doing, according to its contemporaneous records, that I can arrive at a factually correct examination of the imputations concerning the plaintiff's alleged self-righteous behaviour and bringing shame on the Korean community. In many ways, these allegations are the key to the whole of the factual matrix. This is because the plaintiff was the president, not the treasurer, of this organisation, and for the period of time when donations were received and Olympic activities carried out, bookkeepers and financial directors were appointed. This was in fact confirmed by Mr Sung Joo Sung's evidence when he said "we had made an agreement that if there was any donations that female office worker should be writing it down and handled by her" (Daily Transcript 3075, 7 April 2009, Day 65). Consequently, for the imputations of misappropriation to survive, in circumstances where the plaintiff had delegated the task of bookkeeping to others, the plaintiff's personality is a key factor. Did his management of the Committee bring shame on the Korean community in Australia? Did he impede the working of the Committee, or cause distress to the staff, through his self-righteous and self-indulgent behaviour? Was he the person responsible for proper records not being kept? These are some of the imputations to which this history of the Supporting Committee, from its contemporaneous records, is relevant.

[201] After requests from me for assistance with Korean names and dates for events in these proceedings, the parties supplied me with chronologies. The defendants' chronology notes the date the Activities Diary starts, but otherwise ignores its entries and does not mention the Minutes at all. Some of the dates are clearly wrong (for example, the defendants note October 1999 as the date Mr Sung Joo Sung stops keeping records in the Green Book). I have found these chronologies of limited assistance.

[202] After the establishment of the Supporting Committee, it was to be provided with office accommodation by the Korean Society "free of charge" according to Mr Park, who was then the secretary-general of the Korean Society: see Daily Transcript 1691, 28 May 2008, Day 43.

[203] The plaintiff had to set up an office and buy equipment such as office supplies. In addition, there were organisations in other States of Australia set up for the Olympics; on 26 November the Committee spent $400 entertaining the Australian Organising Committee. In particular, the plaintiff had to appoint members of a Supporting Committee, and he had done so by 18 May, when he hosted a function for them (the invoice for $1,000 for this function was noted as "unjust" by the fourth and fifth defendants in their audit). It is not in dispute that he appointed the seventh defendant on 8 May 1998 and Mr Sung Joo Sung and the second defendant also seem to have been appointed at about this time. In addition, he attended the 79th National Sports Carnival in Korea between 24 September and 10 October 1998.

[204] The plaintiff placed advertisements in the Korean newspapers announcing the establishment of the Committee, and the Constitution was published in the Korean Herald (Exhibits 1 and 2). These were paid advertisements. The Supporting Committee then started placing advertisements were placed in the three main Korean newspapers (the newspapers published by the first, second and third defendants); the first ones were placed in Sydney Korean Herald in May 1998 ($360) and August. Copies of these advertisements were not tendered, but later entries in the Activities Diary show the Committee put advertisements into the newspaper seeking homestay providers, Olympic torch bearers, drivers and volunteers. The Committee's projects for home stay arrangements, volunteer transportation during the games, volunteers for SOCOG, Korean unity functions kept the volunteers very busy. However, the Committee had no funds apart from the money the plaintiff donated himself, and obtaining donations and sponsorship from members of the Korean community at social functions and rallies, as well as Korean companies, was also a major activity. With a few exceptions, no discount rate for advertising was given to the Supporting Committee, and there does not appear to have been any publicity given to their activities either. The only article the second defendant points to, on the issue of lack of malice, is that the second defendant allowed the plaintiff to publish (as an advertisement) a revised list of donors to the Supporting Committee on 23 February 2001 (Exhibit 56).

[205] The Committee received requests for funds from the sporting associations which had been instrumental in setting it up, such as the Judo Association (June 1998 - $500 - the fifth defendant was the president of this organisation), the Tennis Association (July 1998 - $400), the Soccer Association (September 1998 - $500), the Honam Fellowship Association, a Korean welfare group (November 1998 - $300) and the Kendo organisation (November 1998 - $500). These payments were all noted in the fourth and fifth defendants' reports as unjust. Expenses of $540 for an officials' meeting on 19 May were not challenged by the fourth and fifth defendants, nor were the 11 references to payments for "officials' meals" and for entertainment of officials over this period. The expense which was challenged by Mr Wheelhouse SC was the sum of $115.30 for entertaining a visiting Korean official (Ming Ji Kim) on the date of the plaintiff's election as chairman (Daily Transcript 160, Day 3). It was put to the plaintiff that this function did not take place. I consider it unlikely the South Korean government would not have had an official at such an important meeting, given the sensitivity of dealing with North Korea and I prefer the accuracy of the contemporaneous documents recording the costs of this function.

[206] The seventh defendant was replaced by Mr Sung Joo Sung, who he described in his evidence as his "assistant" (Daily Transcript 2168, 17 June 2008, Day 53) in about November 1998 (Daily Transcript 769, 4 October 2007, Day 21).

[207] Should the plaintiff have arranged for annual audits and opened a bank account? As to annual audits, it was the understanding of the fourth and fifth defendant that they would not be called upon to audit until the Olympic Games were over, notwithstanding provisions in the Constitution to the contrary. As to opening a bank account, it would not have been possible to open a bank account during 1998 unless it had an overdraft facility, something a bank was unlikely to grant to an unincorporated association with no income. Donations in 1998 amounted only to a few hundred dollars; the plaintiff was bankrolling the Committee over the whole of this period.

[208] In early 1999 the Committee set up its accounting system using Expenditure Resolutions, copied from the Expenditure Resolutions used by the Sports Council, and an accounts book kept by the bookkeeper Miss Chae (the first entry is 29 February 1999 according to Mr Sung Joo Sung's green book (Exhibit 27), the accounting record Miss Chae kept under his supervision). The first entry on 29 February ($65) relates to office supplies for the February 1999 monthly Committee meeting (for which no Minutes survive). There was a bookkeeper prior to Miss Chae whose bookkeeping Mr Sung Joo Sung considered inadequate but I can see no records of this. Mr Sung Joo Sung said he ripped out the pages written by this bookkeeper as a result.

[209] Some time in February or March, the plaintiff's father died. He went to Korea to organise all of the funeral arrangements.

[210] The committee was advertising its homestay and volunteer projects in TOP ($350 on 16 March 1999, $1,000 for advertisements on 2 and 9 April). On 24 March there was a Supporting Committee meeting; Expenditure Resolution number 2 - 318 records a dinner function afterwards, costing $493. On 30 March Secretary-General Jo purchased a power line for the fax, white board cleaning oil (suggesting they kept a white board for planning purposes) and stationery.

[211] The Supporting Committee held its inauguration in March at Belmore RSL ($878.10). This was a function for the Korean community which included the Song Min Sun dance troupe, a folklore group and master of ceremonies cost $600.

[212] There were cash payments for office supplies such as stamps, stationery and other supplies from stationers and post offices, places where cheques are not accepted. Mr Sung Joo Sung's Green Book suggests the operation of a petty cash system. It seems likely that many office stationery expenses were simply not noted.

[213] There are accounts for Mr Sung Joo Sung's phone $75.12, an APT phone bill $70 for phone connection (Expenditure Resolution 299) and a Telstra bill (overdue) for $139.75. Overheads for telephone and rent become a feature from April 1999 onwards. Although up to that time they had been permitted to occupy space in the Korean Society free of rent and to use the phone and fax (hence only overseas phone calls were paid for between May 1998 and April 1999) the Committee had to put the phone and fax on in April and start paying rent. The first rent payment starts on 8 April. If there was any written lease entered into by the Korean Society with the Supporting Committee, it was never tendered. It appears likely, given the disputes about the amount of rent the Korean Society wanted, that there never was a lease - another example of the informal way in which these organizations regulated their affairs. The fourth defendant, who was the Secretary-General of the Korean Society, gave evidence he wanted the Committee to pay $150 per week rent, not $50, and that he had an argument with Mr Sung Joo Sung about this (Exhibit 70).

[214] During this first year of its life the Supporting Committee borrowed money from the Korean Sports Council to carry on its activities. The Committee and the Korean Sports Council also ran a number of functions jointly. For example, on 14 April the Sports Council and Supporting Committee held a joint meeting $229 and according to Expenditure Resolution 2-318 the expenses were equally shared, with the Supporting Committee paying $229. The same was the case with the 25 April Board meeting, the costs of which, according to Expenditure Resolution 2-318 were equally shared. On 27 April, expenses were jointly shared with the Korean Athletic association Vice President Park (Expenditure Resolution 2-318, $884). This pattern in fact continued throughout the whole of its life, if the contemporaneous records are to be accepted. I should note, however, the evidence of all of the defendants' witnesses was that there was no connection whatsoever between these bodies, notwithstanding the aims of the Constitution, the lending of money to the Committee, the weekly joint meetings between the Committee and the Sports Council, the joint sharing of expenses and the joint participation of members of both bodies in sport-related activities.

[215] The religious organisations' workers had a BBQ on or about 17 May for 26 people for $390, according to Expenditure Resolution 2 - 319. There was a monthly meeting on 28 May, followed by a dinner at Samwon Gardens. The Minutes for this meeting, as is the case with other meetings during 1999, have not been tendered. The Supporting Committee was still paying rent of $50 per week, according to Expenditure Resolution 2 - 320 (for $450).

[216] The Supporting Committee participated in a Veteran's Association "commemorative evening", drawing a cheque for $500 and making a donation of $250 that same day. There is no corroboration of this being a donation apart from the cheque butt. Resolution 4 described this as a Korean War Commemorative event. The plaintiff was cross-examined at length about these payments (Daily Transcript 926-929, 8 October 2007, Day 23; and Daily Transcript 930-931, 9 October 2007, Day 24) on the basis they were not Supporting Committee functions but opportunities for him to make himself important. On 26 June the Supporting Committee contributed $259 to a Korean Veterans Association event support, according to Expenditure Resolution 2 - 332 and the plaintiff (using his company funds as the Supporting Committee had no assets) made a donation towards the Remembrance Day commemorative activities.

[217] Some of the most bitterly fought claims, in both the matters complained of and the cross-examination of the plaintiff, were the defendants' assertion being that Korean veterans' affairs had nothing to do with the Olympics and that these activities were outside the purposes of the Supporting Committee.

[218] On 26 June $200 (Expenditure Resolution 2 - 331) was spent in relation to attendance at a Sports Council officials meeting, one of many expenses the fourth and fifth defendants asset was unjust (similar assertions were made concerning bills for telephone calls to Korea at this time). Social functions included a function for volunteers on 17 June; Expenditure Resolution 2-329 records a payment for volunteers' meals.

[219] In July 1999 the Supporting Committee bought a computer. On 4 July a dinner for the badminton team was held at the second defendant's charcoal restaurant (the cost was $293). Although there is no receipt for this, the auditors did not place the usual note that evidence is required.

[220] Financing the Supporting Committee was a matter that appears to have been a preoccupation. On 6 July the Supporting Committee held a meeting about fundraising, according to Expenditure Resolution 2-335. On 16 July 1999 there was another joint function for the Sports Council and Supporting Committee; the Expenditure Resolution notes that "Mr Dae Won Kang holds the receipt". There was a monthly meeting in July as well, according to Expenditure Resolution 2- 328.

[221] As a result of the change of heart (or leadership) of the Korean Society, the Supporting Committee was obliged to move to new premises. On 20 August office rent for 2 weeks $800 was paid, according to Expenditure Resolution 2-342. The plaintiff's company, CFM, was reimbursed for office relocation expenses (Expenditure Resolution 7); the fourth and fifth defendants complain there was no supporting documentation. The Supporting Committee also set up a cheque account with the plaintiff, Mr Sung Joo Sung and Vice-President Paek as signatories (Exhibits 16, 17 and 26).

[222] On 9 August the volleyball team obtained wine from Sydney Duty Free ($313.20). The words "not paid" appear on Expenditure Resolution 2 - 340. The seventh defendant was the volleyball representative on the Supporting Committee and called on the Committee to support the volleyball team, according to the Activities Diary entry for February 2000 set out below.

[223] On 15 August visiting Korean Sports Council officials were taken to dinner at Shinchon restaurant ($280). The fourth and fifth defendants note this expenditure was "unfounded". On 18 August there was a board meeting, followed by dinner at Seionghoigwan Again, no Minutes are available. On 19 August $200 was donated to the Tennis Association and on 21 August $300 for baseball, expenses the fourth and fifth defendant considered unfounded.

[224] On 1 September an Expenditure Resolution records expenses for a dinner with SOCOG officials concerning the Paralympics. There are many claims for office supplies, all prepared by Mr Sung Joo Sung and authorized by him only. All of the Expenditure Resolutions for September are prepared and authorized by Mr Sung Joo Sung. The fourth and fifth defendants have put "evidence required" besides payments of office rent.

[225] More information is available for the activities of the Committee from October 1999 onwards because this is the period for which there are Minutes reflecting the Committee's activities. Although there are no Minutes for the October committee meeting, it is likely that these existed, as there are references to matters carried forward as well as October activities in the Minutes of meeting and agenda for the November 4 meeting.

[226] The Committee received a request from two senior citizens' groups, the Chunghyo Senior Citizens and Korean Senior Citizens, to organise a visit to the Olympic Stadium. There was correspondence with the Sydney Organising Committee for the Olympic Games ("SOCOG"), the Departments of Immigration and Multicultural Affairs and a body building association about the Korean team's programme (there is a note that 10 bottles of wine costing $200 were presented). The Committee was requesting an invoice from SOCOG's Badminton Association for some advertisements that had been placed. No such advertisement or invoice is extant and suggest that there may have been invoices sought and/or obtained where the invoices are now not available for inspection.

[227] One of the sub-committees was working on the Internet homepage, which had a deadline of November 1. We know that this homepage met the deadline because there is a reference to it in the November Minutes. An operational report was prepared for the November 1999 Minutes.

[228] Between 7 and 23 October 1999 the plaintiff travelled to Korea in his capacity as president of the Sports Council. On 5 October 1999 a $500 donation from the Korea War Veterans was sent and the plaintiff was accused of misappropriating it (Daily Transcript 925, 8 October 2007, Day 23).

[229] During the time that the plaintiff was overseas, Vice-President Paek made a loan of $10,000 to the committee. Mr Sung Joo Sung placed this sum in his own National Bank account. The plaintiff's evidence was that he confronted Mr Sung Joo Sung about this on his return; Mr Sung Joo Sung's explanations are set out in more detail in the section on his evidence below. The purpose of this chronology is, however, to set out only those facts for which there is contemporaneous evidence from the Activities Diary, the Minutes and the Expenditure Resolutions, and not from evidence. Accordingly matters disputed in the evidence are not dealt with.

[230] There are Minutes available from November 1999. Five matters were added to the agenda for the 4 November Committee meeting, including "discussion of the unity of the executive". It is from reading the Minutes of these meetings that one comes to have a fuller appreciation not only of what the Committee was doing but how they were doing it. These meetings usually opened with a minute's silence for the fallen and always with the South Korean national anthem. They show the Committee's extensive activities including homestay, accommodation, cheer leading, meeting foreign visitors and media and providing information on the website and in paid advertisements in the first to third defendants' newspapers.

[231] If the plaintiff was arrogant and self-righteous, some clue or evidence might come from these Minutes to support it. Neither the second nor fourth defendants refer to any incident in the Minutes, although they cover the most active period of the Supporting Committee, namely November 1999 - August 2000.

[232] There is an entry at the beginning of the November 1999 Minutes which shows the plaintiff raising the question of "provision of meals for sub-committee meetings". There were six sub-committees: the Cheer Squad Sub-Committee (chair Dong Soo Kim), Mobilisation Sub-Committee, Vehicles Sub-Committee (chair Seung Hyun Choi), the Women's Sub-Committee (chair Yoon Ok Han) and two others. All of these persons were listed as receiving the Minutes, and clearly some issue had been raised in relation to provision of meals for the cheer squad members after practising. Some of the meals the fourth and fifth defendants object to may well be these meals.

[233] None of the defendants referred in their statements or evidence to activities of the Supporting Committee such as the provision of home stay and transport or to the committees responsible for these, although the Minutes and Activities Diary show these were the Committee's main preoccupation. I asked Mr Park if he knew anything about these arrangements (Daily Transcript 3011, 6 April 2009, Day 64) but he did not. If the auditors were concerned about why so much was spent on meals, they had potential explanations available to them because they were given the Minutes of Meeting when the fourth defendant visited the offices of the Supporting Committee in February and September, and again in December 2000 by the plaintiff. In addition, the Committee advertised its activities, including home stay arrangements, on a regular basis in the three Korean newspapers which published the matters complained of.

[234] On 1 December 1999 a meeting of the Supporting Committee and Sports Council was held. There was discussion about unity between the two during the meeting. According to the Minutes for the rest of the Committee's life, officials meetings always included the executives of both organisations. Mr Joo Yong Jo was elected financial director. Mr Dae Won Kang was appointed organisation subcommittee chairman.

[235] Mr Sung Joo Sung's green book notes expenses of $2000 were incurred for Korea Day. $5,000 was deposited by the second defendant as the president of the Korean Society. The last entry for his green book is dated 21 December.

[236] The monthly meeting was held on 6 January. Attached to the Minutes is an organisation chart setting out the members of the Committee in descending order of importance. The first person on the list is the second defendant, Jae Kyung Lee. The second and third places are the "Advisory Group" and "Advisory Committee". The plaintiff is in fourth place, followed by the three vice-Chairmen and, in eighth place, the fourth and fifth defendants.

[237] I showed this to Mr Sung Joo Sung while he was in the witness box (Day Transcript 3049 lines 30-44, 7 April 2009, Day 65). He said it was not different from the original organisational chart prior to that time. There is no evidence as to who the "Advisory Group" and "Advisory Committee" are. It was not put to the plaintiff that these were just other names for him; the defendants never referred to this document. Since the plaintiff's name appears in fourth position, and these are references to a group of people, the likely explanation is that other persons had an input into the Supporting Committee's activities such as the Korean consul (who played a very active role in Committee activities during 2000) and senior members of the Korean community in Australia.

[238] There are a number of entries which refer to the role that the Korean Society played. For example, the fourth defendant contacted the Supporting Committee office on 31 August wanting a information about the Committee's activities. While it is possible that this could have related in part to his auditing duties, the likelihood is that the Korean Society (of which the second defendant was president) was closely monitoring the Committee's functions. The Committee had operated out of its premises for a while and was also involved in fundraising activities for the Korean Society such as the Damyang Bamboo Handicrafts Exhibition (3 - 6 February 2000) which was being held to raise funds for the construction of a Korean Society Hall, according to the Activities Diary entry for 27 January. When the Supporting Committee activities finished after the fourth and fifth defendant's audit, they recommended all documents and fittings be given to the Korean Society, according to the matters complained of.

[239] The officers of the Supporting Committee had a special meeting on 14 January where they were briefed by Young Boon Kim, the general manager of the Sports Council, on the work to be carried out and this was followed the next day by a special meeting of the Planning Committee.

[240] The Activities Diary starts from 15 January 2000. It is unclear whether this diary was only kept from 15 January, or whether there was an earlier Activities Diary which has since been lost. Mr Lee referred in his evidence to checking the Activities Diary for events during 1999 (Daily Transcript 2927, 3 April 2009, Day 63). Mr Cha said a volunteer, Miss Oh Ja Park, was employed to keep a diary for the committee (Daily Transcript 590, 25 September 2007, Day 18). The 2000 Activities Diary begins with a reference to "first day at work" but this may have been the first day back after the Christmas break; there are entries on the back page (untranslated) going back to 1 January 2000. The Diary ends on 6 November (Daily Transcript 2232, 19 June 2008, Day 54; paragraph 21 of the seventh defendant's Affidavit). The Activities Diary and Minutes give a clear picture of these regular weekly meetings between the Supporting Committee and the Sports Council, such as the meeting at 7 p.m. on 22 January (Exhibit 52, p.3).

[241] On 28 January 2000 account no. 706295 was opened at Community First with $2 cash. The plaintiff's explanation for opening this second account was that Mr Sung Joo Sung had retained the cheque book for the other account; Mr Sung Joo Sung denied this.

[242] On 30 January there was a briefing for the visiting Vice Chairman of the Sports Council of Korea, Mr Sang Ha Park (this was his position according to Mr Sung Joo Sung, Daily Transcript 3067, 7 April 2009), and 21 members of the Committee had an informal gathering for discussion. These expenses were all challenged by the fourth and fifth defendants on the basis that they do not relate to the Olympics.

[243] On 1 February a request for home stay accommodation and vehicles for 20 officials from the Gymnastics Association was received. Minutes were drawn up of the informal gathering the Committee had on 30 January were prepared for discussion with Mr Sang Ha Park, and a group of officials treated him (and also Pastor Kwang Soo Lee) to dinner before he headed off to the airport. It was not put to the plaintiff that Mr Park had nothing to do with the Olympics, but objections to these expenses were noted in the audit.

[244] The regular weekly meeting between the Supporting Committee and Korean Sports Council took place at the Supporting Committee office between 7.40 - 9.50 pm on 3 February. On 4 February Minutes for this meeting were prepared. Miss Chae records that $200 received from the plaintiff was given to her for her wage for that week. The seventh defendant paid a visit. This is one of many records of visits made by the seventh defendant appearing in the Activities Diary. The seventh defendant denies all of them and says the Activities Book is a forgery (Daily Transcript 2211-2212, 19 June 2008, Day 54).

[245] On 8 February Miss Chae records she is given $100 by Vice Chairman Paek for prepayment for the water purifier, which was approved by the Committee members in the weekly meeting of 3 February. Those Minutes were not produced, although the Activities Diary records (4 February) they were prepared.

[246] The seventh defendant, described as "Planning Official Hak Soo Cho" is back in the office on 8 February 2000, making plans for the "Olympic Countdown Day 200 events" and also going out to lunch with Miss Chae and others to help Mr Sang Gi Kim celebrate getting a hole-in-one. He was back again on 15 February "revising the rally for Olympic Supporting Committee" to be held on 18 March, and on 17 February came in for a visit in company with financial director Joo Yong Jo, a man he said in evidence he did not know, claiming also there was no financial director at the time (Daily Transcript 2173, 17 June 2008, Day 53). The seventh defendant must have been a very regular visitor since the Activities Diary records that on 29 February an office desk was arranged for him.

[247] The many other activities in February include dealing with inquiries from Chunghyo Senior citizens wanting to visit the stadium, notifying the Olympic Roads & Transport Authority of volunteer driver details, receiving inquiries from the sports magazine Chosunilbo, receiving a receipt for a dinner from the financial director Joo Yong Jo and writing out the Minutes.

[248] "Vice Chairman" Mr Sung Joo Sung attended a dinner with Sang Ha Park on 1 February, he also came in on 14 February to pass on cash and a list of presents he had been given on 25 January as well as 100 Olympic volunteer forms. Mr Sung Joo Sung denied in evidence that he made these visits and said the Activities Diary was a forgery (Daily Transcript 3100, 7 April 2009, Day 65).

[249] On 1 March the staff faxed the editor in chief of the third defendant, Mr Kim, information "on the present state of the Committee operation and future events and plans". It was a busy day for Miss Chae; she posted 18 letters notifying the March regular monthly meeting, she asked international director Gyu Bum Choi to translate 12 volunteer application forms and the list of the executives of the Supporting Committee to send to SOCOG. In the middle of all this, planning official Byeong Hee Won came by to offer to paint the office, and it was decided that this would be done after work the following week.

[250] On 2 March the staff drew up the Minutes of Meeting of the regular weekly meeting of the Committee members of the Supporting Committee and Sports Council (these minutes were not tendered). Mr Cha rang from Korea to ask that an invitation letter be sent to Mr Gi Sool Kim (president of Seoul Olympics International Service Society) for the Supporting Committee special function on 18 March. The seventh defendant answered a telephone inquiry from the Sports Council of Korea.

[251] On 6 March the staff posted 14 notices of a joint meeting and answered a request made by the fourth defendant in his capacity as secretary-general of the Korean Society, by providing him with (1) 20 promotional booklets (2) a copy of "committee business information" (3) a copy of the list of committee officials and (4) a copy of the list of planning officials. "Vice Chairman" Sung Joo Sung also paid a visit. After the office was shut, the office painting started.

[252] On 7 March Vice Chairman Nak Yoon Paek telephoned the general manager of Belmore RSL, Mr Tony Ghosn, to introduce Professor Hyung Hee Lee to him. The professor had something to do with the "Victory Chorus". As sub-committee chairman Mr Dae Won Kang's father-in-law had died, committee members, including Vice Chairman Sung Joo Sung, participated in sending greetings and Miss Chae organised a funeral wreath. This expense is challenged as there is no receipt.

[253] There was a March regular executive meeting on 9 March (which was attended by the seventh defendant, Mr Cho as "special planning" officer) as well as a meeting of the Supporting Committee Executive and Special Planning Officials. Mr Cha gave a report from his "official trip to Seoul" according to the Minutes (Exhibit 51 p. 47) talking about his discussions with the Ministry of Culture and Tourism about the cheer squad support, but wanting to scale down the business plan as the cheer squad's request for $.43 million won was unreasonable. This "official trip to Seoul" is the one referred to in imputation 41(b), where the auditors suspected the plaintiff was making a false claim for business expenses of $9,121.40 as there is no evidence that this trip was a business trip rather than a private trip. The Committee agreed that the business plan would be redrawn by the executive; Jang Wan Goo suggested all meeting data and business plans be put on the computer. (None of these business plans or computer records have been produced). The Activities Diary notes that after the 15 March meeting finished at 9 pm, the Committee had dinner at Samwon Gardens and also, rather touchingly, noted that planning official Tae Ho Choi donated a box of ball point pens to the office.

[254] Some idea of the amount of work the Committee was getting through can be gleaned from the reports of the Sub-committees. For example, chairman Duk Im Kim reported 121 volunteer applications were sent to SOCOG, and the Women's sub-Committee reported that of these applications, 55 were filled in by the applicants themselves while others required assistance or other work by the Committee. SBS' business operations manager, Jin Sup Moon, had been in touch, wanting 20 voluntary broadcast-related workers and Chunghyo Senior Citizens Association had also volunteered to provide services; wives of officials of both the Supporting Committee and the Sports Council were encouraged to provide voluntary services, another example of the close relationship between these two organisations. Supports were particularly wanted for meals and drinks for the cheer squad. One of the volunteers was the second defendant, who promised to offer free dinner at the Aseowon "after the meeting from next time" (Exhibit 51 p. 40). One of the particulars of justification is that too much was spent on meals for these volunteers. Entries such as this help to put such matters in context.

[255] On the day before the meeting, 14 March, Miss Chae was struggling with problems for the cheer squad - their cheering was setting off the neighbourhood burglar alarms, according to Mr Dong Soo Kim's neighbours. However, the main topic at the 15 March regular meeting of the Sports Council and the Supporting Committee was their 18 March function. There is reference to a list of prizes and garlands (no longer, alas, attached to the Minutes) and confirmation that around 80 people from the Sports Council would attend.

[256] Mr Gi Sool Kim, president of the Seoul Olympics Volunteers Association in Korea, arrived at the airport on 18 March. He was a guest of honour at the function that evening. The plaintiff had lunch with him. The social function started at 7.30 and there is a note that the office key was returned to the plaintiff. According to the Activities Diary there was also a function on 19 March for which flower arrangements were delivered.

[257] On page 12 of the Activities Diary, and on a number of other pages elsewhere, appears the note "signed by General Director and chairman". I infer that the plaintiff regularly read the Activities Diary and signed it, and that another director would co-sign.

[258] On 20 March the author of the Activities Diary notes she worked for 7 hours and notes she was checking the event of 18 March and drawing up the 15 March Minutes. There is a schedule at the back of the Activities Diary (not translated) setting out the hours worked by one of these volunteers for the period 1 January to October, with salary sums, but these hours do not reconcile with the activities recorded in the diary after July, so I do not know which volunteer it is.

[259] On 27 March Mr Sung Joo Sung and the seventh defendant both visited; the seventh defendant was preparing an "official" document for shooters' accommodation for the Sports Council of Korea in Seoul.

[260] The 23 March entry is the only entry which is out of order. Miss Chae records, after the 27 March entry, that on 23 March she took president Gi Sool Kim and his entourage to the Blue Mountains for the day, a trip of 11 hours. In the evening they went to the opening ceremony of the second defendant's charcoal barbecue restaurant at Parramatta before taking them to the airport after dinner. There is no suggestion that the second defendant paid for this meal.

[261] The next entry is 29 March. The staff is busy preparing for the Committee meeting the next day. The seventh defendant visits the office to explain he cannot attend this meeting. In the evening there is a meeting with the "new secretary-general and computer team manager and an informal gathering for discussions" for 9 people. This new member is replacing Mr Sung Joo Sung, who appears from these records to have ceased to have anything to do with the Committee from this date. Mr Sung Joo Sung said in his evidence that he ceased having anything to do with the Committee at the end of November, but he agreed he "dropped into the office on a couple of occasion to do something" thereafter (Daily Transcript 3106, 7 April 2009, Day 65). The seventh defendant continued to come; his next visit was on the following day.

[262] On 30 March the staff prepared a report for the new secretary-general (not produced in evidence) and continued her quest for an alternative venue for the cheer squad at two of the local churches (the Uniting Church and the Cheil Church). She ordered dinner for 13 people ($5 each) from Belmore Pericanna. The chairman and general director signed this entry.

[263] On 3 April the finance director Mr Joo Yong Jo came to the office. The staff sent out letters to everyone for the April monthly meeting with the new general director of the Sports Council, Mr Son Soon Lee, as well as the executives of the Supporting Committee and the Sports Council for another of their joint meetings. Belmore RSL sent a fax concerning those present at a social event (there were 149 people).

[264] On 5 April Vice Chairman Mr Hee Mang Yang rang asking for the finance director's (Mr Joo Yong Jo) mobile number. Mr Sang Ji Kim advised that Messrs Sung Joo Sung and Myung Ho Ha were removed from the list of officials. This entry shows that the staff were careful to note changes to the officials list, and means that the Activities Diary is of assistance when considering what changes occurred to officials. The staff's job was, as the entry for 6 April shows, to make confirmation calls about meetings to every sub-committee chairman, and the staff member writing the Activities Diary notes, for example, that she replaced the liaison director with ex-national soccer player Mr Pan Geun Kim on that day. The Minutes show that this was because the liaison director resigned for health reasons (Exhibit 51, page 37).

[265] 6 April was a busy day as the regular monthly meeting of the officials for the Supporting Committee and Sports Council occurred. The plaintiff introduced the new secretary-general, Mr Ik Hee Kim, who was taking over from Mr Sung Joo Sung, the computing team director Mr Myung Sung Park and head official Miss Migi Lee, who was the new paid "Head Official", a term later used by Miss Yoo. She carried out the same duties as Miss Chae, so she was a clerical assistant, typist and bookkeeper.

[266] The meeting opened with the plaintiff reminding everyone that the opening day for the Olympics was 181 days away. There was discussion of a revised structure and the meeting unanimously agreed to leave this to the plaintiff. The date for the monthly meeting was changed to 6.30 on the first Tuesday of the month. The Committee settled down to solve the cheerleading problems; a new venue had been found, and they wanted to buy equipment such as an amplifier as well as improve their English. Further details were set out in a report which is referred to in the Minutes as attached, but is not included. A note that the second defendant provided dinner at Aseowon appears at the end of the Minutes.

[267] On 7 April there the plaintiff and five other committee members had a meeting with Jinro officials at the office. The plaintiff's inclusion of other committee members is a regular feature of such meetings. On 10 April there were more visitors and two more people volunteered for the cheer squad. On 14 April official Bong Joo Kim, the new secretary-general Mr Ik Hee Kim and the financial director, Mr Joo Yong Jo, had a meeting with the plaintiff.

[268] On 21 April the Korean Newspaper, the third defendant, published an interview with Jae Il Jo, Sydney Olympics Korean Classical Music Cheer Squad Director. The cheer squad director brought this article to the meeting on 22 April. The cheer squad leader wanted to correct the title of the article and requested that newspaper advertisements should be put in by the Committee to do this. This article does not refer at all to the Supporting Committee.

[269] One of the curious aspects of this case is how little publicity was given to the activities of the Supporting Committee by the three main Sydney Korean newspapers who are the defendants in this litigation. The Activities Diary carefully notes approaches by the media, and there was clearly a lot of interest by Korean media and Australian media such as SBS. There seems to have been little interest in reporting the Supporting Committee's functions or activities; the Committee was obliged to insert paid advertisements at full rates in relation to requests for volunteers and home stays. The fourth and fifth defendants in evidence challenged these advertisements as unnecessary. The "auditors" made up their own minds about matters such as that the Committee did not need to advertise homestay or have an entry in the White Pages. They never asked the plaintiff about these matters: "A. INTERPRETER: As far as I remember, I don't think there was any need to advertise for - on behalf of Sports Council. I was aware that the committee had made advertisement on number of occasions.

Q. But you were talking about advertisements for accommodation. A. INTERPRETER: As I said, I didn't verify myself the telephone book but there was something about private accommodation and the others, but if Mr Cha came to our request and checked with us and I was able to verify, this wouldn't be a problem today.

Q. Did you speak to Mr Cha about this advertisement in the 2000 telephone directory and the expenditure of $890? A. INTERPRETER: That's why I requested a meeting to Mr Cha because I wanted to discuss with him.

Q. Did you speak to Mr Cha about the advertisement in the 2000 telephone directory and the $890? Yes or no? A. WITNESS: No.

Q. Did you make a list of all your complaints and queries concerning the spending of the Supporting Committee and send that list to Mr Cha for an explanation? A. INTERPRETER: No, I didn't." (Daily Transcript 2944, 3 April 2009, Day 63)

[270] The 22 April meeting between the Sports Council and Supporting Committee officials went through a great deal of business, including home stay plans for Samsung officials, SOCOG negotiations for field training team tickets, noting the need for the International Department to keep cheer and activities photo records and the plaintiff reporting a second meeting with the consul. The plaintiff noted that as the Committee had been "inundated" with requests for support from cheer squads in Korea all these matters should be "channelled through the Committee given its objectives" (Exhibit 51 page 30). Financial director Mr Joo Yong Jo suggested that future meetings should be attended only by necessary officials of the sub-committees concerned. The second defendant in written submissions points to this as evidence that Mr Joo Yong Jo's role in the Committee was sporadic and limited.

[271] On 26 April the Activities Diary notes confirmation calls to officials to make a list of advisors. On 27 April the staff were "remaking" this and confirming its contents by phone with officials. This is an indication of how important it was for there to be an accurate list of officials. A staff member also visited Aseowon restaurant in relation to an outstanding account.

[272] The red accounts book (exhibit 5) commences for this period.

[273] The seventh defendant is in the office on 2 May. Staff were busy preparing for the monthly May officials meeting, which began at 6.35 and was attended by 29 people (although the Minutes note 21 attended). The Minutes of the previous meeting of officials from the Supporting Committee and Sports Council were presented by another office assistant, Miss Oh Ja Park. (This is the Mrs Park to whom the plaintiff was alleged to have been rude by using the word "ya", which is equivalent to the French "tu" instead of "vous", and the Mrs Park whose name appears on the front cover of the book).

[274] The plaintiff started by praising the person in charge of each section for his/her efforts, but reminding them to be punctual. He also instructed that copies of the Minutes of the previous monthly meeting be handed out, introduced Vice Chairman Young Soo Song and organising committee Vice Chairman Yoon Chang Jo.

[275] Mr Joo Yong Jo, the financial director of both the Korean Sports Council and the Supporting Committee, was absent due to health reasons, and his report was made by Secretary-General Ik Hee Kim instead. The April financial statement is presented by him. That document is not in the Minutes. As discussed elsewhere in this judgment, an April financial statement appears in the Expenditure Resolutions folder, and Mr Sung Joo Sung in his statement (Exhibit 72 paragraph 20) claims authorship. This would appear to be inconsistent with the Minutes.

[276] The home stay operation being undertaken by KOL Austwide Realty was discussed at length. The committee had interviewed around 80 families and received 51 inquiries. The problem was that only 6 of the home stay families met the requirements. Advertisements were to be placed in TOP and Hojudonga for private accommodation and "close inspections" of the homes carried out. Miss Lee was put in charge of handling this and it was noted that they needed someone who could manage the operation on weekends.

[277] Other items on the busy agenda included welcoming the Korean team, the cheer squad being filmed by KBS, a report on mobilisation and a report from the plaintiff on sponsors; he was hoping for some "settlements" and would present a report as soon as there was an outcome. The meeting closed with a prayer from the Rev Suk Jin Choi.

[278] Staff were in the office arranging documents on 8 May and on 12 May noted a special committee meeting at the office attended by the plaintiff, financial director Jo and others which looks like the regular meeting between the Sports Council and the Supporting Committee. The newspaper Hojudonga called, wanting Mr Dae Won Kang's telephone number. The Minutes of this meeting, which was attended by the plaintiff, Finance Director Jo and four other committee members, are at Exhibit 51 page 26 and related mainly to ticket purchase. Vice Chairman Joo suggested a letter to the press and the Korean Journalists' Association to ask them to allocate a page for SOCOG information. If such information was provided then the defendants would have been aware of the activities of the Committee in this regard. However, there is no evidence any of the defendants wrote any articles about the Supporting Committee save for the article about the donation by Mrs Kim which Mr Dae Won Kang was able to organise.

[279] Miss Migi Lee was absent due to academic graduation around 17 May and the Activities Diary was filled in the morning by the Supporting Committee general director and in the afternoon by the Sports Council general director. Miss Migi Lee left a mobile phone number with them. This tends to suggest that the Activities Diary was not kept by Mrs Park at all times, as the front cover suggests, but by others such as Miss Lee.

[280] On 26 May there was a meeting in the evening between Sports Council and Supporting Committee officials. Vice Chairman Song asked about the general financial supports at the time of the establishment of the Supporting Committee" (Exhibit 51, page 22). There was discussion of the Committee's organisational chart which is set out in full above; this chart was to be put before the Committee at the 6 June meeting.

[281] A letter was sent to the Korean Traditional Arts Research Institute on 31 May thanking them for their offer of a performance but saying that "due to financial restrictions" the Committee could not provide assistance.

[282] From June onwards the Korean consul, Mr Ho Joo Moon, is an active participant in committee activities. He had a three hour meeting on 6 June, which was the day of the Committee meeting. No Minutes of this meeting have been tendered, but Minutes of a "2nd meeting" on 14 June appear at pages 13 - 15 of Exhibit 51.

[283] At the Committee meeting the May financial statement for the Supporting Committee and for the Sports Council was presented by financial director Joo Yong Jo, who held this position in each organisation; these are attached to the Minutes. The other document which was put forward (apart from the Minutes of the previous meeting) was the organisational chart.

[284] The Minutes note criticism by the plaintiff of Dong Soo Kim for making plans for the cheer squad and for PR and it was noted these matters needed to be discussed after a SOCOG meeting on 15 June. Dae Won Kang said these reproaches should be addressed to him, as he had given these instructions. Mr Dae Won Kang gave evidence in these proceedings but did not refer to this incident as being an occasion when the plaintiff was impeding the Committee, or being self-righteous. Whatever the rights and wrongs of the dispute, it would appear that if there were disputes during the meeting, they were resolved in the meeting and also minuted. MBC videotaped this meeting.

[285] A significant issue raised in the Minutes is the reference to "fund-raising ads by the Committee" in "community newspapers". That must be a reference to some or all of the four newspapers who are the defendants in these proceedings as they have been identified as the four Korean language newspapers in Sydney by witnesses in these proceedings (Daily Transcript 1477 - 1478, 20 May 2008, Day 39).

[286] Mr Moon gave a great deal of advice to the Committee members in the 14 June meeting. This ranged from reducing the numbers in the cheer squad to pointing out that they had not taken into account meals and vehicles for the cheer squad to advising that the Korean government would not subsidise the purchase of tickets. He particularly advised that it was "unnecessary to welcome the team on their arrival at the airport" but that "if really necessary, chairman Cha and consul Moon would meet them". The defendants assert that by not being at the airport to meet the Paralympics team (the plaintiff arranged for other committee members to attend), the plaintiff brought shame on the Korean community in Australia. They had lunch at Shilla afterwards.

[287] The Committee was particularly busy in July, with lengthy meetings on 16, 21 and 28 July. Financial director Jo and the general director of the Sports Council, Mr Soon Son Lee, came to the office on 6 July. The 16 July meeting with SK securities director Young Sik Kim and chief Ji Young Kim is set out in more detail elsewhere in this judgment. Regrettably the Minutes of this two-hour meeting, which Miss Lee spent over four hours drawing up on 17 July, have not been tendered. However, there is a list of expenditure approved behind the expenditure resolutions which gives some idea of what was agreed to.

[288] On 12 July Miss Lee notes she is preparing envelopes and making a list of those invited to the Supporting Committee night scheduled for late July, and that she acted as translator for an interview with the plaintiff and advisor Sang Ji Kim by the Japanese newspapers. Mr Ji Hwan Kim of the Korean Herald (the third defendant) called asking about the position of official Kyung Gyu Lee. Before going on holidays for two days (and putting her mobile number in the Activities Diary for others she buys stamps to send letters to 410 expatriates asking for donations and has a receipt for these stamps "verified by the chairman" (page 19).

[289] While Miss Lee is away, another staff member forwards correspondence about the Committee website to the plaintiff and notes the "schedule of vice president Young Suk Kim" in a 6-page fax he has sent from SK Securities. The SK Securities Chief calls on 21 July and there are calls and interviews from Incheon newspaper and Kyungin Broadcasting producer Goo Ik Jung.

[290] The meeting of 21 July deals with issues of great relevance to this litigation: (a) the SK Securities donation. There is an inquiry from Mr Dae Won Kang "about the conditions of the donation of the sum". There is reference to the SK Securities night on 31 July being expected to cost $20,000, and in addition to expenses of another "event" there are golf fees. There is also a reference to "installing as honorary chairman" but it is not clear who this is referring to; it could be the second defendant or it could be a reference to some other person being installed. There are to be plaques of thanks to the SK directors.

(b) Mr Dae Won Kang gives a report concerning the cheer leaders. He is described as "organising committee chairman". This is relevant to imputation 42(d). In his evidence he denied this role, saying this was another person, and that this person received the balance of the cash from the Uniting Church.

(c) There was discussion of dismissing sub-committee chairman Mr Dong Soo Kim, who had been the subject of debate at the June meeting. The Minutes note that "a discussion resulted in its rejection" and "the matter was to be resolved according to the outcome of the chairman". The next entry in the Minutes quotes Mr Dae Won Kang and the Vice Chairman urging that "every [meeting] attendant should express their opinion during the proceedings."

[291] Nothing was said during the trial about Mr Dong Soo Kim being treated badly by the plaintiff. What these Minutes show is that there was a problem, it was resolved democratically in discussion, that the Committee decided to leave the issue to be resolved by the plaintiff, and that Mr Dae Won Kang urged everyone to express their opinions. This does not suggest conduct capable of impeding the Committee, or acting in a self-righteous fashion.

[292] The Minutes of 28 July are one of the few surviving Minutes for the joint meetings of the Sports Council and Supporting Committee. The plaintiff is quoted as saying there have been "bottlenecks" and asking for more support. The Sports Council Secretary General notes there will be a welcome at the airport for the team and a congratulatory party for medallists.

[293] The defendants point to the handing over of a $200 donation to the plaintiff from Wangdaepo and say he misappropriated this sum as this donation is not recorded.

[294] On 31 July the first defendant telephoned requesting "the list of the Supporting Committee and Sports Council executives and their addresses and phone numbers for the event". This is indicative of the relationship between the two bodies from the point of view of the first defendant, and also of his knowledge of "the event", which is the SK Securities Night.

[295] There is a gap in the Activities Diary for the period 1 - 4 August, followed by a note of the farewell party for the SK Securities Vice-President. Mr Dae Won Kang was among those who attended.

[296] On 11 August is the note that "new Secretary General Won Kang started work".

[297] On 17 August the staff spent all afternoon planning for the 6 pm meeting with committee members, "special planning officials" and the consular general.

[298] At the 17 August 2000 meeting the Supporting Committee discussed its financial position in some detail. The expected revenue from guide map sales and the recent donation of SK Securities meant that the Committee was likely to have revenue of $264,000 (Daily Transcript 526-527, 24 September 2007, Day 17). After the SK Securities donation of $100,000 (and the loan from Mr Jong Kim of $10,000), the Committee had $110,000. One of the matters discussed was "deciding to discuss the disposal of the balance of the donations with officials following the close of the Olympics". Most of the meeting's decisions were based on proposals by Consul Moon, including having the flags made in Korea (a suggestion disapproved of by Mr Patrick Lee, according to his evidence in these proceedings) and co-operating with the Korean Society for Korea Day events on 23 September, another indication of the channeling role of the Committee exceeding its Olympic parameters.

[299] This is the last recorded monthly meeting of the Committee. The Committee had a five and half hour meeting with the Olympic Mission Society the next day including lunch at Arisun, which was to be followed by a press conference the following day. On 23 August the staff spent all afternoon preparing minutes of this meeting but they are not in evidence.

[300] The media conference was attended by Mr Won Kang, the seventh defendant Mr Dae Won Kang, the plaintiff and other members of the Supporting Committee and the Mission Society. Questions were asked by Hojudonga and the third defendant's reporter. Hojudonga wanted to know why Reverend Jang had been appointed to take charge of the North Korean division and the question was answered by Mission Society Secretary General Kwang Soo Lee and the plaintiff. Mr Won Kang volunteered: "Let's make it known to the whole world that Sydney is one."

[301] The Activities Diary records a great deal of information between the end of August and the beginning of November; 16 of its 40 typed pages relate to this period. The staff note they have photocopied the tickets the seventh defendant purchased from SOCOG (this was not tendered) and note plans for Won Kang's trip to Seoul. In particular, they note a call from the Sports Council of Korea for application forms for participation in the 81st National Athletic Meeting. This is the meeting which the plaintiff and other Supporting Committee members attended which the defendants say was outside the parameters of the activities of the Supporting Committee. The staff telephoned TOP, the third defendant, Hojuilbo and Dongailbo to see if they were sending their reporters to Korea to attend this meeting.

[302] A meeting was arranged between former and current presidents of the Sports Council, the Korean Society, the consul and the Supporting Committee members, to take place on 4 September. The last note for 31 August is a call from the fourth defendant, in his capacity as general secretary of the Korean Society, requesting that written details of support required from the society should be forwarded.

[303] On 1 September the plaintiff was interviewed by Yunhap, a Korean newspaper. The next entry is dated 9 September, but the other entries are in order so the reason for this is unknown. Mr Won Kang arrived back from his business trip to Seoul on 5 September. This is dealt with in more detail elsewhere. On 7 September there was a call from SK Securities director Young Sik Kim concerning the delivery, on the Olympic team's flight, of 500 CDs, 1,000 clothing items and "100 watches for the North Korean athletes" (Exhibit 52, p. 29). The role of SK Securities was not limited to its donation of $100,000; these were substantial gifts. In addition, if these gifts were on the same flight as the athletes, there may have been some knowledge of their contribution by the South Korean government.

[304] The Olympic team arrived at the airport. Although Consul Moon told the Supporting Committee at the August meeting that it was not necessary to meet them (and that if there was to be a representative, he and the plaintiff could go), everyone was there to meet them, including the second, fourth, fifth and seventh defendant. There was a welcoming meal at the airport for the officials but the athletes went straight to the village.

[305] During September the Committee members arranged tickets to events, transport, social functions and liaised with the Korean media. There was a constant stream of visitors, journalists and Korean officials including politicians and sports officials. Miss Lee, who appears to have been writing this up, had the day off for an interview on 17 September.

[306] An indication of the plaintiff's role in the Committee can be seen from the 25 September entry that getting "all the stuff required" for the Cheer Squad was under his control. The plaintiff was someone who worked at the most menial tasks as well as meeting dignitaries.

[307] 1,000 Korean peninsular flags arrived on 27 September, and a further shipment was to arrive the next day; the person keeping the diary went shopping for flag poles with Miss Sarah Yoo. On 28 September there was an emergency committee members meeting; the minutes have not been tendered. On 29 September the Korean athletes were invited to have dinner at the Charcoal Mine, Parramatta, which I note was agreed to be one of the restaurants owned by the second defendant.

[308] Throughout the month plans were made for the farewell ceremony for the Korean team at the Korean Society Hall on 1 October.

[309] On 1 October the farewell ceremony for the athletes in the Korean Society hall was held. The chairman was Committee Vice President Jong Hyung Joo. The ceremony started with a congratulatory address followed by a message from the Consul General, followed by a gratitude address by the team's secretary general, dances from the cheer squad and meals. There was a committee meeting following which the committee office and workers went to Five Dock to cheer the marathoners.

[310] The description of this ceremony does not refer to the plaintiff being the chairman or giving a speech. This is a common feature for the Committee's social functions and is indicative of the true nature of this organisation, and of the plaintiff's personality.

[311] The athletes left Australia on 2 October and on 3 October the Supporting Committee office was busy preparing for the delegation to the National Athletic Meeting at Busan, as well as dealing with the March business plans for the Korean Sports Council. The telephone number for this inquiry is a Melbourne number, so the Korean Sports Council in Australia seems to be involved. Plans are being made on 4 October for the inaugural meeting of athletes of the council on 8 October; there was a meeting at the Sports Council office at 7 pm and Hojudonga newspaper asked for a half size advertisement.

[312] On 5 October there were office staff problems and the diary keeper was told by the plaintiff to come to work with adviser Sang Gi Kim. The note is that the "general director" (Mrs Ok Ja Park) had "failed to be present".

[313] Also on 5 October the plaintiff, who was about to leave "on account of the athletic meeting in Korea on 7 October", requested that this inaugural meeting on 8 October, should go ahead without him. This is the Korean sports event that the defendants say the plaintiff should not have attended, and that he should not have used money donated to the Supporting Committee to attend.

[314] Three vice chairmen went to the National Athletic meeting at Busan: Nak Yoon Paek, Jong Hyung Joo and Byung Doo Choi went with the plaintiff. Before he left, Joo Hyung Jo chaired the team inaugural meeting on 8 October and a speech of welcome was given by the second defendant, followed by refreshments with former presents and officials of the Sports Council. The next day TOP newspaper (the second defendant's newspaper) telephoned about the inaugural meeting, asking for information, and the seventh defendant sent them a fax. If there was a report in TOP about this Sports Council function, it was not tendered.

[315] On 12 October the seventh defendant is noted as attending to the filing, not only of "all the papers of the Supporting Committee", but also of the Sports Council, "again" (clearly there was a lot to file). This is of assistance when considering claims by witnesses such as the seventh defendant that these two organisations were separate.

[316] On 13 October the seventh defendant was organising placards. On 15 October the plaintiff rang from Korea with the current medal tally from the Korean Athletic Games at Busan. He spoke with the seventh defendant and Mr Myung Boo Kim in turn. (There are two entries about this; it may be that more than one office assistant is writing in the diary). The third defendant rang to ask questions which were answered with the Paralympics news and "detailed explanations". Advertisements were booked in the Hoju Dong-A and its sister, the Dongailbo, as well as in TOP and the third defendant, the Sydney Korean Herald. The advertisements in TOP and the third defendant were half a page while the others were a quarter of a page. A Committee member too the Chunghyo Senior Citizens to the Olympic torch relay and the office staff drove the seventh defendant and others to watch the shooting.

[317] On 20 October the staff sent an expenses budget statement for the 11th Paralympics to the Consulate General. This document is not in evidence.

[318] The staff spent several days at the Paralympics and on 23 October there was a meeting and dinner for the Paralympics team at the 2000 BBQ restaurant. Those attended included consular staff, the plaintiff and executive. Between 24 and 27 October there were plans to distribute tickets, including a request to Hojudonga to advertise free tickets were available, and plans for a farewell party on 27 October.

[319] A press conference on 26 October is summarised. The first three defendants' newspapers attended. Everyone was excited about the record medal tally. The final note is that the plaintiff went to the stadium to cheer, and a gold medal was won.

[320] On 27 October the plaintiff, the seventh defendant and other officials went to the Olympic village for a presentation to the athletes that was videotaped. On 30 October the plaintiff came to the office to help carry on business. A group went to the airport to farewell the departing athletes; the second defendant was sent a fax about this.

[321] On 30 October the Supporting Committee put a congratulatory message in the newspaper concerning the award of the Nobel Peace Prize to the South Korean Prime Minister, Mr Kim, following his historic meeting with the Prime Minister of North Korea in June (the 50th anniversary of the signing of the ceasefire between these two nations) and his general policy of peaceful reunification (the Expenditure Resolution in Exhibit 56 specifically notes the contents of this advertisement, which is unusual). Given the circumstances in which these two nations' teams had marched into the Olympic stadium together under the one flag, the Supporting Committee's interest in this award was understandable.

[322] On 31 October there was another press conference, the text of which is set out in full. Those in attendance included the consul, executive members, the plaintiff and the seventh defendant. Although the seventh defendant and others answered questions, the plaintiff is not quoted as having said anything. Again, this is an indication of the committee being a team effort rather than a "one man band", to use a description of the plaintiff put to the jury during the s 7A trial.

[323] On 2, 3 and 6 November the office staff were putting correspondence, and internal documents into order and posing out public notices and letters. It was during this time that the plaintiff asked the seventh defendant to prepare the final accounts. According to the financial records, the seventh defendant received $200 in mid-November so he was still active in the office. He refused to help the plaintiff. The plaintiff prepared the financial statement, relying on the schedule prepared by the bookkeeper, Miss Yoo, and on 24 November it was published in the three Korean newspapers. That was when everything changed for the plaintiff and for the Supporting Committee.

Conclusions concerning the Supporting Committee's activities during the Olympics

[324] Reading through the Minutes and Activities Diary, it is not hard to see how it was the uncontested evidence of all of the plaintiff's witnesses that every aspect of the work of the Supporting Committee (except its financial record keeping) was a success, not only in the eyes of the Korean community, but in the eyes of the South Korean Government.

[325] All of these records point to the Supporting Committee members working very long hours outside business hours, or putting their businesses aside, in the most unselfish way. The many dinners and lunches following Committee meetings need to be seen in this light. In addition, the records show there were constant visitors from South Korea as well as functions involving other sporting associations as well as SOCOG. This was a very busy committee. Everyone had their job to do. They got on and did it in a democratic and co-operative way. The next, question is then: whose job was it to look after the Committee's accounts?

[326] According to the article in the second defendant's newspaper dated 26 January 2001, which is the second matter complained of: "Mr Hak Joo Park [the fourth defendant] says the problem originated from trying to do bookkeeping without a trained bookkeeper. The bookkeeping was done by Mr Cha from May 98 to Jan 99, it was done by president Cha and Mr Sung Joo Sung between Feb 99 and Dec 99, a financial controller was doing it for a while between Jan and Nov 2000 and Mr Cha was doing it after then."

[327] I summarise my findings of fact from the contemporaneous records including the Activities Diary and Minutes concerning the identities of persons in charge of keeping records and accounts: (a) Between 1 May 1998 - November 1998 - the seventh defendant (to whom Mr Sung Joo Sung was deputy), assisted by Miss Choi (or Chae), the clerk whose record keeping Mr Sung Joo Sung later disapproved of;

(b) Between November 1998 and March 1999 - Mr Sung Joo Sung was aided by the same Miss Chae. The last record for Mr Sung Joo Sung is dated 27 March and Miss Chae appears to have departed on 3 April 2000, as these pay periods for her and for Miss Migi Lee show 3 April 2000 according to the April financial statement (located in Exhibit 56).

(c) On 1 December 1999 Mr Joo Yong Jo, the financial director (or treasurer) of the Sports Council) was appointed as financial director and he prepared monthly accounts for the Supporting Committee. He remained active until October, signing Expenditure Resolutions up to this time.

(d) Between April or May 2000 and the end of the Committee's life, the seventh defendant kept the records, with the assistance of first Miss Migi Lee and later Sarah Yoo;

(e) Between 26 September and 12 October, Head Official Sarah Yoo used the cheque butts to prepare an Earning and Expenditure Record for use in preparing the financial statement, according to the note she signed to this effect (Exhibit 7, page 1);

(f) The plaintiff asked the seventh defendant to prepare financial statements but after he refused, prepared these using Miss Yoo's Earnings and Expenditure Record; and

(g) In late 2000 the plaintiff's accountant prepared a statement in relation to moneys personally owed to the plaintiff; the plaintiff was reimbursed for approximately $61,000 of the $71,000 he sought.

[328] I now turn to a consideration of the record keeping abilities of the seventh defendant and Mr Sung Joo Sung, the persons who either kept these records or supervised the bookkeepers who kept them.

[329] Was the seventh defendant a trained bookkeeper or a person with abilities enabling him to keep records? He considered he was knowledgeable about accounting from his prior experience in the Korean Society. He volunteered to be the temporary auditor of the Korean Sports Council in March 2001 (Exhibit S), and told the court that his son was a partner in accounting firm KPMG (Daily Transcript 2215, 19 June 2008, Day 54).

[330] The seventh defendant held the position of Secretary General for the period May to December 1998. There are no financial records for that period. The Committee was just getting started, and there were few financial transactions in this period.

[331] The seventh defendant's evidence is that in late 1998 he and the plaintiff had a dispute because the plaintiff (who was ten years his junior) was not polite to him (Daily Transcript 2167, 17 June 2008, Day 53). "A. INTERPRETER: In the beginning, initially, Cha and I had a very close relationship. We were very happy with each other. However, for instance - later on, for instance, if Mr Cha had a cheque received - that's the official cheque of the committee - he would hand it over to - instead of handing over to me he would throw it at me, and therefore he was behaving in a manner that was very impolite, out of politeness, from time to time, and I was thinking that it can't last like that, it had better stop, resign from the position."

[332] This cannot be correct. The Supporting Committee did not have a cheque account until August 1999, which is nine months after the seventh defendant resigned in November 1998. In addition, the seventh defendant continued to come into the Supporting Committee office on a regular basis because of his friendship with the plaintiff, as Mr Sung Joo Sung commented: "A. Hak Soo Cho, even though he lost of his title or position at the committee, he was coming in and out of the office a lot of times with Mr Cha because he was a good friend of Mr Cha, and you can see it in the Telstra bill there, attached.

Q. Yes, but you say Mr Cho came to the office regularly? A. WITNESS: Yeah." (Daily Transcript 3068, 7 April 2009, Day 65)

[333] This is confirmed by many entries in the Activities Diary about the seventh defendant's regular attendances (including having his own desk) and his bookkeeping role (Exhibit 5). He signed many of the expenditure resolutions not only in 1999 (e.g. 2-295, 2-296, 2-298, 2-299) but also in 2000(e.g. Expenditure Resolutions 199, 214, 240, 243, 244, 254 and 268), and/or was the recipient in both 1999 (in, for example, the four invoices listed above), and again in 2000 (e.g. Expenditure Resolutions 155, 159, 160, 168, 199, 240, 254 and 268, for a weekly allowance of $200). Expenditure Resolution 269, according to the plaintiff's list of Expenditure Resolutions, notes that "the seventh defendant holds the missing documents" but that this note was not translated during the trial (this list of expenditure resolutions, with commentary, was the subject of objection by the defendants, so I shall treat its contents very cautiously).

[334] An example of a transaction where the plaintiff signed a cheque requisition prepared by the seventh defendant is as follows: "Q. Mr Cha, I'll just show you the cheque butts for those two cheques. One is 1664 - that's a $700 one. Can you just tell us what the cheque butt says? A. The cheque butt says that it's a rent car that was borrowed for Mr Cho.

Q. So it's a rental car that was hired by Mr Cho? A. Yes.

HER HONOUR: I think she means hired by, not borrowed.

A. It's a rental car hire. I remember asking Mr Cho, asking for a receipt regarding the $700 that the cheque is made out for.

Q. Mr Cha, why is the cheque payee written out to KVA? You have signed it, haven't you? A. Mr Cho wrote the cheque himself, he took it. So you'll have to ask him. As you can see the cheque number and the cheque butt is a different number. It doesn't correspond." (Daily Transcript 905, 8 October 2007, Day 23)

[335] This is an indication of the degree to which the plaintiff left the record keeping up to the seventh defendant. The age difference between them, and Korean traditions of respect, probably also play a role.

[336] I find that the seventh defendant was continuously involved in the Supporting Committee's activities from 1 May 1998, when he chaired the meeting, until November 2000, when the plaintiff asked him to prepare the Supporting Committee's final accounts. I note that after that time he assisted the fourth and fifth defendants to prepare the audit report.

[337] The plaintiff's unchallenged evidence was that in the financial records comprised in the "Red Book" (Exhibit 5) which comprised the Committee's financial records for the period 1 April 2000 - 17 October 2000, at which time the Olympic Games ended, entries were in the seventh defendant's handwriting.

[338] I shall first set out what the evidence is about who kept Exhibit 5, and how.

[339] The plaintiff identified a book of handwritten accounts for the period 1 May to 17 October 2000 ("the red book" - exhibit 5) as being the Supporting Committee's accounts book that he gave to the fourth and fifth defendants in December 2000.

[340] The following cross-examination is relevant as to the identify of the persons whose handwriting appears in this book: "Q Mr Cha, I'm just going to ask you something which is not controversial, but I just ask you to confirm this please... Did you write those words the other day when you first saw the red book in the witness box...

A This is not my writing, My writing is just on one page, the rest is someone else's writing." (Daily Transcript 192-193, 7 June 2007, Day 7)

[341] The red book was then tendered as Exhibit 5 Daily Transcript 193, 7 June 2007, Day 7.

[342] The following occurred at Daily Transcript 231, 8 June 2007, Day 8: "Q Mr Cha, in whose handwriting are these entries? A That I can't remember now but I presume it would have been somebody who was in the office.

Q Who was the bookkeeper in the office at this time? A At the time mostly [sic] was done by Mr Hak Soo Cho [the seventh defendant] and I can see it's his handwriting there. He was paid $200 a week..." [343] It was put to the plaintiff that he had control of the cheque books and he wrote out the cheques, and the reason for the cheque butts being in the handwriting of others such as the seventh defendant or the bookkeepers was that he would then go through these cheque butts later with the bookkeepers and tell them what to write down. Mr Cha replied: "A. Do you think that there are people like that doing that sort of procedure? I just can't understand." (Daily Transcript 231). I accept this evidence, which is consistent with the evidence of the plaintiff having one cheque book and first Mr Sung Joo Sung and then Mr Jo having the other. The evidence does not support the contention that the plaintiff controlled the cheque books, or wrote out the financial records.

[344] At Daily Transcript 304, 13 June 2007, Day 10 Mr Wheelhouse SC put a question to the effect that entries in the book for the period May to September were written by Migi Lee, the bookkeeper who took over from Miss Chae in April and remained there until August when Sarah Yoo took over the bookkeeping (again for payment of $200 per week).

[345] It was never put to the plaintiff that the accounts (including Mr Sung Joo Sung's accounts) were in his handwriting. It would have been a straightforward matter for a handwriting expert to confirm if he had denied it. One page of the red book was in the plaintiff's writing, but this was a list of donations made at the end of the Committee's life, for the purpose of preparing the final accounts, and to distinguish between the Sports Council and Supporting Committee's donations - Daily Transcript 865, 8 October 2007, Day 23.

[346] Could the red book kept while the seventh defendant was in charge have been written up by the bookkeeper Miss Yoo? The fourth defendant is confident that he can recognize Miss Yoo's handwriting; he was able, for example, to identify her handwriting in the financial records she prepared in September and October 2000 for the purpose of preparation of the accounts: Statement of the fourth defendant, Exhibit 70, paragraph 142. Similarly, he should have been able to identify the plaintiff's handwriting if the red book had been written up by the plaintiff, but he did not do so. Accordingly, the unchallenged evidence is the plaintiff's evidence that the entries in the red book were written up by the seventh defendant, as the plaintiff claims.

[347] The contents of the Red Book are as follows: (a) a note on the inside front cover of the Korean Sports Council account; (b) a list of donors to the committee with a note at the top saying "guide Map 28/9/00"; (c) the next three pages are blank; (d) entries for May 2000; (e) A list of donors (on the page on the left hand side, opposite the June entry) which the plaintiff identified as being in his writing; (f) Entries for June to October in chronological order, written on the right hand page, with the left hand page blank; (g) A large number of blank pages; (h) Another list of donors

[348] The balance column is only filled in for May, June and July. The monthly accounts are at least in date order, but they fail to do more than list receipts and outgoings. This is poor record-keeping.

[349] It should also be noted that there are monthly financial statements for March and April (contained in Exhibit 56) and May, and that there were financial reports presented at the monthly meetings for the periods February - April and May, according to the Minutes of Meeting. The Minutes attribute the financial report to the Finance Director Mr Joo Yong Jo but Mr Sung Joo Sung claims in his statement that he is the author (at paragraph 20).

[350] The seventh defendant made some admissions about record keeping, but did not consider it part of his obligations to set up a receipt book for donations. He thought (Daily Transcript 2173, 17 June 2008, Day 53)) that was the plaintiff's job: "Q. Mr Cho, whose job would it have been to give the receipt? A. INTERPRETER: Chairman.

HER HONOUR: And why was that, Mr Richardson? Why is it the chairman's responsibility to give a receipt?

Q. Why was that, Mr Cho? A. INTERPRETER: Because in the supporting committee, everything, including finance, was all controlled by Mr Cha, managed by Mr Cha. There was no secretary-general, there was no finance director at the time, so Mr Cha did everything." (Daily Transcript 2173, 17 June 2008, Day 53)

[351] This was not correct. There was a secretary-general and at the time of the donation in question (Mrs Kim's $5,000) this was the seventh defendant himself. It was his job, and he was paid an allowance of $200 per week for performing these duties. Nor is his statement about there being no finance director true. Mr Jo was the financial director from 1 December 1999 onwards.

[352] The seventh defendant said he was asked by the plaintiff to prepare a financial report of the Supporting Committee, but the plaintiff had only given him 2-3 pages and he "couldn't do that" (Daily Transcript 2171, 17 June 2008, Day 53), even though he had been keeping the financial records for the Supporting Committee since May. This extra information given to him by the plaintiff was a list of entries from the plaintiff's CFM company account, which was information in addition to the contents of the red book kept by the seventh defendant:

[353] The plaintiff said in cross-examination that he asked the seventh defendant to help prepare the accounts, and gave him some additional information from the CFM cheque butts: "Q. Mr Cha, in October or November 2000 when Mr Cho was in the support committee's office, did you speak to him and say the words, "Big brother, can you prepare the financial accounts for the supporting committee for me?" A. Yes, because at that time Sun Ju Soong left the committee and he took all the records with him and we asked for it and he didn't hand it back in. All the donations during 99 were left with that and I go on an incident about the 580 Olympic tickets that should have been given as part of the committee's doing supporting to the Korean community and give out as a part of like a goodwill and so on; but after only giving few away, Mr Cho later then sold them for money and I heard this from various times but even yesterday, so I don't even think of him as a human being now. Q. Mr Cha I'm showing you exhibit 10. Is this the document that you gave to Mr Cho in about October or November 2000? A. This has got nothing to do with the committee cheques, it's a listing of my companies, check listing and I asked him, yes, to retype that out.

Q. Mr Cha, this is a document you gave to Mr Cho. Correct? It's in your handwriting. A. Yes.

Q. And is this the document that you created by looking at the cheque butts of CMF Engineering? A. Yes.

Q. They're the cheque butts upon which you changed the cheque butt entries. Correct Mr Cha? A. I'm not aware because some of the ones that's crossed out it's someone else's writing, it's not my writing. They had this document so it's written over it. The document that I have now is the full listing of all the - " (Daily Transcript 782 - 3, 4 October 2007, Day 21) [354] Mr Cho agreed he had been asked to prepare the accounts, but said: "A. INTERPRETER: After the Olympic Games were finished, I was asked by Mr Cha to prepare a financial report of the Olympic Committee.

Q. At that time, did he hand over anything to you? A. INTERPRETER: Mr Cha had some sort of a memo of two, three pages, and he put that on my desk. And I thought "I cannot prepare financial statement based on those documents", so I couldn't do that.

Q. Pausing there, the memo that he handed you, Mr Cho, do you remember roughly how long that was? A. INTERPRETER: It was two or three pages, probably two pages of A4 papers.

Q. And whose handwriting was on that document? A. INTERPRETER: It was Mr Cha's handwriting that he did memo of things.

Q. At that time, did you have any other records of the Olympic Committee? A. INTERPRETER: I had something that said I distributed - the Olympic tickets had been distributed.

Q. That was all you had? A. INTERPRETER: Yes.

Q. What did you do with the two documents you had? A. INTERPRETER: I sort of summarised the memo, what was in the content of the memo. And I left that the next day on Mr Cha's desk. But Mr Cha, for some reason, he was not very happy and he was not very satisfied. As I said, I left it on Mr Cha's desk, and Mr Cha wasn't happy about that and satisfied, and he took those papers and said something to me or he was not really in a good mood. And he took it away after that.

Q. Did you also return to Mr Cha the pages that he had given to you; the memo, as you call it? A. INTERPRETER: Yes, I did.

Q. Was there any further discussion between you and Mr Cha about the preparation of accounts for the Olympic committee? A. INTERPRETER: Not much conversation after that with Mr Cha." (Daily Transcript 2171-2172, 17 June 2008, Day 53)

[355] This was not, in fact, the only document the seventh defendant could have used to prepare the accounts. First of all, he could have used the red book containing the bookkeeper's entries (which he had supervised). Secondly, there was another document being prepared for the Supporting Committee by Miss Yoo, the bookkeeper employed by the Supporting Committee in its final months. She has recorded that on 26 September she took over seven cheque books and prepared an Earnings and Expenditure Report based upon the cheque butts. She was paid additional sums over this period; it was a considerable labour, and it would be surprising if the seventh defendant did not notice her doing this work. This document was ready on 12 October 2000, and it is also in a green book (Exhibit 7). This book comprehensively lists all of the contents of the cheque butts and also provides some draft lists of donations.

[356] However, it was never put by the plaintiff to the seventh defendant that he saw or knew about this book, so I cannot assume that he knew about it.

[357] The fourth defendant says in his statement that he never saw Miss Yoo's green book when he was preparing the audit. This document was translated by Mr Deokkon Kim on 27 May 2007 as part of the documentation in the hands of the second defendant. At Daily Transcript 2045 12 June 2008 I drew attention to this entry and the fact that another signature had not been translated. Mr Seck replied that Mr Kim was the plaintiff's translator and this was the plaintiff's document. However, the fourth defendant's submissions refer to Miss Yoo's green book (Exhibit 7) as one of the documents used in the audit and it is an annexure to the fourth defendant's statement.

[358] Although the seventh defendant denied he was able to, or did, help the plaintiff with the Supporting Committee audit (Daily Transcript 2189, 17 June 2008, Day 53), he felt no such compunction helping the fourth and fifth defendants. The fourth defendant confirms (in paragraph 88-91 of his statement, Exhibit 70) that the seventh defendant assisted him in preparing for the audit during December 2000 and January 2001. Further, the fourth defendant said the seventh defendant was present at a meeting in late January 2001 when the plaintiff was questioned about the account entries (see the fourth defendant's supplementary statement). In other words, the seventh defendant was willing to help the fourth and fifth defendants but not the plaintiff, even though the financial records (or lack thereof) for about half of the Committee's life had been his own responsibility.

[359] The seventh defendant's important positions in the Korean Society, Korean Veterans Association and Sports Council, as well as his seniority to the plaintiff, meant that he considered the plaintiff was not entitled to speak to him disrespectfully about anything. He said as much in his evidence. There was nothing the plaintiff could do to force the seventh defendant to keep better records, just as there was nothing the plaintiff could do to force the seventh defendant to prepare the financial statement in November 2000 (although I note the seventh defendant was still claiming reimbursement for expenses from the Supporting Committee as late as November 2000).

[360] The plaintiff also could do nothing to prevent the seventh defendant from coming to the Supporting Committee office. He eventually resumed his former position in August 2000. The plaintiff's evidence was that the seventh defendant resumed the position of Secretary-General (Daily Transcript 773, 4 October 2007, Day 21), for which he was paid $200 per week and that he was told "the same thing should not happen this time as it happened in the past" (Daily Transcript 1001, 10 October 2007, Day 25).

[361] I also note a conflict of testimony between the plaintiff and the seventh defendant concerning $3,000 left over after the purchase of Olympic tickets. This was the subject matter of the publication by the second and seventh defendant dated 13 July 2004. The seventh defendant swore interrogatories denying that he made the statements attributed to him (Exhibit U, question 3B(d)). He said he could not remember what he actually said because of "the passage of time" (question 4B). The jury found the imputations were not conveyed.

[362] The bifurcated s 7A trial means that submissions can be made to a jury which are directly inconsistent with the evidence at the trial. In other words, a witness can tell a s 7A jury that he did not make statements, that he does not recall what was said, or (as his counsel said to the jury - Section 7A Transcript 618, 3 August 2004, Day 11) that he was just saying the plaintiff was "a silly bugger" who had "forgotten" what he did with his money, and then tell this court that the plaintiff had in fact stolen the money. The improvement of the seventh defendant's memory since the s 7A trial is of some (though limited) relevance to my findings concerning whether to accept his evidence or the plaintiff's concerning the Olympic ticket money and the KBS cash donation.

[363] If the seventh defendant was capable of keeping (or supervising) the Red Book records, how can his failure to keep records for the period May to November 1998 be explained?

[364] This brings me to the next financial record keeper, Mr Sung Joo Sung, who was the seventh defendant's deputy during May-November 1998, and who took over in November 1998. The question of his abilities (or lack thereof) as a record keeper is complicated by the fact that he took those records with him when he left the Supporting Committee in March 2000. One of the questions to be determined is the period of time covered by the pages he said he ripped out of that book.

[365] Was Mr Sung Joo Sung a trained bookkeeper, or a person with abilities enabling him to keep records? He considered he was able to do so. In his statement of March 2009, at paragraph 35(b), he says: "Before commencing as secretary-general of the Committee I was auditor of the records at the Korean Society for approximately three years. There my duties as auditor involved checking bookkeeping and checking statements and expenditure to see that the expenditure could be verified. I attempted to prepare the accounts of the Committee in the same form as I had experienced at the Korean Society. There had been no complaints from members about the form of the accounts."

[366] In August 1999, when the bank account was opened, Mr Sung Joo Sung and the plaintiff were the signatories; he kept one cheque book and the plaintiff kept the other (paragraph 35(a) of his statement). According to Exhibit 16, there were three names to the cheque book application. They are Mr Bob Chae-Sang Cha, Mr Nak Yoon Paek and Mr Andrew Sung (Sung Joo Sung). Under the "Signing Specification" section, a handwritten note next to "Other (specify)" reads "Two of Three". Therefore two of the three signatories sign cheques on behalf of the Supporting Committee, although in practice one person invariably did, for the Committee's lifetime.

[367] Mr Sung Joo Sung was approached to fill this role "towards the end of 1998" (paragraph 2 of his statement), he having been the seventh defendant's deputy up to that time. He kept a green accounts book over this period which contains records of financial transactions which he considers are accurate and says that it "records all income of which I was aware and expenditure of the Committee while I was secretary-general" (paragraph 15).

[368] There was an accounts clerk who kept records which should have appeared on pages 1 - 6 of the book, but Mr Sung Joo Sung ripped the pages out and re-wrote these accounts because they were "inept and confusing". He said he rewrote pages 1 - 6 of the accounts book. He then says (paragraph 18): "After page 6 the accounts book was maintained by an accounts clerk who replaced the earlier person. The accounts clerk who assisted me was Joon Sun Chae. The rest of the writing in the green accounts book is hers. Miss Joon Sun Chae wrote up the green accounts book under my supervision."

[369] Although Mr Sung Joo Sung refers to "page 6", the stub of torn out pages seems to me to exceed that number. However, this evidence was not challenged at the trial.

[370] The name Jung Sun Chae appears to be an error, as the name recorded as the person who was paid $200 per week for providing "clerical support" during 1999 and up to 3 April 2000 (the date of the last wage payment) is Jung Jun Chae. If that is correct, then an accounts clerk was in charge of the records at all relevant times after Mr Sung Joo Sung commenced in January 1999 and until 17 April 2000.

[371] At all relevant times during 2000 there was a paid bookkeeper to keep the accounts. From 26 June 2000 to 26 July 2000 Miss Migi Lee was paid a wage. Miss Sara Yoo was paid wages for the period 29 September to 11 November 2000. There are also payments over this period recorded, noted as "wages for Hak Soo Cho" (e.g. 11 November 2000).

[372] What kind of records did Mr Sung Joo Sung keep? A description of what is in his Green Book is of assistance.

[373] By definition, any accounting record must be in date order. When accounts are not only significantly out of date order but contain both missing and blank pages, the likelihood that the accounts represent either a complete or a contemporaneous record is open to question.

[374] The following may be noted concerning Mr Sung Joo Sung's Green Book: (a) The monthly entries are significantly out of order, and interspersed with blank pages;

(b) The first nine pages (according to my counting) or six pages (according to Mr Sung Joo Sung) have been torn out, and the front cover has fallen off as a result;

(d) Pages 2 - 6 contain entries from February to May 1999. There are a number of important omissions of expenses for which there are Expenditure Resolutions. Chief among these is a payment to Mr Sung Joo Sung personally for $4,600 (Expenditure Resolution 2, 9 May 1999);

(f) The next page in the book is for November 1999, with an opening balance of $1531.08. These entries have been numbered pages 7 - 8 in the translation as they go across two pages. It should be recalled that the defendants assert Mr Sung Joo Sung stopped keeping records in October or November;

(g) The next two pages are for December 1999, with the last entry being the phone bill paid on 21 December. Clearly Mr Sung Joo Sung continued to keep or have access to the keeping financial records after Mr Joo Yong Jo was appointed financial director;

(i) The next pages again cover the period February to May, although there are some differences e.g. the payment of $45 for stamps on 9 April 1999 by cheque number 643208, which appears in the first version of the April accounts, does not appear in the second;

(j) The following pages up to a page numbered 28 by the translator cover the period June - October 1999. The last entry is dated October 30;

(k) The translator (who translated this document on 1 March 2007, notes that some entries "written in red" are incomprehensible. I could only find one entry written in red (for the second set of November 1999 entries);

(l) In addition there are loose pages containing information about cash donations and Mr Sung Joo Sung volunteered that he tore out pages prior to March or April 1999 because he did not like the way that the bookkeeper had written them out;

[375] Mr Cha said in evidence that Mr Sung Joo Sung was in charge of keeping the accounts up to February (Daily Transcript 85, 5 June 2007, Day 5). There are no accounts for January or February 2000. Mr Sung Joo Sung ceased being the Secretary General on or about 27 March or 1 April according to the Activities Diary and Minutes, but the plaintiff said Mr Sung Joo Sung continued to use the cheque book he had to write cheques up to June 2000.

[376] Two monthly accounts were prepared for March and April 2000 (Exhibit 56). Mr Sung Joo Sung says that he prepared these documents (Exhibit 72 paragraph 20). If that is the case, then Mr Sung Joo Sung must have kept other records as well as the Green Book, and he must have remained with the Committee until 27 April, when he records, curiously, a donation of $200 by Mr Dae Won Kang.

[377] Could these documents have been prepared by him during the audit process? The answer must be no, as the March Statement of Accounts is signed by the plaintiff, the director in charge and vice presidents, so it is clearly a Supporting Committee document. The April Statement (but not the March statement) is stamped as having been checked by the auditor.

[378] The following may be noted: (a) there is no information as to what financial records Mr Sung Joo Sung inherited when he took over the role of the seventh defendant on the committee. At all relevant times there was the bookkeeper Mr Sung Joo Sung disapproved of, Miss Chae. In addition, it is clear that Mr Sung Joo Sung was keeping records after Joo Yong Jo was appointed Financial Director in December 1999. There is no explanation as to why the records stop on December 21, 1999 and start up again on March 3 (Exhibit 56). It is possible there were records for the period before Mr Sung Joo Sung started keeping records in February 1999 and up until Mr Sung Joo Sung left on or about April 27 (the last entry in the April accounts in Exhibit 56), and that these records are now missing.

(b) Cheque number 643028 is not for $45 but for $203.75; a number of entries between 9 April and 4 December have 643028 beside them and when added up come to this total of $203.75 which corresponds to the amount appearing in the bank statement. Thus the fact that the reference to $45 for stamps appears on 9 April in the first set of accounts for 9 April but not the second suggests that someone was copying them out and accidentally omitted this entry. Clearly the $45 was incurred as otherwise the amount of $203.75 in the bank statement cannot be explained. However, whoever was rewriting these accounts must have done so after 21 December 1999. In fact, given that this is close to Christmas, and there was quite a lot of writing up to do, the likelihood is that the rewriting of the February to October accounts occurred some time in January 2000. Mr Sung Joo Sung was still at the Supporting Committee in January and still giving money to Miss Chae the bookkeeper at that time, according to the Activities Diary. If that is the case, were records also being kept in January, and if so, where are they?

(c) A number of the deposits are asserted to have been made by Mr Sung Joo Sung personally. For example, on 8 October he makes three cash deposits of $70.06, $200 and $40. By contrast, deposits by the plaintiff or the Sports Council are identified as such e.g. on 7 October the plaintiff and the Sports Council each made deposits of $2,000. A number of these entries correspond to expenses for the same amount e.g. the deposit of $40 is followed by a payment in cash to Hankuk Printing for $40, in cash. The most likely explanation is that Mr Sung Joo Sung is dipping into a petty cash jar to pay cash for small bills for small businessmen such as florists and printers who do not take cheques.

Where does this money come from? Mr Sung Joo Sung said there was a petty cash tin to which only the plaintiff had the key but as I have noted elsewhere, Vice President Paek gave an instruction noted on an Expenditure Resolution that lunches were to be paid for from petty cash (Exhibit 56). Given my reservations about the contemporaneity of this chronologically inaccurate document, I am reluctant to accept Mr Sung Joo Sung's claim's unless corroborated by witnesses of veracity, and prefer the accuracy of the contemporaneous note of Mr Paek's instructions to staff.

(d) Mr Sung Joo Sung admitted he put the Paek loan into his own account. The explanation given in his statement of 6 April 2009 (Exhibit 72 paragraph 30) is instructive:

"At one stage the Committee, when it was short of funds, borrowed $10,000 from Vice-President Paek. The cheque was handed to me. At this time the Committee had no bank account. I deposited the $10,000 cheque into a company account with the National Bank under my control. I held the money in that account until the Credit Union Account was set up. I then paid $9,000 from that sum into the Committee's account. I kept $1,000 to cover expenditure that I had incurred on behalf of the Committee and I recorded it in the green accounts book. This is recorded in the green accounts book for November 1999."

This cannot be correct. The Committee opened an account in August 1999, as Mr Sung Joo Sung well knew, since he was an account signatory and he had one of the two cheque books for its operation. By November 1999 the account was not only up and running but in need of funds, which is why Vice-President Paek (who is, incidentally, the person who gave the instructions about taking lunch costs out of petty cash) loaned this money to the Committee.

Mr Sung Joo Sung's explanation in the witness box, when the contents of paragraph 30 were put to him, was different again. He said "I borrowed that money from Mr Paek (Daily Transcript 3085, 7 April 2009, Day 65) because at the time the balance was in the red, and he could not prepare an Expenditure Resolution because at the time there was no financial manager who was in charge of finance, there was only "a temporary position to do accounting" and he had to use the money for the salary of the female office worker. He conceded that payment of the office worker for this period was covered by an Expenditure Resolution and indeed examination of the Green Book shows, as I have noted elsewhere in this judgment, shows that no such expenses were paid from the $1,000 Mr Sung Joo Sung kept.

(e) Throughout his evidence Mr Sung Joo Sung insisted that this book, which he agreed it had been the job of the paid "female worker" to keep, was his own personal record. The information contained in it was, however, financial information confidential to the Supporting Committee, not information relevant to him personally.

[379] Mr Sung Joo Sung agreed that he recorded cash transactions in this book. As the expenses exceeded donations during this period, when expenses were paid by the plaintiff's company, the Sports Council or Mr Sung Joo Sung personally, he noted this in his book.

[380] There are a number of issues in dispute in relation to Mr Sung Joo Sung's evidence, including whether or not the plaintiff agreed with the way he proposed to record the income and expenditure of the Committee (paragraph 35(b)). In addition, Mr Sung Joo Sung claimed in his evidence that this green book was not the Supporting Committee's record (despite it having been filled out by the Supporting Committee's accounts clerk) but his own personal record. In addition, Mr Sung Joo Sung's evidence that he resigned about 10 months before the games were held in September 2000 (paragraph 3) is inconsistent not only with the Activities Diary but with the Minutes of Meeting which show that he moved to another position in the Committee where he remained until March 2000 as well as his own claim to have completed financial records up to the end of April 2000.

[381] However, the fact remains that during 1999 Mr Sung Joo Sung, assisted by an accounts clerk, was keeping records, however inadequate they may be, and the clerk continued to be employed after Mr Sung Joo Sung ceased holding his position. The question is the degree to which that inadequacy is as a result of the plaintiff's conduct.

[382] Whatever its status, the green book kept by Mr Sung Joo Sung was a record of income and expenses for at least the period January - December 1999, which represented about half of the life of the Supporting Committee, and it was a vital document. According to the plaintiff, Mr Sung Joo Sung continued to keep the records after the appointment of Joo Yong Jo as treasurer and up until February 2000 (Daily Transcript 85, 5 June 2007, Day 5) and according to Mr Sung Joo Sung's statement he was doing this until the end of April 2000 (paragraph 20). Since the entries continue until 21 December 1999 (which is after Mr Joo Yong Jo's appointment and just before he signed the form authorising him to sign cheques) and Mr Sung Joo Sung was, according to the Activities Diary and Minutes, still holding a position and coming into the office (and attending a dinner) this means that either he did not keep records for the period 21 December 1999 until the end of February or he has withheld them.

[383] It is not in dispute that Mr Sung Joo Sung not only took the books when he left, but refused to return them to the plaintiff when requested. The plaintiff's evidence was: "A. Yes, and I asked Mr Sung Joo Sung to provide the documents relating to the Olympic committee from May 1998 to February 2000.

Q. Did he provide them? A. No, I didn't get it." (Daily Transcript 85, 5 June 2007, Day 5)

[384] The financial records kept by the Supporting Committee start on 1 April 2000, which is a matter of days after Mr Sung Joo Sung's last appearance at the Committee office on 27 March 2000 and overlaps with his claim to have completed a balance for April 2000. I have dealt with this book (which is generally referred to as "the red book" in the section considering the evidence of the seventh defendant, since he is the person who, on the unchallenged evidence of the plaintiff, wrote these entries, albeit with assistance from the bookkeepers Miss Migi Lee and Sarah Yoo.

[385] The Minutes of Meeting for 2 May show the new secretary-general, Mr Kim, giving a report of the financial statement for the period February to April 2000. This was because Mr Joo Yong Jo was ill (Exhibit 51 p. 28). Did Mr Sung Joo Sung indeed prepare these reports of March and April? If he did, where are January and February? Are these records also records which he took when he left? This brings me to the next issue, which is when and in what circumstances he made the Green Book which he says is his own personal record, available to the fourth and fifth defendant for their audit.

Did Mr Sung Joo Sung give the auditors the green book and if so, when?

[386] According to Mr Park, Mr Sung Joo Sung did give him assistance in the preparation of the audit documents (Daily Transcript 2973, 6 April 2009, Day 64). In consulting him, Mr Park would not only have known, as an employee of the Korean Society, that Mr Sung Joo Sung had been the treasurer of the Korean Society for three years previously. He also knew that Mr Sung Joo Sung had responsibility for paying outgoings, because he had an argument with him about the Committee paying $150 per week rent. Mr Park says in his statement (Exhibit 70, paragraph 59) that it was as a result of these conversations that he knew Mr Sung Joo Sung was keeping records.

[387] Mr Park says, at paragraph 60, that following the plaintiff's claim that Mr Sung Joo Sung had misappropriated sums to the Committee he "approached Mr Sung Joo Sung to discuss the matter with him" and that this let to Mr Sung Joo Sung saying he had been reimbursed from committee funds for money of his own that he had spent on behalf of the Committee. It was then, and only then, that Mr Sung Joo Sung volunteered the green book.

[388] However, the plaintiff's evidence (Daily Transcript 87, 5 June 2007, Day 5) was that when the auditors asked for a meeting at the beginning of November, he said he could not do this because, inter alia, Mr Sung Joo Sung would not give him the green book.

[389] On Day 64 (Daily Transcript 3030-3031, 6 April 2009) Mr Sung Joo Sung said: "Q. Would you hold up the green book. What is that book? A. INTERPRETER: When I was appointed as a secretary-general, they should have been financial director but there was no financial director.

Q. Sorry, when were you appointed again? Just remind me of the date. A. INTERPRETER: I can't recall exactly but it was around January or February 99.

WHEELHOUSE: The witness was in the middle of giving an answer, your Honour. I've told the witness to break his answer up in little pieces to assist the translator. So, he just commenced his answer, your Honour.

A. INTERPRETER: So I make this book, notebook, as my personal notebook to record of things that happen at the time.

Q. Did you make that book available to Mr Park, the auditor, in August 00? A. INTERPRETER: I can't recall exactly but I have show this book to Mr Park, auditor Park, because I had some - my own money included or written in this book. The reason I have done that was because the plaintiff - Sang Cha has made an announcement in the newspaper that I was - Sung Sung Joo, I, Sung Sung Joo, was a thief. So I did it in response or reaction to what he has done."

[390] In fact the article which contained the announcement in the newspaper was the plaintiff's list of donors of 23 February 2001, in which he specifically listed the names extracted from Mr Sung Joo Sung's records during his four February meetings with the fourth and fifth defendants (Exhibit 73). The fourth and fifth defendants had prepared a document Hojudonga called "interim" audit results by 22 December; Hojundonga sets out the interim figures in detail. Were Mr Sung Joo Sung's financial records used for this report, and if not, why not?

[391] The fourth defendant originally said at paragraph 64 of his statement: "During the time when I was preparing my audit I was not shown a copy of the green book produced by Mr Sung Joo Sung or the green book [produced from the records of the plaintiff to Mr Park by Mr Nye, the solicitor for the second defendant] for the purpose of preparing my audit." (Exhibit 70).

[392] However, the fourth defendant changed his evidence about this in 2009 and made a supplementary statement in which he said he saw the green book in "January 2001"(Exhibit 70). This was, however, after the preparation of the interim report referred to in the 22 December 2000 Hojundonga article. This means that the interim report was prepared without the benefit of these records, in circumstances where from the fourth defendant's own knowledge, Mr Sung Joo Sung performed record keeping tasks for the Committee, and the plaintiff had told the fourth and fifth defendant that these were Committee records which Mr Sung Joo Sung was refusing to return. More importantly, the fourth and fifth defendants knew, from information in the Committee's records, that bookkeepers had been hired and paid a salary for most of the life of the Committee. The complaint of the fourth and fifth defendants was originally that these bookkeepers were untrained. Whether they were trained or not, if they kept the records Mr Sung Joo Sung took, these records were likely to be the Committee's records

[393] Ultimately, when considering the challenges to honesty and credibility made by the plaintiff and defendants about each other, the question really is Mr Sung Joo Sung's conduct and his credibility as a witness given his extraordinary conduct in removing the Committee's financial records in or about March 2000.

[394] I should add that in written submissions counsel for the fourth defendant has also accepted that the fourth defendant also saw in early 2001 the other green book, namely the green book prepared by Ms Yoo for the subcommittee between September and October 2000 (Exhibit 7).

Conclusions concerning Mr Sung Joo Sung's credit as a witness

[395] Mr Sung Joo Sung's conduct in poorly maintaining, and then taking, the accounts kept by the Supporting Committee is what the plaintiff says led to the Supporting Committee's accounting problems. What does Mr Sung Joo Sung have to say about this?

[396] Mr Sung Joo Sung claims that he had an argument with the plaintiff in or about late 1999, and said that he did not come to the Supporting Committee offices afterwards (Paragraph 35(b) of Mr Sung Joo Sung's Affidavit). That is inconsistent with the Activities Diary, which records him being there in January, February and March, attending a meeting and a lunch, as well as holding a position on the executive, and with other evidence in this statement concerning his activities as late as April 2000.

[397] However, this difference in time about when he left and why is but one issue on which I do not accept his evidence. In his evidence, Mr Sung Joo Sung made a number of statements concerning financial records that I do not accept as truthful: (a) He gave conflicting and unsatisfactory explanations of the circumstances in which he banked Vice-President Paek's loan into his own bank account, which conduct I find was the real reason for his argument with the plaintiff.

(b) he admitted he had not recorded a number of cash donations but falsely claimed this was because the accounts book was his "personal history" rather than an accounts book (Daily Transcript 3071, 3074, 3076 and 3077, 7 April 2009, Day 65).

Miss Chae had been paid $200 a week to keep these accounts, and this information was confidential information of the Supporting Committee, not Mr Sung Joo Sung's personal history.

(c) Mr Sung Joo Sung claimed he was not obliged to keep the records, and told the plaintiff to keep the accounts (Daily Transcript 3076, 7 April 2009, Day 65). This was not put to the plaintiff and I find it is not only implausible but untruthful.

(d) Mr Sung Joo Sung claimed his money was put into the Supporting Committee and that the plaintiff only put a "little bit" of money into the Committee (Daily Transcript 3074, 7 April 2009, Day 65). The plaintiff's financial contribution was more than $71,000.

(e) He denied keeping and using the cheque book to write a $300 cheque to the baseball association, of which he was Vice Chairman) (Daily Transcript 3064, 7 April 2009, Day 65).

(f) He admitted he kept a separate list of cash donations (Daily Transcript 3074, 7 April 2009, Day 65) and ripped out a number of pages Daily Transcript 3075-3076, 7 April 2009, Day 65 from the book, which he claimed he "didn't keep"(Daily Transcript 3096, 7 April 2009, Day 65). He also gave evidence that since he had contributed his personal money to the committee, if there were cash donations, they need not be recorded every time, as he was simply reimbursing himself: Daily Transcript 3074, 7 April 2009, Day 65)

(g) He repeatedly, and falsely, claimed there was no financial director (Daily Transcript 3076) when he knew that he himself was supervising the bookkeeper Miss Chae, and that Mr Joo Yong Jo was appointed on 1 December 1999 after the Paek loan controversy.

(h) There is some further evidence (as well as the book being out of date order) that this book is a reconstruction. The date 9 December 2000 appears on an entry in this Green Book. Mr Sung Joo Sung at first attempted to say that this should have been 9 December 1999. He then, as witnesses sometimes do, accidentally revealed that this was written "when the auditors stated processing auditing, and I prepared this document for auditors [sic]" (Daily Transcript 3077, 7 April 2009, Day 65).

"A. INTERPRETER: It's from the February 1999 to December 1999.

Q. No, there's a date written at the bottom of the page. What is it? A. INTERPRETER: It's written 9 December 2000.

Q. Yes. A. INTERPRETER: That's the date when the auditors started processing auditing, and I prepared this document for auditors.

Q. That's right. You prepared this document for the auditors. A. INTERPRETER: No, it wasn't.

Q. You prepared that document on 9 December 2000 for the auditors. A. INTERPRETER: No, it wasn't. Mr Cha called me, I was - receive for the cash donations so I wanted to prove that I wasn't, so I sorted out some of the figures and separated them and made a summary.

Q. You wanted to prove you weren't - what, that you didn't misappropriate money or what? A. WITNESS: Yes. A. INTERPRETER: Correct.

Q. Who accused you of misappropriating money? A. INTERPRETER: Mr Cha announced that in the newspaper. I have the copy of the announcement in the newspaper right here with me." (Daily Transcript 3077-3078, 7 April 2009, Day 65)

(i) Mr Sung Joo Sung claimed that he prepared this book to answer allegations made by the plaintiff in the newspaper that he misappropriated moneys, and said he had the newspaper item in which this allegation was made (Daily Transcript 3078, 7 April 2009, Day 65). However, when shown to the court, it turned out to be exhibit 73, which is the list of revised donations published by the plaintiff after the series of four meetings he and the fourth and fifth defendants had with Mr Sung Joo Sung, in which Mr Sung Joo Sung revealed the names of donors in this book (Exhibit 73, 23 February 2000). There is no such allegation in this document, and in the matter complained of which appeared in the same newspaper, the fourth and fifth defendants are in fact recording what Mr Sung Joo Sung has told them about money being owed to him (Daily Transcript 3093 - 3094, 7 April 2009, Day 65).

(j) Mr Sung Joo Sung claims he is the author of the March and April monthly accounts (paragraph 20 of his statement). However, the minutes for 2 May record Mr Kim, who took over his position, presenting these accounts, not on his own behalf but on behalf of Mr Joo Yong Jo, the financial director, who was ill. Mr Jo prepared May accounts, and did so both for the Supporting Committee and the Sports Council (he was their treasurer). Mr Sung Joo Sung was certainly at the Supporting Committee until late March but he was replaced by Mr Kim in April, according to the Minutes. Mr Sung Joo Sung may have had some input into the March monthly account (in which case, where are January and February?) but on the balance of probabilities I do not accept his evidence that he prepared the April accounts. He and other witnesses for the defendant sought to play down the role of Mr Joo Yong Jo as financial director. I find that, given the contents of the May meeting (Exhibit 51 p. 28) this report was prepared by Mr Joo Yong Jo, not Mr Sung Joo Sung.

[398] I find that Mr Sung Joo Sung feared was that with the publication of the list of donors which he knew to be incomplete, suspicion would fall on him as the record keeper at the time many cash donations were made. In those circumstances, I do not accept that the Green Book entries accurately reflect either the bookkeeping for the Committee or the actual document Miss Chae kept.

[399] Mr Sung Joo Sung's evidence on other issues was also unsatisfactory. He sought, in his supplementary statement (paragraph 1), to claim the plaintiff had been rude to and shouted at people in the Committee, such as Mr Hak Soo Cho, the seventh defendant. However, when he was asked about an entry in the Activities Diary describing him as having a dinner with Mr Hak Soo Cho and Vice President Byung Doo Choi, he denied it, saying "I don't know those names" (Daily Transcript 3098, 7 April 2009, Day 65).

[400] In case the witness had misunderstood Mr Evatt's pronunciation, I intervened to help him, pointing out that not only the seventh defendant, Mr Hak Soo Cho's name was there, but also the plaintiff's. He still claimed not to know who they were (Daily Transcript 3098 and 3102-3103, 7 April 2009, Day 65). He denied the entry for 3 February, which showed him coming to the Supporting Committee office in company with Mr Myung Nam Kang, and said he had never heard of this person. (Daily Transcript 3099, 7 April 2009, Day 65). He also denied being at the weekly committee meeting of the Sports Council and Supporting Committee which then took place (Daily Transcript 3099, 7 April 2009, Day 65). He went on to deny all other entries, including one that described him bringing in 100 volunteer forms (Daily Transcript 3100, 7 April 2009, Day 6). Upon being faced with further entries for 6 and 7 March, Mr Sung Joo Sung angrily informed the court he would not answer any more questions as it was a "waste of time" (Daily Transcript 3101, 7 April 2009, Day 65). On being directed to do so, he said the entries were "falsified" (Daily Transcript 3102, 7 April 2009, Day 65).

[401] Mr Sung Joo Sung was also shown the Minutes of Meeting which recorded him attending the 6 January 2000 meeting in the capacity of secretary-general. He then agreed that the plaintiff had asked him to be the vice-chairman (Daily Transcript 3106, 7 April 2009, Day 65) but said he told the plaintiff he would "think" about it and decided not to do it. He then said the signature purporting to be his on the attendance register was a forgery (Daily Transcript 3106-3107, 7 April 2009, Day 65).

[402] I have set out, in the section of this judgment on justification, the reasons why I consider Mr Sung Joo Sung's conduct in dishonestly taking the Committee's financial records is a matter which should be referred to the Director of Public Prosecutions.

[403] The third Secretary-General of the Supporting Committee called by the defendants was Mr Won Kang. He held office only for a matter of weeks, in August - September 2000.

[404] Mr Won Kang is a supermarket cleaner (Exhibit 64, paragraph 1). He was the Acting Vice President of the Korean Society in 1999 and also the Judo Association vice president. He held positions in the Korean Sports Council, which was how he came to know the plaintiff.

[405] The plaintiff asked Mr Kang to become Secretary-General after Mr Sung Joo Sung, the previous incumbent, left. Mr Kang discussed the role of Secretary-General with Mr Sung Joo Sung, and was initially reluctant to take it because he knew Mr Sung Joo Sung and the previous Secretary-General had both resigned (Exhibit 64, paragraph 12). He was concerned that if there were any problems he could be blamed.

[406] He started work as the new Secretary-General on 11 August (Exhibit 51; Exhibit 64, paragraph 12), was introduced to the executive at the meeting of 17 August, attended the lunch with the fourth and fifth defendants on 21 August while they carried out the administrative audit, attended a lunch and a media conference on 22 and 23 August and then went to Korea on 28 August, returning on 5 September. He attended a number of meetings and a press conference (at which he spoke), according to the Minutes and Activities Diary, and signed Expenditure Resolutions.

[407] Mr Kang's evidence related to the following issues: (a) He said he donated either $500 or $1,000 cash to the Supporting Committee for which the plaintiff failed to account in his financial statement; (b) He said that the plaintiff's rudeness and bad conduct towards him caused him to resign from the committee.

[408] Mr Won Kang said there was a donation of $1,000, not $500, from the Honam Society, and that $500 of this money was from him personally. He was asked why he did not tell the auditors at the time if this donation was left off the list (Daily Transcript 2440, 25 March 2009, Day 57). His explanation was that "I didn't look at the newspaper" and "didn't know" how much the plaintiff had put for the Honam Society donation (Daily Transcript 2442, 25 March 2009, Day 57). This is contrary to paragraph 11, where he said that he did read the published lists of donors, noted he was not named, and noted that $500 was listed as a donation from the Honam Hangwoo Society (of which he was president). He knew the Honam society had not made any donation and that this sum was $1,000 and a personal donation from him. It is also contrary to material in the cross-claim where the plaintiff tells the second cross-defendant in an interview Mr Won Kang claimed to have donated $200 (Exhibit Z).

[409] Even at the time the plaintiff was being cross-examined (Daily Transcript 923-924, 8 October 2007, Day 23) about whether the Honam Society had donated $1,000, he was not cross-examined about having misappropriated $1,000. It was explained to the court that the reference to $1,000 was "a typographical error" Daily Transcript 924, 8 October 2007, Day 23). In fact, it seems to have been common ground between the fourth and fifth defendant and the plaintiff that the sum donated by the Honam Society was $650 (Daily Transcript 2439, 25 March 2009, Day 57). That certainly was the figure in both their published reports. Mr Won Kang continued to assert that the plaintiff had published a figure of $500 even after being shown these reports (Daily Transcript 2439-2440, 25 March 2009, Day 5) and to say he was sure the plaintiff had published a report putting this figure at $500. This evidence is hard to reconcile with his explanation of not telling the auditors about his donation not being included because at the time he had not looked at the newspapers and therefore did not know what amount the plaintiff had put.

[410] When the defendants' written submissions were served a claim was made that the plaintiff had misappropriated two sums in relation to Mr Won Kang - the sum of $500 in November 1999 and the sum of $1,000 in August 2000 (page 208). In the revised submissions, the first of these allegations simply had a line drawn through it, without any explanation.

[411] In fact, there is an entry in Mr Sung Joo Sung's Green Book for November 1999 showing $1,000 being donated by "Adviser Kang", as the defendants' written submissions now concede. How the fourth and fifth defendants missed this when Mr Sung Joo Sung was assisting them and letting them look at their Green Book is not clear. However, this is the missing $1,000, and that if the plaintiff had been given access to Mr Sung Joo Sung's green book (and Mr Kang had come forward to complain about this missing donation at the time) this could all have been cleared up and his name added to the list.

[412] Another matter on which Mr Won Kang gave unsatisfactory evidence was the role of the second defendant in the Supporting Committee. Although it is clear beyond doubt that the second defendant stood for election against the plaintiff for the role of chairman, and that thereafter the second defendant was the honorary president of the Supporting Committee, Mr Won Kang denied these facts not once but many times (Daily Transcript 2432-2436, 25 March 2009, Day 57) asserting that the other candidate was a Mr Kim Chun Yong (Daily Transcript 2432 and 2436, 25 March 2009, Day 57). He said the second defendant not only did not make a speech, but was not there (Daily Transcript 2432 and 2435, 25 March 2009, Day 57). He was even more emphatic when he said that the second defendant had had nothing to do with the Supporting Committee thereafter (Daily Transcript 2433, 25 March 2009, Day 57).

[413] Although the second defendant did not often attend court, he was in court during this evidence. Mr Evatt complained, during cross-examination in which he was trying to ask if Mr Won Kang was employed by one of the second defendant's companies as a cleaner, and about the Committee election, that the second defendant was "intimidating" the witness (Daily Transcript 2429, 25 March 2009, Day 57) and that the second defendant "kept nodding". By that time, the second defendant had left the court. Whatever the reason for Mr Won Kang giving this evidence, I find it is untruthful. As to whether the second defendant offered money in his election speech, I note in Mr Won Kang's statement (paragraph 7) he goes on to give an explanation that the second defendant's $300,000 donation was made on two occasions by the second defendant when he was seeking election as president of the Korean Society and that when he was unsuccessful he withdrew that amount.

[414] A matter about which Mr Won Kang gave contradictory evidence was his claim that he was not reimbursed for any of his expenses and that the costs of the trip ($1855 air fare, $6,000 for guide maps and $703 for expenses) came from his "own pocket" (Daily Transcript 2442, 25 March 2009, Day 57).

[415] When shown the documentation for the airfare, he changed his evidence to say he had been given a ticket, and then claimed that the $6,000 had been paid direct to the flag factory and not to him, by way of explaining that he had not been reimbursed (in fact this is inconsistent with the financial records, as Mr Evatt pointed out to him at Daily Transcript 2443-2444 (25 March 2009, Day 57)). He could not, however, explain how it was that he was reimbursed $703 for expenses, and gave a convoluted explanation of money being sent to him in Korea by the seventh defendant as opposed to the Supporting Committee (Daily Transcript 2445, 25 March 2009, Day 57). Again, this is inconsistent with the documentation attached to the Expenditure Resolution.

[416] What is puzzling is that his statement (Exhibit 64 paragraph 25) admitted that the Supporting Committee paid his airfare and gave him funds to cover the printing costs. The statement incorrectly goes on to say that he incurred expenses of $950 for which he was not reimbursed; in fact these expenses came to $703 and he was reimbursed.

[417] Paragraph 25 of his statement contains another matter about which he contradicted himself in the witness box: "My role with the Supporting Committee was in the capacity of a volunteer. I never asked Mr Cha or anyone else to be paid any money as wages for the work I did for the Supporting Committee and I did not receive any money as wages."

[418] However, when Mr Won Kang explained what his fight with the plaintiff was about, it was a dispute about an allowance of $300 a week. None of this had been particularised, so it came as a surprise to everyone from the plaintiff (to whom it had not been put) to the parties' legal representatives.

[419] Mr Won Kang said in his statement that the dispute arose because of his concerns "as to what was happening with the Supporting Committee's financial accounts (Exhibit 64 paragraph 20) and in particular approaching companies for donations more than once. However, the version he have in the witness box was that the plaintiff had offered to give him $300 per week for "meals and petrol" (Daily Transcript 2446, 25 March 2009, Day 57). He claimed the plaintiff in fact offered him the position on the basis that he would be paid this regular weekly amount, and that he had replied "I don't need that money" (Daily Transcript 2446, 25 March 2009, Day 57): "Q. What's this all about a fight with Mr Cha? A. INTERPRETER: We just had an argument.

Q. The argument was that you asked for wages even though it was a voluntary organisation. Is that right? A. INTERPRETER: No, it wasn't about that.

Q. You wanted money for your expenses. A. INTERPRETER: Because initially he said he will - initially because he said he will pay me, so I did ask him whether he was going to reimburse, but I didn't sort of say it in a forceful way. Initially he said he would give me $300 and I said I didn't need to.

Q. What was the $300 for? A. INTERPRETER: He said, "I give you $300 per week for meals and petrol."

Q. That's what you asked for, isn't it? $300 per week for meals and petrol for yourself. A. INTERPRETER: No, I didn't.

Q. And Mr Cha refused, and you started to fight him. A. INTERPRETER: No, it wasn't like that.

Q. And he had to defend himself. Is that correct? A. INTERPRETER: No, it wasn't about the money. It's not because I wasn't paid I started a fight.

Q. Tell us about the $300 per week for petrol and expenses. What was that about? A. INTERPRETER: I can't understand your question.

Q. But you just said so. $300 per week expenses and petrol. What was that about? A. INTERPRETER: For about a month, on a number of occasions, Mr Cha - at the time we were friends - he asked me to become secretary-general and I refused, but in the end I said yes because he was my friend. Mr Cha said, "If you do accept my offer, I will pay you $300 per week for petrol and lunch expenses." So I said, "I don't need them. I don't need that money."

[420] Whether Mr Won Kang gave this generous reply or not (and it must be remembered that this conversation was not put to the plaintiff) I find that he became angry when, several weeks after starting work, he was not paid a $300 allowance. He grabbed the plaintiff and they had a fight (Exhibit 64 paragraph 21). He agreed in the witness box he grabbed the plaintiff first.

[421] Mr Won Kang was unsure when this conversation took place. He initially said it happened before the Olympics but in re-examination thought it might have happened during the Olympics.

[422] Mr Won Kang came to the office for the first time on 11 August and went overseas between 28 August and 5 September. It is likely that he had the fight after his return on 5 September (the athletes were due into the country on 9 September).

[423] This was a committee which, as the chronology shows, was made up of a large group of volunteers who had worked tirelessly since 1998 on homestay, cheerleading, transport and other aspects of the Committee's very busy programme. Mr Won Kang joined this committee a month before the Olympics with no prior knowledge or background of what they were doing. Any request for a weekly allowance without any supporting documentation was out of proportion to any contribution he could have made, particularly as he had just traveled to Korea at the Committee's expense.

[424] I reject the evidence that the plaintiff's conduct in relation to Mr Won Kang amounts to evidence of the truth of any imputation.

[425] It cannot be a coincidence that a number of these witnesses who had disputes with the plaintiff did so because they wanted to be paid a "weekly allowance" (in fact a salary) for "petrol and meals". I also note: (a) Mr Dae Won Kang denied actually taking $200 per week for 10 weeks (Daily Transcript 2305, 23 March 2009, Day 55 but this is supported by an Expenditure Resolution he signed himself;

(b) the plaintiff said that Mrs Park wanted $200 a week (Daily Transcript 590-591, 25 September 2007, Day 18) and as Exhibit A shows, she was in fact paid a small allowance;

(c) the seventh defendant made a number of claims for expenses such as telephone (Daily Transcript 2622, 30 March 2009, Day 59) and regularly claimed $200 per week for transportation and lunch (Daily Transcript 2115, 19 June 2008, Day 54);

(d) Mr Sung Joo Sung was paid a significant sum in early 1999 (Expenditure Resolution 2) and later helped himself to $1,000 of the Paek loan for "expenses" (Daily Transcript 3085, 7 April 2009, Day 65).

[426] The plaintiff was funding the Supporting Committee out of his own company's pocket, including paying the salary of bookkeepers throughout the Committee's lifetime, and it was a constant struggle for him and for the Vice Presidents (who did not ask for allowances of this kind) to find funds for Committee activities: Daily Transcript 323, 13 June 2007, Day 10.

[427] During the time that Mr Won Kang held this position he, like the seventh defendant and Mr Sung Joo Sung, signed a number of Expenditure Resolutions and conducted the financial affairs of the Committee in the same informal way for which the plaintiff is now blamed. This includes the manner in which he failed to keep copies of documentation and receipts, conduct for which the plaintiff is now blamed.

[428] The defendants' complaints about the plaintiff spending excessively on meals needs to be seen in light of requests not only for reimbursement for specific meals but the fact that a number of committee members, notably the seventh defendant, Mr Kang and Mr Sung Joo Sung, were seeking allowances for meals and reimbursement for expenses. Far from counseling the plaintiff to spend less on meals, they wanted more.

Conclusions concerning Mr Sung Joo Sung, the seventh defendant and Mr Kang

[429] The seventh defendant, Mr Sung Joo Sung and Mr Won Kang are not witnesses of credit whose evidence I can accept. This is not because of their claims that the Activities Book and Minutes entries are forgeries, or because they made mistakes about dates and times; these could be the responses of frightened or tired witnesses. The conduct of the seventh defendant and Mr Sung Joo Sung, while in charge of the Supporting Committee's finances, shows that they were independently in charge of recording the Supporting Committee's financial activities, and they have attempted, unsuccessfully to deny it.

[430] It is significant, in my opinion, that although the plaintiff clearly was dissatisfied with the performance of Mr Sung Joo Sung and the seventh defendant, and spoke to both of them about recording cash donations, he was not able to sack or get rid of them. This is an indication of where the real power lay in the Supporting Committee; the plaintiff, whose age and status was below both these persons, was bound by Korean custom to tolerate their behaviour. All he could do was to appoint the Sports Council's treasurer, Mr Joo Yong Jo, as the financial controller over their head.

[431] I should briefly mention the financial director, Mr Joo Yong Jo. He did not give evidence during this trial. What was his role in the Committee, and were the fourth and fifth defendants entitled to exclude him from being consulted or taking part in the audit?

[432] Mr Joo Yong Jo was not only the financial controller of the Supporting Committee; he was also the treasurer of the Sports Council. In the Minutes of Meeting for 17 January 2000 (Exhibit 52) he is listed separately in each of these capacities. He prepared financial statements for the Supporting Committee for the period February to May, according to the minutes; the May statement in the minutes shows he prepared a similar statement for the Sports Council.

[433] Mr Joo Yong Jo may have been initially appointed the financial controller shortly after the Committee was set up (Exhibit SS) but there is little information about what he did, although the defendants in written submissions note some Expenditure Resolutions signed by a financial controller in April 1999. The Minutes (Exhibit 52) show he was appointed financial controller from November 1999, and he was authorised to sign cheques from January 2000 (Exhibit 15) when the new cheque account was opened. Although Exhibit 15 refers to a Mr Ju Young Cho as the treasurer, the address for Mr Ju Young Cho was 51 Tarana Crescent, which is the same address as Mr Joo Yong Jo. The interpreters have explained to the court during this trial that there is no standard Romanisation of the Korean language.

[434] The plaintiff said (Daily Transcript 257, 12 June 2007, Day 9) he left the bookkeeping up to the treasurer Mr Joo Yong Jo. Mr Wheelhouse merely asked if that was Mr Stephen Cho, to which the plaintiff replied that he did not know Mr Joo Yong Jo's Christian name. Mr Wheelhouse SC avoided any reference to Mr Joo Yong Jo thereafter and the statement that the plaintiff relied upon him was not challenged.

[435] A number of the defendants' witnesses, including the fifth defendant, claimed they did not know who Mr Joo Yong Jo was (Daily Transcript 2896-2897 and 2909, 3 April 2009, Day 63), the inference being that Mr Joo Yong Jo had played no part in the Committee's activities. For example, on Day 56, Mr Dae Won Kang says he did not know Mr Joo Yong Jo personally (Daily Transcript 2371, 24 March 2009, Day 56). I do not accept this evidence from any of these witnesses. Mr Jo was not only playing the role of financial director in the Supporting Committee, but he was Treasurer of the Sports Council as well, of which the fourth and fifth defendants were both active members as representatives of the sports of basketball and judo. He not only attended the same Supporting Committee meetings as Mr Dae Won Kang, but they were both on the board of the Korean Sports Council.

[436] The denial by these witnesses of Mr Joo Yong Jo's identity is unlikely to be a mistake due to the effluxion of time. The fourth defendant referred to Mr Joo Yong Jo in his cross-examination of the plaintiff. He told the plaintiff that he had rung Mr Joo Yong Jo the night before and Mr Joo Yong Jo said he had been sacked by the plaintiff. (see Daily Transcript 1290, 17 October 2007, Day 29; this was an allegation made in the fourth defendant's statement which was later deleted). The plaintiff replied: "No, I have never done so and if that person is in Canberra, you can bring him as a witness to ask." (Daily Transcript 2191, 17 October 2007, Day 29). On one occasion I asked Mr Dae Won Kang, who was listing signatures on an Expenditure Resolution, if Mr Joo Yong Jo's signature was on a cheque requisition, and he said it was (Daily Transcript 2279, 23 March 2009, Day 55).

[437] The defendants assert that Mr Joo Yong Jo never signed any Expenditure Resolution (second defendant's written submissions paragraph 21, p. 49). Examples of requests by him for payment include Expenditure Resolutions a-27, a-28, 20, 32, 37, 41, 43, 46, 47, 49, 50, 54, 55, 57, 60, 61, 69, 79, 288 (the James Ahn Academy was his coaching college) and Expenditure Resolution 2-291. Furthermore, he participated in keeping the financial records or in signing cheques. He was one of the two signatories to the cheque account from January 2000 (Exhibit 16), and he also did the banking at times; the plaintiff said that it was because Mr Jo put the $10,000 loan into the wrong account (the one for which Mr Sung Joo Sung was a signatory and had the cheque book) that eight cheques were not met on presentation due to lack of funds: Daily Transcript 375, 14 June 2007, Day 11. Mr Wheelhouse SC's claim that "as far as the second defendant is aware" (written submissions p 49 paragraph 22), Mr Joo Yong Jo did not sign any cheques is disingenuous. He was the only other signatory apart from the plaintiff and by definition any signature on the cheques from January 2000 which is not the plaintiff's is likely to be his.

[438] Mr Joo Yong Jo attended Committee meetings on 6 January, 9 March and 15 March, 6 and 22 April, 12 May and 6 June meetings. At the 15 March meeting there was a business plan prepared for the Olympics. There was a great deal of lively discussion of its contents and it was agreed that the business plan be redrawn by the executive. At the meeting on 6 June Mr Joo Yong Jo presented monthly accounts for May for the Sports Council as well as for the Committee (an earlier report for February - April had been presented by Mr Kim on his behalf as he was away) and the plaintiff announced a newly drawn up organisational chart. He also attended the next meeting, on 21 July, when there was extensive discussion of the SK donation, but not the final meeting of 17 August. The Committee prepared an expenses budget for the Paralympics was sent to the Korean consulate and there were a number of business plans throughout 2000, all of which would have been among the documentation and correspondence seen by the fourth and fifth defendant when they took over the Committee's fittings and office contents, and none of which were tendered.

[439] The defendants submit that the plaintiff "cannot be relieved of his responsibilities" because he was Mr Joo Yong Jo's "supervisor" because if he was not performing satisfactorily the plaintiff could have "terminated" him (written submissions paragraph 23). This is an unrealistic submission given the voluntary nature of these positions. It was clear from the very careful way that the plaintiff went about things that terminating a volunteer in this organisation, where deference to social status and age were at a premium, was a matter of great delicacy.

[440] Furthermore, Mr Joo Yong Jo was operating under a heavy burden. He had no financial records to work from, because Mr Sung Joo Sung kept them. Mr Sung Joo Sung continued to keep the books until 21 December (indeed, up until April, if Mr Sung Joo Sung's statement is to be believed), which was well after the appointment of Mr Joo Yong Jo as financial director, so clearly the expectation was that Mr Sung Joo Sung would continue to do the books but with a financial adviser supervising.

[441] As the treasurer of the Korean Sports Council, Mr Joo Yong Jo was the best person to advise about financial transactions involving the Sports Council such as loans, the circumstances of Supporting Committee donations being used for alleged Sports Council purposes (e.g. Mrs Kim's donation) and the reimbursement of the plaintiff for the sums he claimed. The Sports Council was an incorporated association which, it should be assumed, kept records of these transactions in accordance with its statutory obligations. The fourth and fifth defendant could never have prepared accurate audit records without consulting Mr Joo Yong Jo. Their failure even to consult him is hard to explain given paragraph 140 - 1 of the statement by the fourth defendant: "I simply could not prepare an audit of the Supporting Committee without access of [sic] the sports council documents. The position was especially difficult as Mr Cha had paid money into the sports council account without keeping proper records of this activity. Mr Cha spoke to me with very rude language. He said to me words such as "you bastard I don't want to speak to you.

At exhibit HJP2 tab 21 is an advertisement from the Top newspaper reporting Mr Cha's expulsion from the Sports Council. The publication was made on 30 March 2001. Once Mr Cha had been expelled from the Sports Council, I thought there was nothing I could do to reconcile the two accounts. I felt very insulted by Mr Cha in the way he wouldn't help me complete my audit."

[442] All the more reason, one would think, why the fourth and fifth defendants should seek help from the Sports Council's treasurer, Mr Joo Yong Jo.

[443] Even if the fourth and fifth defendants considered Mr Joo Yong Jo to be tainted in some way by association with the plaintiff, that does not explain their failure to consult the Korean Sports Council board and accountants if they were genuinely concerned that there were irregularities. As the publications after 30 March 2001 by the first defendant (Hojudonga Newspaper) show, the resignation of the plaintiff led to the removal of all Sports Council officials (who are referred to as "Mr Cha's Party" in subsequent publications in Hojudonga, set out in the schedule to this judgment). This would mean that there were people on the Sports Council who were anxious to get to the bottom of things - if there was anything to get to the bottom of. There was every reason why, if there were gaps in the audit, the fourth defendant could have approached those newly appointed, or the Sports Council accountants, or the Sports Council's new temporary auditors (see the 31 March 2000 matter complained of, describing their election), one of whom was well known to both the fourth and fifth defendants, namely the seventh defendant.

[444] Although the fourth defendant refers to having learned of this meeting of the Sports Council through an "advertisement" (actually the 30 March 2001 matter complained of), he was in fact at this meeting, as the evidence of all witnesses shows. It was while he was at this meeting that he assaulted the editor of the Oceanic Review, knocking his glasses to the ground'

[445] If the fourth and fifth defendant could not get this information from the Sports Council while the plaintiff was president, who was president after that, and why did this person not help the fourth and fifth defendants by giving them the records. However, Mr Dae Won Kang, who has been an office bearer in the Korean Sports Council for the last 15 years, including holding the position of President and Vice President continuously since shortly after the plaintiff resigned in 2001, was called as a witness.

[446] The evidence of this witness, a Mr Dae Won Kang, who at the time owned a Korean restaurant in Campsie, is set out in a statement which is Exhibit 62. This statement was originally prepared in 2007 and these dates (for example his age and period of time in the Sports Council) relate to 2007, not 2009. He sets out in paragraph 6 of Exhibit 62 a very long history of being a director of the Sports Council for 15 years as well as being President and Vice President for the past seven years. He participated in the setting up of the Supporting Committee and was appointed a director by the plaintiff shortly after his election (Exhibit 62 paragraph 8).

[447] According to the Minutes, Mr Dae Won Kang was appointed organizing sub-committee member on 1 December 1999, the same meeting at which Mr Joo Yong Jo was appointed Financial Director (Exhibit 51 p. 68). However, in his 2009 statement (but not his 2007 statement) Mr Dae Won Kang challenged this, and said he did not recall such an appointment. The Minutes refer to him giving reports and attending meetings in this role.

[448] Although Mr Dae Won Kang says in his statement he was very busy and "not able to participate to any much greater extent" in the Supporting Committee (paragraph 11 of Exhibit 62), Exhibit 51 contains signed attendance sheets for the monthly meetings following his appointment as Organising Subcommittee chairman on 1 December 1999 confirming his presence (see the meetings of 6 January, 10 February, 15 March, 6 April, 2 May, 6 June, 21 July, 28 July, 16 August). Further, Mr Kang's extent of involvement enabled him to observe that "Chairman Cha checked daily records" (Daily Transcript 2277, 23 March 2009, Day 55).

[449] Mr Dae Won Kang is also referred to a number of times in the Activities diary (Exhibit 52). According to the Activities Diary and Minutes, he played a role in the SK Securities activities, including arranging (on 26 July) a venue for the function and helping to mail out the 428 invitations to members of the Korean community for this function, which the Supporting Committee had agreed would have a budget of $20,000. He specifically asked about the terms of the SK donation, according to the Minutes of 21 July.

[450] He was also in the office on 18 August while Miss Lee was preparing the documents for the administrative audit (noted in the diary as to take place on 21 August) and again attended the office on 21 August and went to lunch with Miss Lee, the fourth and fifth defendants (whom Miss Lee describes in the Activities Diary as spending the day there) and the seventh defendant.

[451] Mr Dae Won Kang challenged all these entries in the Activities Diary, and all his signatures in the Minutes, and said that the references to joint meetings of the Sports Council and Supporting Committee were not on the Attendance List when he signed it (Daily Transcript 2346, 24 March 2009, Day 56). However, these Minutes refer to his reports on the cheer squad (e.g. 2 May) and the suggestion that the reference to the Sports Council was in some way added to this document after he signed it is implausible, not least because executive members from the Sports Council were in attendance at such meetings and Sports Council activities with the Supporting Committee were discussed (Daily Transcript 2346-2347, 24 March 2009, Day 56).

[452] Mr Dae Won Kang claimed that when he signed the record of attendance he was never allowed to look at the minutes, and that he was never sent copies of the Minutes of meeting, although the Activities Diary records the sending out of agendas and the Minutes record the discussion of matters raised in previous meetings (Daily Transcript 2351, 24 March 2009, Day 56). He also claimed not to know the financial director of the Sports Council and the Supporting Committee, Mr Joo Yong Jo (Daily Transcript 2371, 4 March 2009, Day 56), although Mr Joo Yong Jo was appointed to this position at the same meeting, and was also the treasurer of the Sports Council.

[453] Hours of Mr Dae Won Kang's cross-examination were spent in denying that the Sports Council and Supporting Committee met at all, then that he was given notice of these meetings, and then on whether he signed the attendance register. To be more precise, Mr Dae Won Kang was certain the Committee "never" met with the Sports Council (Daily Transcript 2336-2337, 4 March 2009, Day 56) and denied that the Minutes' reference to the two organisations being united in working for the Olympics. He challenged the translation and a day was spent on a retranslation of the phrase in the Minutes "and the Supporting Committee and the Sports Council were merged or came together as a result of that meeting" before eventually (Exhibit 51A) a compromise agreement was reached that the translation should read that the Sports Council and Supporting Committee "should be united in one spirit and cooperate with each other" (Daily Transcript 2325, 24 March 2009, Day 56).

[454] Mr Kang asserted the plaintiff had proposed that these two organizations should be amalgamated and said that the Committee had opposed this because the Sports Council was an incorporated body while the Supporting Committee was intended to end after the Olympics. However, the business card he presented at the end of his evidence shows there is still an unincorporated Olympics Association (although with a slightly different name); he is the chairman of both.

[455] When shown minutes of meeting containing his actual signature (the originals of these minutes still exist) Mr Kang asserted the Minutes had never been sent to him, or that they had been altered after he signed them (Daily Transcript 2347 and 2351, 24 March 2009, Day 56) to change the name of the meeting from "Supporting Committee" to include a reference to the Korean Sports Council added later. When asked to explain why officials of the Korean Sports Council who were not members of the Supporting Committee were at this meeting, he said they had been invited by the plaintiff. After being showed a series of minutes with his signature he continued to say he was "still denying": "A. INTERPRETER: I'm saying it hasn't existed. I'm still denying.

Q. You're still denying it? Look at D1 again-- A. WITNESS: Yeah.

Q. Look at D1 again. It says, "Attendants, 18 people, refer to attachment." You see where it says, "18 people, refer to attachment"? A. INTERPRETER: Yes.

Q. Look at D2. There's the list of 18 people and your name is one of them. A. INTERPRETER: Yes, mine is on the top. The first one.

Q. Correct. You were one of the 18 people who attended the monthly meeting of the Sports Council and the Supporting Committee. A. INTERPRETER: Well, as I said - as it says here on top of the document, it says, "Olympic Supporting Committee list of attendees," so this is what I have attended and this document that you showed me - it's like D1 - is not the sort of document that we were able to - or have a look at it at the time." (Daily Transcript 2351, 24 March 2009, Day 56)

[456] Mr Dae Won Kang specifically referred in both his 2007 and 2009 statements to his lengthy involvement in the Sports Council up to that time, and it is clear that the amount of time he spent as a director, vice-president and president would have made him the logical person to give evidence concerning the Korean Sports Council's reimbursement of the plaintiff, financial arrangements and loans, and just what the relationship between these two bodies were. This did not happen. He gave no evidence of monies being paid by the plaintiff to the Korean Sports Council which should not have been paid, or of loans to and from the Sports Council by the plaintiff that should not have been made, or of any shortfall or wrongdoing by the plaintiff in relation to his record-keeping at the Sports Council, whether in relation to the Supporting Committee or generally (and his comments about the plaintiff in the matter complained of dated 30 March 2001 should be read in this light).

[457] This is a significant omission by the defendants. I note that Sports Council records were amongst the documents the defendants required the plaintiff to translate (Exhibit 76). They were available to be put to this witness and explained by him.

[458] Instead of providing corroboration of these matters, and in contradiction to paragraph 6 of his 2007 statement and 2009 affidavit, Mr Dae Won Kang not only attempted to minimise his role on the Sports Council, he even denied it (Daily Transcript 2367, 24 March 2009, Day 56): "A. INTERPRETER: …At that time I was a vice-president, vice-chairman of the Volleyball Association but this - what you have just shown me - is to do with Sports Council, nothing to do with Supporting Committee.

Q. But you were on the Sports Council. A. INTERPRETER: At that time, you mean?

Q. Yes. A. INTERPRETER: No, I wasn't a member of the Sports Council. I was a vice-chairman of Volleyball Association, not Sports Council."

[459] I have noted, in the summary of parties at the beginning of this judgment, that the Volleyball Association is the organisation for which the second and seventh defendants were successively the presidents.

[460] I found this so astonishing, in light of his statement, that I checked with Mr Wheelhouse SC: "HER HONOUR: … I thought we heard that this gentleman was a member of the Korean Sports Council--

HER HONOUR: In that case, maybe he was - was he at the meeting? Maybe he saw this document and he would have known.

EVATT: But that document was at the meeting that he's signed as being in attendance." (Daily Transcript 2368, 24 March 2009, Day 56)

[461] He went on to repeat that he was not on the Sports Council, and also to say he did not know that the Volleyball players asked the Supporting Committee for $445 for meals: "Q. What was presented to the meeting was the financial statements of the Korean Sports Council for May. A. INTERPRETER: That's not true. It was of the committee.

Q. Did the volleyball players have meals on 18 May valued at $445? A. INTERPRETER: Even if I was - as I mentioned, I was the vice-chairman of Volleyball Association - this, what you're referring to, I was - I have not known. I didn't know.

Q. The question was "Did the volleyball players have meals to the value of $445 on 18 May?" What's your answer to that? A. INTERPRETER: That I do not know. I can't answer. I do not know.

Q. What about on 8 May, the $500? A. INTERPRETER: I don't know anything about that.

Q. What was the secretary-general of the Sports Council? A. INTERPRETER: That I'm not - I don't know because I wasn't involved with Sports Council." (Daily Transcript 2370, 24 March 2009, Day 56)

[462] He also claimed not to know Mr Joo Yong Jo personally, the finance director of the Supporting Committee and treasurer of the Sports Council, although he agreed he had heard of him (Daily Transcript 2371, 24 March 2009, Day 56).

[463] Eventually, in re-examination, he offered the following explanation for these inconsistencies between his statement, the contemporaneous documents and his evidence in court: "Q. Did that position mean that you were on the Sports Council? A. INTERPRETER: No. I wasn't but can I explain.

HER HONOUR: I'd like him to explain. I don't understand what his position on the Sports Council was. Did he attend meetings or what?

Q. In the year 2000 were you a member of the Sports Council? A. INTERPRETER: I wasn't.

Q. Did you hold any position on the Sports Council? A. INTERPRETER: Not at all.

Q. Did you have anything to do with the Sports Council? A. INTERPRETER: Nothing at all.

HER HONOUR: You said only 2000. What about in other years?

Q. What about in 1999? Same position? A. WITNESS: Yes.

WHEELHOUSE: Does that clarify the position for your Honour?

Q. So you have never held any position on the Sports Council? Is that right? Ever? A. INTERPRETER: I'm sorry, I have to go back, right at the beginning. I wonder whether that - the Sports Council, for instance, it works like this. If there is a chairman elected, that chairman will compose the members of the council, and I was the vice chairman of the volleyball association, therefore it's different from participating in Sports Council as a member.

Q. Does that mean that - so you've never been a member of the Sports Council, is that right? A. INTERPRETER: I have been. When Mr Cha was the chairman of Sports Council, I used to travel to out of New South Wales, out of Sydney, and I was a lot of times outside of Sydney when Mr Cha was the president of Sports Council.

WHEELHOUSE: I just need to ask this question clearly.

Q. Have you ever been a member of the Sports Council before 1998? A. INTERPRETER: On many occasions I was.

Q. After May 1998, were you ever a member of the Sports Council? A. INTERPRETER: I have been on many occasions.

Q. But during what period? Do you recall? A. INTERPRETER: While Mr Cha was the chairman of the Sports Council, even if there was an offer, I wasn't involved with Sports Council as such because I was out of Sydney or out of area doing other things.

HER HONOUR: No, what it is that he's saying he was on the Sports Council but he was out of Sydney.

Q. Is that right? A. INTERPRETER: I declined the offer of becoming a member of Sports Council when Mr Cha asked me to become a member of Sports Council, because I was busy.

Q. When was that? A. INTERPRETER: Maybe it was - might have been 97, 98." (Daily Transcript 2379 - 2380, 24 March 2009, Day 56)

[464] This is completely different to his statement and, more revealingly, the business card he gave to me at the end of his evidence: "INTERPRETER: Mr Kang would like to give this card to you.

HER HONOUR: No, judges don't take - first of all, you already gave me your business card once and it's now in packet 16. If you want to give it to me again, I'll add it to packet 16 if you'd like. How about we do that? In that case, give it my court officer and we will put it in packet 16.

INTERPRETER: I am the chairman of Sports Council and I've been in this role in the last five years now.

HER HONOUR: I tell you what, where is this business card? Wait a moment, let's have a look. I think this might be evidence. "The Korean Olympic Committee, Korean Sports Council of Australia." So does this mean this committee is still going, and he is now the president?

HER HONOUR: Thank you, yes. Thank you very much, Mr Kang. In that case, are you tendering that document?" (Daily Transcript 2382, 24 March 2009, Day 56)

[465] The business card, which is Exhibit BBB, is the current business card for Mr Dae Won Kang, showing him as president not only of the "Korea Sports Council of Australia", but a separate organization called the "Korean Olympic Committee". Although this is a different name, it seems likely it would perform similar tasks to the Aus-Kor Olympic Supporting Committee.

[466] What was Mr Dae Won Kang's own standard of record-keeping? This should be an indication of how he considered records should be kept. However, his problems with documentation, including not providing receipts and dealing with cash payments, account for some of the matters for which the auditors blamed the plaintiff: (a) Expenditure Resolution 2 - 337 (16 July 1999) states that Mr Dae Won Kang "holds the receipts" for the $2,100 expended on the inauguration ceremony held in March 1999. That receipt was never produced.

(b) Expenditure Resolution 337 (for $2,160 for meals) notes he has the receipts and Expenditure Resolution 198 ($1,500 for reimbursement to him for guide maps) does not have a receipt either, and instead attaches a letter from him. The defendants blame the plaintiff for these receipts being missing (for example: Daily Transcript 117, 6 June 2007, Day 6; Daily Transcript 238, 12 June 2007, Day 9).

(c) According to Expenditure Resolution 180 he claimed an expense account of $200 per week and was paid a total of $2,000 but he denied that he ever received this money (Daily Transcript 2305, 23 March 2009, Day 55), saying "ask Bob Cha".

(d) He was given the cheque for $1,100 to pay for the Uniting Church letting the cheer squad practice (the cheer squad was one of his responsibilities). He gave $450 to the church and the whereabouts of the remainder was the subject of cross-examination at Daily Transcript 2330 (24 March 2009, Day 56). His failure to pay the church the money owed, when he knew as the Organising Sub-Committee Chairman that it was owed, is what led to the allegations in imputation. Although the minutes clearly identify him as the Organising Sub-Committee Chairman, he sought to blame another person, namely Mr Dung Soo Kim (Daily Transcript 2332, 24 March 2009, Day 56).

(e) He was the person who signed the Expenditure Resolution giving the seventh defendant cash to purchase Olympic tickets. This is dealt with elsewhere in this judgment. He highlighted all his signatures, and it is clear that the relevant portion was added after he signed.

[467] Mr Dae Won Kang said in his statement that although he was not able to participate much in the Committee's activities, he observed that the plaintiff was in charge of the finances because the plaintiff "had the custody of the cheque books". This is contrary not only to the evidence of the plaintiff but also Mr Sung Joo Sung, who agreed he had one of the cheque books.

[468] Mr Dae Won Kang was one of the persons listed by the Activities Diary as having lunch with the fourth and fifth defendant during their administrative audit at the Supporting Committee offices on 21 August 2000 (Exhibit 52 pages 23 - 4). He denied that this was correct.

[469] Mr Dae Won Kang said that he was in charge of raising money for the Supporting Committee and that he flew to Korea at his own expense to do this. However, his affidavit does not identify any person or organization who donated as a result. The only person who did donate as a result of Mr Kang's activities was Mrs Kim, for whom he acted as a tour guided during her visit to Australia during the Olympics. I have dealt with this issue in the section of this judgment concerning the plaintiff's credit.

[470] There is no reference, in Mr Dae Won Kang's statement, to any specific allegation that the plaintiff shouted at staff or a specific occasion when he behaved in a self-righteous manner. Although Mr Kang claims to have been an "infrequent" (paragraph 10) visitor who attended "irregularly" (paragraph 9), that is not what the Committee records show. In fact, they show he was paid an allowance of $200 for ten weeks during 2000 (which he also denied). If he was attending as often as these documents suggest, he would have observed such conduct and should have been able to give specific examples. He did not do so.

[471] Having regard to the unsatisfactory way that he challenged the honesty and accuracy of everything from his own signature to translations of the Minutes, I reject any evidence of Mr Dae Won Kang which cannot be corroborated by reliable evidence. I note, in addition, that he did not give any evidence on disputed issues of fact concerning the Korean Sports Council, in circumstances in which the defendants bear the onus of proof.

[472] It is important to deal with the credit of these witnesses before considering what happened during the audit. The fourth and fifth defendants had no prior experience of auditing and were dependent upon the seventh defendant and Mr Sung Joo Sung in particular to help them perform this task, which was frankly beyond their capabilities, even if the records had been in good order.

[473] As the summary of events set out above shows, it is only by careful comparison of the accounts of each of the parties with the contemporaneous documentation that what in fact occurred can be discovered. Even if I uncritically accepted the evidence of the defendants and their witnesses, it is so long ago that many events have simply been forgotten. Whenever there is an inconsistency between a contemporaneous document and the testimony of a witness, I propose to regard the contemporaneous document with the care recommended by Ipp JA in his article ("Problems with Fact-finding") on witness credit. This brings me to consideration of the entry in the Activities Diary concerning when the administrative audit (as opposed to the financial audit) started.

When did Mr Park and Mr Lee start to prepare the audit?

[474] The fourth defendant's written submissions dismiss the entry in the Activities Diary stating that Mr Park and Mr Lee came to the office on 9 August 2000 as "plainly wrong" and goes on to assert that any claim that an audit was carried out that day is wrong, especially as the time given is 10 pm (Exhibit 52, Committee Activities Diary, page 23)

[475] However, the Activities Diary does not say that the audit was carried out that day. There are not one but three entries in the Activities Diary relating to visits by the fourth and fifth defendants during August 2000. They are:

(a) 18 August - preparations "for the administrative audit" to take place on Monday 21 August. The matters for administrative audit are listed. They are:

"1. Supports for the Korean team 2. Matters of cooperation with SOCOG 3. Matters of harmony and unity of the Korean society"

This paints a very clear picture of what this role of the administrative auditor (the fourth defendant) really entailed.

(b) The entry of 21 August reciting that Mr Park and Mr Lee commenced their administrative and accounting audits of the Committee, and that they attended a lunch that day at Chamnamujib Restaurant with the plaintiff, Byung Doo Choi, Stephen Cho, Won Kang, Dae Won Kang, Ok Ja Park and Mi Gi Lee. That evening there was an officials meeting which some of these persons (eg Dae Won Kang) attended and Expenditure Resolution 199 approving $800 for Stephen Cho's "traffic expenses and meals" was passed.

(c) On 31 August there is a note of a call from "Hak Ju Park" (the fourth defendant) requesting that written details of supports required of the Society (guests, reception, entertainment, cheer etc). should be forwarded. This is noted in the Activities Diary as being reported to the chairman, Vice Chairman Stephen Cho (the seventh defendant) and there is a note "Assisted by chairman Duk Im Kim." This last request may, of course, have been made for the purposes of the Korean Society, but it shows that Mr Park had access to information he wanting just by making a telephone call.

[476] The plaintiff said in evidence (Daily Transcript 87, 5 June 2007, Day 5) the fourth and fifth defendants did not attend to carry out the audit prior to their requests in correspondence in October. The defendants assert this is evidence the plaintiff challenges the accuracy of the Activities Diary. However, the plaintiff's lack of knowledge of the events recorded in the Activities Diary is in my view consistent with my finding that the plaintiff did not in fact control the Committee finances and left these matters up to those whom he had put in charge of the keeping of records. It was the seventh defendant and the bookkeeper, Miss Migi Lee, who were recorded as going out to lunch with the fourth and fifth defendants, and the bookkeeper who is recorded as setting up the book and records for inspection.

[477] The question of who paid for the audit is also not clear. Were the fourth and fifth defendants performing this work voluntarily like the other volunteers, or were they paid an allowance, and if so by whom and on what basis?

[478] According to the fourth defendant, members of the Korean community whose names he could not remember paid him cash so that he could carry out the audit, and also paid for his lunch and dinner. People whose names he could not remember also paid the advertising costs for placing the audit reports in three newspapers (no accounts were ever tendered to establish that advertising fees were paid) as well as the $1,000 cash the fourth defendant said he gave to an accountant (whose name he could not remember) for advice: "Q. They said, "We've come to the office of the Korean society to pay you and Mr Lee money to do your audit." Is that right? A. INTERPRETER: No, they didn't.

Q. What did they do? A. INTERPRETER: No, because they came and they saw that we were working really hard and toiling, so they thought, "This is for the encouragement", and there it is.

Q. This is all lies, isn't it? A. INTERPRETER: It's not.

Q. Did you give receipts? A. INTERPRETER: It wasn't a situation where you had to give receipts.

Q. Did they pay you cash? A. INTERPRETER: Yes.

Q. You gave no receipt? A. INTERPRETER: No, this was just encouragement; for encouragement and for our hard work.

Q. That's the very thing you've accused Mr Cha of doing, isn't it? Taking donations without a receipt? A. INTERPRETER: No, in case of Mr Cha, it was - the donations were to support Korean athletes, so the expenses had to be done for that purpose and a receipt had to be given, and it should have been properly recorded.

Q. And you should have given receipts for money paid to you? A. INTERPRETER: No." (Daily Transcript 2678-2679, 31 March 2009, Day 60)

[479] One of the points made by Mr Bonney Lee (an accountant) in his evidence was that there was no real communication between the plaintiff and fourth and fifth defendants of the kind to enable the exchange of information for an audit to take place (Daily Transcript 2143-2144, 16 June 2008, Day 52). What kind of communication was there?

Contact prior to publication of the reports by the plaintiff on 24 November

[480] Between August and October the Olympic Games took place. The day after these ended, on 30 October, the fourth and fifth defendants wrote to the plaintiff saying they wished to carry out the financial audit on 1 November: Exhibit UU. I note the following significant comment at the end of this letter: "We would like to thank the volunteer committee members for the Sydney Olympics, Paralympics and the National Games ." (emphasis added)

[481] The significance is that the fourth and fifth defendant would, during their audit, object to all expenditure by the Committee in relation to these "National Games" as being outside their bailiwick.

[482] The plaintiff's evidence was that he told them this date was too soon, and said he would have everything ready by 1 December 2000 (Daily Transcript 87, 5 June 2007, Day 5). He also said he told them that Mr Sung Joo Sung had taken the green book. He prepared the accounts and decided to publish them in the Korean newspapers, which he did on 24 November 2000.

Contact after 24 November 2000 and before the Hojudonga article of 22 December 2000

[483] Following publication on 24 November, a meeting took place on either 1 December (according to the plaintiff) or 3 December (the auditors). The defendants say the plaintiff only gave them the red exercise book he had kept, the Expenditure Resolutions and the organisational chart. The plaintiff said he gave them everything except the CFM records. There were further meetings on 10 and/or 17 December 2000. About a week later, the first defendant, claiming to have received an interim audit report on 21 December, published a summary of its contents in Hojundonga 22 December 2000 (the text of this article is set out in the schedule of publications at the end of this judgment).

[484] The fourth and fifth defendant deny that there was an interim report in December 2000. The fourth defendant says the first defendant stole some documents from his desk while he was out and based the Hojudonga article on them.

[485] Questions of when an auditor's report is prepared, by whom and to whom it was given are rarely an issue in legal proceedings relating to their contents. The fourth and fifth defendants were not professionally trained auditors and they did not perform many of the simplest tasks, such as dating successive reports and providing them to the organization that was audited for comment.

[486] The first question is who participated in the preparation of these reports. The fourth defendant's's affidavit evidence right up to the moment he entered the witness box said that he was the one who checked all the receipts and put his seal and signature on missing documents but, as set out elsewhere he withdrew this evidence. In the witness box, the fourth defendant sought to minimise his role, saying he did not write the "Olympic Support Committee Auditing Result Notice" that was published in the newspaper (Daily Transcript 2635-2636, 30 March 2009, Day 59). Doing the best I can to resolve his conflicting answers, he was "involved" (Daily Transcript 2635-2636, 30 March 2009, Day 59) in its preparation but did not write it.

[487] If Mr Park's role was minor, who did prepare the report? Mr Lee said that he was in fact the person who signed all the comments on the cheque requisitions and placed his red seal on the receipts (Daily Transcript 2872, 2 April 2009, Day 62).

[488] The cross-defendant said that when he read the 22 December 2000 article in Hojudonga he telephoned the plaintiff, Mr Park and the first defendant, Mr Oh. Mr Park denied giving the information to Mr Oh (Daily Transcript 1767, 30 May 2008, Day 45) and Mr Oh said he had thrown Mr Park's report into the rubbish basket (Daily Transcript 1767, 30 May 2008, Day 45). The plaintiff asked for this report in correspondence and in conversations with the fourth and fifth defendants but said he never received it.

What information did the fourth and fifth defendants have before they started the audit?

[489] The fifth defendant (Exhibit 71(2)) under the heading "Contacts with Mr Cha", sets out a statement about these contacts. He states that he and the fourth defendant "wrote a number of letters" to the plaintiff and attaches letters dated 28 November 2000, 18 and 24 January and 5, 13 and 20 February 2001. He also says that he telephoned Mr Cha on "many occasions", the dates of which he cannot now recall, saying words to the effect "Mr Cha, please provide to me the documents necessary to enable me to carry out the audit." (paragraph 4). He goes on to say that although he requested the plaintiff "on many occasions" to supply "the documents" to me, the plaintiff "delayed" supplying documents of the Supporting Committee and Sports Council and never provided CFM documents.

[490] None of these letters written by the fourth and fifth defendants complains of delay. In fact there were four meetings in February 2001, and the plaintiff confirmed this in an advertisement he placed in TOP, the second defendant's newspaper, dating and describing his four February meetings with the fourth and fifth defendants and providing a revised list of the donations, specifically noting Mr Sung Joo Sung's Green Book (which the fourth and fifth defendants had access to by February 2001) as the source for these (Exhibit 73).

How were the fourth and fifth defendants able to write any financial report capable of being called "interim report" by 21 December, and what was the urgency?

[491] Mr Park and Mr Lee say they returned the documents initially offered to them by the plaintiff and only took possession of the financial records on 10 December 2000. Yet they were able to prepare an interim report before 22 December, according to Hojudonga. Hojudonga refers to an interim report which was presented to the Australian Korean Media Association on 21 December 2000. If I were to accept Mr Park's version, namely that Mr Oh came to his office while he was out and stole documents to write the story, then Mr Oh either saw a completed interim report of unusual clarity or is gifted with accounting skills possessed by nobody else in this litigation, in that he was able to understand, immediately, exactly what the interim report should say, even though it had not been written.

[492] The fourth defendant still invited this thieving journalist to the press conference on 27 January. In addition, it is stated in the matter complained of there was a conference on 17 January, and in the matter complained of dated 23 February 2000 it is stated that "the audit team" (the fourth and fifth defendants) had "announced publicly in Kyo Min Korean Magazine" a total of $501,000 which was revised, in the 23 February article, to $442,000. According to the contemporaneous records, the fourth and fifth defendants made a series of public announcements of interim findings in "some newspapers" (to quote line 65 of the matter complained of dated 26 January 2001), ranging from $450,000 on 22 December to $501,000 on 23 February.

[493] Is it likely that these two untrained persons could produce an interim report on these confusing and inadequately kept records in a matter of days? The answer must be no, especially if they did not have Mr Sung Joo Sung's records for 1999 (as claimed by the fourth defendant in his affidavit) until January or later, or the plaintiff's CFM cheque butts, or the Sports Council records without which the fourth defendant "simply could not prepare an audit" (paragraph 40 of his statement).

[494] I do not accept the fourth defendant's claim that the documents published by the first defendant were stolen by Mr Oh and then misconstrued by him as being the interim audit report. The fourth and fifth defendants published a document they called an "interim report" to "some" newspapers (to quote the 16 January 2001 matter complained of). Both these reports gave figures for donations that were not just tens of thousands but in fact hundreds of thousands of dollars higher than the plaintiff's published list on 23 February 2001 (Exhibit 73), as well as being unexplained. This is a very substantial error by any auditor.

[495] The problem for the fourth and fifth defendant was that as a result, not only did the plaintiff call for the document and said he wanted an audit by a qualified certified practising accountant, but the second cross-defendant came onto the scene. He telephoned the first defendant and asked for a copy of this report (Daily Transcript 1767, 30 May 2008, Day 45), to which he said the first defendant replied that he had put it in the waste paper basket.

[496] I have had the benefit of seeing the cross-defendant in the witness box. I also had the benefit of seeing the reaction of the fourth defendant to his evidence. The cross-defendant is a tertiary-trained, English-speaking editor of a Korean newspaper established long before TOP and which, from the description he gave of its informative contents, probably enjoyed some respect in the Korean community. He was also a bitter enemy of the second defendant, with whom he was involved in litigation in the Supreme Court. When he and his newspaper editor came to the meeting of the Sports Council in March 2001, the fourth plaintiff assaulted the Oceanic Review newspaper editor and knocked him to the ground. As the transcript demonstrates, on both occasions when the cross-defendant gave evidence in court, the atmosphere was very tense. (He was cross-examined twice because Mr Wheelhouse SC requested this.) The cross-defendant was, in my opinion, someone who the fourth and fifth defendants found intimidating because of his verbal skills.

[497] Concerning these interim reports, I should note a change to the evidence on an important issue during the trial. Just prior to the fifth defendant giving evidence, he sought to amend the statement he made to include a provision that he offered to provide the plaintiff with the interim report: Daily Transcript 2830-2831, 2 April 2009, Day 62. I did not permit the leading of this evidence, because it was never put to the plaintiff that he was offered the interim report. All of the contemporaneous documentary evidence (including the references in the matters complained of to the plaintiff asking for it: see for example lines 17 - 23 of the matter complained of dated 23 January 2001) is inconsistent with any such offer being made. In addition, I note the cross-defendant published an open letter to the fourth and fifth defendants in his newspaper asking for this information (this is one of the publications in the cross-claims), and he was not supplied with this information either.

[498] In his statement at page 84 (Exhibit 70), the fourth defendant refers to a draft report prior to 1 March 2001. He says "I no longer have a copy of the draft report". The matters complained of dated 26 January and 23 February also refer to draft reports, with different figures for the total income of the Committee.

[499] The fourth and fifth defendants have not produced any of these interim reports to the court. I do not accept the claims they make that they have lost them. It would not be possible to prepare the final report without referring to the interim report; I note, for example, that the 23 February article refers to the donations total of $501,000 (an increase on the original sum of $450,000 in the 22 December publication) being revised to $442,000.

[500] Having interim audit results being published in Hojudonga that were clearly wrong, the fourth and fifth defendants found their report being challenged not only by the plaintiff (who was calling for a certified public accountant to review the findings) but by the cross-defendant's Korean language newspaper. They then had to sit down and audit the accounts properly. The first thing they did was to accuse the plaintiff of refusing to provide documents, a surprising claim from auditors who had prepared and published anything capable of being called an interim report.

[501] On 18 January 2001 the fourth and fifth defendants wrote to the plaintiff complaining there was "no indication of the period and no confirmation by the auditors" in the financial statement in the newspaper, adding "We point out that this was not an advisable action by you". This is clearly their principal concern. They ask the plaintiff to provide cheque butts, deposit books, bank statements, cash book or cash receipt and payment book, the general journal, general ledger and trial balance and "other evidence documents".

[502] This is a very general list, especially from auditors who have already prepared an interim report. What did they really want? They had already learned from the plaintiff that the cash book kept by the bookkeeper, Miss Chae, and by Mr Sung Joo Sung, contained records for the period February - 21 December 1999, and they knew Mr Sung Joo Sung, not the plaintiff, had this.

[503] On 22 January 2001 the plaintiff wrote to the fourth and fifth defendants saying "I would like you to show the proof of accounts report that you opened [sic] to the public through Hojudonga dated on 22 December 2000, because the content of the reported accounts differs greatly from that of the actual accounts" and sets out five matters he would like the auditors to explain (exhibit KK). These were: (a) Proof of how the $52,874 claimed not to be deposited into the account was calculated; (b) Details of the items totalling $178,868.15 said not to have been used for committee purposes and the reasons for saying this; (c) How the amount of $50,981 for private loans and interest is calculated; (d) The reasons for the Committee's cheques being dishonoured 4 times and proof of this; and (e) The list of donors and donated amounts totalling $450,000.

[504] The plaintiff went on to say that if he was not given the proof by 30 January he would regard "the rumour that you are acting emotionally" as the truth. The plaintiff added that he noted that this was said to be an interim report and asked them to advise him of the final report by 30 January 2001. If the auditors could not do this, they should hand over all materials on that date "so that a professional auditor can go through it."

[505] A copy of this letter was sent to "relevant organisations" which the plaintiff said in his evidence, and in his Reply (on the issue of malice), included the second defendant.

[506] Instead of answering these questions or providing the interim report, the auditors sent a letter dated 24 January asking the plaintiff to come to a meeting on 27 January "for the submission of materials and the final confirmation." (Exhibit 70 tab 23).

[507] On 5 February 2001 the fourth and fifth defendant sent another letter (Exhibit 11) expressing concern that there was "no indication of the financial period" for the Supporting Committee financial statement. This is a specious complaint, since it is clear from the Financial Statement published on 24 November 2000 that it covered the whole of the Committee's short life. The complaint is made that the auditors cannot carry out the audit as there were "not enough accounts records, documentary evidence, financial records, transaction statements and a lack of bookkeeping" asserting they "had not received any cooperation". This is a very general description, and by now the auditors were well aware Mr Sung Joo Sung had the accounts book covering the period up to December 1999.

[508] What is of significant interest is the claim that there should be $127,775.35 in the bank account. Where did the fourth and fifth defendants get this information from? It was never mentioned in the trial. Although the fourth and fifth defendants had no trouble totalling the donations and outgoings in December 2000, and again in January and February 2001, the contention of the defendants is now that it is "impossible to ascertain" the total figure of donations to the Supporting Committee. This submission requires them to ignore not only the plaintiff's estimate of $311,466.15 in the advertisement he published on 23 February 2001 (Exhibit 73), but also the fourth and fifth defendant's own interim audit reports volunteering all these precise amounts.

[509] On 7 February 2001 the plaintiff held a meeting in the office of the Sports Council. This is the first of four meetings referred to in Exhibit 73. On 8 February 2001 the plaintiff sent a press release to the Korean media (Exhibit HH). Its terms are important not only to the defence of justification but also to issues of malice. The plaintiff said that "contrary to the purpose of the press conference" the fourth and fifth defendants did not give details of the $500,000 income and "just said that they would disclose it to the newspapers unilaterally". He went on to note that the total income of the Committee was around $350,000 and he had disclosed the names of the donors. He then said: "If the auditors make a public announcement that the total income is $500,000 without my prior confirmation, this will seriously mislead the Korean community, as Hoju-donga has given false reports twice. Therefore I would like you to bear in mind that if you place an advertisement as the two auditors suggest, defamation or similar legal action will follow."

[510] On 13 February 2001 the fourth and fifth defendants sent two further letters to the plaintiff (Exhibits 12 and 13). The first complained of "insufficient documents" and asked for "additional documents as soon as possible" without saying what they were; the plaintiff was simply warned:" We would like you to know that we cannot accept any unaccounted expenses."

[511] The second letter, in response to the plaintiff's letter of 9 January 2001, noted the requirement for a regular general meeting and asked for a temporary general meeting. If the plaintiff refused, the fourth and fifth defendants would ask "the promotion committee of the general meeting" to convene one.

[512] This second letter is the first one to bear a document number (01-Kam-005). This would suggest there is a correspondence file set up by the fourth and fifth defendants; if so, it was never produced. However, the next document in the chain is a letter of 20 February 2001 which has document number Han-Hoo-01-009 (Exhibit 70) This letter informs the plaintiff that the auditing team drew up a balance sheet "in the presence of the executives, auditing team and various witnesses over two days, 16th and 17th"." They say they "do not have any confirming data" and ask the plaintiff to come to the meeting at 1 pm on 21 February with the Sports Council's statement "in order to substantiate the debits and credits from the Sports Council to Support Committee."

[513] Although it is repetitious to do so, I want to note that this correspondence is inconsistent with the proposed evidence of fifth defendant that the plaintiff was offered the interim report (Daily Transcript 2830-2831, 2 April 2009, Day 62). At Daily Transcript 2830-2832 (2 April 2009, Day 62) Mr Seck and Mr Wheelhouse SC drew my attention to transcript pages 1272, 1275 and 1287. In fact, the fourth defendant did not give a copy of the interim report to anyone, according to his evidence. In the course of explaining why he did not call a meeting of the Supporting Committee to consider the interim report, the fourth defendant listed the persons whom he thought needed to consider his report, namely the first three defendants' newspaper reporters, the Korean Society (of which the second defendant was chairman), certain Sports Council officers and members of the Korean community with an interest in the Sports Council: "Q. What did you do to have a meeting called? A. INTERPRETER: I asked to have supplementary documents. That's my answer.

Q. Do you understand the question I'm asking you? A. INTERPRETER: I do not understand your question.

Q. The question is, "What did you do to have a meeting called to consider your report?" What don't you understand about that? A. INTERPRETER: I collect - the reporters were called, and the previous chairman and Sports Council, and the previous Korean Society chairman and Sports Council chairman, and the Korean community members who had interest in the Sports Council.

Q. Did you have a meeting with those people? A. INTERPRETER: Yes.

Q. Did you show them your reports? A. INTERPRETER: No." (Daily Transcript 2645, 30 March 2009, Day 59)

[514] The fourth defendant went on to say that he and the fifth defendant presented their version, and the plaintiff presented his version. However, it is clear from the report in the matter complained of covering this meeting, and from the contents of the conversation, that the claims referred to in the "interim" report referred to in Hojudonga had been abandoned. It sounds as though some sort of revised report was being presented, but if there was a further document presented at this meeting this document, too, has neither been discovered nor tendered.

[515] In Exhibit 73, a notice the plaintiff sent to TOP newspaper, the plaintiff has set out the four meetings with the fourth and fifth defendants, what was discussed, what was agreed, and the revised list of contributors. He sat through four meetings (7, 14, 17 and 21 February) with these auditors despite being the target of a series of publications in both Hojudonga and TOP making grave allegations of financial dishonesty. In Exhibit 73 the plaintiff says: (i) "Although $340,000 as a total amount of donations was published in November last year, Honjudonga published that $450,000 were [sic] donated according to the auditor's interim audit data, suggesting that I misappropriated $100,000. While I was waiting for its basis of the calculation, they now further published the total donations were $500,000, with its calculation basis. Anyone can tell they are fakes at a glance. $116,600 which were paid by my company cheques are put as income and $23,000 is double-calculated by adding up totally irrelevant data. Further, despite the fact that the donation from KBS was directly transferred into the account, they added the $10,500 based on the rumour of receiving 20,000,000 won, which is part of its double calculations of $174,600 , to make up the $500,000.

(ii) Suggesting the basis of the double calculations of $174,600 and expecting it to be recognised as reasonable, I held four meetings with Korean community elders and auditors on 7th, 14th, 17th and 21st February but confirmed nothing but emotional confrontations. Whether the donations of $310,000 I published or those of $500,000 from the auditors are correct can be clarified by the data. This is a matter for which neither to fight by mobilising people nor to argue in the presence of many people [sic]. I suggest a certified accountant finally confirm who is right.

(iii) In the previous meeting on 21st February, the auditors asserted they only acknowledged $70,000 as amounts double calculated despite double calculated amounts of $174,600 and this can also be clarified based on the data by a professional. Therefore I formally request to the auditors that they provide a Korean accountant they choose in Sydney with all the data by 28 February. If they fail to choose by the time, I will choose and notify.

(iv) In November last year, total of $340,000 was published as donations but it mistakenly included loan amounts. Correcting this and amending other errors found to date, I publish the final total donations of $311,466. Please check them out and let me know if there are any discrepancies or omissions of donation amounts by personal donors or organisations. You may also give information to the media with your name put.

(v) I have laid down my life for the Sports Council for the last five years and did my best for the Olympic Supporting Committee. Please trust me and help to ensure there will be no victim who is wrongly accused by the tyranny of the majority. I think I have but myself to blame and humbly tender my apologies for the trouble."

[516] Why did not the fourth and fifth defendant take up this suggestion of appointing a Korean accountant of their choice? The fourth and fifth defendants were clearly out of their depth. The answer in the matters complained of is that the fourth and fifth defendants considered the appointing of a certified practising accountant as a sign that they could not be "trusted" (their explanation for not accepting accountant Mr Bonney Lee's offer of free auditing assistance was that he could not be "trusted" - Daily Transcript 2686, 31 March 2009, Day 60). However, if the fourth and fifth defendants were concerned that money was missing, or had been misspent, appointing an auditor of their choice would be an ideal way to resolve the problem.

[517] The fourth and fifth defendants were initially adamant that they did not receive assistance from an accountant. At paragraph 89 of Exhibit 70 the fourth defendant says: "We did not seek professional accounting help at the time. As we were both experienced businessmen and generally aware of accounting practices, after discussions between ourselves we decided we could prepare a draft audit report without assistance."

[518] Whatever experience the fourth and fifth defendants had in accounting, they did not have enough experience to keep copies of their interim reports, their audit expenses (these are non-existent) and information from persons responding to their inquiries. They do not even seem to have had a file labelled "Audit."

[519] The fourth and fifth defendants had correspondence to put in this file. After their audit reports were published, they received an angry letter from SK Securities dated 21 March 2001 confirming the Committee had agreed with SK about expenses to come out of the donation and "I heard from other members of the Aus-Kor Support Committee that the decision was made in expectation of these figures from the beginning". Mr Kim of SK concluded his letter by saying that it was "a pity that such unfavourable news would last another six months in the Korean community in Australia and I think it is not wise to burden the corporations or persons in charge who have supported the organisation" (Exhibit 70).

[520] What correspondence did they receive before they prepared their report? There is only one letter, the Korean Veterans Association dated 9 December 2000 addressed to the plaintiff and also to the fourth and fifth defendants confirming their receipt of a donation of $500. Their complaint was not that they had not received this donation, but that the Supporting Committee had not done the same in 2001. (It was put to the plaintiff (Daily Transcript 927, 8 October 2007, Day 23) that this donation had nothing to do with the Supporting Committee and that it was made for reasons of personal vanity (line 50 - 55)). They also complained, importantly, that their $500 donation to the Supporting Committee is not listed. This donation was a cheque for $500 dated 5 October 1999. The plaintiff was absent in Korea between 7 - 23 October 1999 and it was on 7 October that the cheque banked; however, it was banked in the Sports Council account (Exhibit 77), as the defendants admit in their written submissions (pages 227 - 9). This could be because the Korean Veterans Association, which refers in the text of the letter to the "Olympic Support Committee" and the "Olympic Games or Sports Council" (paragraphs 1 - 4, Exhibit 70 tab 15), made out the cheque to the Sports Council, or sent it to the Sports Council, or that somebody made a mistake at the Supporting Committee office while the plaintiff was away.

[521] The plaintiff said in evidence that he never saw this letter and was unaware of this allegation at the time. It is addressed not only to him but to the fourth and fifth defendants. Given its explosive claims of a missing donation being in writing (it is the only such allegation in writing), it should have been the leading allegation. However, the 1 March 2001 report does not refer to a missing donation of $500 from the Korean Veterans Association. The likely answer is that when the matter was looked into in December 2000, it was quickly realised that the cheque had been paid, properly, into the Sports Council account, which is why there is no claim or receiving and investigating a complaint of the plaintiff stealing the donation from the Korean Veterans Association. In other words, the fourth and fifth defendants withheld exculpatory evidence.

[522] Even though the Korean Veterans Association confirmed they did receive a donation of $500 in June 1999, the 1 March 2001 matter complained of accused the plaintiff of stealing this money. Under the heading "General expenditure of donation", the fourth and fifth defendants complain of donations the plaintiff made to organisations that were outside the purposes of the Supporting Committee, such as a donation for the Korean Olympic team's pre-soccer matches in South Australia just before the Olympics (a claim it is hard to take seriously, and which was abandoned at the trial), referring to "$500 to Veterans Association (Veterans Association claims they did not receive it)" (1 March 2001 matter complained of). This is contradicted by the Korean Veterans Association'a acknowledgement that they did receive it. However, the fourth defendant repeated this allegation in the witness box: "Q. Are you saying the money that was recorded as being paid to the Korean veterans was not paid; it was actually a fraudulent entry? A. INTERPRETER: Yes, because there is a letter from the chairman saying that in that, to that effect.

HER HONOUR: I see. So in fact - am I right in assuming, Mr Wheelhouse, that that's part of your case, that the money that is supposed to have been paid to the Korean Veterans Association was in fact put in somebody's pocket and never paid to them? Is that right?

WHEELHOUSE: Yes." (Daily Transcript 3012, 6 April 2009, Day 64)

As is set out in the particulars of justification below, the defendants now run these allegations together, to claim "$500 donated to the Supporting Committee by the Korean Veterans Association in or about June 1999". However, despite the evidence of the fourth defendant, it is not claimed that the plaintiff misappropriated that sum by putting it in his pocket and never paying it to the Korean Veterans Association. What is claimed is that the Supporting Committee should never have made this donation in the first place, because it was outside the purposes of the Supporting Committee, and that by using Supporting Committee and Sports Council funds to do so (the plaintiff was reimbursed for this donation by the Sports Council), the plaintiff is guilty of misappropriation. (I have dealt with this very serious allegation in detail in the section of this judgment on the particulars of misappropriation).

[523] The only other letter, from the Sydney Korean Uniting Church in Australia, was not received until 12 August 2002 (after these proceedings were started) saying they received $A200 on each of two occasions (11 June and 30 July 2000) and not $1,100 as claimed. The records show a cheque for $1100 cash was drawn; it is not in dispute this cheque was given to Mr Dae Won Kang. This was a matter the fourth and fifth defendants should have raised with Mr Dae Won Kang. I note a reference in the 16 March 2001 matter complained of to another newspaper, the Christian Review, having written an article pointing out errors about the 100 missing wristwatches.

[524] This is not a lot of documentation of proof of missing donations. The only letter received before the interim or final reports were prepared, namely the Korean Veterans Association letter of 9 December 2000, turned out to relate to a donation they had given to the Korean Sports Council, and confirmed they did receive a donation from the Supporting Committee in June 1999. SK Securities wrote, after publication of the matters complained of, to tell the fourth and fifth defendants to stop making these claims. The Christian Review wrote an article saying the 100 wristwatches had indeed been given to the North Korean Olympic Team. This is not a promising start. What kind of oral complaints were made by individuals who telephoned or came to see them?

[525] The fourth and fifth defendants kept no records of dates and contents of conversations, and telephone numbers to corroborate by whom they were contacted, or what the results of their investigations of any such complaints were. Some results are known from the matters complained of. For example, the fourth defendant rang the sports official in North Korea to check if the North Koreans had received watches, and reported his denial (although this error was later corrected by another Korean newspaper, and was clearly wrong). This was a foolish inquiry to make, when there were other persons who could have provided information about the Supporting Committee finances, such as the Sports Council and Mr Joo Yong Jo.

[526] In response to a question about how many reports, interim and final, did he prepare, Mr Park said (Daily Transcript 2634, 30 March 2009, Day 59): "Initially one statement, and then two supplementary statements were made later". He could not remember the dates of any of them (Daily Transcript 2634-2635, 30 March 2009, Day 59). However, he then said that the intermediate report was dated 22 December and that this is the document referred to in the Hoju Dong A newspaper article which published a summary of its contents.

[527] Mr Park claimed that "This one was not provided to the newspaper by the auditors in the process of - I was preparing documents, the general manager of Hoju Dong A, he came to see me. At the time I was out….At that time there were lots of papers lying around on my desk. The general manager of Hoju Dong A, he got some papers and he published…This is not formally given to [sic] by me - to that person by me." (Daily Transcript 2637, 30 March 2009, Day 59).

[528] Although Mr Park denied it (Daily Transcript 2637, 30 March 2009, Day 59) ("This is not formally given to by me - to that person by me") he went on to admit "we gave it to all three papers, but it was only printed in Hoju Dong A" (Daily Transcript 2637, 30 March 2009, Day 59). However, he then contradicted this evidence and said "In the process of working, the Hoju Dong A general manager came to see me, I was preparing some documents and Mr Oh, the general manager of Hoju Dong A, stole it" (Daily Transcript 2638, 30 March 2009, Day 59), and did not have authority to publish it.

[529] Mr Park was next asked how it came to be in TOP Weekly. This time his explanation (eavesdropping) fell short of theft, but he still denied giving them the report: "Q. Did you send that to TOP Weekly? A. The reporters came and filed this report.

Q. Did you give it to the reporters? A. It's not that I provided, it's that the reporters heard the conversation between myself and the plaintiff.

Q. Did you give that to the reporter? A. No.

Q. You did not? A. They heard what we were talking, and they wrote it. They compiled this report.

Q. You didn't compile that report? A. No" (Daily Transcript 2638, 30 March 2009, Day 59)

[530] The claim of theft by the Hojudonga reporter is also inconsistent with the notice of meeting dated 24 January 2001 sent to the plaintiff by the fourth and fifth defendants states: " In relation to the interim audit report which was published in Hoju Dong A Il Bo on 22nd December 2000, you are requested to come to a meeting for the submission of materials and the final confirmation." (Exhibit 70 tab 23, emphasis added).

[531] I am comfortably satisfied, on the Briginshaw standard of proof, that the fourth and fifth defendants prepared a series of reports, each giving a widely different total for amounts received by the committee, and making serious accusations about the plaintiff which the fourth and fifth defendants have either deliberately destroyed and/or are withholding in breach of their obligations to give discovery.

[532] Were any of these reports ever presented to the Supporting Committee or to the Sports Council? At Daily Transcript 2645 (30 March 2009, Day 59) Mr Evatt asked what steps the auditors took to have a general meeting of the Olympic Committee called to consider the audit reports. The fourth defendant said that "the reporters were called, and the previous chairman and [sic] Sports Council, and the previous Korean Society chairman and Sports Council chairman, and the Korean community members who had interest in the Sports Council" (Daily Transcript 2645, 30 March 2009, Day 59).

[533] If the Olympic Committee was indeed the separate entity it was alleged to be, the persons to call to this meeting would have been the Olympic Committee office bearers, including not only the plaintiff but also the Financial Director, Mr Jo, who had been appointed in November 1999 and had (as the fourth and fifth defendants clearly knew) overseen the accounts until November 2000. In addition, any prior persons who filled this position, such as Mr Sung Joo Sung, could have been shown the interim report and asked for comments and explanations.

[534] However, when Mr Park had the meeting with these people, whether they were the right people to see the report became irrelevant, because he did not show them any of the audit reports (Daily Transcript 2645, 30 March 2009, Day 59). When asked why not, he said he was still checking the plaintiff's papers to see if they were correct.

[535] What did happen at the meeting was that the auditors "presented the papers and explained" (Daily Transcript 2646, 30 March 2009, Day 59), as did the plaintiff. The plaintiff's version had been published in the newspaper so everyone knew what his figures were. However, there is no suggestion that multiple copies of the audit report were distributed to the meeting. In particular, the audit report was not given to the plaintiff before it was published in the newspaper, so that he could call a meeting of the Supporting Committee.

[536] Although people who attended the meeting were not given the reports, in order to understand what was happening at the meeting, the fourth and fifth published their final reports in all three Korean newspapers because "the auditors were elected at the general meeting amongst the Korean community of 50,000 - 200,000 people, because auditors were elected amongst that many number of people" (Daily Transcript 2646, 30 March 2009, Day 59). The fourth defendant went on to say that the Supporting Committee "was for the Korean community" (Daily Transcript 2647, 30 March 2009, Day 59). Many of the items he disallowed as "unjust" were payments to community organisations such as the Korean Veterans Association.

[537] Mr Evatt asked Mr Park about the provision in the Constitution that the auditors report to a meeting of the Supporting Committee (Daily Transcript 2652-2653, 30 March 2009, Day 59). Although Mr Park had a series of meetings with persons who were committed members during February and March 2001 it was "to explained [sic] how the report is made" (Daily Transcript 2652-2653, 30 March 2009, Day 59) and not to ask the Supporting Committee, some of whom may have had invoices or explanations, to help get to the bottom of things.

[538] Although Mr Park did not give the Committee copies of the report, he considered it was his duty to publish it in "three papers, Hoju Dong A, Korean Herald, TOP" because "I was elected by Korean community, 52 - ten hundred thousand people" (Daily Transcript 2654, 30 March 2009, Day 59). (I note this is contrary to his assurance at the commencement of the s 7A jury trial to the court, through his counsel, that the report was not published in TOP - see my judgment of 27 July 2004). He said that he had authority under the Constitution and that "if I do not report to Korean community through paper then I am negligent in my duties" (Daily Transcript 2655, 30 March 2009, Day 59). When asked to identify what part of the Constitution, he pointed to the headline for the article which says "Kor-Aus" (KorAus Supporting Committee for Sydney 2000 Olympic Games) (Daily Transcript 2655, 30 March 2009, Day 59). This most likely means that because it is a Korean community activity the Korean community had a right to know about it, even though donations to Korean community organisations were considered by the auditors to be outside the purposes of the Supporting Committee

[539] A number of witnesses who gave evidence said they attempted to resolve the matter by constructive suggestions such as having the books properly audited, but they were not listened to. Exhibit J records that Mr Bonney Lee, an accountant who was the president of the Golf Club, said this. Mr Lee confirmed in his evidence that he telephoned the fourth and fifth defendants to offer to do an audit without charge (Daily Transcript 2139, 16 June 2008, Day 52). His evidence was that the plaintiff agreed to this, but the fourth and fifth defendants did not answer his telephone messages (Daily Transcript 2141, 16 June 2008, Day 52). Mrs Michelle Bae, who was not cross-examined, said she made a suggestion to "Mr Hak Joo Park, who's here", indicating the fourth defendant, that there should be a mediation and reconciliation (although of a cultural, rather than a financial, nature) (Daily Transcript 1702, 28 May 2008, Day 44). The fifth defendant later agreed in evidence that it was a wiser thing to do to have the books properly audited before publishing the materials in the newspapers (Daily Transcript 2959, 3 April 2009, Day 63).

[540] The evidence concerning Mr Bonney Lee was as follows: "Q. Mr Bonney Lee. Why wouldn't you accept his help? A. INTERPRETER: As I said, I can't remember that at all, but if that was true - that he told me that what you just suggested to me - I would have said, "No." The reason being, Lee..(not transcribable)..very close friends.

Q. So what? A. INTERPRETER: Therefore I would have not accepted that.

INTERPRETER: Therefore I would have not accepted that.

Q. Are you a close friend of Mr Cha? A. INTERPRETER: No, I mean that person--

Q. What's being a close friend of Mr Cha got to do with-- A. INTERPRETER: Because we wouldn't be able to trust him as an auditor." (Daily Transcript 2686, 31 March 2009, Day 60)

[541] However, the fourth defendant made the surprising claim, contrary to paragraph 89 of his statement (and contrary to the evidence of the fifth defendant), that an accountant had in fact been consulted. Who was this accountant?

Did an accountant help the fourth and fifth defendants?

[542] The fourth defendant is not an accountant; he studied physical education at a university in Korea and taught physical education there for 16 years before coming to Australia. He ran a travel agency for a while (Daily Transcript 2672, 31 March 2009, Day 60) and then worked fulltime as a cleaner and then as a secretary-general for the Korean Society from 1999 to July 2001, when with the second defendant's assistance he set up a contract cleaning business, Jemi, at Woolworths. The fifth defendant ran a sushi restaurant.

[543] There is no doubt the fourth and fifth defendants received assistance from the seventh defendant because this is set out in their statements (e.g. paragraphs 51 and 91) as well as Mr Sung Joo Sung. Did they receive advice from a professional? There is a reference in one of the publications to the accounts being prepared by a "professional person".

[544] The first suggestion that the fourth and fifth defendants consulted an accountant was made by the second defendant. Although he had trouble remembering what day it was or when he had come to court for these proceedings (Daily Transcript 2124, 16 June 2008, Day 52), he was sure the fourth and fifth defendants had consulted an accountant: "A. INTERPRETER: As far as I understand, the auditors examine and investigated the documents and also, based on that, as well as the articles in the newspaper, they have published what they have found and I also remember they have actually checked the contents by an accountant." (Daily Transcript 2089, 12 June 2008, Day 51)

[545] One of the things the fourth defendant objected to about the financial report published by the plaintiff was that "he reported as if they were audited by auditors, but they were not." (Daily Transcript 2675, 31 March 2009, Day 60). This clearly rankled with him. Mr Evatt asked at Daily Transcript 2658, 30 March 2009, Day 59 about the fourth defendant's statement in the report published in TOP on 9 February 2001 that he wished to emphasise the audit was "done by a professional person". The fourth defendant had stated categorically in his 7 June 2007 Statement that he and the fifth defendant were experienced businessmen so they decided not to consult an accountant (paragraph 89). Mr Evatt put it to the fourth defendant that he wished to convey the misleading impression that a professional accountant had "done" the report. The fourth defendant said: "My report was sort of inspected, so to speak, by a professional person. So he commented on my report, whether the report was done correctly or not. So that's what I meant. I paid that professional advice for [sic] $1,000." (Daily Transcript 2658, 30 March 2009, Day 59)

[546] When asked who this professional accountant was, the fourth defendant first said he was "now in Korea" and then "I forgot his name now."(Daily Transcript 2660, 30 March 2009, Day 59). Mr Evatt asked how, if he could not remember this gentleman's name, he could be sure he was in Korea and the fourth defendant replied "Five years ago I was told that he said he was going to Korea" (Daily Transcript 2660, 30 March 2009, Day 59). His explanation for not saying this before was that "I was never given a chance to say about this" and when it was pointed out that there were 150 paragraphs in his affidavit he said "I just remembered."

[547] The fourth defendant went on to say that this gentleman whose name he could not remember had come to Australia from Korea for three months and was living in Blacktown. "Someone" (Daily Transcript 2661, 30 March 2009, Day 59) had referred the fourth defendant to him and he met him. He could not remember if he withdrew money from his account, but said that he paid him in cash and did not get a receipt. When asked why he did not pay $1,000 to a Korean accountant who lives in Sydney, the fourth defendant said "I wanted to be proper" and that "a Sydney-based accountant would have cost me a lot more." (Daily Transcript 2662, 30 March 2009, Day 59). A call for all documents (including reimbursement for the $1,000 paid and any receipt or Expenditure Resolution) could not be answered. All the fourth defendant did was to bring to court previous versions of his statements, which all contained paragraph 89 which said to the contrary (Daily Transcript 2668, 31 March 2009, Day 60).

[548] At Daily Transcript 2676 (31 March 2009, Day 60) Mr Evatt asked the fourth defendant what documents he showed the Korean accountant. He said that the accountant was shown "overall documentation". He did not show the Korean accountant his own documents headed "Expenses Suspected to be Falsified", "Donations which cannot be used for committee donations" or any of their actual work product. He explained "the overall shape or structure that we need to follow" and "detailed sort of articles that he showed us to look at" (Daily Transcript 2677, 31 March 2009, Day 60). He did not give any written advice or documents such as pro forma auditing spreadsheets. Nor was he there very long; he just "popped in for a little while" for one to two hours on two days (Daily Transcript 2677, 31 March 2009, Day 60). He did not ask for payment, "we gave him that amount" to cover both his time and the cost of petrol for his car (Daily Transcript 2677, 31 March 2009, Day 60).

[549] On being asked about who "we" was, the fourth defendant said that he and Mr Lee, the fifth defendant, paid him $500 each (Daily Transcript 2677-2678, 31 March 2009, Day 60). However he then said "If I can put it simply, there was [sic] some donations by Korean residents in Sydney, so out of that we paid to him" (Daily Transcript 2677, 31 March 2009, Day 60). These donations were made because "we, as an auditor, did a lot of work, and people in Korean [sic] thought we needed a bit of assistance, so some people gave money for us to buy meals and so on." (Daily Transcript 2678, 31 March 2009, Day 60). There are no records of the payment, no receipts and he cannot remember any of their names. These benefactors also paid for the insertion of his reports in the newspaper as advertisements (there are no receipts from the newspapers for these payments made by the auditors).

[550] However, the fourth and fifth defendants did have documents giving precise details that they could have shown this accountant. They had estimates for the amount of donations, and as at 5 February 2001 (Exhibit 11) they thought there was still $127, 775.35 in the bank. Since the matter complained of published on 26 January 2001 gives the interim figure of $501,650.00, this would suggest that the fourth and fifth defendants had decided the Committee had spent $373,874.65. This actually resembles the figure of $373,876.00 in line 19 of the 26 January 2001 matter complained of. The auditors thought the following sums had been spent: 1998: $ 10,829.00 1999: $ 78,874.00 2000: $284,172.00 [551] This is followed by a list of matters on which money should not have been spent, which totalled $120,000 (line 28 of the 26 January matter 2001 complained of). When this wrongfully spent item was reimbursed, there would be a profit of $175,000, according to line 29, although this may be my misunderstanding of the translation. If the plaintiff had to return the $120,000 that was misspent, and this was added to the $127,775.35 total donations that either were (or should be) in the bank, even allowing for some overlapping in the plaintiff's favour, this is more than $200,000 profit (the total of these two sums is $247,775.35).

[552] Whether the unknown accountant was from Korea or an Australian, if he saw any of these profit figures, he would have had to have given two pieces of advice. The first would have been to advise of the tax and related consequences (including the requirements for PAYG and GST) and the second would have been that consideration should be given to report such a large sum of missing money to the appropriate authorities.

[553] Why did the fourth and fifth defendant choose to consult this unnamed accountant for a few hours to obtain fundamental accounting principles when they already had final figures of this kind?

[554] At the Sports Council meeting (where the plaintiff had to resign, according to the 30 March 2001 matter complained of), the cross-defendant asked the defendants why were they wasting their time when they could get an accountant to look at the accounts, and said he was told this was not necessary because the second defendant would investigate: "A. And then, I - or any moment, I say to him [Mr Park, the fourth defendant], "Why you waste time to find out this affair, why don't you employ accountant?" But Mr Yoong Hwa Lee said "Please, give power to Jai Kun Lee, OK, Jai Kun Lee will investigate."

Q. Sorry, Mr Kim, just so we're not confused. Before you said something, could you explain where you said that? Was that in the meeting, or-- A. In the meeting." (Daily Transcript 1769, 30 May 2008, Day 45)

[555] The "Mr Lee" referred to is the second defendant. It was put to the cross-defendant in cross-examination that this part of the conversation was not said. I suspect Mr Richardson was putting it to the cross-defendant that the whole of this conversation did not occur, and not just the reference to his client, so I shall treat his questions as if that were the case.

[556] There is definitely no love lost between the cross-defendant and the second defendant. However, from my observation of the cross-defendant, his comment about not wasting their time and getting a professional accountant is just the sort of annihilating remark he would make. As to whether the reply referred to the second defendant investigating, the fourth and fifth defendants specifically say in the first of their audit reports, as I have noted elsewhere, that they have consulted the second defendant as a "mediator" because of his role as honorary chairman of the Supporting Committee and Chairman of the Korean Society. I regard that statement by them as corroborative of what the cross-defendant has said.

[557] After several months of meetings with the plaintiff and these secret interim reports, the fourth and fifth defendants were at last able to provide their report. They did so by publishing it in the three Korean newspapers in three instalments starting on 1 March 2001.

[558] The expert evidence cannot help me answer this. Mr Finney said he was not briefed to carry out an audit. He noted firstly that there were so many incomplete documents and secondly that he does not believe there were sufficient information to draw a conclusion as to what Mr Park and Mr Lee did (Daily Transcript 3154 - 3155, 8 April 2009, Day 66).

[559] The text of the matters complained of dated 1, 9 and 16 March 2000 constituted the audit report, according to the evidence of the fourth and fifth defendants (Daily Transcript 1247, 16 October 2007, Day 28; Daily Transcript 2640, 30 March 2009, Day 59). I have set out, in the section of this judgment concerning the defence of comment, the substantial errors of fact in many of the factual statements in these publications giving rise to the imputations.

[560] A significant omission from the report is analysis of the overheads, such as rent, telephone and fax, regular outgoings such as newspaper advertising, significant "one-off" expenses such as moving office, and salaries for bookkeepers. Many of these expenses would be known to the fourth (and, for that matter, the second) defendant because the rental and telephone expense up to August 1999 were Korean Society-related expenses (where the fourth defendant worked), the newspaper advertising costs related significantly to the second defendant's newspaper, and the moving costs were incurred after the fourth defendant told the Supporting Committee to find other accommodation.

[561] However, what about the accounting information in this document? The fourth and fifth defendants prepared a number of schedules. The fourth defendant refers to these from paragraph 116 onwards of his statement and the folders for the fourth and fifth defendants can be found at Exhibits 70 and 71 respectively. These schedules are set out in annexures to their statements and comprise the following: (a) A list which the fifth defendant claims is a list of all the people who telephoned him to complain that their donations were not recorded in the plaintiff's advertisement (Exhibits 70 and 71 tab 3). This is more likely to be a list of all the persons whose names were omitted, following the discussions the plaintiff and defendants and examination of Mr Sung Joo Sung's book (see Exhibit 73).

(b) A schedule of each cheque, with information about whether there was an Expenditure Resolution and receipt (Exhibit 70 and 71 tab 5);

(c) A list of all cheques and amounts by cheque butt entry (Exhibit 70 and 71 tab 6). This document is so similar in style to the list prepared by Miss Yoo for the Supporting Committee I have difficulty accepting the fourth and fifth defendants' assertion that during their meetings with the plaintiff they were not shown this document, especially as a copy of it appears amongst the documents they provided for translation for Mr Deokkon Kim.

(d) A list of expenditure regarded as not proper expenditure of the Supporting Committee headed "Inappropriate actions during the tenure of Mr Cha that had to be repaid [sic]" (Exhibit 70 and 71 tab 7).

(e) A second list, entitled "List of suspected false expenses" (Exhibit 70 and 71, tab 8).

(f) A list of dishonoured cheques (Exhibit 70 and 71, tab 9).

(g) Alleged "earnings omissions" (to use the language of paragraph 122 of the fourth defendant's affidavit). Examples of these "unreported donations" are the Korean Veterans Association and Mrs Kim.

(h) A list of payments the auditors did not consider were within the Supporting Committee's activities as set out in its Constitution, entitled "Unclear Expenses". This is at tab 11 of both Exhibits 70 and 71.

(i) A list of payments the fourth and fifth defendants considered the plaintiff should repay to the Committee. Precisely why the plaintiff should repay the $21,142.90 that went to the Sports Council (as opposed to asking the Sports Council to return this) was never explained. The other two sums were $1,890 which he should personally repay and $30,282.55 for excessive gifts and entertainment.

(j) Prior to the publication of the first audit report, the fourth and fifth defendants published a summary of all their investigations. This is at tab 12 of Exhibit 70 and 71.

[562] The reader of an audit report would want to know what the figure was for income, what the figure was for outgoings, whether there was any money left over (or any claim for a shortfall) and if there is money left over, how much and where it is. That was certainly my wish throughout the trial but despite the length of the trial (and written submissions) the defendants never told me. The defendants in written submissions (paragraph 22, page 308) assert it is "impossible to ascertain… the precise quantum of donations" despite the plaintiff having published on 23 February 2001 (in Exhibit 73) the revised total of $311,466.15 at the end of his list "breakdown of actual donations". The plaintiff having given this estimate publicly by publishing it, in the second defendant's newspaper in the week prior to the publication of the "audit" reports of 1, 9 and 16 March 2001, the onus lies on the defendants to disprove this figure, not merely assert that it is "impossible to ascertain".

[563] The fourth and fifth defendants, in Exhibits 70 and 71 tab 12, provide what seems to be a final adding up. There is a total of $351,676.56 from which there are expenses of $249,152.87 and that the balance, after deduction of $71,143.38 (which is money the plaintiff sought in reimbursement) is $31,380.31. The plaintiff was in fact paid about $60,000 of the amount he claimed, so the Supporting Committee should have a profit of about $40,000 as well as fittings (computer, water cooler and office furniture). However, despite my inquiries about audit report figures (e.g. Daily Transcript 2284 2 April 2009) I never heard any evidence about whether there was a debit or credit and what happened to the money (or fittings, although I note the fourth and fifth defendants recommended giving them to the Korean Society in the 1 March 2000 matter complained of).

[564] A number of the financial calculations and claims made by the fourth and fifth defendant are simply wrong. Exhibit 71(2) Tab 13 shows an analysis by the fifth defendant of suspected false expenses. Mr Evatt took the fourth and fifth defendant through these in detail. I summarise some their admissions below. "Expenses suspected to be falsified" (Exhibit 70 and 71, tab 13)

Exhibit 70 Tab 13 sets out "expenses suspected to be falsified":

(A) and (B): The reference to "interest on private loan of $14,881" and "repayment of $20,000" contains a number of errors. First of all there is the assertion that there is "no record" in the Supporting Committee records, Mr Sung Joo Sung's green book clearly shows the loan provided by Vice-President Nan Yoon Paek. Mr Sung Joo Sung was one of the people consulted by the fourth and fifth defendant, and it was from this loan that he took $1,000 for his own purposes. This was what led to the confrontation between himself and the plaintiff. There was no "pretext" that Mr Paek loaned $15,000 to the Supporting Committee. Nor is it the case that all the bank statement show is a $9,000 deposit by Mr Paek on 15 November. Mr Paek made two loans, one of $10,000 in October 1999 and one of $5,000 in November, in the circumstances described elsewhere in this judgment. Allegations made under paragraph (A) and (B) of "expenses suspected to be falsified" are inconsistent with Mr Sung Joo Sung's green book and information which Mr Sung Joo Sung could and should have provided to the fourth and fifth defendants.

In re-examination, the fourth defendant was asked to give an example of information he obtained from Mr Sung Joo Sung's records. The one transaction he could remember was the Paek loan. Mr Park said: "15 November 99, and also there is a date, 25 November, $5,000 has been donated; but Sung Sung Joo's book says it's a deposit by Pak [sic], vice-chairman" (Daily Transcript 3014, 6 April 2009, Day 64). If he had access to Mr Sung Joo Sung's book, this directly contradicts the assertion that there is "no record" in the Supporting Committee records of this loan. In addition, the payment into the bank of these sums is clear from the cheque deposits for November 1999. Mr Sung Joo Sung's green book merely confirms the source. If the fourth and fifth defendant had been conscientious auditors, they would have checked Mr Sung Joo Sung's NAB account to see if other missing sums could be located there, and they would have mentioned Mr Sung Joo Sung's conduct in their report.

(D) Exhibit 70 and 71 tab 13 contain a list of expenses for which the auditors "cannot help but be suspicious as the expenses are unclear in their ostensible reason for payment" is set out at paragraph (D) (see Exhibit 71(2) Tab 13). The fourth and fifth defendants effectively conceded in cross-examination (Daily Transcript 2770-2784, 1 April 2009, Day 61).that all of these had supporting documentation such as Expenditure Resolutions or CFM cheque butts:

Ledger no. Date paid Reason for payment Amount paid Explanation 3 18/5/98 Committee $1,000 CFM cheque number 402848 (see Exhibit 70 - financial statement for May 1998) 4 19/5/98 Credit $520 This amount was for the officials meeting at Min Sok Chon - CFM cheque number 402859 12 31/7/98 Cash used $1,000 This was used by Vice-Chairman Choi - Cheque number 402953 17 4/8/98 Money borrowed $1,720 This was money used for committee activities - cheque number 402999 33 1/3/99 Credit $500 Inauguration expense 55 9/8/99 Money borrowed $500 CFM cheque number 200074 56 15/8/99 Cash & cheque $280 CFM cheque number 200079 63 6/9/99 Cash borrowed $900 Payment of head official's wage - cheque number 200093 74 10/11/99 Credit $1,500 Meal at Shinchon Restaurant - cheque number 403804 76 12/11/99 Money borrowed $1,365 Described by Mr Sung Joo Sung as "newspaper and money borrowed" - cheque butt 403858 81 25/11/99 Money borrowed $500 Deposit of $5,000 (703860) from Korean Society - In the course of cross-examination, the fourth defendant agreed that this was in fact an error. Item number 81 is not $500 "Money borrowed" but the $5,000 donated by the Korean Society. The typist has accidentally copied in the "Money borrowed" figure and the handwritten original shows it is $5,000. This is a typing error. (Daily Transcript 2781-2784, 1 April 2009, Day 61) 82 26/11/99 Money borrowed $500 CFM cheque butt 403886 (Daily Transcript 2766, 1 April 2009, Day 61) 83 28/11/99 Money borrowed $500 CFM cheque butt 403859 (Daily Transcript 2766, 1 April 2009, Day 61) 88 23/12/99 Cash $500 CFM cheque butt 403945 (Daily Transcript 2766, 1 April 2009, Day 61) 102 7/2/00 Credit $520 Official's meeting expenses - cheque number 200218 (Daily Transcript 2766, 1 April 2009, Day 61) 103 9/2/00 Money borrowed $1,500 CFM cheque butt (Daily Transcript 2766, 1 April 2009, Day 61) 108 3/4/00 Cash used $300 CFM cheque butt 20029 (this cheque number, which I have taken from the fourth defendant's own records, probably omits a digit). (Daily Transcript 2766, 1 April 2009, Day 61) 112 7/4/00 Business trip to Korea $2,080 CFM cheque butt (Daily Transcript 2766, 1 April 2009, Day 61) 113 8/4/00 Cash used $390 CFM cheque butt (Daily Transcript 2766, 1 April 2009, Day 61) 116 14/9/00 Money borrowed $1,310 CFM cheque butt (Daily Transcript 2766, 1 April 2009, Day 61) 119 28/9/00 Cash used $500 Credit Union cheque butts referred to this (Daily Transcript 2785, 1 April 2009, Day 61) 121 3/5/00 Belmore Health $3,005 Credit Union cheque butts referred to this (Daily Transcript 2767, 1 April 2009, Day 61) Foods 122 4/5/00 Credit $386 Although the fourth and fifth defendants described these as "No payment evidence", in fact the fourth defendant conceded that this was covered by Expenditure Resolution 97 (Daily Transcript 2770, 1 April 2009, Day 61). 128 25/5/00 Cash used $300 Although the fourth and fifth defendants described these as "No payment evidence", in fact the fourth defendant conceded that this was covered by Expenditure Resolution 97 (Daily Transcript 2770, 1 April 2009, Day 61). 135 4/6/00 Credit $600 Although the fourth and fifth defendants described these as "No payment evidence", in fact the fourth defendant conceded that this was covered by Expenditure Resolution 97 (Daily Transcript 2770, 1 April 2009, Day 61). 137 6/6/00 Committee account $10,000 Although the fourth and fifth defendants described these as "No payment evidence", in fact the fourth defendant conceded that this was covered by Expenditure Resolution 97 (Daily Transcript 2770, 1 April 2009, Day 61). 138 13/6/00 Money borrowed $500 Although the fourth and fifth defendants described these as "No payment evidence", in fact the fourth defendant conceded that this was covered by Expenditure Resolution 97 (Daily Transcript 2770, 1 April 2009, Day 61). 140 14/6/00 Credit $704 Although the fourth and fifth defendants described these as "No payment evidence", this is in fact covered by Expenditure Resolution 86. 149 15/6/00 Money borrowed $500 This is supported by CFM Cheque Butt entry. Mr Park agreed the plaintiff has spent this amount, but he cannot accept this as being a reasonable expense (Daily Transcript 2770, 1 April 2009, Day 61) 154 19/6/00 Credit $4,470 Although the fourth and fifth defendants described these as "No payment evidence", this is in fact covered by Expenditure Resolution 87. 158 3/7/00 Karaoke credit $1,860 Although the fourth and fifth defendants described these as "No payment evidence", this is in fact covered by Expenditure Resolution 94. 161 5/7/00 Credit $877 Although the fourth and fifth defendants described these as "No payment evidence", this is in fact covered by Expenditure Resolution 102 (Daily Transcript 2770, 1 April 2009, Day 61). 18 28/9/98 Calls to Korea $66.20 These items are all covered by CFM cheque butts (Daily Transcript 2771-2775, 1 April 2009, Day 61). 23 17/11/98 Calls to Korea $155.75 These items are all covered by CFM cheque butts (Daily Transcript 2771-2775, 1 April 2009, Day 61). 39 14/4/99 Calls to Korea $218.84 These items are all covered by CFM cheque butts (Daily Transcript 2776, 1 April 2009, Day 61). 41 10/6/99 Calls to Korea $82.80 These items are all covered by CFM cheque butts (Daily Transcript 2771-2775, 1 April 2009, Day 61). 43 21/6/99 Calls to Korea $227.21 These items are all covered by CFM cheque butts (Daily Transcript 2771-2775, 1 April 2009, Day 61). 62 31/8/99 Calls to Korea $92.45 These items are all covered by CFM cheque butts (Daily Transcript 2771-2775, 1 April 2009, Day 61). 65 20/9/99 Calls to Korea $154.84 These items are all covered by CFM cheque butts (Daily Transcript 2771-2775, 1 April 2009, Day 61). 70 21/10/00 Mobile phone bill $747.40 These items are all covered by CFM cheque butts (Daily Transcript 2771-2775, 1 April 2009, Day 61). 72 28/10/00 Calls to Korea $472.26 These items are all covered by CFM cheque butts (Daily Transcript 2771-2775, 1 April 2009, Day 61). 73 29/10/00 Sports Council $104.00 These items are all covered by CFM cheque butts (Daily Transcript 2771-2775, 1 April 2009, Day 61). phone bill 99 3/2/00 Calls to Korea $203.62 These items are all covered by CFM cheque butts (Daily Transcript 2771-2775, 1 April 2009, Day 61). 106 10/3/00 Calls to Korea $323.98 These items are all covered by CFM cheque butts (Daily Transcript 2776, 1 April 2009, Day 61). 110 6/4/00 Calls to Korea $320.35 These items are all covered by CFM cheque butts (Daily Transcript 2771-2775, 1 April 2009, Day 61). 118 27/4/00 Calls to Korea $270.34 These items are all covered by CFM cheque butts (Daily Transcript 2771-2775, 1 April 2009, Day 61). 136 5/6/00 Calls to Korea $173.17 These items are all covered by CFM cheque butts (Daily Transcript 2771-2775, 1 April 2009, Day 61). 178 17/7/00 Calls to Korea $309.47 These items are all covered by CFM cheque butts (Daily Transcript 2771-2775, 1 April 2009, Day 61). Total $44,987.08

[565] In other words, these "suspicious" expenses, which related largely to telephone calls for which there were bills and meals after meetings (where there may well have been meeting records which no longer survive) are supported by documentary evidence in the form of Expenditure Resolutions and/or cheque butts.

[566] The fourth and fifth defendants had information about the CFM cheque butts. The plaintiff withheld the originals, not the information and he offered CFM information to the seventh defendant when he asked him to prepare the financial statements.

[567] The fourth and fifth defendants actually had much of this information from the plaintiff, Mr Sung Joo Sung and the seventh defendant, and could have obtained the rest if they had investigated objectively. They could all have sat down with the plaintiff (and a properly trained accountant) to work out what had happened in relation to the Supporting Committee's bookkeeping problems and all of these explanation would have been dealt with contemporaneously in the way Mr Bonney Lee suggested in his evidence (Daily Transcript 2150, 16 June 2008, Day 52).

[568] Schedule D2 purports to list the "earnings omissions" (in fact the donations) which were omitted from the Financial Report.

[569] I have dealt with this list in my discussion of imputation 39(a), below, concerning justification of the imputation that the plaintiff failed to account for donations of $56,000. I have first set out that most of these names are on this list, and that the few that are not are on the revised list the plaintiff published in the second defendant's newspaper on 23 February 2001, the week before the fourth and fifth defendants' audit report was published. They are simply not prepared to give the plaintiff credit for the fact that he found and listed all the donations.

"Contents of Dishonoured Cheques being issued (Bank statement and check[sic])"

[570] A third list of information is the list of seventeen dishonoured cheques. This list, which should have been comparatively simple to prepare, is incomplete. All but two relate to the period June-July. The plaintiff's explanation for eight of the cheques was that Mr Joo Yong Jo put the Joon Kim loan into the wrong account. The fourth and fifth defendants gave no evidence of contacting Mr Jo to confirm this. If he had confirmed it, it is hard to see what the plaintiff had done wrong in relation to these cheques.

[571] This is not all of the documentation prepared by the fourth and fifth defendant, but it is the portion of their work product which led to them making many of the allegations they did.

[572] I have set out, in the section of this judgment concerning the defence of comment, the falsity of many of the statements in these three "audit" reports, and I will not repeat them here.

Conclusion concerning the audit report of the fourth and fifth defendants

[573] I have selected the above as an example of the incomplete nature, substantial errors of fact (including typing errors) and general quality and standard of the fourth and fifth defendants' audit reports. In the section of this judgment on comment, where I have been required to go through the statements of fact to determine whether the comment (if any) is based on proper material, I have listed substantial errors of fact in the fourth and fifth defendant's description of the circumstances in which the Supporting Committee was set up.

[574] In the cross-examination of the fourth and fifth defendants, Mr Evatt listed a number of other errors made by the fourth and fifth defendants. Mr Finney, the expert accountant said the following concerning the nature of the documentation of the fourth and fifth defendants: "Q. From what you've said, did Mr Park and Lee carry out an audit on the sense of a PKF audit rather than a compilation of documents? A. I don't believe I have sufficient information to draw a conclusion as to what Mr Park and Mr Lee carried out in their function." (Daily Transcript 3155, 8 April 2009, Day 66)

[575] As the above analysis shows, the audit reports are full of mistakes, both mathematical and factual. Although the defendants submit the Supporting Committee failed to meet record keeping standards analogous to the statutory obligations imposed on incorporated associations or charitable bodies, they do not extend this analogy to the audit process.

[576] These reports are not the opinion of an auditor who has taken reasonable steps to look into matters before coming to a considered judgment, but of an untrained person who preferred to "approach his work with suspicion or with a foregone conclusion that there is something wrong" ( In re Kingston Cotton Mill co (No.2) [1896] 2 Ch at 288 per Lopes LJ). Lopes LJ went on to explain that auditors are not detectives, and that the auditor "is a watchdog, but not a bloodhound".

[577] The audit reports are not an "audit" in the proper sense of the word, but simply "the unchecked decision of an inexperienced clerk" (Pacific Acceptance Corporation Ltd v Forsyth (1970) 92 WN (NSW) 29 at 79 per Moffitt P. The fourth and fifth defendant are doing work "beyond their capacity", to use Moffitt P's description. They made serious allegations of criminal conduct not only against the plaintiff but also other Supporting Committee office bearers, and they wrongly refused not only the sensible proposal of the plaintiff for the audit to be carried out by a certified practicing accountant, but also refused an offer by an accountant (Mr Bonney Lee) to carry out this work without charge.

[578] The central problem for the fourth and fifth defendants is that they seemed to have thought it was their job to decide whether or not monies spent by the Supporting Committee were spent on purposes which fall within the Constitution. However, the job of the auditor is to audit the books. The question of what is a purpose for which monies should be spent by the Supporting Committee is a matter for the Supporting Committee. The role of the auditor was to check income and outgoings, not to make legalistic interpretations of the Constitution. It is almost impossible to ascertain where, in this report, they have dealt with the contents of the plaintiff's newspaper announcement of 23 February 2001 in which he set out his total as income and his list of persons who donated monies. In fact it is almost impossible to ascertain exactly where the fourth and fifth defendants have listed the total of income and outgoings.

[579] Finally, the fourth and fifth defendants, while raising some justified criticisms of failure to keep records, have failed to address the fact the failure to keep records was a failure of Mr Sung Joo Sung and the seventh defendant, and in addition, Mr Joo Yong Jo.

[580] In making this analysis of the fourth and fifth defendants' audit reports, I had been careful not to step into the shoes of an expert. It is not for me to opine on whether or not the fourth and fifth defendants' report complies with auditing rules, or even what these are. These are matters upon which the onus of proof lies on the defendants. As is set out in the section of this judgment concerning the reports of Mr Finney, he has done no more than express an opinion about the truth or falsity of the imputations, which is opinion evidence that is argument in support of the defendants case and thus not admissible under s 79: Clark v Ryan (1960) 103 CLR 486 at 491; ASIC v Rich [2005] NSWSC 149 at [280] per Austin J.

[581] In conclusion, the "audit report" prepared by the fourth and fifth defendants were so incomplete, full of errors and lacking in essential information, such as the total of income and outgoings and whether there was a credit or debit left at the end of the day, as to be well below the standard of the financial records they were purportedly auditing.

[582] The plaintiff's repeated suggestion that a certified public accountant be retained was a sensible one. If they had followed the methods described by Mr Bonney Lee (Daily Transcript 2150, 16 June 2008, Day 52) and tried to work out in a constructive way whether there is any missing donations, what the total of outgoings were and what to do with any balance, rather than attack the plaintiff and blaming him for everything, the accounts could have been audited in a proper fashion.

[583] Why did the fourth and fifth defendants attack the plaintiff personally? This brings me to the question of the credit of witness, but in particular the credit of the plaintiff.

[584] I have dealt with the credit of Mr Sung Joo Sung and the seventh defendant first, because if they are accepted as witnesses of truth, this will impact significantly on the plaintiff, who asserted that they were the financial record keepers for the Supporting Committee. I will now consider the very substantial attack made on the credit of the plaintiff by the defendants.

[585] The plaintiff's cross-examination was conducted for many weeks between 6 June 2007 and 17 October 2007) with further questions in writing from the fourth defendant and re-examination occurring in May 2008. I borrow the description of the cross-examination of the plaintiff in Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510 at [186], where his Honour noted : " A relentless and remorseless attack on Mr Marsden's credit initiated the defendant's submissions both written and oral… to underpin the principal submission that the case made for Channel 7 on the issue of truth is overwhelming"

The conduct of this case has many similarities with Marsden , of which this is one.

[586] Many of the matters put to the plaintiff over this period were not particularized and concerned documents he had not seen in the Korean language for many years. Cross-examination about factual matters which has not been particularized may lead to a defamation trial being aborted because of the bad impression likely to be created for the tribunal of fact: TCN Channel 9 Pty Ltd v Antoniadis (1998) 44 NSWLR 682.

[587] The defendants at pages 54 - 71 made a strong, but generalised, attack on the plaintiff's credit. I summarise this as follows: (a) At pages 54 - 55 seven matters are put as impacting on the plaintiff's credit, ranging from the drafting of three witness statements in identical terms to "the repeated refusal of the plaintiff to answer the simplest questions"; (b) Instead of dealing with each of these in term, the defendants' submissions on Mrs Kim's donation occupy the next five pages; (c) The next section of the submissions deals with the matters in paragraphs 2(b) but then jumps to (d) and goes back to (c), then (e); (d) A section then appears, entitled "the plaintiff's conduct as a witness" which briefly reprises (c) and (a) but provides no transcript references for the assertion that the plaintiff repeatedly refused to answer the simplest question; (e) A brief note of transcript references to the plaintiff pointing out that there were staple holes in a number of the Expenditure Resolutions (matter (f) in the list).

[588] How should I deal with this collection of material in an orderly fashion? The best place to start is with the assertion that the plaintiff repeatedly failed to answer the simplest questions. If that is the case, then the plaintiff is clearly a witness of little or no credit. Accordingly, I shall deal first with the sections at pp. 55 (paragraph 2(g)) and 70 (paragraph 34) of the defendants' written submissions, as this is an opportunity to look at the plaintiff's evidence as a whole. Paragraph 34 states: "The second defendant submits that the plaintiff consistently refused to answer the most simple questions and/or told obvious falsehoods when he suspected the answer was against his interests." [589] Three of "the more egregious examples" are given, and I have dealt with these below. However, what are some of these other examples of the plaintiff's refusal to answer the most simple question? I have selected some typical examples from his evidence which in my view illustrate the problem.

(a) the plaintiff refuses to answer a question about his failure to call a general meeting of the Supporting Committee until August 2000

[590] At Daily Transcript 280 (12 June 2007, Day 9) the following cross-examination shows what appears to be a good example of the plaintiff not only refusing to answer the question, but calling Mr Wheelhouse SC a liar: "Q. Do you agree, Mr Cha, for the first time there was a substantial amount of money in the cheque accounting of the supporting committee for some time? A. Well, I can't really explain what happened at the time but my situation was that I wasn't too concerned about whether there was money in the account or not my concern was when there wasn't enough funds then it became my concern.

Q. At this time there was sufficient money in the account, do you agree, to call a general meeting of the committee? A. You mean general meeting?

Q. Yes, general meeting of the committee? A. We didn't call a general meeting because there was enough fund in the account, but about 20 to 30 members got together every, let's say twice or three times a week, and had a meeting.

Q. That's nonsense, isn't it, Mr Cha? A. Well it was a regular meetings and it's not because we had enough funds or a lot of money in the account, we held a meeting.

Q. Mr Cha, your explanation, as we understand it, for the failure of you to call a general meeting of the supporting committee as required by the Constitution was because there was not sufficient finance to enable such a meeting to be called, correct? A. That doesn't make sense, how could a lawyer like yourself keep lying.

WHEELHOUSE: It's a non-responsive answer, I'll just make a submission about, your Honour."

[591] This is very strong language from any witness, as well as being non-responsive, and Mr Wheelhouse SC told me he would "make a submission" about it (i.e. include it in his final submissions). So, why is it not relied upon as a specific example?

[592] The reason could be that Mr Cha's claim that the committee did meet regularly is clearly confirmed by the Minutes (see Exhibit 51; I note the "early" Minutes of the Committee, referred to in the 1 March 2001 matter complained of, have not been produced by the fourth and fifth defendants). This particular meeting was not a meeting called out of the blue, or because the committee had come into funds. This was not only the Committee's regular monthly meeting, properly minuted, with an agenda sent out in advance, but the meeting in which they discussed the finances of the Supporting Committee and what would happen to any surplus when the Olympics were over. There were not only regular weekly joint meetings with the Sports Council but regular subcommittee meetings and other meetings, as the Activities Diary makes clear. This was not a committee that failed to meet. The plaintiff's complaint, though couched in strong language, was understandable.

[593] If what Mr Wheelhouse SC said was correct, he could have proved it at the time by going to the Minutes for this meeting, showing that the Supporting Committee did not meet regularly as alleged, looking at the issues discussed, and by these means demonstrated that this meeting was only held for the reason the plaintiff had denied was correct. He did not do so. I have looked at those Minutes, and I see no support for this question. I also note there was never any particularisation of this particular allegation.

[594] While a witness calling cross-examining counsel a liar is not a practice that should be encouraged, this was one of a number of questions which were not only not particularised, but contrary to unchallenged evidence, and where the plaintiff's failure to concede its truth is treated with disdain ("nonsense") (other examples occur at: Daily Transcript 280,12 June 2007, Day 9; Daily Transcript 417, 19 June 2007, Day 13; Daily Transcript 462, 20 June 2007, Day 14; Daily Transcript 540 and 549, 24 September 2007, Day 17; Daily Transcript 867, 8 October 2007, Day 23).

[595] I also note there were many questions in cross-examination about the plaintiff's failure to call an extraordinary general meeting (for example: Daily Transcript 176, 184 and 187, 7 June 2007, Day 7; Daily Transcript 280,12 June 2007, Day 9; Daily Transcript 975, 9 October 2007, Day 24; Daily Transcript 977, 9 October 2007, Day 24). However, the uncontradicted evidence of all the witnesses, including the fourth and fifth defendants, was that everyone agreed the audit would take place at the end of the Committee's life. In other words, there was no need for there to be annual extraordinary general meetings each year for an annual auditing of the records (a sensible step, since donations amounted to a few hundred dollars for the 1998 year and a few thousand for the 1999 year).

(b) the plaintiff refused to agree the signature and seal on the Expenditure Resolutions was the fourth defendant's

[596] Another complaint of apparently unresponsive answers occurs in situations where the question appeared to be consistent with the evidence but the evidence then changed. Perhaps the best example of this was the repeated questioning to get the plaintiff to agree that the signatures and red seals on placed on the Expenditure Resolutions were those of the fourth defendant (in fact, the fourth defendant later claimed this was a translation error he had not picked up before, and said the signatures and red seals were not his: Daily Transcript 2715, 31 March 2009, Day 60).

[597] The plaintiff was asked to agree, a number of times, that the signature and red seal on the Expenditure Resolutions was that of the fourth defendant. He was first told that the fourth defendant put "his" red seal on (Daily Transcript 194, 7 June 2007, Day 7; Daily Transcript 202, 206-207, 8 June 2007, Day 8) and then asked to agree. The plaintiff said he did not know "whoever did it" which was not accepted by Mr Wheelhouse SC, who put the following at Daily Transcript 202-203, 8 June 2007, Day 8: "Q. What I am asking you to accept is that after you handed these documents which were the Expenditure Resolutions and the invoices and receipts Mr Park and Mr Lee went through the documents they were given. They placed Mr Park's seal, which is the red seal, on the documents and where there was no--

DIBB: I object to this question really, your Honour.

DIBB: Partly it's too long, and it calls for him to speculate on who owns this seal--

WHEELHOUSE: No, it's accepted that, in his evidence yesterday.

HER HONOUR: Mr Wheelhouse, look, it is too long. You need to put it in bits. That's the real problem, because it's a big responsibility for the interpreter but also it's a lot for him to answer. So how about you put it in bits.

WHEELHOUSE: Your Honour, I thought I've done all little pieces yesterday and he has accepted it so I am now just finishing the last little bit. I don't want to go right back to yesterday afternoon but I'll do it."

[598] The plaintiff was asked again to confirm if this was the fourth defendant's red seal (Daily Transcript 207, 8 June 2007, Day 8) and there was another objection. Mr Cha was told by Mr Wheelhouse SC he had already agreed to it. This time he did agree.

[599] The plaintiff attempted to explain at Daily Transcript 933-934 (9 October 2007, Day 24): "A. I wasn't present with Mr Park when he actually put the seal on the resolutions, so I can't say what he has done. But one thing for sure is that I did ask auditors that I wanted to have some proof, or supporting documents, and they never provided to me.

Q. Mr Cha, the next thing I put to you is this; that it is completely false of you to assert that there were attached to Expenditure Resolutions receipts when that conflicts with what Mr Park has recorded. A. Even if I say the truth you always say I'm lying, so I can't say anything."

[600] The second defendant's case at this time was that the fourth defendant played the major role in the preparing of the audit documents and that in particular he checked, signed and sealed all receipts. It was not until the fifth defendant came from Korea to give evidence that Mr Wheelhouse SC informed the court that, contrary to the statements in the fourth defendant's affidavit, he did not check these documents and sign and seal each of them and the fourth defendant gave evidence (Daily Transcript 2726-2727 and 2729, 31 March 2009, Day 60) that this was neither his seal nor his signature.

[601] The fourth defendant was in court during this evidence, which was translated into Korean for the benefit of the plaintiff. He did not seek to correct what was being put to the plaintiff.

[602] The image created for me as the trial judge was that of a plaintiff unwilling even to admit to something as straightforward as the fourth defendant's signature on these documents when, it was alleged, he must have seen the fourth defendant doing this. The plaintiff's answer that when he tells the truth, he is seen to be lying, needs to be seen in context.

[603] At Daily Transcript 2730 (31 March 2009, Day 60), after the fourth defendant admitted in cross-examination that this was neither his signature nor his seal, and that contrary to his statement these were the fifth defendant's, Mr Evatt said: "EVATT: Your Honour, we might have the wrong man in the witness box."

[604] Mr Wheelhouse SC explained that the fourth defendant's evidence on this point had been changed in a supplementary statement. He complained that I "didn't seem to notice and was busily writing something" when he said the fourth defendant wished to change his evidence on this issue (Daily Transcript 2730, 31 March 2009, Day 60) and had not granted him leave to withdraw his previous statement for this reason, and as a result the fourth defendant had an inconsistent statement in his evidence that he had not been permitted to delete.

[605] This was a substantial change to the evidence of the fourth defendant and one which, despite Mr Wheelhouse's claim that it was an error in the translation which the fourth defendant had only recently "picked up" (Daily Transcript 2731, 31 March 2009, Day 60) reflects poorly on the fourth defendant, rather than on the plaintiff, since the fourth defendant had been in court hearing these exchanges translated in the cross-examination of the plaintiff throughout the trial, as well as in the Court of Appeal when submissions on the essential nature of his evidence were put to the Court.

[606] This pattern of repeated cross-examination trying to make the plaintiff agree to this is instructive. It shows a witness being broken down into agreeing with the interrogator about a fact that turns out to be wrong.

[607] As the weeks of cross-examination passed, the plaintiff's demeanour in the witness box was visibly one of exhaustion and at times disorientation. At Daily Transcript 357 (14 June 2007, Day 11) Mr Evatt expresses concern that the plaintiff is in a "state of shock" and at T 381 asks if it is necessary for counsel to stand over the plaintiff in an "intimidating" fashion. At this stage the plaintiff was being cross-examined about so many documents they could not be fitted into the witness box and he had to be seated in the well of the court at a large table, where he was asked to examine up to half a dozen documents at a time and answer questions quickly. These factors need to be borne in mind when considering complaints about the slowness of some of the plaintiff's answers.

(c) The plaintiff refuses to agree he tore pages out of Mr Sung Joo Sung's accounting records

[608] At Daily Transcript 223-224 (8 June 2007, Day 8) Mr Wheelhouse SC put it to the plaintiff that he had torn pages out of Mr Sung Joo Sung's accounting records and interrupted the plaintiff's reply to tender two pages which, by inference, were the torn out pages: "Q. Mr Cha, did you tear pages out of Mr Soong's book at any time? A. No, I haven't done that and he had never shown me this book so I--

WHEELHOUSE: I tender the loose pieces of paper that Mr Cha identifies as his pieces of paper.

DIBB: We're talking about these top two pages, are we?

HER HONOUR: No, there's more. Do you need a minute to look at those, have you seen those before?

EXHIBIT #10 LOOSE PIECES OF PAPER IDENTIFIED BY PLAINTIFF TENDERED, ADMITTED WITHOUT OBJECTION

Q. Mr Cha, where did you get the information contained in those loose pieces of paper? A. It may be that some of them came from Expenditure Resolutions and some cheque records and various documents.

Q. They are pages which you've created by taking information partly out of Mr Soong's book, aren't they? A. Well, there was a bank statement of the account in the office so I think I've prepared the document based on that.

WHEELHOUSE: I tender Mr Soong's book as well, your Honour, so they can be together.

DIBB: Yes, your Honour. It's not been identified by anyone. We don't have any information about its accuracy or even any evidence about its origin so I object.

HER HONOUR: This is a book that you say is Mr Soong's and basically this witness has disputed. What about we have it marked as an MFI?"

[609] Mr Wheelhouse SC sought to tender the plaintiff's handwritten pages as part of the same exhibit as Mr Sung Joo Sung's account book "so they can be together" (Daily Transcript 224, 8 June 2007, Day 8). I understood this to mean these were the missing pages. The plaintiff's attempt to explain this was interrupted. If counsel for the plaintiff had not objected, the basis would have been laid to assert that the plaintiff had conceded this.

[610] The defendants never particularised any claim that the plaintiff tore pages out of Mr Sung Joo Sung's book. As is set out above, Mr Sung Joo Sung agreed he did this and there is no evidence he either consulted the plaintiff at the time or sought his approval later.

[611] In fact, as the transcript shows, Mr Wheelhouse SC actually handed three books up to the plaintiff. He handed up the red book (Exhibit 5), the green book which contains Miss Yoo's reconciliations of cheques (Exhibit 7) and Mr Sung Joo Sung's Green Book (later Exhibit 27), which that plaintiff said he was seeing for the first time. Mr Cha identified the first two as "mine" but said that he had not seen Mr Sung Joo Sung's book before. When he says "I have done the summary of it", it sounds as if he has done a summary of the Green Book, but the confusion is because he is referring to Miss Yoo's Green Book summary (Exhibit 7). It is at this stage that he is asked if he tore the pages out of the Green Book, and his denial is interrupted by Mr Wheelhouse SC.

[612] At 224, the plaintiff was asked to identify the writing in the book as Mr Sung Joo Sung's (Daily Transcript 224, 8 June 2007, Day 8): "Q. I just want you to have a look at the MFI when it's marked, please, Mr Cha. I just want to ask you whether you recognise Mr Soong's writing in that book, please? A. I can't recall that now. This is the first time I'm seeing this book in seven, eight years.

Q. Mr Cha, there's no dispute, is there, that you were the one who appointed Mr Soong as head officer and you saw him regularly at the offices of the supporting committee? A. Yes, of course, almost every day.

Q. And you saw him when he was there completing accounts? A. At that time I knew, but now eight years ago I can't say, or seven years later now so--

Q. So what you're saying in relation to the green book, MFI 14 is that it could be Mr Soong's book but you just don't recognise it at the moment? A. No, you're asking me whether it's the writing by Mr Soong Soong Joo and also Mr Soong did not provide me that book when I requested it so - and you're asking me whether that's his writing. If you ask me to compare with Expenditure Resolution which was written by Mr Soong I could perhaps identify whether they are same."

[613] The manner in which this was presented was that the plaintiff was once again being obstructive in refusing to agree with a statement of fact that should not be in dispute.

[614] The plaintiff is not being obstructive here; he is offering to help by looking at another example of Mr Sung Joo Sung's writing. However, Mr Wheelhouse SC does not take up the plaintiff's offer; he changes the topic from Mr Sung Joo Sung's account book to letters sent to the plaintiff by the fourth and fifth defendants (Daily Transcript 224-225, 8 June 2007, Day 8). This could be because, if the writing was all Mr Sung Joo Sung's and not Miss Chae's, it might indicate Mr Sung Joo Sung rewrote this book at a later time.

[615] This was a theme during the plaintiff's cross-examination as well as in the defendants' written submissions, where they refer to the evidence of a witness saying that the plaintiff "loved to drink wine". The fourth defendant raised it in cross-examination of the plaintiff (Daily Transcript 1191-1213, 15 October 2007, Day 27; Daily Transcript 1268, 16 October 2007, Day 28, one of a series of questions about the plaintiff drinking wine with the fifth defendant). In his own cross-examination, the fourth defendant suggested not only the plaintiff but everyone might have been drunk (at Daily Transcript 2741-2742 31 March 2009, Day 60): "Q. Who signed that Expenditure Resolution? A. INTERPRETER: That I don't know.

Q. Only one signature on it. A. INTERPRETER: Yes.

Q. And you okayed it? A. INTERPRETER: It says, "Pak Sung Ha, Korean Sports Council vice-chairman, 884," and it says - in Mr Cha's prepared Expenditure Resolution, it says that.

Q. Where? In 318? It's only got the one signature on it. Mr Cha didn't sign that. A. INTERPRETER: Mr Cha attended these meetings. He participate [sic] in the meal and he ate, and usually he should have signed the chairman and I think, because he was drunk, he didn't sign.

Q. Mr Cha was drunk? A. INTERPRETER: Yes, I think that's what happened.

Q. He was drunk and therefore didn't sign the Expenditure Resolution? A. INTERPRETER: Yes, correct.

Q. What about the one before - that's 318? Go back to the 317. 318 is on 16 May 99. 317 21 April 99: was Mr Cha drunk on that day as well and didn't sign it? A. INTERPRETER: Yeah, if you look at the receipt, it's all drink - alcohol - in the back.

Q. So that applies for 21 April 99: 317, and also for 318: 16 May 99 - full of alcohol?

Q. Is the reason there's only the one signature on them, and not Mr Cha's - because they were all drunk? A. INTERPRETER: Yes, I do."

[616] He went on to say at Daily Transcript 2742-2744 (31 March 2009, Day 60): "Q. If you look at ER 319-- A. INTERPRETER: Yes.

Q. That again just has the one signature on it. A. INTERPRETER: Yes.

Q. No signature of Mr Cha. A. INTERPRETER: Yes.

Q. Is that because Mr Cha was still drunk, too drunk to sign? A. INTERPRETER: You can see the number of - cheque number, here, on the right hand side.

Q. Yes. A. INTERPRETER: Mr Cha used to have the chequebook in his pocket and he was the only one who used chequebooks.

Q. I'm talking about the Expenditure Resolution. A. INTERPRETER: That means that if he used chequebook - that means he made the payment.

Q. Is the reason Mr Cha didn't sign that Expenditure Resolution was because he was drunk again? A. INTERPRETER: Yeah, this one also, obviously, says in the receipt that's - if I look at the receipt - they had drinks.

Q. They had drinks again? A. INTERPRETER: Yes, it's continuation - meals.

Q. So Mr Cha is drunk on 21 April 99, 317, 16 May 99, 318, and still drunk on 17 May 99, 319? A. INTERPRETER: There is a number - cheque number - and Mr Cha was the only one who had the chequebook, so he must have spent it and--

Q. But that applies to every cheque written by the Supporting Committee, if Mr Cha had the chequebook. Here's one, look, 320. A. INTERPRETER: He had the chequebook in his pocket and he used for expenses.

Q. And he just wrote what he liked, is that right? A. INTERPRETER: Yes, he did."

[617] Five days later, when the fourth defendant returned to the witness box after other witnesses were interposed, he added more, volunteering that the plaintiff spent about $3000 on drinking and visiting "room salons" (karaoke salons staffed by females of low repute) per day (Daily Transcript 2999, 6 April 2009, Day 64): "Q. But they were all supported by expenditure resolutions. A. INTERPRETER: Well, that's the very part that I mentioned, the expenses. They should have not come out of the committee but has been incurred by Mr Cha because Mr Cha loved drinking and I think that's how he spent the money.

Q. Drinking? INTERPRETER: Drinking I call.

Q. What, $160,000 of drink he drank? Is that right? INTERPRETER: 160--

HER HONOUR: Mr Evatt, that question is nonsensical. Just ask it again in English, please.

Q. Are you saying that Mr Cha himself consumed drink costing $160,000? A. INTERPRETER: No, I never said that.

Q. How much money did he spend on alcohol, Mr Park? A. INTERPRETER: On average, if you go to a room salon, he used to spend about $3,000.

Q. A day? A. WITNESS[in English]: Yeah. A. INTERPRETER: Yes.

Q. $3,000 a day? A. INTERPRETER: On average, yes.

Q. Mr Cha spent $3,000 a day on alcoholic drink for himself?

HER HONOUR: No, and room salons, Mr Evatt. Please, listen.

A. INTERPRETER: What I'm saying is, Mr Cha frequented place - visited places like where it costs $3,000 a day room salon, because this money was given as a donation by Korean residents here and there and little bit by here and little bit by there, but he used this money as if it was his own money.

Q. $3,000 a day is over a million dollars a year. Is that right?

[618] The fourth defendant alleged the plaintiff not only went out drinking but went to "room salons", karaoke bars where only alcohol and not food was served and there were bar girls. He cross-examined the plaintiff about two of these alleged room salons. The first was Pangon Jong (Daily Transcript 1186-1191, 15 October 2007, Day 27), which I was told was a different establishment to Mon Ami (Daily Transcript 1237, 16 October 2007, Day 28), and which the fourth defendant had attended in his capacity "as an auditor" (Daily Transcript 1189, 15 October 2007, Day 27). Mr Evatt objected, on the basis that this was not particularised (Daily Transcript 1191, 15 October 2007, Day 27). The second was Mon Ami, where the plaintiff twice entertained guests from Korea (ER 34 and ER 94 for $520 and $1,860).

[619] Mon Ami provided a receipt for its services, and the fourth defendant was cross-examined about its contents. He made a suggestion that the receipt could be easily falsified because "this invoice book is sold at the Post Office anyway" (Daily Transcript 3005, 6 April 2009, Day 64). He was asked if he had checked at Mon Ami and replied: "Q. Did you check? Did you ask Mon Ami? A. INTERPRETER: Anyone could have written down Mon Ami because there is no stamp.

Q. Did you check with Mon Ami? A. INTERPRETER: No, I didn't because Mon Ami is gone. It disappeared.

Q. When did he go? A. INTERPRETER: At the time, there was change of hands.

Q. But when? A. INTERPRETER: Different owner. At that time. Audit period.

Q. In the audit period. A. INTERPRETER: Yes.

Q. When? A. INTERPRETER: Probably end of January 2001.

Q. Did you go and check the old receipts? A. INTERPRETER: I did check all the receipts.

Q. And at the Mon Ami Restaurant. A. INTERPRETER: As I mentioned to you, the owner was changed." (emphasis added) (Daily Transcript 3005, 6 April 2009, Day 64) [620] I have highlighted part of the above because he claimed in cross-examination, when challenged about an error concerning this entry, that he did in fact check with this establishment: "Q. Why did you put karaoke credit in your report, instead of the restaurant? A. INTERPRETER: Because they told me that it has been paid back to them for the money owing. That's why I have written it down as such.

Q. That doesn't make sense, does it? A. INTERPRETER: I can't help you, because I rang them and verified with the room salon, and they said so , so I have written that down as such.

INTERPRETER: Sorry?" (emphasis added) (Daily Transcript 2779, 1 April 2009, Day 61)

[621] There was no evidence from any other witness that these establishments were hostess bars, or room salons, or that there were drunken Supporting Committee functions. Mon Ami in fact donated $500 to the Supporting Committee: see the list in Exhibit A and Exhibit 73.

[622] The defendants in written submissions rely on statements by a Mr Kim in his evidence that the plaintiff "loved drinking" and loved wine, and would enjoy having one, two or more glasses of wine. However, this submission takes that statement out of context. At Daily Transcript 1476 (20 May 2008, Day 39). Mr Kim was asked about these statements: "Q. Mr Cha was part of that meeting once every month? A. INTERPRETER: He used to come, but lately no. But they don't have to turn up at every meeting unless - there's no rule to say he has to come or one has to attend, but every now and then he turns up with a bottle of alcohol or wine, or something like that.

Q. You've referred to Mr Cha's drinking, but you make no suggestion apart from Mr Cha being gregarious and good company. Is that the case? A. INTERPRETER: No. He is the son of Mr Cha; he is Mr Cha's junior. No, he doesn't have any problem."

[623] Another witness, Mr Lee, volunteered that he personally enjoyed activities such as drinking and karaoke. The following cross-examination then ensued: "Q. Mr Lee, did you say you liked drinking alcohol? A. INTERPRETER: Yes.

Q. And karaoke? A. INTERPRETER: Yes.

Q. Are these two activities that you've ever engaged in with Mr Cha? A. INTERPRETER: Never had shared same place for drinking with Mr Cha." (Daily Transcript 2025, 11 June 2008, Day 50)

[624] This is as high as the evidence goes. There is no breakdown supplied by the defendants to show that large quantities of alcohol were consumed at dinners and social functions. On one occasion when a point about alcohol consumption was being made, I inquired about alcohol being consumed at a function, and it turned out to be a bottle of Korean traditional potato spirit (Daily Transcript 2724, 31 March 2009, Day 60). This was a meal for 11 people which cost $9 per head each, which cost allowed for a total of two bottles of coca cola and one of potato starch spirit to be consumed.

[625] In addition, as Mr Evatt correctly pointed out (Daily Transcript 1191, 15 October 2007, Day 27), these were some of the many matters that were not particularised.

(e) Repeated questions about the number of signatories required by the bank for cheques:

[626] The plaintiff said (Daily Transcript 229, 8 June 2007, Day 8; Daily Transcript 257-258, 12 June 2007, Day 9) that although when the account was set up the requirement was for two signatures but that the bank had agreed this was not necessary (Daily Transcript 229, 8 June 2007, Day 8) and thereafter only one person had signed the cheques. The plaintiff said that the other person authorized to sign the cheques in 2000 was the financial director, Mr Joo Yong Jo. Mr Wheelhouse asked if this was the seventh defendant, Mr Stephen Cho (Daily Transcript 257, 12 June 2007, Day 9), which was an error. The plaintiff went on to explain that he and Joo Yong Jo were busy people with offices which were some distance (Daily Transcript 257-259, 12 June 2007, Day 9) and had come to an agreement that only one of them need sign the cheques. However, the allegation was repeatedly put (Daily Transcript 257-265, 12 June 2007, Day 9), that two signatures were required. At Daily Transcript 267 (12 June 2007, Day 9) it was put to him that his signature could faintly be seen on the cheque as well as the signature of Joo Yong Jo, but he denied this and from my observation this is correct. At Daily Transcript 258-259 (12 June 2007, Day 9) it was put to him he repaid a loan with a cheque with "one signature" and he again replied that cheques went out with one signature with no problem. At Daily Transcript 278 (12 June 2007, Day 9), Mr Wheelhouse SC put to the plaintiff that he bought a lot of goods from Belmore Health Foods to curry favour with Mr Choi, and that as a result Mr Choi "went along" with there only being one signature on the cheques.

[627] The plaintiff's explanation that two signatures was too much for a voluntary organisation, and that the bank accepted one, was a reasonable one. This was one of many issues about which the plaintiff was repeatedly cross-examined. Although there are references to there being only one signature in the written submissions of the defendants, this is a point that they now appear largely to have abandoned, but only after repetitive cross-examination.

[628] Mr Wheelhouse SC complained that the plaintiff would "anticipate" his questions instead of answering the question that was asked. A feature of cross-examination was the raising of issues that were not in dispute which are then spun into a web of complicated questions. On occasions the plaintiff tried to answer the question he anticipated, not in an attempt to evade the issue, but to deal with the issues in the case. The following exchange occurred at (Daily Transcript 171-172, 7 June 2007, Day 7): "WHEELHOUSE: I haven't asked that question yet, your Honour, I'm getting towards that. He's anticipating.

HER HONOUR: Can we cut to the chase? Is there some way can you say was the annual general meeting held, yes or no?

WHEELHOUSE: I'm just laying a bit of groundwork for two propositions and I shouldn't conflate the two, it'll be confusing.

HER HONOUR: I have to say I'm out in the wilderness to be frank. There's just all this great flood of information and I can't see where we're going. I'm really confused, Mr Wheelhouse. Isn't there some simple way that we can get to these points without laying all this groundwork? Do we need to lay all this groundwork?

HER HONOUR: Why? Am I right in thinking that what's going to be shown is that notwithstanding what's in the Constitution that this was run with gay abandon? Is that basically what this is all about?

WHEELHOUSE: If I do it quickly it will just be unfathomable.

HER HONOUR: It's unfathomable doing it this way. I'll leave it up to you, Mr Wheelhouse. I just don't see why we can't ask a few simple questions. All of these things are just things we can take for granted.

WHEELHOUSE: I don't think Mr Cha takes them for granted, your Honour.

HER HONOUR: The thing is you don't need Mr Cha to agree with you. If he's been elected to some position and he's supposed to honour the Constitution, I don't think we need to get him to agree in the witness box. It says in the document what he did. The document speaks for itself. I know it's all about the imputations of incompetence but the thing is if he didn't comply with the Constitution you can just make submissions.

HER HONOUR: Isn't this all about the imputation of incompetence and that here he was, he was supposed to be behaving in accordance with the Constitution instead of which he kept pathetic records or whatever it is that you're going to submit?

WHEELHOUSE: It's more complicated than that, your Honour.

HER HONOUR: In that case I'll leave you to it but at the moment I feel hopelessly lost. I feel that we're not seeing the wood for the trees here, that's my concern.

WHEELHOUSE: Your Honour, we're seeing the wood very clearly.

HER HONOUR: All right, I hope so. Another thing is I don't think you need Mr Cha to agree on this very literal fashion to absolutely everything. How can he really seriously say as somebody who was elected and there was a Constitution, that he wasn't obliged to follow the Constitution. He'd look ridiculous if he said that, wouldn't he?

HER HONOUR: What's the point of going through it all?

WHEELHOUSE: Because he'll refute understanding unless I do as he's done in chief for two and a half days."

[629] I note there is no suggestion, even in the written submissions of the defendants, that Mr Cha's examination in chief consisted of refutations of understanding.

[630] As Mr Wheelhouse SC said this was an essential process, I then gave a stern lecture to the plaintiff about answering the question and not anticipating the answer. I gave this direction on a number of occasions during the cross-examination and accepted uncritically Mr Wheelhouse's complaints about the plaintiff. Looking back at the questions asked, the plaintiff's response was understandable, and I should not have been critical of him.

[631] At Daily Transcript 349 (14 June 2007, Day 11) Mr Wheelhouse said: "Mr Cha, you will say anything in your evidence, won't you" in that that it was "absolutely preposterous" that he would give a cash donation to North Korean team. However, the plaintiff then provided details, including pointing out that this was noted on the Expenditure Resolution, and nothing was heard of this allegation again. This allegation was not particularized.

[632] In the course of making an application for me to disqualify myself, which was made while the plaintiff was still in cross-examination, Mr Wheelhouse SC said he was reluctantly making the application because, inter alia: "Your Honour, the prospect of having to cross-examine Mr Cha again is so daunting as to be almost unspeakable." (Daily Transcript 1072, 12 October 2007, Day 26).

[633] Brown "Law of Defamation in Canada" (at 17.2(2)(c) notes that while defamation actions are adversarial proceedings, lawyers must act with decorum, and not allow oratorical exuberance to prevail (see Street CJ in Croll v McRae (1930) 30 SR (NSW) 137 at 146; Pavy v John Fairfax Publications Pty Ltd [2004] NSWCA 177 at [18]). While the obligations of opposing counsel in a civil proceeding (even where criminal conduct is asserted) cannot match the obligations of the prosecutor in a criminal trial (for a discussion of the prosecutor's obligations, see the authorities collected in Tahche v Abboud [2002] VSC 42), it is still possible to remain polite.

[634] There were requests at times by the plaintiff to have a chance to look at the material being shown to him, some of which was voluminous. At Daily Transcript 348, 16 June 2007, Day 11 he said: "That I can't answer before I look at the documents because I can't recall exactly. If you give me time I might - don't treat me like a thief" (see also Daily Transcript 480, 20 June 2007, Day 14). On this occasion, and on many other occasions, he was being cross-examined about matters that had not been particularised, concerning financial records he had not seen for many years because the fourth and fifth defendants kept them after the audit and refused to return them to the plaintiff.

[635] Some of the questions the plaintiff was asked were about the minutiae of life. At Daily Transcript 449 (20 June 2007, Day 14) Wheelhouse asks him if he can remember his account number (not the phone number) for the Telstra account, to which he says "How can I remember that?" (Daily Transcript 449, 20 June 2007, Day 14).

[636] As indicated at the commencement of this judgment, I have been guided in my analysis of witness credit by a number of helpful judgments of the Court of Appeal, by the careful analysis of Levine J in Marsden (especially at [646]ff concerning the late Mr Marsden's credit) and in particular by the analysis of Ipp JA in "Problems with Fact-finding" and by the Court of Appeal's analysis of these issues in The Nominal Defendant v Kostic [2007] NSWCA 14 at [44] ff.

[637] Attacks on a witness's credit may be made on a number of bases: (a) Where independent evidence such as a business record or document of public record shows that a person has told a lie on an issue material to the case: Marsden at [39] and following (under the heading "Admissions by Conduct"). In particular, his Honour's analysis of how to treat an apparent lie told by a witness, and its impact on credit, is of assistance. An example relied upon by the defendants is the plaintiff's statement that cash was banked when the banking records show otherwise. Is this a conscious lie, easily shown to be so by the contemporaneous documents, or is there another explanation from the facts of the case?

(b) Where there are competing versions of events, such as the differing versions given by the plaintiff and the seventh defendant as to what happened to the $3,000 left over when the seventh defendant purchased Olympic tickets. There is a document in existence, but it is interpreted differently by each party, and the question of who to believe, concerning the circumstances in which words have been added after the signatures, is a matter where the credit of each of the witnesses is an issue.

(c) Where witnesses are unable to produce documents which clearly should be in existence, such as business records, or repeatedly assert they are unable to remember events ( R v Logue (NSW Court of Criminal Appeal, 31 March 1994, Gleeson CJ, McInerney and Mathews JJ, unreported) per Gleeson CJ ).

(d) Where the "demeanour" of the witness in the witness box, such as the manner of answering questions, is challenged. The majority of the complaints concerning the plaintiff fall into this category.

[638] In State Rail Authority of NSW v Earthline Constructions Pty Ltd (1999) 60 ALR 588 at 617 Kirby J warns of "the fallibility of judicial evaluation of credibility from the appearance and demeanour of witnesses in the somewhat artificial and sometimes stressful circumstances of the courtroom", noting the maxim of Atkin LJ that "the value of the comparison of evidence with known facts is worth pounds of demeanour."

[639] The plaintiff was generally able to remember, despite the circumstances in which documents and allegations were put before him without prior particularisation or proper discovery in the usual way. Many of the answers asserted to be non-answers are his requests to look at financial records. Was this an unreasonable request from a witness who had not seen many of these records since 2001, where the allegations had often not been particularised?

[640] Does the plaintiff have to get every answer right? He was not keeping the financial records himself, and he was answering from memory, nearly always correctly; his answers concerning the donation to the North Korean team is a typical example (Daily Transcript 349, 14 June 2007, Day 11). His contradiction of his earlier evidence concerning some issues (such as the donation by the second defendant of $1,000) needs to be seen in light of his acknowledgement of this donation in the 23 February 2001 list he published after obtaining this information through discussions with the fourth and fifth defendants about the contents of Mr Sung Joo Sung's Green Book (see the revised list of donors published by the plaintiff on 23 February 2001 - Exhibit 73).

[641] By comparison, Mr Sung Joo Sung, the seventh defendant, Mr Won Kang and Mr Dae Won Kang all had the benefit of giving evidence by statement, but contradicted their own statements and, when shown business records which contradicted their oral testimony, asserted these records were falsified. Where witnesses give evidence of this kind, their credibility on all issues is diminished. The second defendant's evidence falls into the third category; he was unable to remember anything; in fact, he could not remember what day it was (Daily Transcript 2123-2124, 16 June 2008, Day 52).

[642] I have dealt with issues concerning the credit of the second, fourth and fifth defendants elsewhere in this judgment. Should I accept the defendants' contention that the plaintiff was caught out in a serious piece of dishonesty concerning Mrs Kim, that he fabricated witness statements, that he made false allegations that the fourth and fifth defendants removed receipts from the Expenditure Resolutions and is a witness who "ought not to be believed on any issue" (written submissions p. 18)?

[643] I summarise the following factors as being relevant to the cross-examination of the plaintiff: (a) Contrary to the general rule where justification is pleaded (Tobin & Sexton, Australian Defamation Law & Practice [25,180]; Sims v Wran [1984] 1 NSWLR 317 at 328 per Hunt J; Antoniadis v TCN Channel Nine Pty Ltd (Supreme Court of NSW, Abadee J, 5 February 1996, unreported) (first jury discharge) and Antoniadis v TCN Channel Nine Pty Ltd ( Supreme Court of NSW, Levine J, 18 February 1997, unreported) (second jury discharge)), the plaintiff was cross-examined about factual issues many of which were not particularised until three months after his cross-examination had commenced;

(b) This cross-examination included showing him some Korean originals of documents which he was seeing for the first time because they had not been previously provided in a List of Documents or supplied to his solicitors, which put him at a serious disadvantage, for the reasons explained by Levine J in Antoniadis at p. 15;

(c) The plaintiff's cross-examination and re-examination took a year to complete, in circumstances where the plaintiff's tiredness, glazed eyes or state of shock was drawn to the court's attention by counsel for the plaintiff;

(d) The combination of one or more of any of the above factors would reduce the value of any concessions or admissions the plaintiff made in his evidence, and would render any attack on his credibility of diminished weight, particularly in circumstances where the defendants in these proceedings and not the plaintiff were responsible for the delays in these proceedings coming to trial. [644] I shall now deal also with each of the matters specifically raised by the defendants in relation to the plaintiff's credit.

[645] At pages 63 - 66 of the submissions, the defendants say the plaintiff made "an extraordinary attack" on Mr Sung Joo Sung, namely the following: (a) he misappropriated a number of cash donations while he was Secretary-General of the Supporting Committee (identified as occurring at T 199, 221, 223, 300, 323, 329, 333, 444, 546, 509, 534, 547, 923, 970. 1004, 1197), including the donation of Mr Patrick Lee; (b) his refusal of hand over a cheque book caused the Supporting Committee to dishonour cheques (identified as occurring at T 375, 409, 412, 1001 - 2); (c) he continued to misappropriate money well into 2000 "after he ceased to be Secretary General" (T 314, 569) and was responsible for errors in the recording of income from the SK Securities Night on 31 July 2000. [646] A number of these issues are dealt with in other sections of this judgment. The first impression that springs to mind, when looking at the defendants' list of "extraordinary attacks" made by the plaintiff about Mr Sung Joo Sung, is that it leaves out all the most important (and factually unchallenged) reasons: (a) that Mr Sung Joo Sung failed to keep proper records, although it is clear from his statement that he considered he knew how to do so, (b) that he tore pages out of the accounts book at some stage, (c) that when he left he took the accounts book with him, and (d) that when asked by the plaintiff to return those records so the plaintiff could prepare the accounts, he refused.

[647] I have already set out my findings concerning Mr Sung Joo Sung's credit and although it is repetitive, I shall briefly note the salient points again here.

The first allegation asserted to be made by the plaintiff: the missing $1,000 incident

[648] This is dealt with in paragraph 23 on p. 63 of the defendants' submissions.

[649] The second defendant's written submissions put this as follows: "Mr Sung Joo Sung received $1,000 in or about November 1999. His evidence was that amount was reimbursement for previous expenses personally incurred by him. It was not put that he stole money or that it was a misappropriated donation on the contrary it was perfectly clear that the $1,000 derived from the loan by Mr Paek in November 1999. The $1,000 payment was recorded by Mr Sung Joo Sung in Exhibit 27, his account book." (written submissions p. 64). [650] The summary of events contains many errors. First of all, Mr Sung Joo Sung did not "receive" this sum. He helped himself to Mr Paek's cheque while the plaintiff was in Korea (Daily Transcript 419, 19 June 2007, Day 13). Secondly, it is not correct to say it was not put that he stole this money. Mr Evatt put to Mr Sung Joo Sung that he "just took" the money: "Q. And you kept $1,000 to cover your own expenditure. A. INTERPRETER: Yes.

Q. Without any Expenditure Resolution in the sum of the $1,000. A. INTERPRETER: No, there isn't any Expenditure Resolution.

Q. No. You just took it. A. INTERPRETER: At that time our book was in, in the red. The balance was in the red. So I would like to ask you if you would not have done the same thing if you spent your money. A. WITNESS: Because ..(not transcribable)

Q. You've never set out any details of the $1,000. A. INTERPRETER: I couldn't do that because there was no financial manager who was in charge of finance.

Q. You were the secretary-general. A. INTERPRETER: That was a temporary position to do accounting. You need to know that clearly.

Q. The green book does not record how the $1,000 was broken up. A. INTERPRETER: There is a record of - that I had reimbursement of $1,000 on 15 November in the book.

Q. Yes, but there's no breaking up of that amount." (Daily Transcript 3085, 7 April 2009, Day 65) [651] Mr Sung Joo Sung's claim that he could not set out any of the details of the $1,000 "because there was no financial manager who was in charge of finance" is wrong because Mr Joo Yong was appointed on 1 December, two weeks later, and the information could have been given to him. Mr Sung Joo Sung's description of his own role as secretary-general as a "temporary position to do accounting" (Daily Transcript 3085, 7 April 2009, Day 65) is also inaccurate, since he held that position between November 1998 and December 1999, with a paid bookkeeper to do his bidding, as well as being the deputy to the seventh defendant during 1998. In addition, as I noted in the section on Mr Sung Joo Sung's record-keeping abilities above, the explanation for putting this sum in his own bank account in his evidence is very different to the explanation offered in his statement (Exhibit 72, at paragraph 30), namely his false claim that the Committee had no bank account at the time.

[652] As set out above in the section on Mr Sung Joo Sung's record keeping abilities, Mr Sung Joo Sung went on to claim he did not keep this $1,000; he used it to pay a female employee (presumably the bookkeeper Miss Chae) and for the running of the office. That is not consistent with the Green Book, which shows no payments to Miss Chae, and shows no office outgoings between 15 November (when the entry appears) and 25 November, when Mr Paek paid the rest of the loan money ($5,000) into the Sports Council account - apart from a payment of $14.05 for "beverage and others" (see page 7 of this exhibit, noting the entries are not in chronological order and the donation by Adviser Kang of $1,000 was also made on 15 November). A restaurant bill is noted as unpaid. There is an expense of $20 for printing on 25 November and another claim for beverages on 2 December. The donation by the second defendant of $5000 on 2 December also put the Supporting Committee into credit.

[653] The money Mr Sung Joo Sung took and put in his own account was essential for the Committee's survival; it was a loan from the Committee Vice-President, and it was taken and kept by Mr Sung Joo Sung for some weeks until the plaintiff forced him to return it. Even then, he only returned $9,000 of it.

Other matters raised on p. 63 of the defendants' submissions - Mr Patrick Lee

[654] The submission is that the plaintiff unfairly blamed Mr Sung Joo Sung for a donation when he himself received it. The submissions on this issue are misleading. The precise text of the cross-examination at Daily Transcript 923 (8 October 2007, Day 23) is: "Q. Mr Cha, I think I omitted to put to you that, in relation to the donation made by Mr Patrick Lee, you converted that money to your own use, or you stole the money.

Q. Mr Cha, stop looking at the documents. Madam Interpreter, would you mind just translating that question, then put to him he stole that money. A. How could I steal the money when that money was received by Mr Soong?"

[655] This cross-examination occurred on 8 October 2007. Mr Lee's claim had been particularised for the first time only a few weeks earlier, on 27 September. It was not put to the plaintiff in cross-examination that this sum was handed to him personally, or that the fourth defendant was there. The question was not a fair question as he was not put on notice that Mr Lee asserted that he gave the plaintiff this money in the presence of the fourth defendant (who, I note, never referred to this incident either during the audit or in his statement or evidence in these proceedings).

[656] I have dealt with this issue in the section concerning Mr Sung Joo Sung's credit. I am satisfied that he kept the cheque book until some period of time well into 2000 and that Mr Sung Joo Sung also kept the Green Book, a matter the defendants do not refer to anywhere in their submissions.

[658] Mrs Kim was not contacted by either party until after this litigation started, and she told the court categorically that she was never contacted by the fourth defendant at the time of the audit or thereafter (Daily Transcript 2533, 26 March 2009, Day 58). The first she knew of this case was when either the plaintiff or Mr Dae Won Kang contacted her (she was not sure which). This must have been in 2007, seven years after the events in question.

[659] Mrs Kim signed a statement for the plaintiff and affixed her identification card and photograph and sent it to his solicitors. Mrs Kim then had a visit in Korea from Dae Won Kang. She then provided a statement to the defendant.

[660] When Mrs Kim came to court, she was a terrified witness. She was white-faced, spoke in a faint voice and was near to or in tears for most of the brief time she was in the witness box. I observed at Daily Transcript 2507 (26 March 2009, Day 58) that she was looking "very nervous" and sought to reassure her but as questioning began she became so frightened I asked Mr Evatt to be kind to her as she was "near tears" (in fact she was in tears, but I was being polite). She did her best to answer, bearing in mind that Mr Evatt and Mr Wheelhouse SC were fighting with each other throughout most of her evidence (Daily Transcript 2507-2509 and 2520 -1, 26 March 2009, Day 58) and the interpreter was having trouble translating as a result.

[661] What was Mrs Kim giving evidence about that produced this level of antagonism? Mrs Kim came to Australia at the end of the Olympics and was chauffeured around by Mr Dae Won Kang on a sightseeing tour on 29 and 30 September 2000 (according to the defendants' chronology; the date given by Mr Dae won Kang in his first statement, namely March or April, is wrong). She agreed to donate $5,000 in cash, and did so. What were the terms of this donation? This donation was the subject of an article in TOP newspaper on 2 October 2000 (Exhibit 67). I note that, by that time, the Olympic Games were over (although the Para Olympics would be held the following month) and the newspaper article was about the farewell ceremony for the Olympic medallists..

TOP publishes a newspaper article about the donation

[662] TOP published an article about the donation on 2 October 2000. The text of the whole of this article needs to be considered in full: " Direct exchanges with North Korea through Sports

Mutual consent is reached between Australian-Korean Olympic Supporting Committee and Yung Sung-Bum, head of North Korea Olympic Team

After Sydney Olympic Games, Supporting Committee, led by chairman Cha Chae-Sang, has been busy. The Supporting Committee has arranged a meeting to celebrate Olympic medallists (Gold and Silver Medals) in the Korean Society of Sydney Hall in Croydon Park on the first [sic] where 36 Korean Olympic athletes and staff, and other [sic] 70 people attended.

The program in the event was diversified [sic] as chairman Cha Chae-Sang gave a welcome speech followed by consul general Bac Ki-Moon's congratulatory address, then luncheon was served after proposing a toast, and then a performance [sic] of Supporting Committee members continued.

In addition, it is reported that the Committee of the Supporting Committee will attend a farewell party for North Korean Olympic Team to build ties between North Korean sportsmen and Korean overseas sportsmen.

"I have shared thoughts with Yun Sung-Bum about direct exchanges through Sports" said chairman Cha.

Before this, on the 28th last month, Kim Young-hee, Managing Director of Komyumgwon Food Inc based in Sunchun, who was visiting Australia for the Olympic Games, submitted her donation of $5,000 to chairman Cha at the Sports Council and it is also reported that visiting deputy assistant for Ministry of Culture and tourism offered a gratuity.

Managing Director Kim Young-Hee who has made a donation had been running a restaurant in Sunchun for 22 years before recently establishing and running a Kimchi-making company."

[663] I should first note the timing and content of this article. Mr Dae Won Kang's evidence was that this article was designed to encourage donations to the Supporting Committee. This cannot be correct. First of all, the article does not say anything to this effect; for example, there is no statement from the plaintiff to that the Committee is looking for donations. Secondly, the Olympics were over, and this article is about the farewell celebrations as the Olympians depart to return to Korea (and, as I note below, Mrs Kim expressed no interest in the Para Olympics, and was not staying to watch them or otherwise seeking to help).

[664] I also note that this is the only article which appeared in TOP concerning the activities of the Supporting Committee which has been tendered, and it is not without significance that its contents are to the effect that the Olympics are over. The Activities Diary carefully notes every telephone call from journalists, as well as requests to journalists to come to press conferences, and the lack of interest from the three newspapers who are the defendants in this case is marked. It is significant in my view that on the issue of whether there is prior ill will between the plaintiff and defendant, all the second defendant can point to is that he permitted the plaintiff to publish an advertisement on 23 February 2001 containing the revised list of donations to the Supporting Committee (Exhibit 73). In addition, the Expenditure Resolutions confirm that each time the Supporting Committee placed an advertisement in these newspapers concerning its activities, they paid the full advertising rate, and they also paid a subscription for Hojudonga to be delivered.

[665] I next note that Mrs Kim recalled giving the donation of $5,000 to the plaintiff "in the office". It is not in dispute that the "office" in which the donation was made over was the Sports Council office. She said she had had come to Australia in 2000 for sightseeing, not for the Olympics.

[666] The donation is challenged because the plaintiff used this money to go to the Korean National Games on 3 October 2000. This was part of his role as the Chairman of the Sports Council and he had attended every year since 1997. However, this year, he was accompanied by the Vice-Presidents of the Supporting Committee. These expenses were met out of a mixture of Sports Council and Supporting Committee funds.

[667] It was put to the plaintiff in cross-examination that Mrs Kim's donation was listed in the 24 November accounts as a donation to the Supporting Committee and that he should not have used this donation to travel to the National Games in Korea, because this was outside the Olympic "purpose" as identified in the Constitution.

[668] The plaintiff in 2007, while under cross-examination, contacted Mrs Kim and obtained a statement from her, the English of which (together with her identity card) is Exhibit 68. In it she says that she knew Mr Cha well "and I knew of him being president of the [Supporting] Committee" and that for this reason "I donated the sum of $5,000 and had requested that he use those funds for the benefit of the Korean Sports Council of Australia, as he was also involved with this association". She went on to say that when she was contacted "sometime ago" by "an auditor of the Sydney community" she told him she had directed the plaintiff to use the money for the "Australia Sports Council" and she believed he had done so.

[669] Mrs Kim's evidence is inconsistent with this. She did not know the plaintiff, and she said that she had signed the English statement to the contrary because the Korean original of her statement (Exhibit 68) did not say this. She said she had thrown away the Korean version she was sent.

[670] Mrs Kim's explanation of what she gave the money for was simple: "Q. If the money went to help the Olympic Games and Korean participants, you would be satisfied. Is that correct? A. INTERPRETER: Of course that's the reason why I gave and I just assumed that that money was spent in that way.

Q. If you heard that Mr Cha got the money and bought a new watch with it, you'd be angry. A. INTERPRETER: Of course." (Daily Transcript 2531, 26 March 2009, Day 58)

[671] I find that Mrs Kim had given little or no thought to the precise recipient of her donation in the seven years since the Sydney Olympics. She was interested in Korean sporting success. Which organization was likely to bring this about was, I find, a matter of indifference to her. She had been treated with kindness by the plaintiff and Mr Dae Won Kang and she wished to donate money for the Olympics and for participants in Korean sport. She attached no conditions to her gift concerning its ultimate use beyond this, and it is of significance that she gave it at a time when the Olympics (as opposed to the Paralympics, in which she expressed no interest) were over, and at a location which was the Sports Council and not the Supporting Committee office.

[672] In addition, the use was for the Korean National Games at Busan, and I am satisfied that this was within the purposes of the Supporting Committee. I have noted elsewhere the text of the auditors' letter of 30 October 2000 in which they congratulated the Supporting Committee not only on the success of the Olympics and Paralympics but on the success of the National Games. Other representatives from the Supporting Committee attended these National Games as well as the plaintiff. If the South Korean government wanted to continue its policy of reconciliation by using sporting events as a vehicle, I can see the importance of the Australian Supporting Committee attending this sporting event. In fact, if the plaintiff had not attended, that might have led to speculation. The plaintiff's presence at the National Games was, in my view, part of his duties as chairman of the Supporting Committee.

[673] Looking at Mrs Kim's evidence in a common sense way, I see nothing to suggest that she would have refused to donate the money if she knew the purpose to which it would be put.

[674] While it is not unusual for defamation cases to be "combative", to use Levine J's description of the litigation in Antoniadis v TCN Channel Nine Pty Ltd (Supreme Court of NSW, Levine J, 24 April 1997, unreported), the level of hostility in these proceedings has been palpable. This has been contributed to by repeated claims by the defendants' witnesses that the Committee's minutes, Activities Diaries and even receipts (such as the Mon Ami receipt) are forgeries. The statements of Mrs Kim fall within such a category. At best, she is a witness who gave two differing statements after being courted by both sides. I reject any challenge to the plaintiff's honesty or credit arising from this change.

Responsibility for three witness statements being in the same terms in English

[675] Three of the plaintiff's witnesses gave evidence by way of statement which was prepared in English by the legal advisers for the plaintiff, whose names appeared on the front sheets attached to the documents in question. These documents were poorly prepared. Clearly, one statement had been used as a pro forma for the other two, and in fact, portions of the statement had to be crossed out by these witnesses because they related to other witnesses.

[676] I note that elsewhere in this judgment I had commented on the fact that the solicitors for the second defendant copied across the particulars of the material upon which comment was based from the particulars of the third defendant, and forgot to change "third defendant" to "second defendant". In lengthy litigation where there is a great deal of paperwork, these mistakes often occur.

[677] There is no question of the plaintiff playing any part in the preparation of these witness statements in English. It is self-evident from reading these statements that they were prepared by a native English speaker with legal training. None of the witnesses gave evidence that the plaintiff had written out their statement or made any admission of any kind to this effect.

[678] While the circumstances in which these three statements were almost identical does not reflect much credit on the plaintiff's legal representatives, just as the copying of the third defendant's particulars in relation to comment does not reflect much credit on the solicitors for the second defendant, this kind of error is to be expected where there are busy solicitors working to a timetable who cut corners.

[679] There were similar problems during the trial. One of the lawyers in this litigation took an exhibit from the exhibits desk in the court without notifying the court or returning it, with the result that the seventh defendant's cross-examination had to be adjourned for six months. On another occasion earlier in the litigation, a solicitor who no longer acts for the plaintiff left the plaintiff's box of cheque butts in Court 21A after the hearing was adjourned. Arguments broke out between the parties as to what had happened to them. Fortunately a court attendant located the relevant documents in a box under a chair, where they had escaped the attention of other persons attending official court functions and hearings between October 2007 and March 2008. Mistakes, errors and carelessness occur in long trials.

[680] I decline to draw any inference adverse to the plaintiff arising from the preparation of three statements in identical terms in relation to three of the plaintiff's witnesses.

[681] For most of its life the Supporting Committee's outgoings exceeded its income. It survived because of the financial support of the plaintiff. It was not in a position to open a cheque account until August 1999 because its outgoings exceeded its income and an unincorporated association without assets would not be likely to obtain an overdraft (the interest costs of which would be considerable).

[682] The majority of Committee purchases (such as restaurant meals, postage stamps, stationery) were made at organisations which as a general rule do not accept cheques. The Committee did not have any credit facility or credit card at any time during its life.

[683] The plaintiff agreed in cross-examination that the drawing of cheques to cash was a bad business practice. However, I see no reason why, if the withdrawal purpose is documented, a person or organisation cannot withdraw cash, or use cash given to them, to pay expenses, as opposed to writing cheques, since a significant number of small businesses do not accept cheques in payment. Cheques payable to cash may be a requirement in court orders or settlements; for example in Australian Securities Investments Commission; re Richstar Enterprises P/L v Carey (No. 13) [2007] FCA 57 French J (as the Chief Justice then was) required a "cheque payable to cash" to be paid to a Receiver (see order 14 in the judgment).

[684] In the many reported and unreported decisions of Australian courts thrown up by the search "cheque payable to cash", I was not able to find any assertion that the drawing and presentation of cash cheques amounted of itself to misappropriation, failure to account or even a bad business practice. If there is such authority, it has not been drawn to my attention by the defendants. I also note there is no expert evidence on this issue; although Mr Finney notes in his findings an assumption that cheques drawn to cash were all misappropriated, this appears to be a statement of his instructions.

[685] The use of keycards to withdraw cash from cheque or savings accounts is almost universal in Australia. To withdraw cash from a cheque account by cheque rather than by a card is probably safer, because the purpose of the withdrawal can be written on the cheque butt. That was what the plaintiff did.

[686] The real problem in relation to these cash withdrawals was that proper records of their purpose were not kept. That, however, is the fault of the bookkeeping staff rather than the plaintiff.

[687] The plaintiff's drawing and presentation of cash cheques "in circumstances where he knew this was inappropriate conduct" does not reflect adversely on his credit.

[688] As I have noted elsewhere, it is obvious from the face of the Expenditure Resolutions that some of the receipts have come off the staples, and someone has, in the past, tried to rectify this by pasting some of them onto the back of the Expenditure Resolution (with the result that some have a staple mark but the receipt is pasted onto the back). Some of the Expenditure Resolutions may already have been in this state when handed to the fourth and fifth defendants, or the receipt may have been removed for some other purpose.

[689] It is not necessary for the plaintiff or those whom he instructs to put it to the fourth and fifth defendants that they removed receipts, unless there is some other evidence to suggest this. Some of the expenses approved by the fourth and fifth defendants did not have receipts stapled to them, and there may have been some other evidence at the time, such as a letter in a correspondence file.

[690] It is not necessary, for an expenditure to be justified, for the receipt to be actually stapled or pasted to the Expenditure Resolution. If such a receipt exists in some other place, that is sufficient. If, for example, receipts for lease payments are stored in the lease file, that would not amount to grounds for saying the lease payments were not warranted expenditure as the receipt is not attached. The legal obligation to pay rent is not conditional upon invoices being sent, or such invoices being physically stapled to requisitions.

[691] The plaintiff was entitled to raise the fact that there were staple holes in some of the Expenditure Resolutions. It is to his credit that he did so in a sensible way.

[692] The defendants ask me to examine the plaintiff's original cheque butts to find that he "manipulated" them to make false claims for reimbursement.

[693] In Blacktown City Council v Hocking [2008] NSWCA 144 at [166] and following, Tobias JA warns trial judges to be careful to form opinions from evidence such as photographs only where there is expert guidance on the subject.

[694] Tobias JA's sensible comments were directed to a case where a judge had examined photographs to arrive at opinions of an expert nature concerning the operation of a lid. Such comments should apply with all the more force to an invitation to a trial judge to examine a bundle of cheque butts to determine whether the plaintiff "manipulated" (written submissions Chapter 4 paragraph 6) these cheque butts so as to alter their content and make false claims for reimbursement to the Sports Council by his company.

[695] The defendants uplifted these cheque butts from the court to send them to a document expert in Canberra (Daily Transcript 2, 18 April 2008, Day 33). I indicated my preference for the expert to examine them in the court premises but the defendants wished, for their own purposes, to retain an interstate expert.

[696] The defendants then elected not to serve the report they received. They now ask me to examine these cheque butts and to make findings that the plaintiff manipulated these.

[697] As I have set out elsewhere, the plaintiff's evidence was that he gave these cheque butts to his accountant, who prepared a schedule for reimbursement which was examined by the Sports Council in 2001. The defendants have called no evidence from the Sports Council records, and no witnesses, to suggest that anything untoward happened. None of these matters were particularised prior to the trial.

[698] It would be setting a precedent of a most unwelcome kind for a party who elects not to serve an expert report to ask the trial judge to make findings in that expert's place. Having said that, I have looked at these cheque butts, and can see no evidence to support the defendants' contentions that these cheque butts have been "manipulated" in any way. Accordingly, this is not a matter which goes against the plaintiff's credit as a witness.

[699] I also note at Daily Transcript 451-453 (20 June 2007, Day 14) allegations were made that the plaintiff not only made false claims for reimbursement but then fraudulently claimed these a second time in his tax returns. When Mr Evatt pointed out that this matter had not been particularised, Mr Wheelhouse SC said he was cross-examining on the basis of the tax return the plaintiff had tendered, and that he was entitled to cross-examine on Exhibit GG.

[700] Assuming that the tax return was not discovered, this is still a matter that should have been particularised, to give the plaintiff the opportunity to make inquiries. If the tax return was discovered, then this is another example of a matter that should have been particularised.

[701] However, not only was this allegation never particularised, it was in fact abandoned. I never heard any further allegation about Exhibit GG or fraudulent tax returns. Not only was it not mentioned again in these proceedings, but it is not referred to in the defendants' submissions. The only reference to the plaintiff's tax returns occurs at page 199, footnote 367, where the defendants ask me to infer that the plaintiff was short of money and therefore likely to steal and cite the tax return as evidence of his low income.

[702] This was one of a series of allegations of criminal conduct put to the plaintiff without particularisation and then abandoned, without explanation. This allegation was so serious that I raised the question of a certificate under section 128.

[703] In the course of dealing with Mr Evatt's objection, Mr Wheelhouse said that he must be allowed to conduct his cross-examination as he saw fit (Daily Transcript 454, 20 June 2007, Day 14), making similar statements at (Daily Transcript 177, 7 June 2007, Day 7; and Daily Transcript 1995, 11 June 2008, Day 50). He later explained his methodology to me in relation to the cheque butts as follows: "HER HONOUR: Mr Wheelhouse, these are your particulars, not mine. You tell me that you want to assert that every single one of these claims is completely fraudulent, and I will judge them on that and that will be a relevant factor I'll take into account. If you want to say that the plaintiff fraudulently made, what is it, about 120 fraudulent claims - in other words, every single claim he made - I will judge that submission on the fact that it's said that every single claim he made is fraudulent.

WHEELHOUSE: With great respect, your Honour, I'm in a better position - I want to put forward that they are all fraudulent because I put forward that the cheque butts have been altered, and I've tendered the cheque butts. But your Honour may be satisfied that my case in relation to some is better than others." (Daily Transcript 648, 26 September 2007, Day 19)

[704] A party who swamps his opponent, and the court, with hundreds (or thousands) of potential allegations of criminal conduct should not indulge in the hope that the trial judge will, by reason of the sheer number of allegations, use "conjecture" (Westbus Pty Ltd (Administrators Appointed) v Ishak [2006] NSWCA 198 at [20] to decide whether the accept a defendant's assertions over a plaintiff's denials. This is all the more the case if a matter has been looked into by the company (the Sports Council) in charge of refunding the plaintiff, which by reason of its obligations under the Associations Incorporations Act may be presumed to have gone about this task in accordance with its obligations and with the benefit of professional advice. The plaintiff's accountant had looked at these expenses with a professional eye in 2001.

[705] I have found the plaintiff to be a witness of credit. Even if I did disbelieve him, however, this does not lead to automatic acceptance of the defendants' witnesses in the manner asserted by the defendants. I refer to the observations of Scrutton LJ in Hobbs v Tinling [1929] 2 KB 1 at 21, where his Lordship pointed out that disbelief in a witness's evidence does not establish to the contrary. Similarly, disbelief in the evidence provided by one party does not mean that the evidence of the opposing party is correct: Kuligowski v Metrobus (2004) 220 CLR 363 at 385 per the Court, noting that in particular cases it may not be possible to reach a conclusion either way. The judge is not always bound to make a finding one way or the other with regard to the facts averred by the parties. The court has open to it the third alternative of saying that the party upon whom the burden of proof lies has failed to discharge that burden.

[706] As I have rejected each of the specific matters raised by the defendants, I shall now consider the credit of the second, fourth and fifth defendants.

The credit of the second, fourth and fifth defendants

[707] I now consider issues relevant to the credit of the second, fourth and fifth defendants as witnesses.

[708] The second defendant was called by the plaintiff to give evidence. This meant he was not cross-examined in the usual way; in fact, he was cross-examined by his own counsel.

[709] In the section of this judgment in which I have set out the history of the Supporting Committee's activities, I have identified the role of the second defendant, who was the Honorary Chairman of this organisation and who participated in some of the activities. He donated $1,000 cash personally and arranged for a donation of $5,000 from the Korean Society of which he was the President. He was also immediate past President of the Korean Sports Council. He is the person referred to as the "mediator" by the first audit report (1 March 2001), he chaired at least one of the meetings, and he attended the Sports Council meeting at which the plaintiff had to resign (30 March 2001 matter complained of).

[710] The second defendant's role as the Honorary Chairman of the Supporting Committee, the President of the Korean Society and immediate President of the Sports Council, as well as the person approached by the fourth and fifth defendants (according to the 1 March 2001 matter complained of) and his participation in the events means that he had his own knowledge to draw upon when considering whether or not to publish the matters complained of. In this regard he is in a position akin to being an "expert" of the kind referred to by Mason P in Skalkos v Assaf [2002] NSWCA 14, in that he had the necessary specialised knowledge to know of the falsity of the imputations in each of the three matters complained of for which the defence of qualified privilege at common law and pursuant to s 22 Defamation Act 1974 is pleaded. In addition, as is particularised in the Reply, the plaintiff wrote to the second defendant complaining of the falsity of the imputations contained in the previous three publications (January and February 2001), for which the second defendant does not plead this defence.

[711] The matters raised by the second defendant include the following: (a) The false statement by the plaintiff that the second defendant did not donate money to the Supporting Committee. The second defendant points to the recording of this amount in the final accounts the plaintiff sent to Mr Bae, the accountant, on 5 April 2001 (Daily Transcript 445, 20 June 2007, Day 14). I should add that Exhibit 73, the revised list of donors published on 23 February 2001 also contains this amount.

The plaintiff's denial of this donation needs to be seen in context, namely that there was no particularisation of this sum when the plaintiff was cross-examined about it. In re-examination, he agreed that there had been a donation by the second defendant. This is not a case of a false statement made by the plaintiff; he set out in Exhibit 73 (23 February 2001) that the money had been donated, but when giving evidence in June 2007, contradicted this earlier statement. If this had been particularised by the defendants and denied, that might be a complaint of more substance. However, when a witness agrees to an error in re-examination, that is not a matter which I regard as being "false".

(b) The second matter raised by the second defendant (written submissions page 354) was the plaintiff's complaint that the second defendant did little to support him or the Supporting Committee during its lifetime, and that his only contribution was that the plaintiff bought some meals at the second defendant's restaurant for which the second defendant paid. In fact the plaintiff went on to say that the second defendant gave some assistance with the rent while they were at the Korean Society, but it is a correct statement of the plaintiff's evidence to say he did complain that the second defendant did not do more. The second defendant points to evidence in the Activities Diary (Exhibit 52) that on several occasions the second defendant hosted meals at his restaurant for members of the Supporting Committee for which he, the second defendant, paid.

There were several references in the Activities Diary and Minutes to the second defendant paying for meals, and to his inviting Supporting Committee members to the opening to his new charcoal restaurant at Parramatta. The second defendant's submissions at paragraph 3(c) note that he also paid for the meal at the airport when the South Korean Olympic Team arrived. The second defendant did go to meet the Korean Olympic team when they arrived in Sydney. I note from the Minutes of Meeting that Consul Moon was not in favour of a large delegation to the airport saying he considered that if anybody needed to go it should only be himself and the plaintiff. The second defendant must have attended because he wished to go, not because he was under any obligation.

As to the attendance of the second defendant to greet the Paralympics team during the plaintiff's absence at the 81st National Games in Korea, this is relied upon by the second defendant as one of the matters going to the proof of imputations about the plaintiff bringing shame on the Korean community in Australia and impeding the working of the Committee through his self-righteous behaviour.

However, the kind of assistance that the second defendant could have given the Committee, if he had really wished to be of assistance, was enormous. Although he told the court that holding dinner functions was not the way to raise money (Daily Transcript 2100, 12 June 2008, Day 51), there is no evidence that he ever gave the Supporting Committee assistance by, for example, a discount for advertising in his own newspaper, or published promotional material or even articles about the Supporting Committee's rallies and other activities. The second defendant's newspaper enjoyed substantial revenue from the Supporting Committee in the form of advertising which was clearly done at full rates, although these advertisements concerned issues of direct relevance and importance to the Supporting Committee's activities, such as homestay, Olympic information and the like.

The best evidence of absence of malice would have been for the second defendant to tender newspaper clippings from his own newspaper publicising Supporting Committee activities. The only article that ever appeared in relation to the plaintiff's role as the Supporting Committee's Chairman was the article about Mrs Kim's donation (which appeared when the Olympics were over, see Exhibit 67), apart from the plaintiff's paid advertisement of 23 February 2001 (Exhibit 73) and the paid advertisement for the Resolutions of 18 March 2000.

In addition, it was the evidence of the fourth defendant that the Supporting Committee was asked to pay rent to the Korean Society of $150 per week. This was beyond the resources of a Committee with no income, and they had to leave the premises. This occurred in August/September 1999, after the election of the second defendant as the new president of the Korean Society. It was the fourth defendant's evidence that when the Supporting Committee would not pay the sum of $150 per week rent (they had been paying $50 per week from April onwards), so "we said, 'leave'" (Daily Transcript 2745, 31 March 2009, Day 60). This may amount to evidence of prior ill-feeling, given the plaintiff was funding the Supporting Committee from his own company purse, and moving, renovation and rental expenses exceeded $20,000, according to the list of expenses in Exhibit A.

The fourth defendant's explanation for asking the Supporting Committee to go was very different from that given by the second defendant in the witness box. The second defendant claims that he did not ask the Supporting Committee to leave. At Daily Transcript 2116 (16 June 2008, Day 52), the second defendant was asked:

"Q. Doing as best you can, can you tell the court what your recollection is of how it came about that Mr Cha moved out of the offices of the Korean Society? A. INTERPRETER: We were asked to give a space for Sports Council office at the Korean Society office, so we did. However, I can't remember who went and sought a space at Canterbury Council. But there was a fairly large space next to council building, and they found this space, and they have moved out from Korean Society. That's, as far as I remember, how it happened. That's how it happened, but I have never asked them to leave.

As far as I am aware, the chairman of the Korean Society is there to support all the joining, or joined, associations of the Korean community, and that's how we exist. And that's how I remember. So I did my best to do that. How could I ask them to leave the office? So if so, why would I have - if what they say is right, why would I have Olympic committee and went out to dinner and bought dinner for them? I think what they're trying to do in court is they're trying to make me as a bad person. And Mr Cha just went out and shaking his head and looking at me. I tried to be kind to him, but he refused."

However, this is not the case, according to the contemporaneous documentation. The matter complained of published by the first defendant, dated 4 May 2001 (Exhibit V), records, at the end of its description of the stormy meeting of the Sports Council at which the plaintiff was forced to resign, that the new address for the Sports Council would be care of the Korean Society and gives the address "82 Brighton Ave, Croydon Park, NSW 2133 ( C/o Korean Society )" (emphasis added). I note this is the same address shown on Mr Dae Won Kang's business card (Exhibit BBB). This is a move which occurred in 2001, not 1999 when the Supporting Council had to leave. In addition, some of the Expenditure Resolutions (Exhibit 6) still have the Korean Sports Council letterhead on top (they were apparently copied from these as a pro forma) and the address given for the Sports Council is "69 Evaline Street, Campsie NSW 2194", not the Korean Society's Croydon Park address. These contemporaneous documents confirm that the Supporting Committee was not asked to move out so the Sports Council could move in, as the plaintiff (who was the president of both at the time) would know.

In addition, I note the evidence of the fourth defendant that the second defendant actively sought details of the audit being conducted by the fourth and fifth defendants resulted in some or all of the relevant defamatory publications (Daily Transcript 2638, 30 March 2009, Day 59).

[712] The second defendant told the court he had a poor memory. If he read a document, by the time he finished reading it he had forgotten the beginning (Daily Transcript 2088, 12 June 2008, Day 51; Mr Evatt reassured him that he had the same problem). When pressed, he could not remember when he had come to court for these proceedings or even what the date was (Daily Transcript 2123, 16 June 2008, Day 52). He could, however, remember that the fourth and fifth defendants had consulted an accountant when they prepared their audit reports (Daily Transcript 2089, 12 June 2008, Day 51). This was contrary to the fourth defendant's statement. However, when the fourth defendant later came to give evidence, he contradicted his own statement and gave evidence of consulting an accountant (Daily Transcript 2674, 31 March 2009, Day 60).

Conclusions concerning the credit of the second defendant

[713] Taking the above into account, I do not regard the second defendant as a witness of credit.

[714] The findings of fact that I have made in relation to the credit of the second defendant are of some relevance to the issue of malice for the defence of qualified privilege at common law and pursuant to s 22 Defamation Act 1974, but must be carefully delineated from those findings.

[715] It is hard not to feel a degree of sympathy for the fourth defendant. He came across as a man completely out of his depth and anxious to please the second defendant (hence the reference to seeking the second defendant's help, at the end of the matter complained of dated 1 March 2001, and his evidence at Daily Transcript 2638 (30 March 2009, Day 59) about the second defendant asking him to obtain information). The fourth defendant was the administrative auditor, not the financial auditor, and the very limited nature of the administrative auditor's role can be seen from the entry in the Activities Diary concerning the documentation provided for him for the administrative audit on 21 August 2000, which consisted of looking at documents about arrangements with SOCOG, harmonious society issues and the like (see Exhibit 52, page 23, 18 and 21 August 2000 entries).

[716] However, there was no mistaking the hostility and ill will of the fourth defendant towards the plaintiff from the moment he received the plaintiff's financial documents. I have indicated elsewhere I do not accept his evidence concerning the alleged theft of the publication of the interim report in Hojudonga and in this regard, I note the contents of his own letter to the plaintiff dated 5 February 2001 in which he specifically refers to having requested a meeting pursuant to the publication of this interim report.

[717] Although the fourth defendant told me at Daily Transcript 1292 (17 October 2007, Day 29) that he was like an "expert doctor" concerning the Supporting Committee, and there was extensive cross-examination of the plaintiff about the fourth defendant's role in putting stamps and seals on the accounting records, it transpired that even this administrative task was performed by the fifth defendant. At Daily Transcript 2734-2735 (31 March 2009, Day 60) Mr Evatt asked: "Q. The main auditor was Mr Lee, not yourself. A. INTERPRETER: We did it together.

Q. There's not one mark you've made on any of the expenditure resolutions, is there? A. INTERPRETER: First, I checked, and then second, Mr Lee checked, and he put the seal.

Q. Can you show me any mark you've made on any of the expenditure resolutions? A. INTERPRETER: I never said I have written something down.

Q. We only have your word for it that you even looked at them. A. INTERPRETER: There were two auditors and two of us had to check before anything was signed off.

Q. But you signed - you made no mark on any expenditure resolution. A. INTERPRETER: There was no need to write anything.

Q. Mr Lee not only put his initials - signature on each resolution, but put his seal on it is as well. A. INTERPRETER: Correct.

Q. And wrote "evidence required" where necessary. A. INTERPRETER: Yes.