Shandil v Sharma

District Court of NSW|2010-04-23|Before: Levine J, Wood J, Hunt J

Introduction [1] - [12] The evidence of the parties and their witnesses [13] - [180] Was the matter complained of published? [181] - [234] The defence of justification [235] - [293] The defendant's application to reinstate the defence of qualified privilege at common law [294] - [329] The defence of qualified privilege at common law [330] - [355] Conclusions concerning liability [356] - [358] Damages [359] - [413] Interest [414] Orders [415]

[1] The plaintiff is a teacher and since 2003 held the position of Principal of the Australian Institute of Hindi Language Studies. He brings proceedings for damages for defamation and injurious falsehood arising out of the publication by the defendant at a school Parents and Citizens Association (hereafter "P&C") meeting on 30 November 2008 of the following words: "Mr Shandil has committed forgery. He has forged signatures of two teachers on teacher profile forms. I have had legal advice that Mr Shandil has committed forgeries. Mr Shandil should be dismissed and terminated from his position as principal of the school and otherwise I will call the police."

[2] The plaintiff pleaded that these words give rise to the following imputations: (a) the plaintiff committed forgery;

(b) the plaintiff forged the signatures of teachers on profile forms;

(d) the plaintiff should be dismissed from his position of principal of the Australian Institute of Hindi Language Studies;

(e) the plaintiff's conduct should be referred to the police.

[3] There is a claim for republication as follows: (a) the defendant caused Mr Sohan Singh of Sohan Singh & Associates, Barristers & Solicitors to republish the same words or words to similar effect in a letter to the Officer in Charge, Mount Druitt Police Station, dated 17 January 2009, which letter stated, among other things, that the plaintiff had forged two signatures and passed off documents as original, and called for a police investigation into the plaintiff;

(b) the defendant caused these words or words of the same substance to be published to members of the Australian Institute of Hindi Language Studies on 8 February 2009; and

(c) the defendant caused the defamatory words to be published by the secretary of the Australian Institute of Hindi Language Studies, Mr Prasad, in a letter written to Mr Sunil Kumar and his wife on 10 February 2009.

[4] The contents of the publications of 17 January, 8 and 10 February 2009 relied upon as republications of the defendant's slander are as follows: (a) The letter of 17 January 2009

THE OFFICER IN CHARGE MOUNT DRUIT [sic] POLICE MOUNT DRUIT [sic].

RE: THE AUSTRALIAN INSTITUTE OF HINDI LANGUAGES STUDIES PARENT AND CITIZENS ASSOCIATION INC ASHOK SHANDIL-POI

WE ACT FOR THE ABOVEMENTIONED INSTITUTE. WE REQUEST AN INVESTIGATION UPON MR ASHOK SHANDIL (THE EX-PRINCIPAL) FOR THE FORGERY/UTTERING OF TWO SIGNATURES AND PASSING OFF THOSE DOCUMENTS AS ORIGINAL.

THE SECRETARY OF THE SAID INSTITUTE HAS ALL THE DETAILS TO ASSIST IN THE INVESTIGATION.

WE WOULD APPRECIATE IF THE COMPLAINT IS TAKEN WITH A VIEW TO BRING THE OFFENDER TO JUSTICE.

YOURS FAITHFULLY, SOHAN SINGH BARRISTER & SOLICITOR SOHAN SINGH & ASSOCIATES"

(Note: I have set out this letter in capital letters because the original letter was typed in this fashion.)

"[Letterhead of the P&C Association of which the defendant is the President]

A special general meeting will be held on Sunday, 22 February 2009 at Rooty Hill High School Hall at 1.20 p.m .

This meeting is held under Section 10 of the Australian Institute of Hindi Language Studies Parents and Citizens Association Inc. Constitution. We have consulted the [sic] legal advisor and the Department of Fair Trading and under Section 19(3) of Association Incorporation Act 1984, Rule 10 of our Constitution overrides Rule 25(4) of the Model Rule for Incorporate Association .

In accordance with Rule 10 of our Constitution, the meeting can only be called by the Secretary or the Executive Committee. Hence, a special meeting called by any other member will be null and void.

Rule 19(3) of Associations Incorporation Act 1984 No 143 states that " Where in relation to any matter the model rules make provision but the rules of an incorporated association do not make provision, the provision of the model rules shall, in relation to that matter, be deemed to be included in the rules of the incorporated association. "

Currently, the brief outline of the situation is: · Mr Ashok Shandil's dismissal from voluntary service was based on both disciplinary issues and commercial consideration including restructuring. · Mr Shandil forged two signatures of two applicant teachers on the Teacher Profile Form which was submitted to the Department of Community Language Studies. This matter has been reported to the Mount Druitt Police for investigation on the instruction of the Schools Legal Advisor. If the Community had not reported the matter, the Committee would have been concealing a serious criminal offence. · Mr Shandil was invited to show cause at the Executive Committee meeting held on 30 November 2008. He admitted that he had forged the signatures and it was an illegal act. He further said "What can you guys do?" · Mr Shandil refused the request of the Committee to discuss further matters raised against him. · On 23 December 2008, Mr Shandil referred the matter to the Industrial Relations Commission of New South Wales for unfair dismissal. The first conciliation was held on 20 January 2009. The second conciliation will be held on 18 February 2009 . · Upon legal advice, any special meeting called before 18 February 2009 to discuss this matter is deemed to undermine the Australian Judicial system.

· Brief the Association members about the above situation only.

"[Letterhead of the P&C Association of which the defendant is the President]

Further to our communication dated 8 February 2009, I would like to inform you that any act subsequent our earlier communication by you would be wrong in law and contrary to our Constitution.

Please note that this information has already been provided to you in our notice for our special meeting dated 8 February 2009.

You both are pursuing activities in support of Mr Ashok Shandil whose voluntary services from the school have been dismissed based on both disciplinary issues and commercial consideration. This disciplinary action resulted from Mr Shandil forging two signatures of two teachers on the Teacher Profile Form that was submitted to the Department of Community Language Studies. You have also been made aware that this matter has been reported to the Mount Druitt Police for investigation. The Principal of Rooty Hill High School has barred Mr Ashok Shandil from entering the school premises until the matter that is currently in the Industrial Relations Commission is resolved legally. Please note that Mr Ashok Shandil has instigated this matter in the Industrial Relations Commission for unfair dismissal.

After the first hearing in the Industrial Relations Commission, you both have been lobbying on behalf of Mr. Ashok Shandil to have him reinstated as the Principal in the Hindi School with the full knowledge that the matter is scheduled for a second hearing on 18 February 2009. By taking such course of action, both of you are undermining the Australian Judicial system.

You are seeking to have a special meeting on 15 February 2009 under Rule 10 of our school's constitution. The School Executive Committee approached the Department of Fair Trading for clarification on this rule. The department has stated that Rule 19(3) of the Associations Incorporation Act 1984 No 143 states that " Where in relation to any matter the model rules make provision but the rules of an incorporated association do not make provision, the provision of the model rules shall, in relation to that matter, be deemed to be included in the rules of the incorporated association. " This rule has been brought to your attention but you choose to ignore and are determined to proceed with the special meeting on 15 February 2009.

Please note that the Executive Committee will call a meeting on 22 February 2009 to brief the Association members about matters resulting in Mr. Ashok Shandil's dismissal and the outcome of the second hearing of the Industrial Relations Commission.

We believe that as teachers of mainstream school in NSW, both of you are bound by conduct applicable for your institution and likewise we expect you to display the same ethics and conduct with our institute.

We are of the view that the Executive Committee will handle all matters in relation to the institute and any of your efforts in the interruption of running of the institute will be taken further. We believe that you are threatening the Executive Committee through certain members and we politely request you to desist such activities.

Yours sincerely Virendra Prasad (Secretary)"

[5] The claim for injurious falsehood asserts that the plaintiff spoke the words on or about 30 November 2008 falsely and maliciously, and that the plaintiff suffered loss and damage. Particulars are provided in the statement of claim concerning falsity, malice and special damage. This claim was abandoned during closing submissions. The claim for special damages in relation to the defamation action was also abandoned, but at the commencement of the trial.

[6] There were proceedings in the Industrial Relations Commission between the plaintiff and the school of which he was principal. Those proceedings were settled. There has been no reliance upon the terms of that settlement by the defendant in relation to the quantum of the defamation claim.

[7] At the commencement of the trial counsel for the plaintiff complained that the defendant's answers to interrogatories relating to the qualified privilege defences had been answered by a denial of publication, which was inconsistent with the maintaining of defences of qualified privilege. Applications were brought at the commencement of, and during, the hearing, to strike out these defences. At the close of the plaintiff's case on the third day, this application was renewed. The defendant abandoned these defences and the trial proceeded without any cross-examination of the defendant on issues relevant to these defences, although malice remained an issue in the trial because of the injurious falsehood claim.

[8] When submissions were served, the defendant brought an application to replead his defence of qualified privilege at common law (but not pursuant to s 30). This belated application caused significant difficulties in that the plaintiff 's legal advisers sought an extension of time to consider whether to reopen their case or to oppose the application, and this delayed the submissions being finalised until 30 August 2010. This then conflicted with other court commitments of my own and it was not possible for me to finalise my judgment until I was able to review these further applications, as the additional matters raised by the defendant, and the consideration of how these impacted upon the evidence of the case, raised matters of factual as well as legal complexity.

[9] It is necessary for me to set out the evidence in these proceedings in great detail, for the same reasons as those explained by Nicholas J in Ryan v Premachandran [2009] NSWSC 1186 at [9].

[10] The defendant pleaded defences of truth and qualified privilege at common law and pursuant to s 30 Defamation Act 2005 in the defence filed on 3 December 2009. The defence was justification was particularised by the simple assertion that the plaintiff had admitted to committing forgery and that the defendant had received legal advice to this effect (this latter particular was withdrawn at the trial). I made orders on 18 February and 26 March 2010 for the provision of particulars of truth, including service of statement and reports (anticipating expert reports on forgery and legal advice), and for answers to interrogatories. Those orders were not complied with by the defendant, although the matter was set down for trial on the understanding that pre-trial timetables would be complied with by both parties. As is set out in more detail below, the defendant never provided particulars of truth beyond the brief summary set out in the defence (part of which was withdrawn at the trial) and refused to answer interrogatories concerning the qualified privilege defences, as well as failing to give full discovery of documents going to the defence of qualified privilege.

[11] The reason for giving a speedy trial date was that these were proceedings between the principal of the Australian Institute of Hindi Language Studies and the president of the P&C which conducted the school. My concerns about the limited resources of the parties, and the preservation of any ongoing relationship in the Indian community in Sydney, made me consider it was important, having regard to the provisions of s 60 Civil Procedure Act 2005 (NSW) and s 48 Defamation Act 2005 (NSW) that these proceedings be listed for hearing as quickly as possible. I was guided, in the making of orders for the urgent hearing of these proceedings, by the nature of the particulars of truth, which asserted the plaintiff had conceded he was guilty of forgery and that the defendant had received legal advice, and by my understanding, from statements made by the defendant's legal representatives, that these elements would be easily proved by tender of documents. In fact the plaintiff never admitted he was guilty of forgery, and not only did the defendant never obtain legal advice, but when he was advised to the contrary by the honorary solicitor for the school (Mr Narayan) he and the P&C sacked this solicitor from his position as the school's legal adviser.

[12] The issues in this case are as follows: (a) Whether publication and republication occurred at all. The defendant denies that he spoke the words of the matter complained of on 30 November and denies any liability for republication;

(b) What imputations, if any, are conveyed and whether they are defamatory;

(d) Whether the defendant, who abandoned defences of qualified privilege at the close of the plaintiff's case on the third day of the trial, should be permitted to reinstate the defence at common law;

(e) Whether the publication was made on an occasion protected by qualified privilege at common law and, if so, whether the occasion was defeated by malice;

(f) Whether damages should be awarded and if so, for what amount.

[13] The plaintiff and defendant each gave evidence. I shall set out the evidence of the plaintiff and the two school teachers who gave evidence concerning the filling out of the teacher profile forms.

[14] The plaintiff, who is currently 52 years of age, has been a teacher all his life. After graduating from the University of South Pacific, Fiji, with a Bachelor of Arts degree, and obtaining a graduate certificate in education, he came to Australia. He taught at Mount Druitt High School for nine years, then at Glenmore Park High School for two years, and for the last ten years at Cecil Hills High School. The plaintiff comes from a family of teachers; his father, sister, younger brother and sister-in-law are all also teachers.

[15] In addition to his teaching duties as a teacher employed by the New South Wales government, the plaintiff had a strong interest in the Hindi language and culture, which is his cultural background. He took the necessary steps to set up a school to teach the Hindi language to children on weekends. Rooty Hill High School allowed its premises to be used on each Sunday of the school terms from July 2003. The plaintiff was supported by his wife in this endeavour. It was his evidence that the school was his wife's idea (T 24). He negotiated a contract with the principal of Rooty Hill High School to use their premises, wrote the P&C Constitution, using the P&C Constitution of the school at which he taught, contacted the Department of Fair Trading and, together with his wife, organised community support for the establishment of the school.

[16] Between July 2003 and the end of 2007, the plaintiff carried out all this work without any payment. By February 2008, the size of the school was such that he was able to be paid $100 for each Sunday of the school term.

[17] The plaintiff not only set up the school and found suitably qualified teachers, but also wrote the curriculum. He was given a curriculum by an ex-teacher from Fiji who had written an Australian curriculum, which he updated. He was also responsible for the recruitment of staff and did all the interviewing. He advertised the school in the Indian community and also set up a school magazine which he edited. Copies of those magazines form Exhibit A. These magazines paint a very vivid picture of the many activities of the Hindi school in promoting not only Indian language, but also culture, including Indian classical music, traditional dance and "Bollywood" dancing. The plaintiff was the contact person for the school as far as the Department of Community Languages was concerned on all school issues. The Department of Community Languages is part of the Education Department (T 25). Although Hindi is a language which could be studied for the high school certificate, this was a small school, which provided classes from kindergarten to grade 6.

[18] In July 2003, when the school started, there were 37 students. Towards the end of 2003 the number increased to 60. At first there were two classes. There was a composite class of very young children and a separate grade 2 class. The children were taught Hindi grammar, speaking, writing, reading and the alphabet. The lesson went for two hours on Sunday and there was an optional one-hour class for students wishing to learn classical Indian dancing or playing Indian musical instruments. At first only the harmonium was taught, but later the tabla was also taught.

[19] The teachers were paid by the introduction of a small levy on every student who attended the school of $20, as well as by the proceeds from the school concert, as tickets were sold to the public. By setting up a school magazine with advertisements, extra income was earned. Right from the beginning, there was always a surplus, albeit a modest one (T 28). Every year there was an annual presentation as part of the school concert, which included a prize-giving ceremony; this usually took place in late November.

[20] The school magazine started with a production run of 2,000 and increased to 2,500. The annual concerts were attended by about 400 people. The plaintiff would distribute leftover copies of the school magazine at Indian businesses and those other non-Indian businesses who advertised in the school magazine. He also provided copies to the Department of Education, the Minister for Education, and places of education in Fiji. He gave copies to visiting teachers from countries such as New Zealand, Canada, the USA or India. He also provided a copy to the Fiji Teachers Union and to council libraries in the western suburbs area. He spent many hours of his spare time in these voluntary activities.

[21] Mr Shandil's activities extended to all areas of school administration: "Q. Do you know who wrote the department guidelines? A. The department guidelines were written by the Department of Education, the community languages and according to those guidelines community language schools are supposed to prepare a curriculum.

Q. Who wrote the school policies in accordance with those guidelines? A. I did.

Q. Do you know who was acting as the first aid officer? A. I was

Q. Who was the main point of contact with the Department of Education? A. I was. I was the school's contact person for the Department of Education.

Q. Who was responsible for organising the attendance of teachers at curriculum workshops? A. I was.

Q. Sir, in respect of all of those things that you've given evidence about can you estimate how many hours a week you think you might have spent on those things? A. Is that in addition to the--

Q. In addition to the Sundays. A. It would average about between 2 to 3 hours." (T 71 - 72)

[22] It was the plaintiff's evidence that between July 2003 and 2008 the school was happy and harmonious. He performed all this work as a volunteer without pay until 2008, when he was paid a sum of $100 per week for his work as the school principal; in 2008 he was mainly involved in administration of the school, which was by now quite large.

[23] By 2008 the school was employing 11 teachers, two of whom (Mrs Lata and Mrs Shikha Sharma) gave evidence. They were using 8 class rooms, teaching 86 students for 3 hours for 40 weeks of the year (Exhibit 4). The plaintiff was the contact person for funding arrangements (Exhibit 4).

[24] In November 2007 the defendant, who had joined the Parents and Citizens Committee (the "P&C") in 2004 (T 261 line 35) and become a member of the board of the P&C in 2007, was elected the president of the P&C. He had no background in teaching, and worked in a factory.

[25] One of the tasks of the president of the P&C was to put in an annual application for funding from the Department of Community Languages in the Department of Education. This was a small grant of government money to assist the school in conducting its affairs (Exhibit 4). Extracts from the programme guidelines for funding requirements and conditions for 2008 are set out in Exhibit 5.

[26] According to Exhibit 5, the general funding requirements required the school to have a proper corporate structure as a not-for-profit organisation, and for those involved in the school to ensure that schools under that company's aegis were managed by a P&C "according to the rules of incorporation" (page 3). The school had to ensure that teachers meet minimum professional development standards as set out on pages 3-4 (Exhibit 5). Paragraph 3.2 sets out other conditions and responsibilities, none of which are submitted to be relevant here; there are provisions for indemnity and insurance, disability legislation, multiculturalism and prevention of fraud. Clause 3.2.9 refers to verification of the accuracy of information provided to the department and the appropriateness of the use of funds, and says that policies and procedures should be in place to ensure risk management and fraud control systems are working. It was not submitted that this clause had any relevance.

[27] Under clause 3.2, Exhibit 5 warns that failure to meet the Program Guidelines Funding Requirements and Conditions "could result in the termination of the Funding Agreement" and states that the organisation will be advised and consulted prior to any such action being taken. The question is what amounts to a failure to meet the Program Guidelines. Whether that includes the school principal filling out (accurately) the teacher profile form for two teachers, and signing it with their authorisation, amounts to conduct which could result in the termination of the Funding Agreement is one of the disputed issues of fact in this case. There is, however, no evidence that the department ever considered such a step, or even knew about, let alone complained about, these forms having been filled in and signed in the principal's handwriting rather than the teachers'.

[28] The application process for funding is set out in paragraph 4.1.3 and includes information about the school, its banking details, its financial obligations (such as a GST information sheet) and the parent/guardian certification form. At paragraph 5.6 the following is set out: " 5.6 Teacher Profile Form

· the information is used to create a register of teachers in community languages schools · the information is used to establish whether the organisation meets minimum teacher professional development standards.

Teacher Profile Forms must be completed by each new teacher. A copy of teaching qualifications must be provided to the Program.

Teachers who cannot provide proof of qualifications must be enrolled in a course offered by the Program or an equivalent before the school is eligible for any further funding."

[29] Clause 5.6, referring to the Teacher Profile Form, makes it clear that the purpose is to determine whether the teachers have appropriate qualifications. The forms must be completed by each new teacher together with a copy of teaching qualifications. There is no specific reference to a requirement for a signature. By comparison, the Parent/Guardian certification form (5.16) "must" be signed by the parents or guardians of each child on the class roll because their signature authorises the organisation to provide child details to the department.

[30] The process of obtaining the grant was described by the plaintiff in his evidence as follows: "Q. Why do the profile forms need to be lodged, Mr Shandil? A. Just to create a registration of all teachers in registered community language schools.

Q. And it wasn't a requirement by the NSW Community Language Schools that these forms be lodged as part of the entire process for funding? A. Not that I know of, because I've got to obtain copies of application using the Freedom of Information Act. I requested that the Department of Community Languages send me a copy of the form that was lodged on behalf of the Australian institute of language studies as far as funding was concerned, and they sent me a copy, and they did not send the profile form with them. All we used to get in the school was a per capita grant based on the number of students that we had. The per capita grant had nothing to do with teacher profile forms. These teacher profile forms, even if they were not sent, the department had no way of knowing who were the new teachers, and that would not have affected our grant in any way.

Q. You see, I put to you, Mr Shandil, that's simply not correct. A. That's correct.

Q. I put to you that the lodgment of these teacher profile forms was a requirement of the New South Wales department as part of your funding and grant process. A. It was a requirement definitely, but nothing to do with the grant.

Q. Mr Shandil, at the very least, if you haven't lodged these forms in time, there would have been criticism from the committee, wouldn't there? A. The committee had no idea about this, because the committee did not see this. I asked the president for copies of this. He did not have copies of this." (T 107 - 8)

[31] The plaintiff went on to explain why he considered this document not only was not part of the funding, but was not the subject of close attention by the department: "For copies of our teacher profile forms for the year 2008 because this was done in 2008. As you can see, your Honour, these forms are for the year 2006. If the department really based their funding on this, they would have returned this form to me because I was the contact person of the school, and they would have asked me to redo another one, and correct the answer of question number 1 on both the profile forms. Question number 1 says, "Are you a new teacher with community language schools 2006?" and by mistake, I ticked "yes" in both columns, because this form is for the year 2006. So obviously the department has not bothered to even look at this." (T 108)

[32] The plaintiff's evidence was that he kept all the school files at his home, because there was no storage available at the high school where the classes were conducted. One pf the issues in contention was how the defendant, in those circumstances, obtained copies of the two teacher's profile forms for Mrs Lata and Mrs Shikha Sharma.

The plaintiff's evidence as to how he came to sign the forms

[33] The plaintiff had to fill out and post to the Department all the forms, including the attendance and teacher information. These were forms which also required the defendant's signature, and the defendant wrote a note to the plaintiff about all the information the plaintiff had to supply to him (Exhibit S).

[34] The plaintiff not only had to submit copies of these teachers' educational qualifications, along with a profile form containing personal information, he also had to pick which areas they needed training in and fill out a second form identifying areas where these teachers needed training, and ticking the boxes for appropriate departmental workshops for these teachers: "A. During the month of April we were supposed to fill in and post to the Department of Community Languages all the returns for the year. This includes the attendance, as well as the roll for each class, the number of teachers, their names and their qualifications. For new teachers we had to submit copies of their educational qualifications, along with a profile form. A profile form which looks at some of their personal things, like their names, their place of residence, their contact numbers, how many years of experience they've had teaching the language, if any. I had to also pick which areas they needed training in so that in the future if the department was organising any workshop, they would be contacting me as a principal and I would then be talking to the teachers as to who lacked qualifications or training, or who needed training in a particular field." (T 72)

[35] In the first week of the school holidays, the plaintiff had a conversation with Mrs Lata, about these issues. The first requirement was to confirm her personal details, and the second was to identify her training needs: "Q. Can you tell us what it is, please? A. It is a teacher profile form. It contains some personal information about teachers, their name, their place of residence, their telephone number, the language they teach, how long they been teaching a community language, which school they're teaching the community language at, the IBN ID - which is the school's identity number, which class the teachers are teaching, whether they're teaching in another language school and whether they're teaching in another institution, whether they have language teaching qualifications and the date of update of their qualifications, along with a signature.

Q. Why do you need to send such a form in? A. The Department of Community Languages, their argument was they wanted to prepare a register of teachers teaching in various community schools just identify training needs. Like who needs better class management training, who needs curriculum training, who needs to be trained in how to handle discipline or welfare issues, those sorts of things.

Q. In respect of the document I've just shown you, is it for a particular person? A. This one is for Shaireen Lata.

Q. Do you know whether you or somebody else filled that document in? A. I did." (T 73)

[36] There was a great deal of information to be put together, and the plaintiff said that because of the school vacation, time was short: "Q. How did you come to fill that document in? A. I have phoned Shaireen Lata and told her what this document was about, that I needed to send this over by 1 May. 1 May would still have been in our first term school holidays because our language school commenced on 4 May, that is the first Sunday of the second term. There was a deadline by 1 May, returns had to be given to that Department of Community Languages.

Q. Have you filled that document in based upon what she told you. Is that right? A. That's true.

Q. Having done that, did she sign that form? A. No, she did not.

Q. Why not? A. Because I was about 15 kilometres away and like I say, this needed to be sent to the department in the holidays before 1 May. So I rang her and obtained her permission to see if it's okay. She said, "It's okay."

Q. She said it was okay? A. She said, "It's okay, yes." She gave permission to write her signature." (T 74)

[37] The plaintiff posted this document and kept a copy of it at his home, as there was no storage space at the school (T 73 - 74).

[38] On 13 April, the plaintiff also had a discussion with Mrs Sharma about filling out this form, and about identifying her training needs: "Q. In respect of that teacher did you do anything as far as filling in the forms were concerned? A. Yes, I did. I filled in her teacher profile form.

Q. Can you tell me the circumstances in which you came to do that? A. Basically the same reasons, the community language school would have opened for second term on 4 May. On 13 April, the last day of term 1 in that school, while Shikha Sharma was waiting for her husband to come and pick her up, I told her what this was. I mean, I did not really show her the form because I did not have the form for 2008 at that time. The president of the PNC association did not give me a copy of that, although all this went with the president as far as the need for funding was concerned. Funding for community language schools which was based on the number of students that we had. So I asked the president, he said that's too bulky, there's so many pages of it and he actually sent what he needed, or what needed me to do with his wife who taught with me in the same school." (T 75)

[39] He explained why Mrs Sharma did not sign this document: "Q. Did Ms Sharma sign that document? A. No, she did not.

Q. Why not? A. It was like the school holidays and she lives some distance away from me. She had already given me permission that I could fill and sign on her behalf.

Q. When did she give you that permission? A. On 13 April, the last of our Hindi school in term 1." (T 76)

[40] When the plaintiff returned to the school on 4 May, he had a conversation with the defendant in which he confirmed that these forms had been filled out and sent to the department: "Q. The first day of school of the second term I think you said began on 4 May. A. 4 May for our community language school. For mainstream schools, it begins earlier. We start school on the fifth Sunday of the first week of the term, yes.

Q. I see. 4 May. When you returned to the Hindi language school on 4 May, did you do or say anything to anyone about those two forms? A. Yes, I did. In the course of a conversation, I had a discussion about that form. I had a discussion about that form with the president of PNC.

Q. Do you remember on what day you had that conversation? A. On that particular day, 4 May, the first day of school.

Q. Putting it in words of what you said to him and what he said in return, can you tell us, please, what was said? A. In the course of conversation, he goes, "How did you go with that form?" I said, "Yes. I filled out those teacher profile forms. I had the permission to sign, I signed on their behalf."

Q. So he asked you how you went with the forms. A. Yes.

Q. You told him that you-- A. That I have signed on their behalf - filled the forms, signed on their behalf and posted to the department." (T 77)

[41] However, the plaintiff said he did not give a copy of these forms to the defendant or to the P&C because the principal was responsible for the teaching staff under the Constitution, and he considered these matters to be staff matters; in addition, some of the information on the form was personal.

[42] The plaintiff's evidence about these conversations was corroborated by the two teachers in question, Mrs Lata and Mrs Shikha Sharma, and it is appropriate to set their evidence out here.

The evidence of the two teachers whose signatures had allegedly been forged.

[43] Mrs Lata and Mrs Shikha Sharma are both qualified teachers independently of their role as teachers in the school. These two teachers, whose signatures had allegedly been forged, attended court in response to a subpoena (issued by the defendant) and gave evidence on the first day of the trial. They no longer teach at the school. As is set out in more detail below, I have found that they are independent witnesses of the utmost probity. No attack on their credit was made in cross-examination or in submissions, although it was formally put to them that they had not given any authorisation to the plaintiff to sign the forms, a statement both witnesses did not agree with.

[44] Mrs Lata, who taught Grade 2, was a qualified teacher who had started teaching at the school earlier in the year. As she was a new teacher, it was necessary for the school to submit a teacher profile form setting out her address and contact details and, most importantly, her qualifications as a teacher, so that these details could be registered with the department. In addition, it was necessary for her to identify, in the "Professional Development Profile 2006", short courses she would be interested in, as there are departmental courses available for teachers training. (This form was never mentioned either to the plaintiff by the defendant or the P&C, or during the trial.)

[45] As Mrs Lata's information about what she said to both the defendant and the plaintiff is central to the issues in this case, it is important to set it out in full.

[46] Mrs Lata's evidence in chief was: "Q. That conversation you had with Mr Shandil, can you remember what was said? A. He asked me to help with teacher profile form, to give the like details.

Q. So he asked you to give him some help with filling in a teacher profile form. Is that right? A. Yeah.

Q. You understood that to be a teacher profile form for you? Is that right? A. Yes.

Q. Was this because you were a new teacher? A. Yeah.

Q. Did you give him the information that he asked for, for the purpose of the form? A. Yeah.

Q. Did he say anything else to you about the form? A. Yes. He said that he has to send it as soon as possible, that's why he's doing it over the phone." (T 55 - 6)

[47] She repeated this at T 58: "Q. Now, look, that's what he said to you. What did you say to him, if anything? Did you say anything back to him, and if so what? A. I help him with filling the forms, like I gave him - he asked me my name and whatever was needed on the form, and at the end I gave him permission to sign it for me."

[48] Mrs Lata repeated this evidence without any concession or alteration in cross-examination: "Q. Mrs Lata, you said that during the course of your conversation with Mr Shandil you gave him permission to sign the form on your behalf. A. Yes.

Q. Mrs Lata, I put to you that in fact you did not give Mr Sharma such permission, did you? A. I gave the permission, verbally over the phone.

Q. Mrs Lata, you told her Honour how the conversation went. In that evidence that you gave to her Honour you never said that Mr Sharma asked for your permission. You never said that, did you? A. I told that I helped him to fill the form.

Q. You gave evidence I accept that, but you never told her Honour that Mr Sharma asked for your authority or your permission to sign the form in your name. You never said that, did you? A. No.

Q. Just do the best you can. He asked you what? A. That I gave him permission to sign the form for me because I was not able to, you know, get the - I didn't have time to go and fill the form, so I gave him permission to sign it for me." (T 61)

[49] Mrs Lata repeated that while she could not recall what the plaintiff said "I remember I gave him permission" (T 62).

[50] Mrs Lata gave the following evidence in chief about how she came to be at the social function the night before the P&C meeting, and about her conversation with the defendant in which he showed her the signed teachers profile form: "A. Yes, he said that, "Because you were teaching before, so you deserve to have complimentary ticket," so he gave me [two tickets]. And I went there [to the concert] and he said that then - he said, "This is a teacher profile form.""

[51] I have stopped at this part of her evidence to note that although the precise date for this conversation between the defendant and Mrs Lata during which he gave her two tickets was not the subject of evidence, it appears to have been several days before the concert; in other words, it occurred at a time when the defendant was already aware of the issues concerning Mrs Lata's signature.

[52] Mrs gave the following evidence in chief concerning her discussion with the defendant, during the concert, about the signature on the teachers profile form: "Q. Okay. Now, I think you said Mr Sharma gave that to you on the night? Is that right, that document? A. Yes.

Q. What did you say to him? When he gave you that document, what did you say to him? A. He just ask me, "Is this your signature?" And I saw that Teacher Profile File was written on top, so I just signed for him." (T 60-61)

[53] Mrs Lata gave the same evidence in cross-examination: "Q. Sorry, let me clarify the question. Was there anybody else present when you had the conversation with my client? A. No.

Q. So it was a one-on-one conversation just between the two of you? A. Yep.

Q. You see, Mrs Lata, I put to you that two other people were present during this conversation. One of whom was Sanjay Singh and the other whom was Shalendra, spelt S-H-A-L-E-N-D-R-A Chand. Do you agree with that? A. Because I was only talking to Mr Sharma, I didn't realise that - there were lots of people around but I didn't know that someone is, you know, watching the--

Q. Mrs Lata, when you have a conversation with someone, and I accept that you may have had family around and it was a function. Mrs Lata, when you have a conversation with someone I put to you, you know who is present. A. Like it was lots of crowd, like many people were coming inside and so there was lots of people around us but I didn't realise that there was Shalendra and the other person around. Maybe they were there, but I you know I didn't know their names." (T 62-63)

[54] It was put to Mrs Lata that the defendant asked her if she signed the teacher profile and that her reply was that she did not: "Q. Your reply was, "No, I did not." Do you recall saying those words, or words to that effect? A. Yes, I said.

Q. I put to you my client then said to you, "Do you know who did sign it?" Do you recall my client saying that, or words to that effect? A. Yes.

Q. I put to you that your reply was, "No, I do not." Do you recall giving that reply, or a reply to that effect? A. Sorry, I didn't understand that." (T 64)

[55] After this question was clarified for her, she denied that the defendant had asked it: "Q. The last part of the conversation, the last relevant part of the conversation is that my client said to you, "Do you know who signed it?" being the form. Do you recall my client asking you that question? A. No.

Q. You're now saying you don't recall my client asking you that question or a question to that effect about who signed the form. A. Yes.

Q. Did my client ask you any question at all to do with who signed the form? A. No.

Q. So he never raised it at all. A. No." (T 65-66)

[56] Mrs Lata repeated her description of what happened as follows: "Q. Mrs Lata, I put to you that my client asked you if you knew who signed the form. Is that true or not true? A. He only said that, "Is this your signature?" and he didn't mention who signed it. He didn't say anything. It was few seconds, like I just saw that and just signed it, and then I went inside, and that was it.

Q. I put to you that you said in reply, "No, I do not," namely you do not know who signed the form. Do you admit that or you don't admit that? A. I don't understand.

Q. Did you say to my client that you did not know who signed the form? A. No.

Q. Did you say any words to that effect of that nature? A. No.

Q. Did my client then ask you for a specimen of your signature? A. Yes.

Q. Is that the signature you've put on exhibit C? A. Yes." (T 66)

[57] Mrs Lata's statement that she gave her consent to the plaintiff to write her name on the teacher's profile form was confirmed by her in writing on 1 December 2008 when she prepared and signed a statement and gave it to the plaintiff. The contents of that statement were as follows: "[Mrs Lata's address]

I wish to certify that I, Shaireen Lata, grade 2 teacher at the Australian Institute of Hindi Language Studies, gave permission to the Principal, Mr Ashock Shandil, to fill in the "Teacher Profile Form" details and write my name as S. Lata at the bottom of the form. I submitted the requested documents of my qualifications to the Principal as evidence.

[58] The plaintiff sent this document to Mr Kumar (Exhibit P) by email dated 2 December 2008. It demonstrates a contemporaneous statement by Mrs Lata. I also note that Mr Kumar then sent it to the defendant, but it made no difference to the defendant's obdurate attitude.

[59] Mrs Lata was not cross-examined about the accuracy of any of the information she gave to the plaintiff so that he could complete the teacher profile form on her behalf. That information was private information which could only have been known to her, and her provision of such personal information to the plaintiff is corroborative of her statement that she was providing him with authorisation not only to fill out the form on her behalf, but to sign it.

[60] Mrs Lata is an independent and objective witness. She gave evidence truthfully and did not waver in cross-examination.

[61] I accept the evidence of Mrs Lata as a witness of truth both as to her conversation with the plaintiff and with the defendant.

[62] The second teacher with whom the defendant had a conversation was Mrs Shikha Sharma.

[63] Mrs Sharma (who is unrelated to the defendant) taught Grade 5 and had been a teacher with the school for the previous year. Her teacher profile form was essentially an update. Her evidence about her conversation with the plaintiff was as follows: "Q. At the end of April 2008, did you have a conversation by telephone with Mr Ashok Shandil? A. No, I had a verbal conversation with him.

Q. Do you recall that conversation? A. Yes, I do.

Q. Do you remember what he said to you? A. Yes, it was the last day of the first term - the last school day. I was waiting for my husband to come and pick me up after school. Myself and Mr Shandil were in discussion about the school, and that is the time he mentioned that there was this teacher profile form that he had to fill in and send to the Department of Education and Training, and he needed information about me to fill in the form. At the moment, he told that he did not have the form with him, and he needed to fill it in and send it to the department as fast as possible. That is the time I said, "Okay, you can fill in the form for me," because he already had my CV with him, and as part of the signature, I told him to write my name and signature on the form on my behalf.

Q. So the teacher profile form, you gave him the information because he already had your CV. Is that right? A. Yes.

Q. You asked him to fill it in for you? A. Yes.

Q. And to sign your name on your behalf. Is that right? A. Yes, use my name.

Q. To use your name on the form. A. Yes, to confirm the signature on the form." (T 44)

[64] She adhered to this in cross-examination: "Q. To make sure that I've correctly understood your evidence, the evidence I think that you gave to the court was that you said to Mr Shandil that he could complete a form that you hadn't seen. Is that correct? A. Yes.

Q. And also that he could sign a form on your behalf, again which form you have not seen. A. Yes.

Q. Are you sure about that? A. Yes." (T 47-48)

[65] Mrs Sharma made it clear in cross-examination she had never suggested the plaintiff had signed without her authority (T 48 line 45 to T 49 line 14; T 50 line 22 to T 51 line 2; T 52 lines 40-50; and T 53 line 43 to T 54 line 6). Mrs Sharma adhered to this evidence in cross-examination, and I particularly note: "Q. Is it your practice, Mrs Sharma, to authorise people to sign documents that you've not seen? A. It is not my practice. He told me it was a teacher profile form, and he just had to put in my name and details. I thought it was not a legal binding or a legal form which could affect me. So I just said, "Just put my name as part of signature on the form."

Q. You see, I put to you, Mrs Sharma, that any conversation you had with Mr Shandil about the completion of the form did not take place in April 2008. A. It did take place in 2008.

Q. I put to you, Mrs Sharma, that it would be unacceptable for you to agree to authorise someone to sign a form in your name and which you have not seen. A. He was the school principal. I trusted him, and I just gave him authority to do it on my behalf." (T 48)

[66] She explained the circumstances in which she later added her signature and some words to this form, which occurred after the plaintiff's dismissal and departure from the school, as follows: "Q. Mrs Sharma, when you wrote the words at the foot of the form, you didn't include, did you, any words to the effect that "The signature above is not mine, but I authorised Mr Shandil to sign that signature," did you? A. Yes, but I received a phone conversation after Mr Sharma from Mr Sanjay Singh. He was the school treasurer. I don't know if he was employed or not. That is the time he mentioned that my signature on the form was not correct. I was pursuing a career in teaching, and if my signature on this teacher profile form contradicts with the signature with the Department of Education, I will be in problem, and I had to give him my proper signature so that he could forward to the department. So at that particular moment, the only issue in my mind was to give the proper signature so that it could be provided to the Department of Education. I had no idea whatsoever the conflict between Mr Shandil and Mr Sharma.

Q. Mrs Sharma, is what you're now saying that at the time that you wrote these words, you did not know that there was an argument about whether or not Mr Shandil had your authorisation to sign your name? Were you aware of that dispute when you signed these words or were you not aware of it? A. I was aware I had given him authority to sign the form.

Q. Mrs Sharma, these words at the foot of the teacher profile form, I think you said your evidence was that you signed these towards the end of 2008 or at the beginning of 2009. A. Yes.

Q. You wrote these words following a telephone call from someone. A. Yes.

Q. Who made the telephone call to you? A. Mr Sanjay Singh.

Q. I'm sorry, who is Mr Sanjay Singh? A. He was the treasurer of the school.

Q. What did Mr Sanjay Singh say to you that led to your writing these words on the form? A. He said to me that they had this teacher profile form, they had to submit it to the Department of Education, and the signature on the teacher profile form was not mine. So I have to come in and give my profile signature so that they could forward it to the Department of Education and Training.

Q. That's when you wrote these words. A. Yes." (T 48-49)

[67] Mrs Sharma made it clear throughout her cross-examination she had never suggested the plaintiff had signed without her authority (T 48 line 45 to T 49 line 14; T 50 line 22 to T 51 line 2; T 52 lines 40-50; and T 53 line 43 to T 54 line 6). She also indicated that she had made it clear to the defendant after the P&C meeting when, in late 2008 or early 2009, he had contacted her by telephone and put to her that her signature had been forged by the plaintiff. She told the court his request that she sign the form was couched in terms of a threat to her teaching career if she forwarded a "wrong signature" to the Department: "Q. Mrs Sharma, did my client telephone you? A. Yes.

Q. Could you please tell the court, as best as you can recall, what my client said to you when he called you and what your response was? A. He called me and he told me that there was this teacher profile form "and Mr Shandil had forged your signature on the form". I told him that, yes, I told Mr Shandil to use my name as signature on the form. During that conversation he mentioned that I was pursuing a career in teaching and I had forwarded a wrong signature to the Department of Education and Training, and therefore my signature there was incorrect.

Q. What did you understand he was trying to suggest to you with those words? A. The only thing I thought at that moment was that I gave a - my signature was incorrect. I was pursuing a career in teaching. If my signature over there is incorrect, it gives a bit of a wrong name to me in the teaching field. So I had to give a proper signature so that they could forward it to the Department of Education and Training.

Q. And that belief was based upon what Mr Sharma told you in that telephone call? Is that right? A. Yes.

Q. Until that point in time you had no concern in that regard. Is that right? A. Yes." (T 53-54)

[68] Mrs Shikha Sharma was, I find, a witness whose objectivity, independence and honesty were such that her evidence can be relied upon. I note that although the defendant told her he had to post these revised forms to the department, there is no evidence he ever did so.

[69] What happened after the plaintiff originally posted these forms to the department in May 2008 and (according to his evidence)? He told the defendant not only that he had posted these, but that he had obtained their authority to sign the forms because of the looming deadline. What did the plaintiff and defendant do between May and November 2008 and when (and why) did their relationship change?

The plaintiff's role in the school between April and 30 November 2008

[70] Between April and November 2008 the school continued to function in the same way as it had beforehand. The annual school magazine was prepared, and its contents show a happy group of parents, children and teachers. The annual concert was to take place on the last day of the school term (29 November 2008), and it would appear that friction over control of this event was the real trigger for the problems between the plaintiff and the P&C.

[71] The school concert on 29 November involved preparation by the plaintiff, the other teachers and the students for musical numbers and other entertainment on the night. The parents of the students played an important role in relation to this concert. Tickets were sold to raise money for the school, although Mrs Lata, one of the two teachers whose teacher profile form was signed by the plaintiff, was given two tickets to the concert that night as a gift.

[72] At the 16 November 2008 there was an argument between the plaintiff and the P&C, and he walked out of the meeting. As is set out in more details below, the P&C members were very angry about this conduct, which was considered "inappropriate, out of character and grossly insulting" according to the defendant's email to the plaintiff the next day (Exhibit M). The defendant thought his opinion to this effect was so important that he later circulated a copy of this email at the school meeting in February 2009.

[73] What led to the plaintiff walking out of the meeting? This did not emerge with any clarity from the evidence, but some clues as to the answer may be found in the copy of the extract of the plaintiff's email in reply to the defendant (Exhibit M), which the defendant circulated to the parents (on the same page as the defendant's email, immediately below), as being the plaintiff's explanation for his conduct: "parents [sic] that approached you should already know that it is the teachers that prepare items and the P&C president has no idea about these things or maybe you told them something different! I think it is very important for you to educate some members of your committee about the P&C constitution and the perimeters within which you are supposed to be working. I am glad I had the foresight to see that a day would come when the P&C President would actually feel that he/she is "running" the school, and I did my best to see that the position of the Principal is secure."

[74] The minutes of meeting of 30 November 2008, listing the grounds upon which the plaintiff's services were terminated, refers to this email at paragraph 5, but the real key is in the section on general business, where his walking out is referred to in detail. The problem was, as the plaintiff had indicated in his email, that the program for the Annual Presentation Night concert had been decided upon by the teachers, and the plaintiff was "unable to comply" (according to the minutes) with a request by the P&C to provide the concert program layout. As a result the program layout "was not discussed with the P&C Executive Committee and no one knew what they were doing" (Minutes, Exhibit 6).

[75] Although other claims are set out as a basis for dissatisfaction concerning the plaintiff's conduct as principal, it is clear, from the defendant's selection of this part of the plaintiff's email for distribution to the parents when there was a school meeting to discuss the sacking that the plaintiff's wrongdoing was that he would not let the P&C "settle"(to use the legal word) the concert program, because this had been done by the teachers. The P&C members wanted to have control over the program (I note, from the 2009 school magazine, that the annual concert photographs for the following year show the defendant and other P&C members playing an increased role by presenting prizes and the like) and the plaintiff had told them this was the teacher's job.

[76] While this may have been a matter for indignation by the members of the P&C (especially since the plaintiff had walked out of the meeting and said the defendant should "educate" the P&C about their role in the school's activities), the P&C did not seek to have the plaintiff dismissed or sacked for this reason. In or around 20 November 2008, the defendant made inquiries of the department about whether the P&C had the power to remove the plaintiff as principal, without identifying why, either to the department or to the plaintiff, who knew nothing about this email. However, although he emailed the plaintiff to complain about his behaviour at the 16 November P&C meeting, he carefully kept his inquiries about this, and about signatures on the teachers' profile forms, to himself.

[77] Another contentious issue between the plaintiff and defendant was that the P&C wanted to combine the classes for years 5 and 6, which would save approximately $2,000. The 30 November minutes complain that the P&C had "no feedback" from the plaintiff about this. It would appear that the P&C wanted to involve itself in the teaching administration side of the school, in the interests of reducing the costs to parents (I note from the 2009 school magazine that these steps were in fact taken, and the $100 per week salary claimed by the plaintiff was not paid to the new principal, who performed his role in 2009 without payment). Neither this issue, nor the concert program issue were, however, ever raised as grounds for dismissal of the plaintiff. Again, although the P&C was prepared to complain about not receiving feedback from the plaintiff about this issue, no feedback was sought about the teacher profile forms.

[78] Between 20 November, when the defendant was making these inquiries, and 30 November, when the meeting was held at which the plaintiff was sacked, the defendant never contacted the plaintiff to ask about the teacher profile forms. The defendant claimed he saw the plaintiff at the school concert, at which the defendant spoke to Mrs Lata about whether she had signed the teacher profile form but the plaintiff said he was busy. The plaintiff's evidence was that the defendant did not speak to him during the concert. The first he knew about the allegation was when he was called to the P&C meeting on 30 November 2008. As to the defendant's claim that the plaintiff said he was too busy to speak, it was hardly an appropriate way to discuss such a topic. The failure of the defendant to raise such a serious matter with the plaintiff prior to 30 November is extraordinary.

[79] The agenda for this meeting (Exhibit L) gives no clue of any proposed motion to dismiss the principal. No motion was circulated beforehand, nor were copies of any documents provided to the P&C members beforehand, nor was legal advice obtained (contrary to the particular of truth to this effect, which was withdrawn during the trial).

[80] The issue of the teacher profile form was not the first item on the agenda; there was a lot of discussion about the concert the night before. According to the minutes (the text of which is set out below) Mr Kuldip Narayan made a long speech before the plaintiff came into the room. These statements, as set out in the minutes, include a claim that as a result of his refusal to collaborate with parents, "most of the parents have indicated to pull out their child from year 2009", that the plaintiff was "not willing to listen to parents inputs on some useful advice", that the school was going to lose "lots of financial support", and that: " In doing so, he personally moved a motion to P&C Committee to take appropriate action against the principal for the betterment of our school." (Exhibit 6. page 5, point 5)

[81] The Minutes go on to note that Mr Narayan "also" requested the principal explain his stance on the forgery issue, and ask him to step down "to avoid dreadful repetition of school and community in general". It was then decided to put this to a vote and all members present in the meeting voted in favour of the motion. The minutes go on to note that Mr Sanjay Singh then went to call the Principal "to explain to P&C Executive Committee regarding forgery issue [sic]" and that the plaintiff "came to the meeting at 2.47 pm".

[82] Was the vote taken before the plaintiff actually came to the meeting? The minutes appear to say so, but the question was never precisely put in cross-examination. I have dealt with this issue in more detail below.

[83] The minutes go on to note that he was given the opportunity to resign but declined and that the committee had no option but to terminate his employment with immediate effect. He was told this on the spot, and ordered to return all school property by 4 p.m. to Mr Patrick Chand. An acting principal was appointed at 3.05pm. The plaintiff's evidence of what occurred at the meeting makes no reference to any vote being taken while he was there.

[84] This brings me to a consideration of just what was said to the plaintiff by the defendant at this meeting, and whether the matter complained of was published. I shall first consider the evidence of the plaintiff.

The plaintiff's evidence as to what was said at the meeting

[85] Mr Goldsmith, for the defendant, cross-examined the plaintiff as to what had occurred during the 30 November meeting (at T 154-155): "Q. Mr Shandil, if I can take you to your attendance at the meeting on 30 November. What time, approximately, did you actually attend the committee meeting? A. It would have been almost after two hours. Roughly, 20 to, quarter to 2 - quarter to 3, sorry.

Q. Around about 2.45? A. Well, plus or minus. More towards the minus side, I suppose.

Q. I put to you, Mr Shandil, a conversation took place to the following fact. The defendant said to you, "Ashok, the committee is considering whether or not two teacher profile forms were forged. What do you have to say about that?" A. When did the defendant say that?

Q. When you attended at the meeting, at about 2.45, more or less. A. You mean directly he showed me just one form although I heard him say when I entered and he was addressing other people that Mr Shandil has forged the signatures--

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