Shandil v Sharma

[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;

(c) Whether the defence of justification can be established.;

(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--

Q. And I put to you Mr Shandil, your response was as follows, "yes I signed the forms, I know it was illegal, I signed the forms to meet the deadline so we could get the school grant." A. That's incorrect.

Q. And I put to you the defendant then said to you, "It appears the committee considers that to be misconduct and insubordination, what do you have to say about that?" Did he say that to you? A. He did say that to me.

Q. And I put to you that your reply was that you said, "what can you guys do about it?" Did you say that? A. What - no, I didn't say that.

Q. You didn't say that. And I put to you that after you said that you started to walk out of the meeting. Did you do that? A. That's incorrect.

Q. And I put to you that as you started to walk out of the meeting, the defendant said to you, "I think we would like you to resign as principal, are you willing to do so?" A. That's incorrect.

Q. I put to you that your reply was, "No, I'm not." A. That's incorrect.

Q. You didn't say that? A. (No verbal reply)"

[86] However, what was put to the plaintiff in cross-examination appears to be a different version of events from what the defendant said in examination in chief (at T 269-270): "A. During the course of the meeting - and then somebody else suggested - somebody in the committee suggested that somebody should again go and call the principal to the meeting, and Sanjay Singh again went and requested him to come to the meeting.

Q. I think you've already said that. What happened next? A. The principal, Mr Shandil, did come to the meeting at about quarter to 3.

Q. When he came to the meeting was there any conversation? A. Yes, when he came to the meeting at that time we had moved to the foyer - from the hall, we had moved to the second part, and there wasn't much area available but members did make a space available for him and I requested him, I said, "Master, come and sit down." He said, "No. It's all right. Fine with me." Then--

Q. Sorry, what happened, or what was said, next? A. During the meeting, like, one of the issues that was discussed is the teacher profile form. So the members felt it was a very important issue that the principal come and answer their questions like who had written the form and who had signed the form. So when Mr Shandil came in I asked Mr Shandil, "Do you know who filled in this form?" He said - he looked at the form and said, "Yes, I did. I know who filled it." I said, "Who filled it?" He said, "I did it," replying that Mr Shandil had done it. And I asked him, "Who signed it?" He said he signed it.

Q. Was anything further said? A. We asked him that did he know that it was--

Q. Who spoke the words? If you spoke the words, can you please say "I said", and if someone else said it, say someone else, and if you can identify the other person, please do so. A. I asked him that this forms were sent to the Community Language Studies with the view for us to get the grant. He said, "Yes, I know. What you guys going to do about it?" Then we had a discussion in the meeting. The meeting continued."

[87] Apart from being very different to the version of the conversation put to the plaintiff, this version makes no reference whatever to any allegation of forgery.

[88] The plaintiff said that at the meeting he was given a letter (Exhibit K) and told that if he resigned he would not be sacked. The contents of this letter are instructive: "Dear Mr Shandil,

The Parents and Citizens Association of the Australian Institute of Hindi Language Studies at its Executive Meeting on the 30th November has unanimously decided that the association will no longer need your services from the end of the year 2008.

The P&C acknowledges the invaluable contribution made by you over the years. The school has grown enormously and the Hindi speaking community has benefited a lot from this.

Please hand in all school and association property in your possession to the Vice President, Mr Navin Chand.

The P&C takes this opportunity to thank you for your contribution and wishes you the best in your future endeavours.

Yours Sincerely, Sunil Sharma (President)"

[89] I now consider the evidence of the defendant, who denied ever using the word "forgery" and denied giving the plaintiff the 30 November 2008 letter at the meeting.

[90] The defendant described matters similar to those raised by Mr Kuldip Narayan (as outlined in the minutes) being discussed by the P&C prior to the plaintiff coming into the room, and after the plaintiff arrived. He sought to give evidence that it was only after the plaintiff arrived that the motion by Mr Kuldip Narayan was put, the inference being that the plaintiff was in the room at the time.

[91] Mr Rasmussen objected to this evidence, on the basis that it had not been put to the plaintiff or to the witness from the P&C whom he called, Mrs Singh. I struck out the summary of what was asserted to have been said by Mr Kuldip Narayan (whom I note was not called as a witness), and heard the evidence of what the defendant said happened while the plaintiff was present, but under objection (at T 271). Another problem was that the minutes had not been tendered, and it appeared that the formal signed version had not been discovered (T 272). The following occurred at T 272: "HER HONOUR: What page of the cross-examination is that on, please? Well, looking at MFI 6, I can't see anything in here about Mr Narayan moving a motion. Mr Goldsmith?

GOLDSMITH: Your Honour, I don't think it's in - I don't think there's a reference to the motion--

HER HONOUR: But that's just basic meeting procedure. If somebody moves a motion you note that a motion has been moved and somebody seconded it and then you record that the motion has been passed.

GOLDSMITH: Your Honour, I can only address what's in the document--

HER HONOUR: The real problem is this hasn't been put. What page do you say this was put to the plaintiff; what page of the transcript?

HER HONOUR: All of it, in relation to - all that I've just heard about in the plaintiff's presence, this motion being moved and seconded and voted unanimously when - I don't think this was put to Mrs Singh.

GOLDSMITH: The question of the motion was not contemplated.

HER HONOUR: Yes, I see, well, why should this gentleman be able to give that evidence now?

GOLDSMITH: I can't say anything against that proposition.

HER HONOUR: In that case, we should strike out all this evidence, should we not? It will all have to go." (T 272 - 3)

[92] This was one of a number of areas of evidence where the defendant's failure to provide particulars of truth created problems, as Mr Rasmussen stated at T 273, adding that he had raised the defendant's failure to provide particulars of truth from the start of the trial.

[93] The defendant went on to give evidence that tends to support the position in the minutes, namely that the committee did not make a decision in the plaintiff's presence after hearing from the plaintiff, but that the plaintiff was told the committee had made the decision, and that the only question was whether he would accept the opportunity to resign or be sacked: "Q. Mr Sharma, what was said next or what happened next? A. Up to that, Mr Shandil was advised that - he was given the opportunity to resign from the position of the principal.

Q. Can you say, recalling as best you can, exactly who said what? A. After the committee had made the decision, I advised Mr Sandil that the committee has made a decision that he has to - he has the opportunity to resign from the post of the principal.

Q. Did Mr Shandil say anything? A. He said that he's not going to resign.

Q. Did anything happen after that; anything said or anything done? A. He tried to walk out of the meeting, but then the meeting continued and then the decision was made that the position of the principal will be terminated from 30 November, since that was the last day of the school. So in 2009 we will not need him anymore. He was informed verbally and then a letter was posted to him.

Q. We'll just leave the letter for the moment. Was anything else said or done in the meeting whilst Mr Shandil was there? A. No.

Q. And what happened to Mr Shandil? A. After that Mr Shandil walked out of the meeting and then he was in the school premises. When the school ended at 4 o'clock, he was there until 4 o'clock, and then he left after 4.00 and then he closed the gates." (T 274)

[94] On this version of events, the resolution to sack the plaintiff did not occur before the plaintiff came, but in circumstances where the plaintiff "tried to walk out" but the meeting continued and the resolution was then passed, presumably in his absence. However, at T 277, when asked whether anything else happened after the plaintiff left the meeting, he said that "nothing happened".

[95] It was not put to the plaintiff that any resolution was taken while he was in the room, and the most likely explanation, given this variety of explanations, is that the resolution to sack the plaintiff was passed before he was called in to give his side of the story. In other words, it would not have mattered what the plaintiff said; the P&C intended to sack him whatever explanation he had.

[96] The defendant says that the letter was posted to the plaintiff. The first problem is that the plaintiff showed this letter to Mr Narayan, the school solicitor, later on in the afternoon of 30 November. I accept the evidence of Mr Narayan on this issue. The second, and bigger, problem is that the contents of the letter are wholly inconsistent with the plaintiff having been sacked for misconduct, let alone for a matter as serious as forgery.

[97] The contents of Exhibit K are consistent with the plaintiff's version of what happened at the meeting; he was told he could resign, with the inducement of this friendly letter thanking him for his services over the years, or he would be sacked. Although he chose the latter option, he left with this letter in his hand.

[98] I have dealt with other issues concerning the defendant's evidence in the section of this judgment following a summary of what the other members of the P&C who were called gave evidence was said.

[99] A considerable amount of the time taken in this trial was taken up by the evidence of witnesses who denied that any of the words complained of were spoken by the defendant, or anyone else, at all. However, a helpful guide as to what was said at this meeting, at least from the defendant's point of view, can be gained by setting out what was recorded in the P&C Minutes.

[100] The first source from which I draw information about these events is the minutes of the meeting. All the defendant's witnesses said that these minutes were correct, so this should provide support for the defendant's version of what was said.

[101] The relevant portion in the 30 November Minutes noted: "President tried to contact Ashok Shandil (principal) on three separate occasions (one at 1.31pm, second at 1.43pm and third at 2.12pm) during meeting hours to discuss some key issues in front of the P&C executive committee but his phone rang out on all occasions. Some of the main issues include:

(a) signing teacher profile forms without teacher consent;

(b) complaints received from parents regarding his unprincipled approach;

(c) cost cutting measures to be implemented for 2009 regarding school management;

(d) misleading P&C executive committee on school curriculum and teacher qualification criteria for community language studies;

(e) discuss his personal attitude problem with P&C executive committee, i.e. walking out of meeting forum every year and does not want to work closely with P&C executive committee;

(f) unfairness on some parents and holding personal grudges;

(g) valuable inputs conveyed by parents is always impractical;

(h) pretending to be very busy and not willing to teach a class;

(i) not willing to disclose program details to P&C executive committee for annual presentation night;

(j) calling P&C executive committee uneducated to work with; and

(k) school fundraising activities getting costly and generally coming out from individual parent's pocket."

[102] I note that none of these matters, apart from (a), was ever raised, in the justification defence, as grounds warranting the dismissal of the plaintiff. All of the evidence before me is that the school was happy and harmonious for many years, in addition to being well-run. The petition signed by 39 parents dated 9 January 2009 (Exhibit M) speaks glowingly of the plaintiff and describes the events of 30 November 2008 as taking them "by surprise and shock".

[103] The events of 16 November were described in more detail in the 30 November Minutes: "1. School Principal acknowledged to the member, Sanjay singh [sic] was not present in the meeting due to some dissatisfaction with President in conjunction with previous P&C Executive Committee meeting where he simply walked out of the meeting. President advised the P&C Executive Committee that he requested some clarification on school matters which, the principal was unable to comply with such as:

a) Program layout for Annual Presentation Nite held on 30th November 2008. Program layout was not discussed with the P&C Executive Committee and no one knew what they were doing.

b) Complaints received from a parent on 28/10/08 regarding a staff member. Few complaints received against the same staff member but no feedback was given by the principal despite repeated requests to the P&C Executive Committee as to what action has been taken against him.

c) School Curriculum which, was complied and prepared by Mr. Jai Singh was the only one at the Department of NSW Community Languages School, in our school file. Ashok Shandil told the P&C Executive Committee that he has done all the hard work for the school to prepare the curriculum, which is a secret document.

Teacher Profile Form for Shaireen Lata which, the President found out that principal forged her signature. This, the P&C Executive Committee felt improper and very unethical behavior demonstrated by the principal. The P&C Executive Committee was also reliably informed that the principal had forged Sikha Sharma's signature as well. The P&C Executive Committee requested the President to act on this matter as soon as possible and advise them on potential outcome to avoid any possible impediment from the Department of NSW Community Languages Studies regarding school grants.

Presentation Nite did not come up with full expectation as initially expected. Even though the quality of stage performance were brilliant but organization was very poor as lots of parents complained about the sitting arrangements, serving and timing of dinner, distribution of trophies, timing of stage performance in which parents have to stand in queue for preparation. Parents had expressed dissatisfaction about not being provided the program in advance as they are directly involved in their children's items. Some last minute additions were made which drag along the core function of the nite [sic] making it more tedious and unpleasant.

Letter of Complaint from Kuldip Narayan, Shalendra Kumar and Praveen Kumar regarding sale of ticket. 15 Tickets were issued to each financial member twice a year for which majority of them has been paid from their own pockets. These members have personally contributed immensely towards all school functions and have kindly requested the P&C Executive Committee to look for some alternate ways to raise funds just to ease financial burden on all parents concerned. The P&C Executive Committee have agreed with the suggestion and will meet early again in 2009 to discuss this matter with the parents and view some constructive thoughts to generate funds for school operations.

Mr Kuldip Narayan mentioned that Ashok Shandil (Principal) does not collaborate with some parents during school season and most of the parents have indicated to pullout their child from year 2009. Numerous parents repeatedly complain about his personal attitude. He is self centered and not willing to listen to parents inputs on some useful advice. According to Kuldip, theses sorts [sic] behaviors are unwarranted which, undermines the mutual relationships between parents and the P&C Committees. This can also dampen the goodwill gesture supported by our Indian community in general towards our Hindi language school. In addition, we could also lose lots of financial support from business community and dedicated individuals who have been the cornerstone of school as well. Kuldip suggested that it is high time that P&C Committee must maintain its standard, create strategies to bring back that confidence amongst parents and likewise, to create a friendly school environment motto that is enjoyed by parents, students and teachers on all occasion solely to promote our Hindi language. 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. He also requested the principal to explain his stance on the forgery issue as many parents are doubting his professional and personal integrity over the years and, or ask him to step down from his position to avoid dreadful repetition of school and community in general which, the P&C Committee have mutually agreed and supported. It was decided to put to vote and all members present in the meeting voted in favour of the motion.

Mr Sanjay Singh went to call the Principal to explain to P&C Executive Committee regarding forgery issue. Principal came to the meeting at 2.47pm. He confirmed that he had signed the form and acknowledged that it was illegal. In addition, he mentioned the reason he signed the form is to meet the deadline for the submission of school grant. Furthermore, he was also made aware of the operational changes for 2009 and numerous complaints received against him and a class teacher. The P&C Executive Committee requested him to explain his stance on his unprofessional misconduct and insubordination. He simply said "what can you guys do" and without fully addressing the issues to the P&C Executive Committee he began to walk out of the meeting. He was agitated and became defensive when questioned and was abrasive in the meeting. The P&C Executive Committee members gave him the opportunity to resign from the post of the principal, which he declined. In regards with his attitude towards the P&C Executive Committee, the committee felt that appropriate measures need to be undertaken for the betterment of school. In consideration, the P&C Executive Committee had no option but to terminate his employment with immediate effect. Mr Ashok Shandil was verbally informed by the President that his services as the Principal is no longer required and a written letter with this regard will be forwarded to him by registered post. Mr Shandil was advised to return all school properties held by him to Patrick Chand by 4pm.

P&C Committee appointed Senior Teacher Mr Rishi Karan as Acting Principal at 3.05pm. Mr Rishi Karan accepted the position until P&C Committee finds a suitable person to take up the position in 2009. P&C Committee will hand a letter of appointment to Mr Rishi Karan in due course.

P&C Committee briefly explained the change in leadership to the teachers. P&C Committee will also advise the changes to: > Principal of Rooty Hill High School > Department of NSW Community Language Studies

10. [sic] Subsequent to the termination of School Principal's services, the P&C Executive Committee have also ceased the services of Legal Advisor, Mr. Uday Narayan. P&C Executive Committee felt that he would be acting acrimoniously against them in regards to Ashok Shandil's matters. Mr. Narayan was Mr Ashok Shandil's personal friend and his advise always favoured Mr Ashok Shandil. Whenever consulted for legal issues for the school, Mr Narayan failed to provide the necessary legal information to the P&C committee. The P&C Executive Committee also considers Mr Narayan's opinion at times is generally prejudiced. Mr Narayan will be made known of the decision of P&C Executive Committee in writing regarding his termination and a letter will be posted to him via registered mail. There will be no replacement for Legal Advisor position at this juncture however, the P&C Executive Committee will decide as to whom to appoint to carry out all legal matters for the school.

11. [sic] There was no other business and meeting concluded at 3.18pm.

The evidence of members of other members of the P&C

[104] Members of the P&C called to give evidence contradicted the contents of the Minutes, each other and, occasionally, themselves. I shall consider the evidence of each of them in turn.

[105] There is one feature of this evidence to note. There is no evidence of any inquiry by any of these witnesses concerning the teacher profile forms, or of the relodging of the forms when they were signed by the two teachers at the request of the defendant, or of any other communication with the department by any member of the P&C, before publication of the matter complained of, or afterwards. The sole document in evidence from the department is the email dated 20 November 2008 from Louise Shortus to the defendant, the text of which is as follows: "Dear Mr Sharma,

Thank you for your phone call this morning enquiring about the status of the Management Committee of the community languages school operated by your organisation. Natasha Post, the Manager of the NSW Community Languages Schools Program, has advised that the Parents and Citizens Association is also the Management Committee of the school.

With regard to your question regarding the Principal of the school, the P and C has the power to appoint or remove the staff of the school as the school belongs to the P and C. However, the school's constitution should first be consulted in this regard in case the wording of the constitution prohibits this action.

I hope the above information is helpful." (Exhibit T)

[106] From the text of this letter, it is clear that at the time of his telephone call on 20 November, the defendant was wanting to know if the P&C could sack the plaintiff. Yet, as the evidence of every person called from the P&C shows, nobody else on the P&C knew about the allegations against the plaintiff until shortly after the commencement of the meeting on 30 November 2008.

[107] Mrs Singh was called by the plaintiff. She was a comparatively new member of the P&C and was always late to the meetings because of work commitments (T 210). She did, however, arrive before the discussion of the events the subject of these proceedings, and recalled the P&C having to move because of the school's final day activities to another room. It was in this room that the conversation between the plaintiff and defendant took place.

[108] Her evidence as to what was said was: "A. I can remember Mr Sharma saying that Mr Shandil has signed one of the teacher's name on the teacher's profile form.

Q. Did he say anything else about that form? A. It was an - yeah, it was an illegal act of doing - might have been forgery.

Q. So, "It was an illegal act," and - just say that again. I missed it. A. Might - might - he might have said forgery.

Q. That's right. Mrs Singh, we understand that was a long time ago so just do the best you can. Was Mr Shandil present? A. Yes, because I remember Mr Sharma asking him whether it was his handwriting or not.

Q. When he asked him whether it was handwriting or not, was Mr Sharma showing anything - a document or anything like that? A. Well, Mr Shandil did admit that it was his handwriting.

Q. But was he showing a document? A. Who, Mr Shandil or--

Q. Mr Sharma. Was he pointing to a document or something like that? A. I think he had a form which - yeah, he did have a form, I think. Yeah. I'm not quite sure but I think--

Q. When Mr Sharma said those things about the handwriting on that document, I think you said that Mr Shandil said that it was his handwriting. Is that right? A. Yes.

Q. Did he say anything else, Mr Shandil? Did he say anything else? A. He said he did it with the consent of that teacher.

Q. Did Mr Sharma say anything at all or anything else about that document or Mr Shandil to the committee at the time? A. I can't remember much but I know he did say it was an illegal thing to do.

Q. Which "he" is that? A. It was an illegal thing--

Q. Do you remember him saying anything else? A. That further complaint should be made.

Q. Further complaint should be made? A. On - yeah, because, as the principal, Mr Shandil should not have done that.

Q. Did he say to whom the further complaint should be made? A. Can't remember that actually. Who - to whom, but--

Q. When Mr Sharma said these things there were other committee members present? A. Yes.

Q. Do you remember who was present on that day? A. Because I was very new to the committee, so I can't really remember everyone's name, but I know by face a couple of people. Yeah." (T 213 - 214)

[109] Mrs Singh was shown the minutes of the meeting, and confirmed that she received these (T 216) and that they were prepared by Mr Virendra Singh.

[110] In cross-examination Mrs Singh said she could hear clearly, but that she was concentrating on her daughter, who was in one of the classes at the school (T 219). She only attended one more meeting of the P&C after these events.

[111] Although Mrs Singh appeared both reluctant and nervous about giving evidence, she adhered to her statements in cross-examination: "Q. Ms Singh, you gave evidence before when my friend was asking you questions that you heard Mr Shandil say that he signed the form with the consent of the teacher. A. Right.

Q. Do you recall was that the case? Is that what was said? A. Yes.

Q. Because I have to put to you that that was not said. A. Well, I know he admitted it. He said that it was his handwriting.

Q. He admitted that he signed the form. A. On the particular teacher's consent.

Q. But you weren't asked about that. You were asked whether you were sure that he said that he signed the form with the consent of the teacher. So you were asked if you were sure he said that. So are you sure he said that? A. Yes.

Q. And you heard that very clearly, did you? A. Yes." (T 221 - 222)

[112] The defendant made a sustained attack on the evidence of Mrs Singh, and I set out my findings in relation to these matters: (a) Mrs Singh was "clearly a confused witness" (written submissions paragraph 35)

The defendant does not identify with precision the matters about which Mrs Singh was confused. She was less confused than other witnesses, and her evidence was not internally inconsistent or contradictory.

(b) Mrs Singh was in and out of the meeting on "maybe 3 occasions" for about 10 minutes time. While there is no evidence that she was out of the room when the relevant conversations occurred it is submitted that this would "inevitably" have led to a "lack of focus", since Mrs Singh said she was thinking of her daughter.

Mrs Singh's evidence of what occurred relates to the period of time when she was in the room. The fact that she arrived late and was absent on other occasions does not detract from the fact that she was present when the plaintiff was called into the room, heard what was said, and was able to describe it in her evidence.

(c) Mrs Singh said she could not remember Mr Sanjay Singh saying he had made contact with the plaintiff on the telephone despite the "overwhelming evidence" that he had made contact with the plaintiff and conveyed to the meeting the reason why the plaintiff had not attended it.

Mrs Singh had a good recall of the events, in the right sequence, and the inability to recall one matter, which did not relate to the conversation the subject of these proceedings, even if this was the case, would not be significant. I do not regard the evidence of Mr Sanjay Singh having made this call and received this reply as "overwhelming". The plaintiff's evidence was that he did not come to the P&C meeting because it was the last day of school and he was busy with the students. Mr Singh's evidence (set out below), which consisted largely of denials, was inconsistent with the evidence of the plaintiff and other witnesses, and also with the minutes, the accuracy of which he disputed.

(d) According to the diagram drawn by Mrs Singh, she was seated at the furthest point from the defendant during the meeting, the inference being that she may not have heard what was said.

It is significant that apart from the minor matters set out above, the defendant is unable to point to any actual errors in Mrs Singh's evidence, and is obliged to fall back on the inference that she may not have heard what occurred. As I had occasion to observe when he was in the witness box, the defendant has a very loud voice, and the likelihood of Mrs Singh not hearing what he had to say, in a comparatively small room with no other distracting noise, is implausible. While other persons in the room were talking (T 222) there was no evidence that anybody was talking over the defendant, who was running the meeting and very much in charge.

Mrs Singh's evidence that a "further complaint" should be made does not refer to the police, but her recollection of a "further complaint" is some corroboration (albeit slight) for the plaintiff's reference to the referral of the matter to the police. The best corroborative evidence for this is, however, the two letters of the P&C dated 8 and 10 February 2009 (Exhibits F and H) which state this categorically.

[113] Mrs Singh was the only person called by the plaintiff from the meeting, but the defendant called a number of committee members. I shall deal with the evidence of each of these witnesses separately.

[114] Mr Gailash Maharaj gave evidence that "we were basically talking about" the teacher profile forms and that the plaintiff was "asked about those forms when he came in" (T 367).

[115] His evidence as to the precise conversation was: "A. The president asked him, "Did you fill the forms?" and in reply Mr Shandil said yes he did, and then the second part was about the signatures. He said like, "Did you do the signatures?" and Mr Shandil replied, "Yes I did because the reason," and the president asked him, "What was the reason for that?" - "Because it was running late for the grant?" - and in reply Mr Shandil said like, "What are you guys going to do about it?" and this worker [sic] is worried.

Q. I'm sorry, what was that last bit? A. And when he was asked like - when the president asked him why did he put the signatures without the teachers' consent, and he said because he was running late for the - to lodge forms, and "What are you guys going to do about it? If I have done it, what are you guys going to do about it?"" (T 368)

[116] Mr Maharaj was very definite that the defendant had not accused the plaintiff of forgery, saying "He didn't say that" (T 371). He was shown the minutes, and said they were an accurate record, but when taken to the portion of the minutes where the word "forgery" appears, and asked if he still said the minutes were accurate, he said "see, this is where I get a bit confused here" (T 371). He then changed his evidence: "Q. Yes. Do you remember it saying, on paragraph 2, that "the teacher profile form for Shaireen Lata, which the president found out that the principal forged her signature"? A. Yeah, this - when everything started, we had a few minutes, and then this was raised, this how - and then we have to call Mr Shandil about it.

Q. This was raised by Mr Sharma? A. Because--

Q. Sorry, yes or no. Was it raised by Mr Sharma? A. Do they write [sic] the proceedings? Sharma, yeah, because he worked out - documents in his handwriting about these teachers' profile form.

Q. And he told you, did he, that the form had been forged? A. He didn't tell me. First, he passed the forms to all the committee members, we all had a look, all the members, at the writing and the signature. So we all put our views, we all said that it looks like exactly the same person has filled the form that has done the writing.

Q. Sir, he told you that the form had been forged, didn't he? A. He didn't use that terminology, but he said that, for this, we have to ask Mr Shandil about it. Before Mr Shandil came, there was no forged form that was used. After Mr Shandil came - whereas he approved it.

Q. Sir, he said to the committee that, "Mr Shandil has committed forgery," didn't he? [Objection]

Q. Yes, during the meeting or before the meeting. Sorry, I withdraw that. During the meeting - that is, when the executive committee members are together. A. All together, yeah. Once we were - once all the committee members - we had a look at the form, then we decided, like, this bit here has been forged. That was the reason that Mr Shandil was called by phone, to explain about this.

Q. Sir, have a look, please, at exhibit 6, and I've marked the spot with the tag. You see the first sentence: "The president found out that the principal forged her signature." Do you see that? A. On which clause--

Q. Well then, doesn't that show that the president found out that the principal had forged Shaireen Lata's signature? A. This document? I'd say yes.

Q. And is this a record of what occurred, in the order in which it occurred, in the meeting? A. Can you explain, please, a bit more.

Q. Yes. When you say it's an accurate record, do you understand it to be an accurate record-- A. All the minutes of the meeting.

Q. --of what occurred, in the order in which it occurred? A. Yes.

Q. Do you see, then, at paragraph number 6 on page 4-- A. Yes.

Q. --Mr Sanjay Singh went to call the principal? A. Yeah.

Q. The principal came to the meeting at 2.47. A. Yes.

Q. Doesn't that suggest, sir, that a discussion that the president found out about the principal forging the signature occurred before Mr Shandil came to the meeting? A. Yeah, but on this one - can I go to it again?

WITNESS: No, no, can you excuse me, sir. You're not giving me time, please.

Q. That's all right. A. Because, as about 30 November - the meeting - it was not straight when we started that meeting, regarding about Mr Shandil and the president, please. It was the night before - we had a presentation night, and it was a review of our presentation, how we went last night, and then it was getting ready for 2009. Then this teacher profile form the president put forward. Before Mr Shandil came to that meeting, the president has never used that word "forgery" because he said it's only - he showed us the form, passed it to us, and let Mr Shandil come and explain about this, which he did, and then from there - then we classified - all the members, we have basically agreed we want to hear from Mr Shandil, whether he did it or not. Because we can't say he has forged the signature before we hear from Mr Shandil.

So once Mr Shandil approached, he came, he was given a seat. He didn't take the seat, and he was in a hurry, and said, "What is it all about?" And we asked him - the president asked him about these two letters, the form, the signature. He agreed that it - yes, he did. The reason for that was he was running late for a grant. Otherwise, we were going to miss the grant out. Then the question was asked, why did he forge the signature. Go back to it again: because we were running late. So then the forgery thing came, because he thinks, there's a committee, a small organisation - because we are governed by law and, like, it is for us - it was a forgery. That's what it was all about. Then we requested, and Mr Shandil was told, that, "Please, we don't need your service, and your contract is terminated for next year. We don't need the services of principal to the school.""

[117] Insofar as it is possible to understand this confused and inconsistent answer, it would appear that Mr Maharajah has conceded that the allegation of forgery was raised, and raised before the plaintiff's explanation was sought.

[118] Concerning the explanation, Mr Maharajah was very certain the plaintiff had not provided the explanation that he had the teacher's permission: "Q. Sir, Mr Shandil told you and the committee that he had the permission of Mrs Lata to fill in the form and sign her name. A. He never told us in the meeting. To my knowledge, I never hear that he said - he said that he has done the signature, "and what are you guys going to do about it". He shows his ego a little bit, "and what are you going to do about it". That was his attitude.

Q. Sir, he said that he had the permission of that teacher to sign the form on her behalf. A. As far as to my knowledge, I didn't hear that. He just said he did the form because he was running late to post the form for the grant, and that's the reason he did it.

Q. Mr Sharma said that Mr Shandil had forged signatures of two teachers, didn't he? A. The president, after Mr Shandil attended the meeting, he approved it, then he basically said, "Right, according to this, he has done it. It is a forgery."

Q. Mr Sharma certainly used the word "forgery" during this meeting, didn't he? A. He used the "forgery" after Mr Shandil admitted it, that he did it. To my knowledge, I can't see why he can [sic] have used that terminology, because if a person admit that he has done a forgery, it means he has done it.

Q. Sir, you found out since that date that Mr Shandil in fact had the permission of Mrs Lata to sign that form, haven't you? A. No, I haven't.

Q. Sir, has any person spoken to you about it at all? A. Regarding what?

Q. That Mrs Lata had authorised Mr Shandil-- A. No, as far as I know, no.

Q. Did Mr Narayan ring you on 30 November? A. Mr Narayan? Who is Mr Narayan?

Q. Mr Uday Narayan, the honorary solicitor - did he ring you on the 30th? A. On 30th in the afternoon they rang me.

Q. Didn't he tell you? Didn't he ask-- A. He didn't tell me about - he didn't tell me anything about those signatures. The only thing he tell [sic] me was, "What you guys are doing?" That's what it's all about. Like, in other words, he is just the solicitor, or, what his term was using, like, to really scare us, like, "What are you guys doing? The school is going to be closed, you're going to end up in legal hands," things like that, which we have never been through. It's just only a small organisation, and we never ever thought that we're going to end up anything like this.

Q. Sir, did Mr Sharma tell you that the funding had already been granted in respect of these teachers? A. The form was lodged in first term, so it has to be approved.

Q. Sir, did you, as a committee member, believe that these forms were important for the funding, or something else? A. Before that, we never used to see all these forms, because Mr Shandil used to handle all these matter by himself."

[119] Mr Maharaja was unaware of any claim that the teachers authorised the plaintiff to sign despite a conversation with the school solicitor (and I note no challenge to the accuracy of this conversation was put to Mr Narayan by Mr Goldsmith) and the many subsequent activities of the parents who were concerned by what had happened. In addition, he did not consider it necessary to consult the teachers in question: "Q. Sir, as a committee member, did it occur to you that you might ask Mrs Lata whether she had signed the form or not, or whether she'd given permission to sign the form? A. Basically whenever we have a meeting, only at the school, it's basically handled by the president. He takes all those documents, and we leave it to the president. It's not all the members ringing anybody; we're not doing it. So actually, I did not. I did not ring anybody or ask anything about those signatures.

Q. What about Mrs Shikha Sharma? A. No, I didn't.

Q. What about at the time that the meeting was held? Did anyone say, "We should check with Mrs Sharma and Mrs Lata"? A. I can't remember that." (T 376 - 7)

[120] Although later in his evidence, Mr Maharaj changed his evidence to say that before the plaintiff came to the room the defendant "has never used the word 'forgery'", it is clear from his description of events that the version in the minutes and in his earlier testimony is correct, in that the allegation of forgery was raised before the plaintiff came to the meeting. Mr Maharaj sought to distance himself from both the investigations and the forgery findings, explaining, although not very clearly, that these matters were left up to the defendant: "Q. Did anyone ask whether it mattered whether or not the information - that is, the details on the form - were correct or not? A. According to the meeting, the thing was raised, but then we find it out about it, and the president said, "Okay, look, but I'll do it."" (T 377)

[121] Significantly, like the other witnesses for the defendant, he was completely unconcerned about the potential inaccuracy of any factual information in these allegedly forged documents; his sole concern was with the signatures (T 378).

[122] Mr Maharaj said that the plaintiff was a very nice person to work with and that the "we always respected" him (T 380), but that in the last few meetings he had argued with them and during the 16 November meeting had walked out. This made him angry because when parents asked about the school presentation night "we can't explain to any parents that Mr Shandil was not co-operating with us". (T 380). He went on to say that "the only problem with Mr Shandil is this little bit of ego he has" (T 381) and that the sacking was justified because: "But the draw line [sic] comes when the thing came - "Now I use [sic] attempt forgery." If a person can did [sic] that, and say, "What are you guys going to do about it?" What about tomorrow, he can jump in the bank account and do the forgery with the signatures? How can I accept or respect a person doing things like that? I don't. Personally, I don't sign my wife's signature and she doesn't sign my signature." (T 381)

[123] Mr Maharaj's hostility to the plaintiff was palpable, not only from statements such as these in the witness box, but from his comments during his evidence about caste (which he addressed to the plaintiff personally), and his complaint that the plaintiff said that the P&C members were uneducated, both of which were put in an aggressive tone. He changed his evidence concerning what was said at the meeting several times, and his claim of never knowing about the claim for authorisation, despite having a conversation with the school solicitor about it on the same day as the meeting, is implausible. I do not regard him as a witness of truth on any issue.

[124] Mrs Shankar, a member of the P&C, appears to have been friendly with the plaintiff's family. She was issued with a subpoena to give evidence for the plaintiff. She was, however, called by the defendant. She said she was upset with the plaintiff because he had sent her a subpoena, when it was the anniversary of her husband's death and called him to say she was not going to come to court: "A. The point of my calling Mr Shandil was that my husband's - anniversary prayers for his death were coming up. They were very much aware of that, and I was very hurt that I was subpoenaed to come to court them, knowing that what I was going through, and that really affected me, yes." (T 392)

[125] Despite being upset at receiving a subpoena to give evidence from the plaintiff at such a difficult time, she came to court voluntarily to give evidence for the defendant. However, it transpired that her real concern was that there could be other defamation actions brought against members of the P&C, and that the plaintiff had said this to her (T 393).

[126] Mrs Shankar's version of what was said was the following: "Q. Do you recall if there was any conversation between Mr Sharma and Mr Shandil following Mr Shandil's arrival? A. Only that Mr Sharma said there were teacher forms, teacher--

Q. I'm sorry, who said-- A. Mr Sharma mentioned that there was forms there, and just needed verification as to who had filled out those forms.

Q. Was anything said in response to that? A. Mr Shandil did say he had filled out the forms." (T 394)

[127] She said that the plaintiff "wasn't happy" about these questions, and that there was "a lot of conversation", but she could not remember the details, although she thought that "Mr Shandil he sort of took Mr Sharma on, that even if he had filled out the form, if there was anything wrong, what could Sunil do about it, you know, to [sic] those contents." (T 395). She did say, however, that the minutes were an accurate record of what occurred (T 397).

[128] In cross-examination, when asked whether the plaintiff had said he had permission to sign, she said "I'm not sure whether that point was made in the meeting" (T 396).

[129] Mrs Shankar's hostility to the plaintiff became apparent when the bona fides of her explanation concerning the subpoena were challenged. It was put to her that the commemorative function for her husband had been for the week of 9 and 10 April, that she had invited the plaintiff and his wife to attend because she "had not foreseen any issues" (T 398) but then realised there could be unpleasantness if other persons involved in the litigation were present, and had told them they were no longer welcome to come to her home. There was another ceremony for her husband at 9.30 a.m. on Tuesday 19 April, but how this prevented her from answering a subpoena for this week-long trial was never made clear.

[130] Mrs Shankar claimed she did not hear the plaintiff say he had authorisation because "maybe I wasn't listening" (T 398), but she was listening closely enough to be certain that the word "forgery" had not been used. When shown the portion of the minutes referring to "forgery" and reminded that she had said the minutes were accurate, she said "Yeah, most of it", claimed "I did not read line by line from the report" (T 399) and failed to answer a question about whether she had read this section (T 399). She went on to say that the order of events "may have been different" from the minutes (T 400) and that she did not recall the "precise sequence" of when the plaintiff was accused of forgery (T 400).

[131] Mrs Shankar inconsistently claimed to be able to remember anything other than generalities but was very certain on some issues, such as whether or not "forgery" was used, but her evidence on this point was inconsistent. Her evidence that she may not have been listening to what the plaintiff said, and her inconsistent evidence about whether the minutes were accurate persuade me that she is not a witness upon whose credit any weight may be placed.

[132] Mr Kamlesh Chand is the brother-in-law of the previous witness, Mrs Shankar (T 397) and, like her, a member of the P&C. His evidence was that the word "forge" was used, and that the plaintiff admitted to having forged the signatures, knowing that it was an offence, but saying he did not have any choice: "A. Sunil asked him why - you know, why did he sign the forms, and he said, "I think I've already said that," and then he asked him, "So that means you have forged the signatures." He admitted that. He said, "Yes, I did forge the signatures, because I didn't have enough time to get it signed." Then Mr Sunil said, "Master" - referring to Ashok, Mr Shandil - "do you know it is an offence to sign or forge signatures on behalf of somebody without their permission?" and he said, "Yes." He said, "I didn't have any choice. I didn't have the time to get it signed by the teachers," and then Mr Sunil said, "Mr Shandil, you know, this is misconduct, you know, we'll have to ask you to resign from the school." Sorry, apologies." (T 404)

[133] Mr Chand said that the plaintiff became very upset and aggressive, saying "Who are you to ask me to resign from the school?" and "the next thing I know he walked out of the meeting" (T 405) before the issue could be resolved. Following this, and in his absence, the committee had a discussion: "A. Then we had - there was a discussion. There was a discussion about signing, and the members sort of agreed that, you know, it was an offence to sign on someone's behalf, and considering that Mr Shandil had admitted to signing that, that it was an offence. So, you know, there was a vote, and he was - you know, it was voted that, you know, he should resign, that his services should be terminated." (T 404)

[134] This version of events, while it acknowledges the allegation of forgery, does not explain how the plaintiff came to have a letter accepting his resignation, nor is it consistent with the description in the minutes of the plaintiff being asked to return all the documents and leave the school premises by 4 pm that day. Mr Chand denied that any letter of termination was given (T 406).

[135] Mr Chand was certain that the plaintiff had not said he had permission from the teachers to sign their names (T 405 - 6).

[136] Mr Chand's evidence indicates that an allegation of forgery was made, and that the plaintiff was dismissed for this reason. His claim that the resolution to sack the plaintiff came after the plaintiff gave his explanation is not one that I accept. I am satisfied, having regard to the minutes and to the sequence of events (including the handing of the letter of resignation to the plaintiff) that the P&C had decided to remove the plaintiff as Principal, and that he was called into the room to be told to resign (in which case he would be given the polite letter of resignation) or he would be dismissed on the spot.

[137] Mr Sanjay Singh was elected in March 2008 as the treasurer of the P&C. He told the court "I was a witness when Mr Sharma was asking the question with Shaireen [Mrs Lata]" (T 408). (A third member of the P&C was asserted to have been present, but this person, Mrs Shalendra Chand, did not give evidence).

[138] Although he was present on 29 November, Mr Singh said that the first time he had ever seen the teacher profile form was when the defendant produced it and showed it to Mrs Lata during his conversation with her (T 409). He said he had no idea what was happening, and that he was collecting the tickets when the defendant came up to him and said "Can you be a witness?"

[139] Mr Singh's memory was poor. He could not remember whether the committee had made any decision about what to do about the plaintiff including whether to dismiss or sack him, because it was more than a year ago: "A. I can't really recall on this one, so the committee would make a decision or not, I can't recall. It's already more than a year ago. But obviously there must be a minute to return which would have - what the committee has decided because we have minutes for that." (T 411)

[140] Mr Singh's evidence about what Mrs Lata said differed significantly from that of the defendant. Mr Singh was less concerned with the question of whether the form was authorised than with whether the information on the form was true and correct: "Q. But as the committee member you knew, didn't you, that it was the responsibility of the principal, Mr Shandil, to fill in these forms? A. That should be a part of - when a grant, it should be a principal's responsibility for the form to be filled, with the authorisation of the teacher, because that's the teacher should be knowing. And that's what we need to submit to the grant.

Q. So didn't it surprise you at the time that she was saying that she had no idea who filled it in and yet it might have been Mr Shandil who should have filled it in? A. No. It was really surprising she had no idea, that's what - it really surprised me. As part of our grant procedure we need to have true and correct information to disclose the grant.

Q. Sir, when she said that she had no idea who filled it in, did you ask her whether the information in it was true and correct? A. That's what I asked when she said, "No." That's why the next day we asked Mr Ashok Shandil, "What's the reason? Who had done it?" Because he's--

Q. No, sir, you haven't understood. The thing is when she said she didn't know who signed it, didn't that make you immediately very suspicious about the accuracy of all of the information? A. Yeah, because that's - I totally agree with that, but--

Q. Well, didn't you go through all of the information with this lady. A. Yeah. But she told me that's not her information, like, she didn't sign this form, she had no idea about it. That's the reason.

Q. No, look, I'm having a major problem here with this. I really need to understand it, because I need to understand why - if she said she had no idea who filled in - why didn't you go through every single line of it with her to make sure the information was correct? That's what I don't understand. I'm having great trouble with it. Can you help me? Why didn't this happen? A. When she told the next - that's what we need to know the information. It was the last--

Q. Hang on, this is the lady - this is her private information. Have I got this form wrong? This is all her private information, her address, her phone number.

Q. Wouldn't you have gone through all of this? I just don't understand. A. She had already gone through it. It's not her - it is not the correct information. She - the signature is not correct. So that's what we are thinking about. It's not our correct information. So if somebody have not acknowledged by the signatory this is her information, that's totally invalid information. That's why we need to know who did it. That's we are trying to get more detail into who have done all this profile form, and then next day we have asked Mr Sharma - sorry, Mr Shandil, who have asked - that's what we are trying to ask. Mr Shandil I was asking, because he is the one doing the grant for us." (T 414 - 5)

[141] However, Mr Singh then changed his evidence, and admitted he had made no inquiry of Mrs Lata at all saying this was because he was merely there as a "witness": "Q. Mr Singh, didn't you take the profile form of Mrs Lata that was present and say to her, "Well, you didn't sign it, but is the information in it correct"? A. I was - I didn't ask this question, no.

Q. Mr Sharma didn't ask it either, did he? A. It was Mr Sharma was asking each information about the signature and all this. Because I was a part of a witness only. I was witnessing what's happening between Mr Sharma and Mrs - sorry, Shaireen Lata.

Q. But Mr Sharma didn't ask Mrs Lata whether the information in the form was correct, did he, in your presence? A. I can't recall.

Q. You can't recall. A. Yeah. This one I can't - but I can't, this question if it was asked.

Q. I suggest to you, sir, that what you're telling the court is wrong. A. No, but that's the information what you asking - with the signature, or whatever I'm recalling, that's what I'm telling you. As I said, I tell the truth whatever I know that I am telling you." (T 415)

[142] Mr Singh was struggling to reconcile the implausibility of concern over another person's signature where the information provided under cover of the signature was true and correct, and where no inquiry or concern had been expressed about that information being anything other than true or correct. Eventually he admitted he did not ask this question, and that he "can't recall" if the defendant did.

[143] Mr Singh had the same difficulty with his answers concerning whether or not the plaintiff had been accused of forgery at the meeting. He said that it was just not "the correct signature" and that it was "a teacher profile not correct", although there was never any evidence that any information on the teacher profile was incorrect. Mr Singh simply denied everything, including that the defendant told the plaintiff he would be dismissed. He said the whole incident, which took 5 minutes, consisted of the plaintiff saying "I did it. What you guys can [sic] do?": "Q. Sorry, didn't Mr Sharma tell the committee, "I have legal advice that Mr Shandil has committed forgeries?" A. No, he didn't say about anything regarding a forgery.

Q. Did he say, "Mr Shandil should be dismissed and terminated from his position as principal of the school, and otherwise I will call the police"? A. No. I totally disagree with that.

Q. Sir, the committee - Mr Sharma did tell the committee when Mr Shandil was present that he had committed a forgery, didn't he? A. No, it was teacher profile was not correct. That's what we have discussed.

Q. Did he say to Mr Shandil in front of the committee that it was a forgery, and it was a serious offence? A. No, it was told it was the two teacher profile was not correct and we need to liaise - we need to talk to Mr Ashok Shandil regarding this. That's what we did. That's why I was asked to go and call him during the meeting.

Q. Did Mr Sharma say to him, "You know it's an offence to sign without their permission?" A. Sorry?

Q. Did you hear Mr Sharma say to Mr Shandil, "You know it's an offence to sign without their permission"? A. No. That was not - because Mr Shandil has come only for five - less than 5 minutes, and that - the only comment he made, "I did it. What you guys can do?" That was actually what he said." (T 416)

[144] Mr Singh continued to insist that the problem was not that the plaintiff had signed these documents, but that he had signed them without the authorisation of the teachers (T 417). His evidence on this issue is at variance with that of the other witnesses, as well as with the minutes.

[145] In cross-examination Mr Singh was shown the minutes which he had said in examination in chief were true and correct. He said that the references in the minutes to "forgery" were incorrect: "Q. Is that correct? A. Actually, what was said, the teacher profile - what I recall, it was our chairman said the profile was not - the signature was not correct. That's what we have discussed on that. That was our issue.

Q. And where it says-- A. But we didn't have - we didn't say like - from my understanding we didn't say like it was a forge. We didn't say - unless we get a consent - we have asked the principal that's what we need to - was we are trying to ask, who have done - who filled the form and everything. That's what we were trying to ask.

Q. It wasn't a forgery, was it? A. It was not - we didn't say it's a forgery, no.

Q. You didn't say that Shika Sharma's signature was a forgery? A. No.

Q. So where it says the same thing in paragraph 2, that's incorrect, is it? A. Yeah. Yes, because as it say it's "forged", but we didn't use the word "forgery"." (T 418)

[146] Mr Singh was the person who was sent by the P&C to bring the plaintiff into the meeting. He denied, however, that the description of what he did was correct: "Q. So you didn't go to him and say, "We want you to come to the executive committee to explain the forgery issue." A. No, but that's - "We need you to come." That's what - because he was a part of our member, and we want him to come. That's what I asked him to come.

Q. Did you say to Mr Shandil, "Come to the meeting because we want you to explain the forgery issue"? A. No, I asked him, "Could you please come to the meeting." That's what I've asked him.

Q. Can you look please at page 4 again in exhibit 6, paragraph 6 down the bottom.

RASMUSSEN: Just read out the first sentence to him so he knows.

Q. Do you see where it says, "Mr Sanjay Singh went to call the principal to explain to the P&C executive committee regarding the forgery issue." A. Mm-hmm.

Q. Do you say that that's incorrect. A. I asked him to come in the meeting. That's what I asked him to come.

Q. So it's not correct then, is it, to say that you asked him to come "regarding the forgery issue"? A. No, but forgery was - we never used - we never talked about the forgery, so--

Q. When did you see these minutes? A. We see them the next meeting we have.

Q. Did you say to anyone in the committee, "Hang on a second, these minutes are wrong"? A. No, I didn't say anything.

Q. You didn't say, "Hang on a second, I never said to him that I asked him to come in regarding the forgery issue." You didn't say that to the committee, did you? A. No.

Q. You didn't say to anyone in the committee, "Hang on a second, what's in paragraph 2 is wrong as well. We never put to him anything about the forgery." A. No.

Q. You didn't say that to the committee on the next occasion. A. No, I didn't say something like that." (T 420)

[147] Mr Singh also denied that the plaintiff was given a termination letter.

[148] Although Mr Singh's evidence was that he was very concerned about the accuracy of the teacher profile forms, and about the department having been given wrong or misleading information, like the other witnesses, he had not made the slightest attempt either to verify the contents of the document, or to contact the department to correct any errors (T 422).

[149] Mr Singh's claim that the question was whether or not the document was filled out with the consent of the teachers is disingenuous. He made no attempt to speak to Mrs Sharma, and denied knowing about her teacher profile form, although he spoke about "forms" in the plural. It would have been obvious to him that if Mrs Lata's personal details on the form were correct, there was a strong likelihood that she herself had provided them. His selective memory and inconsistent claims about what was said to Mrs Lata and whether the minutes are correct do not reflect well on his honesty.

[150] Mr Singh made no secret of his disdain for the plaintiff, whom he painted as a lazy person just sitting around doing nothing, and not as a busy principal organising children on the last day of school. "Q. Yes, but he was looking after the children, wasn't he? A. No, he was not looking - he was like sitting on the stairs, that's it. It was not in the hall, it was outside the building, on the carpark.

Q. So are you saying that he's just sitting around at the school on the Sunday when he knew that there was an executive committee on and just couldn't be bothered to come along? Is that what you're saying? A. Yeah. That's what [sic] he didn't come. That's right." (T 418)

[151] Mr Singh was an unimpressive and at times untruthful witness, and his evidence is of no corroborative value on any issue.

Other evidence about the 30 November meeting - the evidence of the school's honorary solicitor

[152] The minutes of meeting refer to the sacking of Mr Narayan as the school's solicitor, as well as the sacking of the plaintiff. This occurred after a conversation he had with the defendant during or shortly after the P&C meeting. This conduct is significant, because not only have I found that the defendant represented to the P&C that he had obtained legal advice, but he and the P&C continued to make statements about legal advice and legal issues in the course of their dealings with the parents who complained about what occurred.

[153] Mr Narayan is a solicitor who was admitted to practice in 2004. He was appointed the honorary solicitor for the school in 2006 (T 191). The plaintiff's evidence was that after the events of the P&C meeting, he telephoned Mr Narayan and went to see him. The plaintiff's wife gave evidence that she drove him there, and was present. Mr Narayan spoke to the teacher whose signature the plaintiff had been accused of forging, and then to the defendant.

[154] Although Mr Narayan's role in these events occurred at or shortly after the time the P&C meeting is noted as having ended, the minutes of that meeting have been extended to cover the discussion Mr Narayan had with the defendant.

[155] Mr Narayan said that the plaintiff showed him the termination letter, but that he was too upset to talk about it, as the plaintiff was "almost in tears" (T 192). Mr Narayan's evidence was that he took the following steps: "A. He told me, firstly, that he received a letter, and the letter stated that he has committed forgery. He had signed two teachers' signatures on teacher profile, and as a result of legal advice given to the president of that association that he was dismissed on that ground, and I subsequently rang the president of the association, and two or three other executive members. I spoke to one of them, who made reference that I should speak to the president directly, because he was the one who made the decision in regards to the termination of the said principal of the school at that time.

Q. Did you speak to the president? A. I left a message for the president to return my call, which he did after an hour and a half or so. During the course of our conversation I asked him that it is an appropriate thing for us to reconvene the executive meeting and discuss this issue in principle, and get the teachers in, so that we could sort it out and move on with the school. Mr President then, he advised me that he asked me, "Question 1. Whose legal adviser are you? Are you the legal adviser for Mr Shandil or are you the legal adviser for me?" My response to that question was, that I am neither his nor Mr Shandil's legal adviser. I am the legal adviser appropriately appointed at 2006 AGM. So, therefore, I am the legal adviser to the school.

Q. Okay. A. And during the course of our conversation, the president asked me my personal home address, which I gave him, which was 69 Cockatiel Circuit, Green Valley in New South Wales 2168, and to my surprise I was given a termination letter which I received after four days, which said that my termination as a legal adviser to the school ends on 30 November, I understand. I understand there's a copy to that effect with you in your file.

Q. Can I show you a document. Do you recognise that? A. Yes, I do.

Q. What is it? A. This is the letter that I was - I received in my mail. The correspondence - the verbal correspondence on phone was with the president. But, however, I received this letter from Mr Shalendra Chand, the assistant secretary, terminating my services as legal adviser to the Hindi school." (T 193)

[156] The fact that Mr Narayan said he saw the termination letter the plaintiff said was given to him at the meeting is corroborative of it having been given to the plaintiff at the meeting as he said was the case.

[157] The advice Mr Narayan said he gave to the defendant which prompted this letter was as follows: "A. I advised the president that the issue of committed forgery is not there, and the signatures that Mr Shandil was..(not transcribable)..to write, and in order to discuss that issue further and get the principal reinstated I requested the president that we should reconvene an executive meeting where I would be present to advise them the legalities of it, and then to work out the differences, if there was any, between anyone within the executive, and have the principal reinstated in this position for the betterment of the students and the community at large." (T 194)

[158] The particulars of truth in the defence state that the defendant received legal advice that the plaintiff had committed forgery. Not only was Mr Narayan firm in his statement that he gave advice to the contrary, but he also confirmed that he was never consulted prior to this incident, even though he had been at the school function the night before: "Q. Before Mr Shandil spoke to you on 30 November, had you heard anything at all from any person about any allegations of forgeries of any documents? A. No. On the 29th of the same month, which is Saturday evening, the school had its annual presentation night, and I was available with the president and other executive members of the school, from 7.30 till midnight, and none of the executive members nor the president discussed any issues relating to this and no-one raised-- A. No issues.

Q. No-one raised anything with you on the night before. A. No." (T 194)

[159] Nor was Mr Narayan given any opportunity to explain these legal principles to the school board at any later stage, despite being available and willing to do so: "Q. Were you aware of a later meeting, a special meeting of any sort, that was convened at any other point in time? A. Yes. I was informed by one of the parents and Mr Kumar I think his name who invited me to have a special AGM meeting which was conducted properly with the constitution and I was present in that. What happened was I was informed by the security guards that I was not a member of the association and therefore I should leave the premises of the school, which I did."

[160] The instructions not to admit Mr Narayan to this meeting came from the defendant: "Q. Had you sent notice of your intention to attend the meeting? A. I was given all of the agendas and, as the legal adviser of the association, I felt it was my appropriate and professional duty to be present and to advise the AGM of the appropriate constitutional rights and the conduct of the meetings.

Q. One would assume that an instruction was given to a security guard not to allow you access. A. Yes. The security guard told me the instructions came from the president, Mr Sunil Sharma, that I was not the financial member and therefore I should not be on the premises, and I should be removed straightaway. I volunteered to walk out of the school premises. I left the premises within 10 minutes or so." (T 202)

[161] However, as Mr Narayan pointed out (T 202), it was not necessary for him to be a financial member of the school; he was attending in his capacity as the school solicitor, an appointment which had been made at the pervious annual general meeting, in circumstances where there had been no intervening meeting of the P&C or further annual general meeting to consider whether he should be sacked and, if so, whether another person should be appointed. (I note, from the evidence of the P&C members and the minutes, that it would appear he had been sacked by the defendant after the P&C meeting had ended). Mr Narayan's evidence was that this was contrary to the school's constitution.

[162] Mr Narayan also explained that he was not giving advice to either the plaintiff or the defendant about these events; he was the school's solicitor, and he was advising the school that these allegations of forgery were without foundation. He was not cross-examined about this, so at T 204 I asked: "RASMUSSEN: Thank you, your Honour. That's the evidence. Could the witness be excused.

HER HONOUR: Just before he goes, am I right in thinking that nobody ever rang this gentleman for advice about what forgery was or anything like that? Everybody is agreed on that? That's right?

RASMUSSEN: Yes, your Honour. I understood that to be his evidence."

[163] In cross-examination Mr Narayan confirmed that the school had, since 2003, been well-run and operated successfully, and that during the three years that he had been the school solicitor there had been no problems (T 199). Nothing was put to Mr Narayan about any complaint concerning his prior conduct, and nothing was put to him to the effect that his advice that no forgery had taken place was incorrect, biased or otherwise outside his role as the school solicitor. There could be no basis for the sacking of Mr Narayan as the school solicitor based on his prior conduct, or the correctness of this advice, of the appropriateness of the school solicitor giving it. Indeed, nothing was put to him to the effect that the defendant disputed Mr Narayan's legal advice that the plaintiff had not committed forgery, which is significant as to the issue of knowledge of falsity in relation to any defence of qualified privilege.

[164] Mr Narayan's evidence of these events, and of the circumstances in which he later received a letter of termination, is relevant when considering the minutes of the P&C meeting, as it shows the reasons given in the minutes for his termination are dishonest. Mr Narayan gave sensible, objective, fair and legally correct advice to the defendant, and the defendant's response was to ignore it, and ask for his home address, and then send a letter sacking him as school solicitor. This evidence demonstrates that the defendant not only knew that there had been no forgery, but that his sole motive was to have the plaintiff dismissed. He was willing to tell any lie (including lie to the P&C and tell them he had received legal advice), and to lie to this court in his pleadings by particularising in the defence that prior to 30 November 2008 he received legal advice that the plaintiff had committed forgery.

[165] The members of the P&C had in common the fact that they all had children studying at the school. The plaintiff called Mr Sunil Kumar, who had two children studying at the school. Mr Kumar's wife was also one of the teachers at the school, and he heard about the plaintiff's dismissal from her when she came home from teaching that day.

[166] Mr Kumar is himself a teacher at a private college, and he took a great deal of interest in the activities of the Hindi school (T 225). He knew the plaintiff as the principal and the defendant as the president of the P&C Committee, but was not personally friendly with either.

[167] Mr Kumar was concerned to hear from his wife about the plaintiff's dismissal, so he telephoned first the defendant later that same evening, and then, to hear "both sides of the story", telephoned the plaintiff: "A. I called Mr Sharma, the P&C president, and I asked him what happened and he told me over the phone that him and his executive committee has dismissed the principal; and I did ask him on what grounds, as a concerned parent, and he told me that the principal had forged one of the teacher's signatures and it could have legal implications for the whole organisation, the Hindi language school. Then I called the principal, because I wanted to get both sides of the story.

Q. Let me stop you there for the moment. When you rang Mr Sharma, do you remember what time of day it was? A. I think it was in the evening.

Q. After you spoke to Mr Sharma, I think you said you rang Mr Shandil. Is that right? A. Mr Shandil.

Q. Could you tell me what you said to Mr Shandil and what he said to you? A. I asked Mr Shandil about the allegation against him, about the forgery issue, and he said it was a teacher profile form that he had to fill in to pass - Department of Education, and that he print - he - it wasn't forgery, according to him. That's what he said to me. Then he explained that he didn't intend to gain anything personal from that, monetary or any material, and he wasn't trying to defraud any organisation, individuals. That's what he told me." (T 226)

[168] Mr Kumar, having heard both sides of the story, then rang the defendant a second time to make a suggestion: "Q. As a result of what Mr Shandil told you, did you do anything then? A. Yes, I did. I called - I spoke to Mr Sharma again and I asked him if we can reconcile - reconsider the decision for the betterment of the institution and he refused to do so." (T 226)

[169] Mr Kumar asked the defendant if he would hold a meeting so that parents could express their views. He again refused to do so. Mr Kumar, apparently on advice from the Department of Fair Trading, obtained the signatures of ten parents and sought an "open forum" for parents of children at the school to express their views. The defendant again refused (T 227). In the meantime, Mr Kumar had been sent by the plaintiff a copy of the explanatory letter one of the teachers had written, confirming that permission had been given by her to sign on her behalf.

[170] By this stage Mr Kumar had spoken to a number of parents who also told him they were concerned: "And then I spoke to other parents and the other parents came up as well, concerned parents, they came up. They were not happy with the situation and then we decided to organise a special general meeting ourselves and we circulated the agenda for the meeting, the notice for the meeting. On the day of the meeting, we went to the school - "(T 227)

[171] When the time came for the meeting, the parents were met, not by members of the P&C, but by hired bodyguards. Many people, including the plaintiff and Mr Narayan, were turned away and told to leave. Those who were able to get into the meeting, such as Mr Kumar, found that the meeting had been "hijacked" by the defendant (T 229) by the defendant, who chaired the meeting with his own agenda and refused to listen to any of the concerned parents. The agenda prepared by the parents who had organised the meeting was "taken away" and "not considered" (T 229).

[172] Mr Kumar said that he and some of the other parents tried to raise the matters of concern to them but that they were "shouted down", and that the defendant said to him "Sit down and be quiet" (T 230). The defendant then passed a document around at the meeting, and Mr Kumar and about a dozen of the parents went outside to look at them, as there was a lot of shouting going on (T 229-230). When they tried to get back into the meeting, the security guards would not let them enter (T 232).

[173] At some stage a notice was put on the notice board in the hallway saying "Special meeting 15 February 2009 called by Sunil Kumar not the president is null and void." (T 233, Exhibit Q). The contents of the rest of this document give an idea of the degree of bitter hostility towards not only the plaintiff but anyone who supports him. The rough handwritten notice (clearly added to at various different times during February) says as follows: "8.2.09 · SECURITY : hired by Exec Committee for Safety of children and parents on the premises. · Special meeting (15.2.09) called by Sunil Kumar [not the President] is null and void . However, all members are requested to be present at school to voice your concerns. · 18 February 2009: Industrial Tribunal case: Ashok Shandil vs P&C. · 22 February 2009: Special meeting in School Hall at 1.20 p.m. Be present to voice your concerns. · Suggestion Box: express your opinions ."

[174] The petition signed by a number of the parents concerning the meeting arranged by Mr Kumar was tendered. I inquired as to the number of children at the school, and put an estimate to the parties that about a third of the parents had signed the petition. The petition has notations about whether or not the persons who signed were financial members; it would appear that almost all of them were. No evidence was given by any of the defendants concerning the "special meeting" arranged by the P&C for 22 February, or the contents of the suggestion box, or what had led to the appointment of security guards for the safety of children and parents using government school premises on a Sunday when they would have been the sole persons present.

[175] On 10 February a letter was sent to Mr and Mrs Kumar (Exhibit H). The text of this letter is set out in the section of this judgment concerning republication.

[176] Mr Kumar said very frankly that he was concerned about the allegation of forgery, that he wanted to get to the truth of the matter, and that the purpose of the open forum was not the reinstatement of the plaintiff, but to find out the truth (T 236). Mr Kumar was in favour of giving the plaintiff a chance to explain his conduct in an open forum, and that was his sole motivation (T 236). The following was put to him in cross-examination: "Q. But on a personal basis, you were opposed to reinstatement? A. I didn't have a personal stake in any of the whole affair.

Q. What did you expect would happen after that? A. I expected Mr Shandil would be given the opportunity to defend himself and also the parents will have the opportunity to see both sides of the whole affair, the story.

[177] Mr Kumar went on to explain why he felt this was necessary: "Q. And then at the end of the agenda, you say, "And to deal with the matter as appropriate." What did you have in mind? A. I actually had in mind, when the whole thing happened, when he got dismissed, I felt that things were not done in a fair way, a proper way. So I had in mind to have a forum where things could be done in a proper way, like have both sides of the story, the allegations, and Mr Shandil will be given the opportunity to defend himself and then the parents to decide.

Q. But you would not expect they would decide by way of a vote? A. I couldn't foresee something like that.

Q. How could you foresee the matter being resolved? A. I would have left it to the parents to decide." (T 237)

[178] It was put to Mr Kumar that the letter of 10 February explained why the defendant ant the P&C had rejected all these proposals. Mr Kumar responded: "Q. In that letter, an explanation was provided to you as to why the meeting you were seeking to hold on 15 February was not a valid meeting. You can see that? It's in the fifth paragraph. A. Fifth paragraph. Your Honour, we did look into the model rules and we realised that we still could go ahead and have the meeting according to the Fair Trading Act.

Q. But this is a letter from the secretary of the committee advancing a reason as to why your meeting was not valid. A. Yeah, then we did realise that we could still have the special general meeting because--

HER HONOUR: I think he's saying that he doesn't agree, that he didn't accept it.

Q. Is that what you're saying? A. Been accepted. That's what I'm saying, your Honour.

Q. Yes. You need to answer the question. Listen to the question and try and answer the question. A. We didn't accept.

Q. But you accept, do you not, that an explanation was given to you? A. Yes, I accept that.

Q. Even though you didn't agree with it? A. I didn't.

Q. To your knowledge, the decision not to deal with your agenda on 15 February, that's never been challenged, has it? Nobody has ever complained or come to court or a tribunal about that? A. No, sir."

[179] After being shut out of the first parents' meeting, Mr Kumar did try to hold a second meeting, first on school premises, then at his home, but his notice to parents on the school notice board was torn down by the defendant: "Q. Why was that? A. That was done because we weren't allowed the opportunity to have our meeting so we had to change the time and the venue.

Q. What, if anything, did you do then with that document? A. We circulated the document as much as possible to all the parents. I put up a notice - can I add on a few things?

Q. Of course, yes. A. I put up a notice on the walls outside to inform the parents about the changes to the venue and the time. At the end of the meeting, the P&C's meeting that they had, when they finished the meeting, the chairman, the president, came out of the hall, he took the notice off the wall and I said to Mr Sharma, I said, "Can I please have my notice back?" He tore it into pieces and then he gave it to me.

Q. Is there a reason why you changed it to 41 Chilton Avenue, Oakhurst? A. Yes. At that point, in that short time, we couldn't get a venue. That was the only venue we had - the only option we had was that address." (T 240 - 1)

[180] The evidence of Mr Kumar that he was told by his wife (a teacher at the school) that same day that the plaintiff had been dismissed for forgery after words spoken by the defendant to the plaintiff to this effect is further corroboration of the likelihood of these words having been spoken by the defendant. In addition, Mr Kumar telephoned the defendant straight away and had a discussion about this, in which the defendant used the word "forgery". Mr Kumar's evidence about the circumstances in which, following his conversation with the defendant, he and his wife received Exhibit H (which is relied upon by the plaintiff for damages as a republication) is another link in the chain of evidence relevant to determine what was said at the meeting, and it is to this issue that I now turn.

[181] The defendant's submissions on publication consist essentially of stating that as well as the defendant's denial of the slander, Mr Maharaj, Mrs Shankar, Mr Chand and Mr Singh "did not give evidence of the slander" (written submissions, p. 9) and that the minutes "do not support the allegation that the slander occurred". Mrs Singh's evidence is dismissed on the basis that she was not present for the entire meeting, her memory was not good, that she did not give evidence of the slander in its entirety and that she only said the word "forgery" might have been used.

[182] The members of the P&C were effectively participating in the activity of sacking the plaintiff on the spot. It is not a question of how many witnesses say what was said; it is a question of objective analysis of all of the circumstances, including the objective likelihood of what the defendant and other P&C members said, when sacking the plaintiff in this very peremptory fashion and recording it in the minutes, and what the plaintiff replied, having regard to the evidence of other persons he spoke to on the day to whom he repeated what the committee said. In addition, subsequent documents prepared by the defendant on behalf of the P&C, purporting to justify what was done, make statements giving a clear picture not only of what they thought the plaintiff had done wrong but the way in which that asserted wrongdoing was communicated to him.

[183] It is not necessary for the plaintiff to produce a witness who will testify, word for word, as to the text of the slander. It is still possible for there to be publication even where no witness comes forward to testify that the words were spoken, as long as there were persons in a position to hear the words complained of. In Duckworth v First National Bank 254 SC 563, 176 SE 2d 568 the only witness to a slander denied hearing the words spoken. As the evidence was that there was a crowd present and the defendant shouted the words, the court permitted the matter to go to the jury, which found for the plaintiff.

[184] I shall first set out the principles relevant for the establishment of whether a slander has been published.

Relevant legal principles concerning whether a slander has been published

[185] The principles relevant to whether a slander has been published may be summarised as follows: (a) It is sufficient for the plaintiff to prove the substance of the words pleaded as long as the sting of the libel is there: Lamb v West (1884) 15 LR (NSW) 120; Sutherland v Neill (1887) 6 NZLR 5 at 10 per Williams J; Sinclair v Bjelke-Petersen [1984] 1 Qd R 484; Buchanan v Jennings [2005] 1 AC 115. In the case of use of the word "forgery", this is a word with a very precise meaning of serious criminal conduct, and the finding that such a word has been used would go a long way to establishing that the sting of what was said is what has been pleaded by the plaintiff as well as particularised in imputations of forgery and criminality. Importantly, in Tournier v National Provincial and Union Bank of England [1924] 1 KB 461 at 470 Bankes LJ noted that each case turns on its facts, and there is no specific rule as to what is a substantial difference. Lord Atkin added: "No slander of any complexity could ever be proved if the ipsissima verba of the pleading had to be established (at 478). The law does not demand a level of precision which is unattainable in practice, as Gatley on Libel & Slander (10th ed., 34.16) points out.

(b) Contemporaneous documentation is often of considerable importance in such cases, having regard to what McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318 - 319 called the fallibility of memory. In the present case, the minutes of meeting, the letter to the NSW Police Service, the letter to Mr and Mrs Kumar of 10 February 2009, the statement by Mrs Lata of 1 December and the general pattern of documentation following these events is of significant assistance.

(c) While "attention to detail" ( Ingot Capital Investment Pty Ltd v Macquarie Equity Capital Markets (No. 6) (2007) 63 ACSR 1 at [353]-[355] per McDougall J) is required where the nuances of what is said will be important in many cases, some words, such as "forgery", or "pregnant", have no shades of meaning. This is one of those cases. There can be no doubt that a very serious allegation of criminal conduct warranting instant dismissal was put to the plaintiff, and that he was dismissed for being guilty of this conduct.

(d) The same principles of common sense used in the interpretation of documents and agreements between contracting parties should apply when considering what actually happened when one party takes a step that has legal consequences for the other, such as sacking or dismissing them: Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 at 109-110 per Gibbs CJ; Peppers Hotel Management Pty Ltd v Hotel Capital Partners Ltd (2004) 12 BPR 22,879; [2004] NSWCA 114 at [69] per McColl JA. While a newspaper may fear to strike openly at a target, a person who is sacking someone for misconduct is arguably more likely to identify the wrongdoing for which the person should be sacked, especially if the consent of other persons is sought as to such a step.

[186] I now summarise my findings in relation to the evidence.

[187] The inherent improbability of the defendant's version of what was said is clear from the following objective evidence: (a) The defendant does not actually have any alternative version of what was said. It is not in dispute that the plaintiff was confronted with allegations of a very precise (and criminal) nature, and sacked for these offences. The defendant's position that none of the matter complained of was published is untenable even on his own version of the facts.

(b) It is clear that the information about this alleged wrongdoing did not come from anyone other than the defendant, and that the defendant was careful to keep this information to himself until the meeting. Even his "witness" (Mr Sanjay Singh) had no prior knowledge of what he was witnessing when the meeting between the defendant and Mrs Lata occurred. Mrs Sharma and Mrs Lata gave evidence which I unreservedly accept not only as being truthful, but as being information they not only would have but did provide to the defendant and anyone else who had inquired, and the defendant was careful to keep that evidence from the meeting. That evidence was that they authorised the plaintiff to fill in the teacher profile form on their behalf and to sign it on their behalf. The defendant also kept from the meeting the knowledge that there was no question as to the accuracy of the information in this document, a significant matter given the emphasis laid upon its accuracy by the defendant in his evidence (T 428).

(c) It is inherently improbable that Mrs Lata would tell the defendant on 29 November that she had no idea who filled in the form, since that was the same person who signed it, and it is inherently improbable that she would tell him she did not authorise this when she made a written statement to the contrary on 1 December 2008. The defendant lied to the P&C, and in his evidence, in saying to the contrary, and I do not accept the evidence of the "witness" as corroboration.

(d) It is inherently improbable that no attempt was made by the defendant to contact either teacher prior to 29 November, and also the plaintiff, especially since the defendant passed up opportunities to raise the matter when giving concert tickets to Mrs Lata, and both she and Ms Sharma were teaching at the school and could have been called upon for an explanation, and he could have contacted the plaintiff at any time by email or telephone if there was a real concern.

(e) It is inherently improbable that no attempt was made by the defendant or any other concerned P&C member to put this important issue onto the agenda for the meeting, or to require the plaintiff to provide an explanation, or to seek legal advice about what to do, especially since the school had an honorary solicitor for this purpose. Similarly, there is no evidence that the defendant made any inquiry of the Department other than for information about the P&C's power to sack the plaintiff.

(f) It is clear from the evidence of the P&C Committee that nothing was said about these allegations until some time after the meeting started. Mrs Singh, who was always late, was still in time for this issue, which appears to have arisen about half an hour into the meeting "out of the blue". The P&C members who gave evidence did not say that they had any knowledge of a move to sack the plaintiff prior to the meeting. However, the plans for a temporary new Principal were so far advanced that according to the minutes, the new Principal was called in and appointed at 3.05 p.m., a matter of minutes after the conversation between the plaintiff and defendant (after the plaintiff's arrival at 2.47pm) resulting in the plaintiff's dismissal occurred.

(g) It is inherently improbable that the plaintiff was sacked without the word "forgery" being used, or that the plaintiff admitted committing forgery without the defendant raising the issue, discussing or commenting on it.

(h) As to the portion of the matter complained of that the defendant had received legal advice that the plaintiff committed forgery, the defendant particularised this as a particular of truth, although he withdrew this claim during the hearing, and the claim of receiving legal advice was a theme in the publications which are relied upon for damages for republication, one of which is in fact a solicitor's letter. Although only the plaintiff said that this was said, I am satisfied, on the balance of probabilities, that this statement was made.

(i) As to whether the defendant threatened to call the police, I am satisfied that a threat of this kind was made, and made to the plaintiff, for the purpose of intimidating him into resigning. Although Mrs Singh's evidence does not go this far, Exhibits F and H corroborate the plaintiff's claim that it was raised at the meeting.

(j) As to the form of the publication as one continuous statement, I do not accept the defendant's claim that this is implausible. The defendant was not holding an inquiry; he was handing down a decision for the plaintiff to accept. I am satisfied that the defendant had already decided to dismiss the plaintiff, and was calling him in only to tell him to go quietly (in which case they would give him the 30 November letter) or be sacked, and risk the repetition of these terrible allegations, as the minutes note. The defendant arranged this so that the P&C did not have a lot of time to devote to any inquiry or discussion with the plaintiff, because they had not been given any documents or prior notice, and the school had to be shut by 4 p.m. The new temporary Principal was in place by 3.05 p.m.

[188] I also take into account matters not put to the plaintiff in cross-examination: (a) the plaintiff's account of approaching the meeting and hearing the defendant addressing the meeting in terms of the matter complained of was never challenged by the defendant;

(b) the plaintiff's account of not having given this document to the defendant was not challenged;

(c) I find the plaintiff did tell the defendant that he signed with authority, and that he did so in May, and that the defendant was so unconcerned about this that he did nothing until November when, following the 16 November meeting argument, he decided to have the plaintiff sacked, and began casting about for an excuse.

[189] I find that the defendant did say that the plaintiff had committed forgery, that he had forged signatures of two teachers on teacher profile forms, and that he had had legal advice to this effect, that the plaintiff should be dismissed from his position as principal of the school, and that if this did not occur the defendant was going to call the police.

[190] This brings me to the issue of the imputations conveyed.

Imputation (a) - The plaintiff committed forgery; Imputation (b) - The plaintiff forged the signatures of teachers on profile forms.

[191] The defendant refers me to Holmes v Fraser [2008] NSWSC 570 at [24]-[27], where Simpson J sets out the principles relating to the ordinary reasonable reader or listener.

[192] Firstly, the defendant submits (concerning all the imputations) that imputations of guilt differ from imputations of suspicion, and certain of the imputations (the defendant does not say which) convey an imputation of suspicion rather than guilt, citing Lewis v Daily Telegraph Ltd [1964] AC 234; Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36; Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 and Rakhimov v Australian Broadcasting Corporation [2001] NSWSC 10. I am satisfied, however, that the language of the publication is the clear language of guilt.

[193] The defendant's submission that the accusation or conclusion that forgery actually amounts to a crime is not made in the slander, and that without this it cannot be more than suspicion, is mischievous, and unsupported by authority. The use of the word "committed", the reference to legal advice and calling the police, and the precise identification of the forgery involved, all make this a very clear example of imputations of guilt being conveyed.

[194] Secondly, a challenge was brought to the use of the word "forgery" as ambiguous and as having a legal meaning distinct from its ordinary meaning (Singleton v Ffrench (1986) 5 NSWLR 425).

[195] The defendant relies upon Mitchell v Channel Seven Sydney Pty Ltd [2009] NSWSC 1051 at [29], where her Honour was of the view that the word "assaulted" had an ordinary meaning namely that of a "physical attack" in addition to its technical legal meaning, where an actual assault was not required. Much was the case was the same in relation to "breach of trust" in Singleton v Ffrench, supra.

[196] However, this does not mean that any word which is also capable of a special legal meaning is by definition ambiguous. An imputation that a plaintiff is a paedophile (Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510) is not one that is capable of being ambiguous, and an allegation of forgery is the same. In Brady v Norman [2010] EWHC 1215 (QB) at [11], Eady J simply noted that there could be little doubt that an allegation of forgery would constitution slander per se.

[197] As to how to deal with criminal offences where there are specific elements, I note the approach taken by Newnes J in Forrest v Askew [2007] WASC 161 at [62] and [63].

[198] The case to which Newnes J referred, Hill v Westfield [2003] NSWSC 437, was one where Simpson J was concerned that the ordinary reasonable reader might not know that insider trading was a criminal offence. The same could not be said of forgery, for the reasons explained by Eady J.

[199] I am satisfied that each of imputations (a) and (b) are conveyed.

[200] The defendant submits that this imputation is not conveyed because all that is conveyed is a suspicion, and the defendant did not say forgery was a crime.

[201] I am satisfied the matter conveys an imputation of guilt for both teacher profile forms, not suspicion. While I am conscious of the decision of Simpson J in Hill v Westfield [2003] NSWSC 437 concerning insider trading, "forgery" is a term well within the grasp of the ordinary reasonable listener, particularly when the person making the allegation goes on to say exactly what was forged, namely the signatures of two teachers on teacher profile forms.

[202] A third basis for objection is that the imputations of fact (forging signatures) and a general condition (being a criminal) are not capable of being conveyed, and that more than one act would be required before a person could be called a criminal.

[203] When considering imputations about whether conduct of a criminal nature is conveyed, it is helpful to look to see if more than one act of criminal conduct is referred to. There is a description of the plaintiff as having forged more than one signature on more than one document in circumstances where there is legal advice that the plaintiff has committed "forgeries". In addition to the acts, the plaintiff is entitled to plead an imputation of condition, and this imputation is not subject to any defect in form, nor is it incapable of being conveyed.

[204] I accordingly find that this imputation is conveyed.

[205] One additional matter that I should deal with is the claim that the fact that the sentence "does not appear to make sense" prevents it from conveying an imputation.

[206] In Sinclair v Bjelke-Petersen [1984] 1 Qd R 484, Kelly J considered the approach the court should take when the matter complained of is difficult to understand: "It was necessary for the respondent to establish that the substance of the words complained of in the statement of claim were used by the appellant. That rule was expressed in Lamb v West (1894) 15 NSWLR 120 by Darley CJ at p 126 in these words:

"… it has been held that if the words proved and the words laid in the declaration convey the same meaning to the mind of a reasonable man, that is sufficient, and that, to my mind, is the only safe rule.""

[207] The fact that the words spoken may cause some difficulties in interpretation does not mean that no imputation should be seen as being capable of being conveyed. However, I have no difficulty in understanding the words, and I do not understand why it is the defendant claims that this sentence makes no sense. Effectively the plaintiff is being told unless he is dismissed and terminated from his position, the police will be called in to investigate (conduct which arguably may breach s 99 Crimes Act 1900 (NSW)).

[208] As the extracts from this transcript show, the defendant and most of the defendant's witnesses were not well-educated persons and they made many grammar mistakes. What they said was not always grammatically correct, but the meaning was generally not too difficult to determine. This is one of those occasions.

Imputation (d) - The plaintiff should be dismissed from his position of principal of the Australian Institute of Hindi Language Studies.

[209] The defendant in written submissions does not challenge that this imputation is capable of being conveyed.

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

[210] The use of the word "should" encapsulate the sting of the matter complained of very well. What is being said is that the plaintiff deserves to be investigated by the police.

[211] I am satisfied that imputation (e) is conveyed.

[212] The test is whether ordinary right-thinking members of the community would think less of the plaintiff: Amalgamated Television Services v Marsden (1998) 43 NSWLR 158. Imputations (a)-(c) and (e) are serious allegations of criminal conduct, as the defendant concedes by noting that the standard of proof must be to the Briginshaw standard (Briginshaw v Briginshaw (1938) 60 CLR 336). They are clearly capable of being defamatory of the plaintiff. Imputation (d), relating to conduct warranting dismissal, is also clearly capable of being defamatory.

[213] The plaintiff brings a claim for republication in relation to the documents which are exhibits F, G and H, the text of each of which is set out above. This is an issue going to damages only, but which is more conveniently dealt with, in terms of liability for republication, in the section of the judgment concerning publication, as entitlement to damages will only arise if the claim for republication can be made out. One of the issues will be whether the sense and substance of each of these publications contains what the defendant calls "a repeat of the sense and substance of the matter complained of" and comparison of the text with the matter complained of is therefore required.

[214] The plea of republication as set out in the statement of claim is as follows: " Particulars of Re-Publication

The Defendant caused the defamatory words or words of the same substance or effect or similar defamatory words to be published by the secretary of the Australian institute of Hindi Language Studies (Virendra Prasad) in letters written to Mr Sunil Kumar and Mrs Urmila Kumar on 10 February 2009. The Defendant further caused Mr Sohan Singh of Sohan Singh & Associates (Barristers & Solicitors) to republish the said words or words similar or of the same substance and effect as the said words in a letter to the officer in charge of the Mt Druitt Police Station of 17 January 2009 which stated, among other things, that the Plaintiff had forged two signatures and passed off documents as originals and called for a police investigation into the Plaintiff."

[215] I should first note a concession made by the defendant during the submissions. In the defendant's written submissions, a claim was originally made that the plaintiff has inadequately pleaded republication in that it is not pleaded but merely particularised, and the plaintiff has never made the required election as to whether he alleged a separate cause of action or additional damages.

[216] In oral submissions, Ms Chrysanthou for the defendant expressly resiled from any claim that the republication had not been properly pleaded and said no point would be taken as to the asserted inadequacy of any pleading of the republication. The only point that would be taken would be that the requirements to establish republication (Speight v Gosnay (1891) 60 LJQB 231) were not made out.

[217] This was a very proper concession for Ms Chrysanthou to have made, because the purpose of the Defamation List is to determine disputed issues of pleadings before the trial, rather than to have a party fail to take a pleading point and then raise it at the trial. The purposes of s 56 Civil Procedure Act 2005 are undermined if parties conduct litigation in such a manner. The "fresh step" rule, which requires a party faced with a deficient pleading to take that point swiftly or lose the opportunity to object, is not often invoked, but prior to the Civil Procedure Act was a useful tool to ensure that parties fought cases on their merits rather than on issues of refinement of pleading. The repeal of s 159 District Court Act and its replacement with s 63 Civil Procedure Act was considered by the NSW Court of Appeal in Deveigne v Askar (2007) 239 ALR 370, and I note the Court's comments concerning the costs implications of failing to act promptly (at 3], [20]-[24], [186]-[190]). Noting Ms Chrysanthou's concession, I have not dealt with the technical issues set out in the written submissions, as they were not the subject of any further oral or written submissions of either party, for this reason.

[218] The first issue is whether the republication repeats the sense and substance of the matter complained or, and no submissions have been made to the contrary here.

[219] The second issue is whether it was the natural and probable consequence that the republication would occur as the result of the original publication: Speight v Gosnay, supra, at 232; Ainsworth v Burden (2003) 56 NSWLR 630 at [5] per Handley JA. Whether or not, as a matter of causation, the defendant is liable for the particularised republication is a question of fact to be determined by the tribunal or fact: Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [124].

[220] I agree with the defendant's submissions that the onus in this regard lies on the plaintiff.

[221] The minutes of meeting refer to the possibility of republication of the allegations as being a reason the plaintiff was urged to resign. The minutes say that Mr Narayan asked the plaintiff to step down from his position "to avoid dreadful repetition of school and community in general" (Exhibit 6, p. 4, paragraph 5). Clearly, the P&C were aware that these dreadful allegations would be repeated in the school and in the community. This did in fact occur, as the 39 signatures on the letter to the P&C from angry parents makes clear.

[222] The circumstances in which an original publisher will be held liable for the repetition of defamatory matter where: (a) the defendant has authorised the repetition, explicitly or impliedly;

(b) where he intends the matter to be republished; and/or,

(c) where the republication is the natural and probably consequence of the original defamation; and/or,

(d) where there is a duty cast on the recipient of the libel to republish it.

[223] Although in Speight v Gosnay (1891) 60 LJQB 231 Lopez LJ considered the responsibility of the original publisher for republication where the recipient had a duty to republish it was confined to a moral duty, Tobin & Sexton at [5,390] note the opinion that any social or legal duty by the republisher to repeat the defamation would be sufficient to establish liability of the original publisher.

[224] I shall deal with each of the publications in turn.

The letter of 17 January 2009 to Mount Druitt Police (Exhibit G)

[225] The defendant submits that the letter from Mr Sohan Singh of 17 January 2009 stated that he is writing on behalf of the P&C (whose meeting of 30 November 2008 is where the matter complained of was published). He also was not present at the meeting of 30 November and it is submitted that as he did not actually hear the words spoken he is not republishing anything that he heard on that occasion.

[226] This letter is a letter signed by Mr Sohan Singh, Barrister & Solicitor. He describes The Australian Institute of Hindi Language Studies Parents and Citizens Association Incorporated as his client and the plaintiff as the POI (person of interest). He says "We act for the abovementioned institute. We request an investigation…", adding that "the secretary of the said institute has all the details", and asking the police "to bring the offender to justice".

[227] It was the defendant's raising of the allegations against the plaintiff, coupled with his statement about calling the police, which statements I have found were words calculated to bend not only the plaintiff but also members of the P&C Committee to his will, and the defendant cannot be heard to complain if, by taking his words literally and reporting the plaintiff to the police, the P&C has republished the allegations made by the defendant to the police for the purpose of having the plaintiff investigated. This is a very clear case of the defendant impliedly authorising the repetition, intending it to be republished and putting the P&C Committee in a position where, by reason of the nature of the allegations, there was a duty to republish. It was also the natural and probably consequence of the defendant's statements that somebody would report them to the police is also an available finding.

[228] Accordingly, all of the imputations pleaded and the substance of the matter complained of are republished, and a claim for damages for republication is made out for this publication.

[229] As to the two letters signed by Mr Prasad (Exhibits F and H), the defendant submits that Virendra Prasad was not at the meeting on 30 November 2008 and therefore the defendant cannot be liable for any republication by Virendra Prasad unless it is pleaded and proved that some person who heard the original slander passed it on to Mr Prasad, who then in turn republished it. It is submitted that it must then be proved that the chain of republication was the natural and probable consequence of the original slander. As there was no evidence adduced by the plaintiff to show that the defendant caused or instructed those letters to be sent, or otherwise authorised them, the plaintiff would fail "as a matter of logic" (written submissions paragraph 81) to establish the claim for republication.

[230] This letter is for the purpose of a parents' and P&C special meeting, and was allegedly written after the P&C had consulted "the legal advisor [sic]". The brief outline of the situation contains the following assertion: "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 [sic] Legal Advisor [sic]. If the Committee 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?"" (Exhibit F)

[231] This is a very clear and very literal repetition of the matter complained of. The legal duties under which the P&C Committee operate (and I note that as a member of this committee, the defendant is technically a publisher) are set out in paragraph 2 and include s 19(3) Associations Incorporation Act 1984 (NSW), and r 10 of the school's constitution.

[232] As to the letter of 10 February 2009 to Mr and Mrs Kumar, I noted that this is again written in purport in an exercise of legal duties, namely to warn them that their actions were "wrong in law and contrary to our Constitution". The letter goes on to state that the plaintiff was dismissed and that 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" (Exhibit H) and that they would also have been made aware that "this matter has been reported to the Mount Druitt Police for investigation."

[233] Both these letters are repetitions of the slander by the P&C Committee of which the defendant is a member, and pursuant to the principles of Webb v Bloch (1928) 41 CLR 331 he is thereby a publisher, whether his signature appears on the letter or not. He is similarly liable as a republisher on the same principles in Speight v Gosnay (1891) 60 LJQB 231, as are set out above.

[234] I find that each of the three publications for which a claim for republication is brought is a publication for which the defendant is liable, because of the principles in Speight v Gosnay (1891) 60 LJQB 231. I further note he would also be liable because he is, at law, a publisher of each of these documents which republished the words he spoke on 30 November 2008.

[235] Although the defendant, in paragraph 3 of the defence filed on or about 3 December 2009, only refers to a defence of justification under s 25 Defamation Act 2005 (NSW), the written submissions at paragraph 135 states that the defendant also relies upon "common law justification", a submission which is followed by the reference "[two] defence". There is nothing in either paragraph 2 or 3 to identify any defence of justification at common law. The defendant makes no submissions concerning this defence, other than to note that the principles "are essentially the same as for s 25".

[236] For the reasons explained by the High Court in AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, parties ought not to be permitted to rely on defences which are not pleaded or particularised. If I have erred in so holding, the matters which I have set out below in relation to the defence of justification, while they deal with the s 25 defence, would presumably also have application to any common law defence, if the defendant's submissions at paragraphs 135-137 are taken at their face value.

[237] The defendant has not pleaded any defence of contextual justification either at common law ("Polly Peck") or pursuant to s 26 Defamation Act 2005 (NSW). The defendant's submissions are silent as to the issue of what should occur in the event that I was to find one or more of the imputations not proved to be true, although submissions have been made in relation to mitigation of damages on this issue.

[238] The defendant does concede that the standard of proof required would be s 140 Evidence Act 1995 (NSW) (as to which see Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, as discussed by Levine J in Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510 at [28]-[33]).

[239] The first question for consideration is the elements which must be established in relation to proof of each of the imputations. I shall first set out the particulars of justification contained in the defence, noting that no additional particulars of justification were provided at any time: " PARTICULARS

A. The plaintiff forged the signatures of Shikha Sharma and Shaireen Lata on a Teacher Profile Form for each of them.

B. [This particular of justification was withdrawn at the trial.]

C. As a result of the forgeries by the plaintiff, and as a principal of an educational institution, he ought properly [sic] have been dismissed and terminated from his position.

D. As a result of the plaintiff having forged documents, his conduct ought properly [sic] been referred to the Police."

[240] It can be seen from the particulars provided in the defence that they amount to little more than the bare statement that the plaintiff forged two signatures, and that accordingly he should have been dismissed and referred to the police for investigation.

[241] The first issue is the question of what must be proved. The defendant, under the heading "Legal definitions irrelevant" makes the submission, not only as to capacity but also as to what must be proved in relation to a defence of justification (written submissions, paragraph 105), that not only is it unnecessary for the defendant to establish (on a civil onus) the elements of forgery, but that even the statutory definition of forgery has no role to play. The defendant submits (written submissions paragraph 131) that it could only do so "if the publication were to a room-full of criminal lawyers, and it would require a raft of extrinsic facts to be pleaded." A decision of McCallum J in Mitchell v Channel Seven Sydney Pty Ltd [2009] NSWSC 1051 at [29] is relied upon.

[242] What McCallum J at [29] of Mitchell v Channel Seven Sydney Pty Ltd [2009] NSWSC 1051 is as follows: "[29] The vice of the use of the term "assaulted" in an imputation, in my view, is that it is capable of having different meanings. Ms Chrysanthou submitted that, if there is any issue as to what meaning is relied upon by the plaintiffs, it has been defined within the imputation itself. She submitted that the plaintiff is required to capture the defamatory sting of the matter complained of and that the sting complained of in this imputation is that there was an assault in that form (namely, by threatening the journalist with a tray of red hot ashes). The difficulty is that the additional words used to convey the specific sense in which the word is used in this case disclose that it is used in its technical legal meaning, rather than the ordinary meaning of a physical attack. For that reason, I think the inclusion of the term "assaulted" (as a natural meaning rather than a true innuendo) is embarrassing and an imputation should not go to the jury in that form. I would grant leave to the plaintiffs to amend that imputation so as to omit that term."

[243] McCallum J was dealing with a capacity argument concerning the use of the word "assaulted", a word that is capable of having different meanings, on the basis that the word was used in its technical legal meaning (namely a threat rather than a physical attack) in lieu of the ordinary meaning of a physical attack. Accordingly the imputation was found to be embarrassing.

[244] That is not the case here. The matter complained of states that the plaintiff committed forgery and that is the imputation. The principles for the determination of capacity in a separate trial should not be confused either with whether or not the imputation in question is found to be conveyed at trial by the trier of fact, based on the "ordinary reasonable reader" test, nor should it be conflated with the elements of justification which are necessary to perform that task.

[245] In addition, the decision of McCallum J concerning the use of the word "assault" where a threat to someone was made can be distinguished on its facts, because even in a separate trial on capacity, the meaning of the word "forgery" is so precise that regard would be had to the words in the matter complained of which would be interpreted in the manner adopted by Eady J in Brady v Norman [2010] EWHC 1215 (QB) at [11]. The facts in this case were as follows. Allegations of forgery were made against the plaintiff and in particular the allegations were that he had forged union cheques. This was because the plaintiff had signed someone else's name to a cheque in circumstances where it was done with the knowledge and consent of that person. The cheque in question related to services rendered by locksmiths who changed the locks of the union premises following the burglary of the union headquarters. These allegations of forgery resulted in his dismissal. An employment tribunal was "unimpressed" (Eady J at [9]) by these allegations and the way in which they were addressed in the course of the union's disciplinary procedure. The employment tribunal concluded that the union committee which had sacked the plaintiff had not considered whether the plaintiff had made any personal gain and ignored his explanation that the cheque signature was obtained with the authorisation of the person whose signature was signed and it was in the best interest of the union. These were all relevant factors, according to the employment tribunal. The employment tribunal considered that the disciplinary proceedings had only been brought to prevent the plaintiff's activities in the union.

[246] Eady J noted, concerning the question of capacity for defamatory meaning, at [11]: "There can be little doubt that an allegation of forgery would constitute slander actionable per se , since by reason of s.6(2) of the Forgery and Counterfeiting Act 1981 the offence carries a maximum penalty of ten years' imprisonment: see e.g. Duncan & Neill on Defamation (3rd edn, 2009) at paragraph 6.02."

[247] This case is of assistance both on the issue of determination as to how a court would go about interpreting the elements of defamatory meaning, as well as being of some tangential relevance to the issues of fact and law concerning proof of forgery. Although Eady J was hearing an application for leave to commence proceedings out of time, it was nevertheless necessary for his Honour to determine issues of defamatory meaning, and the manner in which his Honour referred to the elements of forgery demonstrates the appropriate way to deal with the question here.

[248] It is submitted that had this matter proceeded before a jury, "it would have been impermissible to provide the jury with a legal definition of the notion of forgery or even to provide the jury with a dictionary definition" (defendant's written submissions, paragraph 133). In oral submissions, Ms Chrysanthou sought to develop this submission by arguing that jury would not be expecting a dictionary definition, and would be bringing with them the kind of everyday understanding they had of the word "forgery" rather than looking to the strict elements of the offence, and that accordingly, as I am sitting without a jury, I should do the same. The inference was that the complex legal definition of forgery would be a difficult issue for a jury and they should be permitted to approach the matter on a layman basis.

[249] Juries in District Court criminal trials are called upon to determine issues of considerable complexity in criminal law, and one of them would be the question of whether or not the elements of the criminal offence of forgery is made out. Although I have asked the defendant's legal representatives, both during and after the trial, for authority concerning any proposition that the issue of proof of allegation of a serious criminal offence such as "forgery" or "paedophilia" (as to which see Marsden v Amalgamated Television Services Pty Ltd, supra) does not require proof of the elements of the criminal offence, I had not been provided with any authority to support these submissions.

[250] The law is in fact contrary to the submissions of the defendant. First of all, the defendant must prove the truth of the precise charge against the plaintiff (Hart v Wrenn (1995) 124 FLR 135; (1995) A Def R 52-025) and prove the substantial truth of the substance of the allegation (Cross v Queensland Newspapers Pty Ltd [2008] NSWCA 80 at [71] per Beazley JA; Howden v Truth and Sportsman Ltd [1937] HCA 74 ; (1937) 58 CLR 416 at 420-421 per Dixon J; Herald & Weekly Times Ltd v Popovic [2003] VSCA 161 ; (2003) 9 VR 1 at [274] per Gillard AJA). I rejected a similar argument in Cha v Oh (No. 22) (Part 1) [2009] NSWDC 299 concerning a claim for proof to the level of "contextual justification", and set out the authorities to the contrary in that judgment. (I note a very recent decision of the New South Wales Court of Appeal (Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335) contains a careful analysis of the elements of an allegation of criminal conduct. The parties have not been able to address me about this decision, so I shall do no more than note it, but the principles discussed in this decision do not assist the defendant in my view.)

[251] Secondly, where a plaintiff is accused of guilt of a criminal offence, the defendant "must prove that the plaintiff is guilty of the offense" (Brown, Law of Defamation in Canada, 2nd ed, at 10.4(g), citing Glass JA in Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 at 678-679). Professor Brown goes on to note: "In justifying a criminal accusation the evidence must be equal to that which would convict the plaintiff if he or she was on trial for that offense." (citing Chalmers v Shackell (1834), 6 C. & P. 475, 172 ER 1326)

[252] Carter-Ruck in Carter-Ruck on Libel and Slander (Butterworths, 1985, 3rd ed, at p. 94) notes: "If the imputation is one of a criminal offence the law requires unless the plaintiff has been convicted of the alleged offence that its justification should be proved as fully and as strictly as if the defamed person were on trial before a criminal court charged with that offence ( Hornal v Neuberger Products Ltd [1957] 1 QB 247; [1956] 3 All ER 970). Certainly the particulars of justification upon which the defendant relies must charge the offence alleged with the same precision as an indictment ( Zierenberg v Labouchere [1893] 2 QB 183)."

[253] Thirdly, judges determine disputed issues of fact concerning the defence of justification by having regarding to evidence going to prove the elements of the imputation. In Junius v Messenger Press [1999] SASC 99, Nyland J carefully reviewed the factual evidence for an imputation of fraud and noted at [240]: "A dishonest mind is an essential element of the crime of fraud. There was no evidence adduced by the defence to establish such a guilty mind."

[254] In Junius v Messenger Press, an alternative submission was made that if the statements made by the plaintiff fell short of being fraud, they were "a crime in the consumer affairs sense of the word" in that they amounted to misleading or deceptive conduct. Proof of intention is not necessarily and element of an offence under that section, as Nyland J noted at [248]. Nyland J held that the publication conveyed imputations of serious criminal conduct, not breaches of the Trade Practices Act 1974 (Cth), in any event.

[255] In Junius v Messenger Press, a case with a similar factual background to these proceedings, Nyland J was careful not to confuse questions of what imputation was conveyed with the proof of that justification. Nyland J looked at the dictionary meaning of words such as "fraud" and "cheat" but did not apply this to the imputation of criminal conduct such as fraud.

[256] Fourthly, the question of what conduct amounts to forgery in civil proceedings has been considered in a number of decisions concerning the signing of land registration documents. An example is Andrews v Racken Pty Ltd [2007] NSWSC 1010 at [237]-[238]: "[23 7] For the reasons in paras [156]-[157], Shaneel Khan's authority from his parents was limited to dealing with the shares held by them in Oxyman and Laserbond Marketing. He did not have authority to commit them to the numerous personal obligations contained in the Agreement for Provision of Finance. In other words, he did not have actual authority to sign the Agreement for Provision of Finance on their behalf.

[238] Had he had such authority, signing what appeared to be their names might not have been forgery ( Macquarie Bank Ltd v National Mutual Life Assn of Australasia Ltd (Cole J, 15 June 1995 unreported) (BC9402643 at [50])), although the purported witnessing of their signatures might have been. However, as Shaneel Khan did not have their authority to sign the Agreement for Provision of Finance, his signing what appear to be their signatures, and then witnessing the signatures, is a forgery. Generally, a forgery is a nullity unless the person purportedly made a party to the transaction by the forged signature is estopped from denying the authority of the person who propounds the document as being a genuine document ( Northside Developments Pty Ltd v Registrar-General (1990) 170 CLR 146 at 199; Barclay's Finance Holdings Ltd v John Robert Sturgess & Ors (Wood J, 29 July 1985, unreported))."

[257] The plaintiff in submissions referred to the decisions of the High Court in Brott v R (1992) 173 CLR 426; [1992] HCA 5, where the court explained the nature of forgery as follows: "[2] … In Ex parte Charles Windsor (1865) 10 Cox CC 118, at p 123, Blackburn J. said:

"Forgery is the false making of an instrument purporting to be that which it is not; it is not the making of an instrument which purports to be what it really is, but which contains false statements. Telling a lie does not become a forgery, because it is reduced into writing."

Therefore, to prove the actus reus of forgery at common law, it is necessary to prove not only the "making (of) an instrument containing that which is false ... but (the) making (of) an instrument which purports to be that which it is not" (to adopt his Lordship's words in Reg. v. Ritson (1869) LR 1 CCR 200, at p 203, followed in Reg. v. Roberts (1886) 12 VLR 135, at p 142. Dr Kenny, Outlines of Criminal Law, (1902) p 257, said that "a forgery is a document which not only tells a lie, but tells a lie about itself". His pithy and accurate phrase has been adopted by the House of Lords, Reg. v. More (1987) 1 WLR 1578, at p 1585; (1987) 3 All ER 825, at p 830; see also Reg. v. Dodge (1972) 1 QB 416, per Phillimore LJ at p 419. In the usual case of forgery, the falsehood is to be found in the signature to the document or in an alteration of the text of a genuine document but, as Lush J. said in Ritson (1869) LR 1 CCR, at p 205, the falsehood may "consist in the name or in any other matter". In Ritson and in Wells (1939) 27 Cr App R 72, a falsehood consisting in the insertion of a false date of execution sufficed to establish the document as a forgery. Whatever the falsehood may be, its appearance in the document must convey a false statement as to the nature or content of the document or as to its execution or authentication.

[3] However, to prove forgery it is necessary to prove more than the making or alteration of a document which tells a lie about itself. At common law, forgery is a species of fraud and fraudulent intent is an essential element of the offence. Thus, in Ritson , Kelly C.B. said (1869) LR 1 CCR, at p 203; see also per Blackburn J. at pp 203-204 that -

"every instrument which FRAUDULENTLY purports to be that which it is not is a forgery, whether the falseness of the instrument consists in the fact that it is made in a false name, or that the pretended date, when that is a material portion of the deed, is not the date at which the deed was in fact executed" (emphasis added).

[4] The term "fraud" when used in connection with forgery is not confined to the idea of depriving a person by deceit of some economic advantage or inflicting upon him some economic loss. The meaning of "fraud" in connection with forgery was considered in Welham v. Director of Public Prosecutions (1961) AC 103, at p 124, where Lord Radcliffe said:

"What (the law) has looked for in considering the effect of cheating upon another person and so in defining the criminal intent is the prejudice of that person: what Blackstone (Commentaries, 18th ed., vol. 4, at p 247) called 'to the prejudice of another man's right.' East, Pleas of the Crown (1803), vol. 2, at pp 852, 854, makes the same point in the chapter on Forgery: 'in all cases of forgery, properly so called, it is immaterial whether any person be actually injured or not, provided any may be prejudiced by it.'"

It is not necessary to prove that any prejudice was actually suffered; a possibility of prejudice is enough: R. v. Ward (1727) 2 Str 747 (93 ER 824). But there must be both a possibility of prejudice to some person and an intent to cause it. In Welham , Lord Radcliffe examined four cases which show that the possibility of non-economic prejudice is sufficient to establish this element of forgery. R. v. Harris (1834) 1 Mood 393 (168 ER 1316); Reg. v. Sharman [1854] EngR 42; (1854) Dears 285 (169 ER 729); Reg. v. Moah (1858) Dears and Bell 550 [1858] EngR 120; (169 ER 1116); 7 Cox CC 503; Reg. v. Toshack (1849) 4 Cox CC 38 and accordingly stated his opinion to be (1961) AC at p 125:

"that in connection with this offence the intent to defraud existed when the false document was brought into existence for no other purpose than that of deceiving a person responsible for a public duty into doing something that he would not have done but for the deceit, or not doing something that but for it he would have done. Correspondingly, to put such a document forward with knowledge of its falsity and with a similar intent was to commit the crime of uttering it."

Later in his speech, Lord Radcliffe, ibid., at p 127, pointed to the contrast "between deceiving, the essence of which is to bring about a state of mind, and defrauding, the essence of which is to bring about a course of action, whether doing something or refraining from something". Lord Denning, embracing the definition of forgery in East's Pleas of the Crown (1803) vol 2, p 852 said (1961) AC at p 133:

"The important thing about this definition is that it is not limited to the idea of economic loss, nor to the idea of depriving someone of something of value. It extends generally to the purpose of fraud and deceit. Put shortly, 'with intent to defraud' means 'with intent to practise a fraud' on someone or other. It need not be anyone in particular. Someone in general will suffice. If anyone may be prejudiced in any way by the fraud, that is enough. At this point it becomes possible to point the contrast in the statute between an 'intent to deceive' and an 'intent to defraud.' 'To deceive' here conveys the element of deceit, which induces a state of mind, without the element of fraud, which induces a course of action or inaction."

[5] As a possibility of prejudice and a fraudulent intent are elements of forgery, an alteration to or an insertion in a document of a falsehood which is immaterial to the prejudicial effect which the document is intended to have will not found a charge of forgery. If the falsehood is incapable of inducing another to engage in conduct to the prejudice of any person, there is no possibility of prejudice and it is unlikely that the falsehood would have been placed in the document for the purpose of causing prejudice. To ascertain whether the falsehood is immaterial, it is legitimate to consider whether the document containing the falsehood would have the same effect if it did not contain the falsehood. In adopting this approach, it is necessary to identify precisely the effect which the falsehood could possibly have and the effect which the insertion of the falsehood was intended to have. If the insertion of the falsehood creates no possibility of prejudice, there is no forgery. An example can be found in State v. Gherkin (1847) 29 NC 163, where obligors executed a bond and delivered it as their bond to the obligee but one of the obligors added a false name to the bond as a subscribing witness. There was no need for the obligors' signatures to be witnessed. It was held that there was no forgery. Daniel J. ibid., at p 165 said:

"It was not an alteration in a material part of a true document, by which the obligee was or could be defrauded of the money mentioned in the face of the bond."

Nor is there a forgery when a signature is placed on a document by a person having the purported signatory's authority to do so. R. v. Forbes (1835) 7 Car and P 224 [1835] EngR 620; (173 ER 99); Reg. v. Beard (1837) 8 Car and P 94 [1837] EngR 215; (173 ER 413); Reg. v. Beardsall (1859) 1 F and F 529 (175) ER 839). A ruling by Crompton J. sitting in the Staffordshire Assizes in Reg. v. Hartshorn (1853) 6 Cox CC 395, might be explained on this basis. There, a statute provided that illiterate voters should place their mark on a ballot paper and have the mark attested by a witness. The witness placed his signature on the voting paper when the mark had been placed on it not by the voter but by another person, albeit with the voter's express or implied consent. His Lordship ruled that there was no forgery, saying, ibid., at p 402:

"There is no false statement implied, and the essence of the crime of forgery is making a false entry or signature, knowing it to be without authority and with intent to defraud."

[6] From these authorities, the elements of the crime of forgery at common law can be derived, namely -

3. whereby another may be induced to act or refrain from acting

5. the making or alteration was done with an intention

(i) to induce another to act or refrain from acting in reliance on the truth of the falsehood inserted by the making or alteration, and

(ii) thereby to occasion prejudice to some person."

[258] The matters relied upon by the defendant are: (a) The plaintiff signed the forms but did not sign them "per" either of the teachers, and he thereby intended the recipient to believe that the signature was the signature of these teachers.

(b) The defendant's submissions contend: "The signatures were therefore misrepresentations, they were counterfeits, they were a lie". "They were forgeries - a signature made by the plaintiff who intended to pass it off as another's".

(c) The defendant claims the plaintiff did in fact pass them off as authentic, under cover of the letter to the Department of Education on 22 April 2008. It is submitted that this later fact alone proves the imputations are true.

[259] I pause to note that all that the plaintiff said in Exhibit 10 was the following: "Dear sir/madam,

Enclosed please find teacher profile forms for two new teachers to our language school this year. Our school's IBNID is 407801. These teachers may be attending any future courses you may be organising to update their teaching skills."

[260] The letter is not signed; only the plaintiff's typed name appears, together with his telephone number.

[261] It was submitted to me that the plaintiff's conduct amounts to "falsification, forgery and knowing misrepresentation" and that it was "a deliberate act by the plaintiff".

[262] In relation to the other imputations, all that is put before is the assertion in paragraph 150 and 151 that this conduct "brings into question his suitability as principal" as this was done in the course of his employment as principal, and that the forms were "of some importance" in that they were "relied" upon by the Department of Education "in relation to funding" (written submissions, paragraph 151).

[263] The evidence of authorisation of the plaintiff by of each of the persons whose signatures were written by the plaintiff was unequivocal. Miss Lata said (T 58): "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."

[264] She adhered to this evidence in cross-examination (T 61 line 5 to T 62 line 16): "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. So he's asking you the question again. He is putting it to you that in fact Mr Sharma didn't ask for your permission. So do you agree with that or disagree? A. I can't remember whether he asked me, but I can remember that I gave him permission."

[265] Miss Lata was also certain that she never said anything to the defendant to the effect that her signature was forged (T 59 lines 6-19; and T 60 line 50 to T 61 line 4). She adhered to this in cross-examination (T 62 line 20 to T 63 line 14; and T 65 line 36 to T 66 line 31). I particularly note: "Q. Did my client ask you any question at all to do with who signed the form? A. No.

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. "

[266] Miss Sharma's evidence was just as certain on this issue (T 44 lines 7-43).As is set out above, he told her that he did not have the form with him, but that he needed to fill it in and send it to the department as fast as possible. She said "Okay, you can fill in the form for me," because he already had her CV with this information. She also said, as to the signature: "I told him to write my name and signature on the form on my behalf." She adhered to this in cross-examination (T 47 line 31 to T 48 line 19).

The submission that authority to sign was not obtained, and was irrelevant

[267] The defendant's written submissions assert firstly that the question of authority to sign is irrelevant and secondly that the plaintiff gave evidence he had authority to falsify the signatures (written submissions paragraph 153) and that similar evidence was given by Mrs Lata and Mrs Sharma. I shall deal with the second part first. These witnesses said no such thing. Mrs Lata denied being asked if she knew who signed it, and said that at all relevant times she knew it was the plaintiff, and the summary of evidence to the effect that Mrs Lata did not know who signed it (written submissions, paragraph 154) misstates the evidence.

[268] I am satisfied from Mrs Lata's evidence that the plaintiff did obtain Mrs Lata's consent prior to publication of the matter complained of. Her email of 1 December 2008 is not the retrospective granting of consent, but a confirmation of the fact that she gave consent, and her evidence on this issue (which is not referred to at any part of the defendant's written submissions) was very firm in this regard.

[269] It is submitted (written submissions, paragraph 162) that if he did have authority, he would have said so to the committee "when he admitted the falsifications". This is yet another example of the defendant misstating the evidence. He did in fact tell the defendant that he had such permission and also that he had told the defendant about these events at the time. The circumstances in which this matter was raised with the plaintiff with no prior notice meant that he was dealing with it in circumstances where he was accused, ordered to resign and told to leave the school within a matter of hours. If he had been given enough time, he could have brought Mrs Lata and Mrs Sharma to the P&C meeting or obtained statements from them, or otherwise made information available as to the circumstances in which he obtained authorisation. Although there is no evidence as to whether these two teachers were present in the school on the day when the matter complained of was published (this being the last day of the school term, when classes were being held), even if they had not been present, they could easily have come and explained to the P&C Committee information of the kind that they gave in their evidence before me.

[270] As to authorisation being "irrelevant", I note the extensive discussion to the contrary in Brott, supra, citing Reg v Hartshorn (1853) 6 Cox CC 395.

[271] Another matter which was raised was that I should have regard to the defendant's belief that this conduct amounted to forgery, and find that justification had been established on this basis.

Mr Sharma's belief that this conduct amounted to forgery

[272] A writer of libellous matter cannot rely on his belief in the truth of the imputation; his belief, however honest, is irrelevant to the issue of liability (Peters v Bradlaugh (1888) 4 TLR 414 at 467). It is not enough for the defendant to believe on the facts he knows that the plaintiff is, for example, a swindler; he has to go on to show by objective evidence that the plaintiff is a swindler (Carter-Ruck on Libel & Slander, 3rd ed, 1985, p 90).

[273] Because of the seriousness of pleading justification, particularly where a criminal offence is alleged, Lord Denning MR stated in Associated Leisure Ltd (Phonographic Equipment Company Ltd) v Associated Newspapers Ltd [1970] 2 QB 450 at 456; [1970] 2 All ER 754 at 757-758 that counsel should not plead justification unless there is clear and sufficient evidence to support it. As Carter-Ruck notes at p 93, the law in England always required "full particulars of the facts and matters" and the evidence at trial "will be strictly confined to these particulars" (see Wootton v Sievier [1913] 3 KB 499; [1911-13] All ER Rep 1001; [1913] WN 187). The failure of the defendant to provide those particulars before trial, and the circumstances of his belated withdrawal of the claim of receiving legal advice, are matters for concern.

Did the plaintiff's conduct warrant dismissal from his position as principal?

[274] Imputation (d) is that the plaintiff's conduct in signing these forms on behalf of the teachers warranted dismissal from the position of principal.

[275] Mrs Sharma and Mrs Lata gave evidence that they gave the information to the plaintiff to enable him to fill in each of the teacher profile forms, and this clearly included the material on the additional document that went with these forms, namely information to the department from the plaintiff as to what further training each of these teachers needed. Neither the defendant nor Mr Sanjay Singh ever sought to verify or even investigate the accuracy of this information, even though it was asserted to be important by the defendant for a number of reasons, including a claim that it was necessary for the funding grant for the school.

[276] Whether the conduct of the plaintiff amounts to forgery or not, would such conduct warrant dismissal from his position of principal of the school?

[277] Even if the defendant was able to establish that the conduct of the plaintiff amounted to forgery, or alternatively that no allegation of forgery had been made and the plaintiff was dismissed because the signatures on the document were not those of the teachers and the department was in some way mislead, such conduct would still in my view not warrant dismissal of the plaintiff from his position as principal.

[278] Putting the defendant's case at its highest, all the plaintiff was doing was cutting corners to ensure that forms were put in to meet a deadline, in circumstances where there is no acceptable evidence that there was any delay or dilatory conduct by the plaintiff, or any claim of negligence or oversight or laziness, and his motive was simply to ensure that all of the correct forms were filled in by the deadline. Although one of the witnesses (Mr Singh) sought to portray the plaintiff as lazy and sitting around rather than coming to the P&C meeting, all the evidence points to the plaintiff as being hardworking, conscientious and diligent in the performance of his many duties at the school.

[279] To dismiss the plaintiff for the conduct alleged was, at best, a gross overreaction by the P&C Committee and, at worst, a dishonest misuse of its powers. It was carried out in circumstances where the denial of natural justice to the plaintiff and the failure to consider other and more sensible alternatives, despite requests from many of the parents, put the P&C Committee and in particular the defendant in the poorest light.

[280] I should briefly note the response of many of those parents. It was certainly not the view of the parents of the students that the conduct of the plaintiff warranted his dismissal. The text of the petition at Exhibit O makes this clear: "We, the undersigned parents of the Hindi Language School wish to express our grave concern and dissatisfaction with the decision taken by the Parents and Citizens Committee, to terminate the services of the school Principal, Mr Ashok Shandil, at its last meeting held on the 30th of November, 2008.

We are fully aware of the effort and good work the Principal has done for our children and hundreds of other children on a voluntary basis for the past six years and it is grossly insulting, unfair and wrong for him to be removed in this manner. We were of the understanding that after the grand success of the Presentation night held on Saturday the 29th of November 2008, the parent elected P&C body and the Principal were working extremely well for the common goal of educating our children. However, this sudden turn of events of Sunday, 30th November, has taken us by surprise and shock.

We therefore demand that a Special Meeting of parents be held under Rule 10 of the P&C Constitution to clear the air, and for sanity to prevail, so that the good work of the Principal for the last six years and the reputation of our school are not destroyed. We want the school's Legal Advisor [sic], Mr Uday Narayan and the Principal, Mr Ashok Shandil, to be present at this meeting."

[281] The response of the P&C Committee to this petition, which included refusing to hold a meeting to discuss their conduct, tearing up a sign put up by a parent concerning the holding of a meeting, and having security guards bar them from a school meeting and accusing the parents who sought to have the matter investigated of being in contempt of court, was conduct for which the defendant was the principle instigator. This included sacking the school solicitor, Mr Narayan, for giving advice which was contrary to what the defendant wanted to hear.

[282] I note the plaintiff's submissions at paragraph 6 of the written submissions concerning the inherent improbability of the defendant's version of events. Even if everything the defendant said was correct, however, the conduct of the plaintiff would never have warranted dismissal, let alone dismissal in the circumstances in which it occurred.

[283] A significant problem in relation to the justification plea was the failure of the defendant to provide proper particulars of justification, contrary to his obligation to do so, and failure to provide discovery, and I shall briefly note these matters.

[284] The defendant failed to discover a number of documents. In particular, it was never made clear in his evidence how he obtained a copy of the teacher's profile form prior to the P&C meeting. The plaintiff was not cross-examined about his evidence that he never gave this form to the defendant.

[285] The defendant submits that the plaintiff's evidence in cross-examination that he had telephone records which show that he had telephoned Mrs Lata (T 164 line 34) should be the subject of an Allen v Tobias inference (Allen v Tobias (1958) 98 CLR 367) in that these records were never produced, and the court can infer by their absence, and the plaintiff's failure to explain their absence, that the records could not have assisted the plaintiff.

[286] It was not necessary for the plaintiff to produce telephone records to show that he telephoned Mrs Lata. Mrs Lata was not cross-examined on her statement that she received a telephone call from the plaintiff in the course of which he made these statements. It was put to her that these statements were not made, but not that the telephone call was not made.

[287] Further, the total failure of the defendant to provide any particulars of justification, contrary to r 15.22 Uniform Civil Procedure Rules 2005 (NSW) and more importantly, contrary to orders made by me for the provision of these particulars, is put as being a claimed misunderstanding of the orders I made when I gave an extension of time to supply these particulars. Courts should be able to expect solicitors to be able to understand orders and if they do not understand them, to sort out their problems amicably with their opponents, rather than resorting to indignant complaints and further failures to comply.

Conclusions concerning the particulars of truth of each of the imputations

[288] The defendant's written submissions state that imputation (a) ("The plaintiff committed forgery.") is true because "the plaintiff did commit forgery - he falsified the signatures of two teachers" and that in doing so he intended to mislead the recipient, the New South Wales Government. This statement is relied upon for the truth of all the other imputations.

[289] I am satisfied that the plaintiff had the authorisation of each of these teachers, and more importantly, he had their authority to provide information of a confidential and private nature, such as their qualifications and home address details. The defence of justification to imputations (a)-(c) and (e) concerning forgery fails. We live in a world where electronic signatures are routine, where letters are frequently not signed (see for example, the plaintiff's letter to the Department, which is Exhibit 10; the defendant's letter of termination of 30 November 2008, which is Exhibit K and the P&C letters which are Exhibits F and H). Authorisation to sign on someone else's behalf when providing information may be given for a range of documents, from land registration documents to cheques to the provision of personal information.

[290] As to imputation (d) (where, to err on the side of caution, I have applied the same Briginshaw and s 140 Evidence Act 1995 standard of proof, given the reasons for the plaintiff's dismissal), the circumstances in which the plaintiff filled out these forms providing information not only about these teachers' qualifications but the kind of future training they need are relevant. This was not a significant financial transaction; the plaintiff was carrying out his duties as the principal of a school, a position he had held for many years on a voluntary basis and without pay until 2008 (when he received $100 per week). The teachers who were filling out these forms were similarly busy persons, who were working in a school teaching on the weekends, as well as teaching during the week. Their conduct, and the conduct of the plaintiff, was not only not criminal in nature, but understandable in their circumstances. Even if the teachers had not authorised the signatures, or if their authorisation were irrelevant to proof of the defence, the plaintiff's motivation was to help the school. The defence of justification to imputation (d) fails.

[291] Each of the imputations (a)-(e) is untrue and, on the evidence, was also untrue to the knowledge of the defendant at the time of making the publication.

Conclusions concerning the defence of justification

[292] The defence of justification has not been made out to any of the imputations. This includes any common law defence (which I note was never pleaded or referred to during the trial) as well as pursuant to s 25. There is no s 26 defence.

[293] The defence of justification was the sole defence which was relied upon throughout the hearing. However, a defence of qualified privilege both at common law and pursuant to s 30 Defamation Act 2005 (NSW) was also pleaded. As was the case with the defence of justification, there was a failure to provide proper discovery and, more relevantly, a refusal to answer most of the plaintiff's interrogatories, which were the usual interrogatories administered where defences of qualified privilege at common law and pursuant to s 30 are pleaded. On day one of the hearing, counsel for the plaintiff complained about this and sought an order striking out the defence. He renewed that application several times in the course of the hearing and at the close of the plaintiff's case, when he brought the application for the third or fourth time, the defence was withdrawn. The hearing then proceeded on the basis that the sole defence pleaded was the defence of justification. However, after the evidence was completed and a timetable set in place for written submissions, the defendant made an application to reinstate the defence of qualified privilege.

The defendant's application to reinstate the defence of qualified privilege at common law

[294] When the proceedings commenced, Mr Rasmussen said: "RASMUSSEN: Your Honour, my friend's other problem is that the defendant has not answered the plaintiff's interrogatories. If I could hand up what purports to be a statement in answer, which we received on 23 March this year.

RASMUSSEN: I don't have a problem with 1 and 2, your Honour.

HER HONOUR: The things is that before publishing do you take any step - the thing is if he didn't say it, then he didn't say it and that's the end of the matter. So why shouldn't he be entitled to say that? So as I understand it the defendant is not going to say that he said the matter, so therefore that's really the defence of qualified privilege out the window because he didn't say it.

HER HONOUR: That would be the case, isn't it, Mr Goldsmith? I mean obviously if he didn't say these words, then he didn't believe in their truth or intend to convey the imputations, did he?

GOLDSMITH: That's correct, your Honour, except that the defence of qualified privilege doesn't necessarily go out of the window, because your Honour may of course find that despite the defendant's denial, your Honour may find that in fact he did say these words.

HER HONOUR: But, Mr Goldsmith, if I find that he did say these words and he had denied them - I mean, how can you believe in the truth of things he has denied saying?

GOLDSMITH: Your Honour, I won't make detailed submissions at this time.

HER HONOUR: The thing is if that's the case, if you were going to be making those submissions in those circumstances, wouldn't you have had to answer these interrogatories?

[295] Mr Goldsmith went on to say: "GOLDSMITH: Your Honour, the matter is as pleaded.

GOLDSMITH: The defendant denies that he said the words alleged.

HER HONOUR: If he denies he said the words alleged, in those circumstances if he just says, "I didn't say it," then he didn't intend to convey the imputations, he didn't believe in their truth or anything of that sort. So that's it, isn't it, Mr--

RASMUSSEN: Could I ask that the qualified privilege defences to be struck from the record?

HER HONOUR: How can you in those circumstances proceed with the defence? I won't rule on it yet, but I mean isn't that a bit of a problem if your client didn't say it?

GOLDSMITH: No, it's not in my respectful submission. In my submission it's arguable whether or not a defence of qualified privilege could arise in those circumstances.

HER HONOUR: Could you take me to some authority on that? Just remind me so I can have a look. I won't rule on it now.

GOLDSMITH: Your Honour, at this precise moment, not having been given any notice of the application that my friend now seeks to make, I can't give your Honour--

HER HONOUR: Don't worry, can you think about it. I'm not saying do it now. What I meant was you need to have a look."

[296] In conclusion, I said: "HER HONOUR: Look, Mr Goldsmith, I don't want to hold up the hearing of this case but these answers are inconsistent. If he wants to deny that he said it, then opinion and qualified privilege tend to go out the window."

[297] There was in fact no plea of comment; I was speaking generally. There was then a discussion of a number of the unanswered interrogatories, which were what Hunt J in Casey v Australian Broadcasting Commission [1981] 1 NSWLR 305 called the "properly drafted interrogatories" (at 307). At T 15, I deferred any ruling on whether, by reason of the defendant's failure to answer these interrogatories, the plaintiff's application to strike out the defence should be granted.

[298] Mr Rasmussen then brought a second application insisting me to strike out the defence (T 15, line 29) but I said I would not do so: "HER HONOUR: I'm not going to take Mr Goldsmith by surprise. He needs time to prepare for that application.

HER HONOUR: There's no need for us to worry. He's made his client's position perfectly clear, and it's a very proper thing for him to do. He's made it perfectly [clear] that his client denies saying these words. As far as he's concerned, that's his client's position, and I think that that's--

RASMUSSEN: Thank you, your Honour. If that's not going to change, then I think we can proceed." (T 15)

[299] Mr Rasmussen sought further clarification about this defence at the end of the first day concerning the witnesses to be called on all issues (T 120) and I asked Mr Goldsmith to look at the issue (T 121).

[300] Mr Goldsmith did not refer to the matter on the second day, so I reminded him of the outstanding application of the plaintiff to strike out the defence of qualified privilege (T 131).

[301] On the third day of the trial, at the close of the plaintiff's case, Mr Rasmussen brought a third application concerning the striking out of the defence of qualified privilege: "RASMUSSEN: That's the evidence of the witnesses, your Honour. We've come to that point when the lack of answers of the interrogatories of the defendant needs to be dealt with because - well, we--

HER HONOUR: We had several issues. The first is the question of the - that one of the particulars in the statement of claim is going to be withdrawn. The second is the question of the answers to interrogatories. Mr Goldsmith, I asked you for some authority. You've had time to get it.

GOLDSMITH: Your Honour, the defence of qualified privilege is not pressed.

HER HONOUR: That's the end of that, Mr Rasmussen. So, in that case, the orders that I will make are: (1) the defence of qualified privilege at common law and pursuant to s 30 is struck out and dismissed, on the application of the defendant."

[302] The case for the defendant then proceeded, with the sole defence being the defence of justification under s 25.

The defence of qualified privilege as set out in the Defence

[303] The qualified privilege defence was pleaded and particularised as follows: "4. Furthermore, in the event that the Court finds (notwithstanding the defendant's denial) that the defendant spoke and published words or words similar to or of the same effect or substance as the words alleged, then the words were spoken and published on an occasion of privilege.

A. At all material times, the plaintiff was the principal of the Australian Institute of Hindi Language Studies ("the Institute").

B. At all material times, the defendant was the President of the Parents and Citizens Association of the Institute.

C. The activities of the principal of the Institute were a matter of interest to the Executive Committee of the Parent and Citizens Association that formed part of the Institute.

D. In the circumstances, the Executive Committee had an interest or apparent interest in having information on the subject of the plaintiff's conduct and the matters complained of were published to the recipients in the course of giving them information on that subject.

E. The defendant's conduct in publishing the matter complained of was reasonable in the circumstances."

[304] The plaintiff's first complaint was that these particulars were insufficient. Part 15 r 15.27 Uniform Civil Procedure Rules 2005 (NSW) requires a defendant to particularise his case on qualified privilege including his inquiries, state of knowledge and the source of knowledge, as going to the reasonableness of conduct in publishing: Sims v Wran [1984] 1 NSWLR 317 at 327C-328B. As to reasonableness, the defendant is required to assert his belief in the truth of what was published and to identify the nature and sources of the information that led him to form the belief: see the cases at footnote 3 of Tobin & Sexton, Australian Defamation Law and Practice, at [25,215]. The defendant submitted that such particulars are only required where there was a statutory defence, and the application to reinstate related only to the common law defence.

[305] The fact that a defendant may also be interrogated as to the information he possessed and its sources (Palmer v John Fairfax & Sons Ltd (1986) 5 NSWLR 727) does not operate to exempt a defendant from providing proper particulars of his defence. Particulars limit the range about which the other party need to be concerned.

[306] The particulars provided in paragraph 4 of the Defence correspond with the checklist for s 30 as set out at Tobin & Sexton, Australian Defamation Law and Practice [25,215], albeit with the omissions referred to above, but there are no further particulars for the defence at common law. Not only did the plaintiff have to contend with the confusion of an application to reinstate only one of the two qualified privilege defences, he was left to guess what s 30 particulars were relied upon.

[307] The limitations of these particulars are, however, a minor matter. The principal problem, as Mr Rasmussen pointed out, was the failure of the defendant to provide answers to any interrogatories concerning qualified privilege, and the abandonment of the defence on day 3 of the trial.

Interrogatories and the defence of qualified privilege

[308] Where qualified privilege at common law has been pleaded, it is legitimate for a plaintiff to seek what Hunt J called "the usual interrogatory" (Grubic v Mirror Newspapers Ltd (Supreme Court of NSW, Hunt J, 7 December 1984, unreported)) concerning state of mind (Gatley on Libel and Slander, 11th Edition, at [31.30]), the information in his possession and on which he acted at the time of publication and the inquiries (if any) made by him in order to ascertain the truth of the material (Tobin & Sexton, Australian Defamation Law and Practice, at [25-260]). Tobin & Sexton go on to note that this includes where, or from whom, the defendant obtained the information on which he relied for the publication. All these matters relate to the defendant's belief in the truth of what he published.

[309] Where a defendant agrees he intended to convey an imputation, he may be interrogated as to his belief in the truth of the imputation. Where there is no such admission but it is reasonably foreseeable that such an imputation would be conveyed, the defendant may be asked what steps he took to prevent such an imputation being conveyed. If the defendant denies that he intended to convey the imputations, can he be asked what meanings he did intend to convey? Hunt J noted this problem in Howard v Nationwide Publishing Services Pty Ltd (Supreme Court of NSW, Hunt J, 26 February 1987, unreported), and Levine J firmly considered this was not permissible: Carney v Mack (Supreme Court of NSW, Levine J, 16 December 1998, unreported).

[310] The defendant can, however, be interrogated as to the existence of those matters that led him to believe in the truth of what was published. Cases where a denial of intention to convey followed by evidence to the contrary are very rare.

[311] The confusion caused where a defendant refuses to answer the "usual interrogatories" is very clearly shown in Webster v Coles Myer Ltd; Thompson v Coles Myer Ltd [2009] NSWDC 4; (2009) 9 DCLR (NSW) 123 at [172]-[178]; Coles Myer Ltd v Webster; Coles Myer Ltd v Thompson [2009] NSWCA 299.

[312] The defendant only provided further answers to interrogatories after the hearing on 11 May 2010. This took several attempts. Those answers provided a significant amount of new material, including a conversation with Mrs Lata that was not put to her in full in the evidence and an account of what the defendant said to the plaintiff which is different from the conversation put to the plaintiff in cross-examination. The plaintiff's objection to the reinstatement of the defence is based partly upon the prejudice arising from these matters.

The application to reinstate the defence of qualified privilege at common law

[313] The defendant abandoned a defence of qualified privilege, both at common law and pursuant to s 30 Defamation Act 2005, on the third day of the trial. On 21 April 2010 an order was made striking out and dismissing this defence. The main issue was whether the defendant said these words at all. Subsequently on 5 May 2010, the defendant filed a Notice of Motion seeking to set aside my order striking out and dismissing the qualified privilege defence.

[314] The relevant sequence of events is as follows. On the first day of the trial, the plaintiff's counsel raised two matters of concern. The first was that the defendant had failed to comply with orders to provide particulars of truth. The second matter was that the defendant had refused to answer any interrogatories concerning the defence of qualified privilege.

[315] Mr Goldsmith's affidavit places great weight on the claim that he was rushed into a trial for which he did not have time to prepare, and was unable to retain the counsel he had wanted to brief for the trial.

[316] The availability of a particular counsel for a hearing, in circumstances in which counsel has been appearing for some time, is a matter to give weight to, but that was not the case here. There are many experienced junior counsel who could have taken on this matter. Mr Goldsmith is an advocate who has appeared on behalf of parties in three defamation trial hearings in this court this year, as well as in the Supreme Court.

[317] The circumstances in which this matter was given a hearing date as quickly as possible, given the subject matter and the identity of the plaintiff and defendant (a Principal and a President of the P&C Committee) are set out earlier in this judgment. In setting the matter down for hearing, I was proceeding on the basis of the case as pleaded and particularised by the defendant, including the particulars of justification. If the plaintiff had in fact admitted forging a signature and the defendant had received legal advice to this effect, this would have been a very straightforward case.

[318] This brings me to a consideration of the plaintiff's objections to the reinstatement of the defence.

[319] The plaintiff objects to the defendant being permitted to reinstate a defence which was withdrawn in the middle of the trial on the basis that it irretrievably altered the manner in which the plaintiff has run his case, prevents the plaintiff from testing the defendant or his witnesses on a number of issues, including the new answers to interrogatories and prevents the plaintiff from objecting to the inadequate discovery of documents by the defendant in relation to the issue of qualified privilege.

[320] The areas of evidence which were not explored or challenged because there was no qualified privilege defence on foot are identified by the plaintiff as follows: (a) The circumstances under which the defendant came into possession ofthe teacher Profile Forms, such as to how, why and when. Particularly given the plaintiff's unchallenged assertion that the forms were sent to the Department of Education only and a copy was kept by the plaintiff who being the school principal kept the school records at his home because there was no permanent office space for the school (they used the premises of a local high school on weekends only for the purpose of teaching). (Reasonableness of conduct, Defendant's state of mind and information he possessed)

(b) The assertions that the defendant tried to contact the plaintiff to discuss the allegations with him on 29 November 2008. (reasonableness of his conduct)

(c) The assertion that he tried further to contact the plaintiff immediately prior to the meeting and during by telephone to discuss the allegations. (reasonableness of his conduct)

(d) The defendant's assertion that he came to the conclusion that the handwriting on both forms was the same. (Defendant's state of mind and information he possessed)

(e) The detail of the defendant's understanding as to the use to be made of the forms, the Funding Guidelines and when he formed that view in light of the other assertions. (Defendant's state of mind and information he possessed)

(f) The basis upon which he came to the view, prior to the meeting on 30 November 2008, that Shikha Sharma's form had been forged by the plaintiff in light of his assertion in the answers to interrogatories (A3 and A9) that he had no other basis for that belief than that it had the same handwriting as Mrs Lata's form (Both forms could have been filled in by Ms Sharma for example) and that Mrs Lata had no idea who filled her form in for her. (Defendant's state of mind and information he possessed)

(g) The circumstances in which he came to place on the record an assertion in his defence that he had legal advice that the plaintiff had committed forgeries (paragraph 2B of the defence) and then withdrew it during the trial. (Defendant's state of mind and information he possessed)

(h) The significant difference between the versions of the conversation of 30 November 2008 put by the defendant's counsel (T154) and that which is related in his answer to interrogatory 3(e). (Defendant's state of mind and information he possessed)

(i) The relationship between the alleged duty that the defendant had and interest that the persons present at the meeting had to receive the information that the plaintiff had forged the teacher profile forms when the consequence of the truth of the statement (as the defendant saw it) were to the advantage of the school in that it secured funding for them and the details of the forms were not shown to be incorrect. (Duty and interest to communicate the imputations)

[321] The plaintiff also points to the inconsistency between the denial of publication, which is maintained, and the reliance of a defence of qualified privilege, which is a defence of concession and avoidance. Without an admission that the words were spoken as pleaded, the defendant, it is submitted, cannot avoid their effect under cover of a privilege which speaks to honesty of purpose and honest belief in the truth of what was said (plaintiff's written submissions, paragraph 4).

[322] In Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366 at [58] (per McHugh J) and [135] (per Gummow J), this was a feature of the defence that was stressed. McHugh J at [58] noted: "[The defence] accepts that the communication is defamatory, that the defamatory matter may be false and that its publication has caused or may cause harm to the plaintiff. It confesses the publication of defamatory matter, but contends that the publication is immune from liability because the public interest requires that the duty and interest of the publisher and recipient should be preferred to the protection of the plaintiff's reputation."

[323] The plaintiff further relies upon the hopelessness of the defence of qualified privilege in circumstances where the publication was volunteered (Bennette v Cohen [2009] NSWCA 60 at [21] and [25]).

[324] Although referred to only briefly in oral submissions, the failure of the defendant to answer the interrogatories was only one of a series of steps for the preparation of this litigation of the defendant failed to take. The defendant's request for an indulgence in relation to the reinstatement of the defence of qualified privilege at common law needs to be seen against the background of the defendant's failure to comply with the requirement to provide full particulars of the defence of justification, the addition of a common law justification claim, and the abandonment of the statutory defence of qualified privilege. In addition, although not pleaded, the defendant has raised a number of matters in mitigation of damages. It is appropriate for me to note the many cases where appellate courts have expressed concern about raising matters that have not been properly pleaded.

The principles relating to late amendment of proceedings in defamation actions

[325] As well as the principles relating to late amendment outlined by the High Court in AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, which significantly shifted the balance against the allowing of amendments (cf State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146), there are additional factors in defamation matters militating against the bringing of a late amendment, particularly where the late amendment relates to a defence of justification or of qualified privilege. Australian Defamation Law & Practice at [25,175] notes that late pleads of justification had been rejected with a cause to vacating of the hearing date, as an order for costs may not adequately compensate a party for a significant delay in the course of litigation. A late particularisation of justification generally does not succeed unless there is not only an adequate explanation for the lateness, but the provision of full particulars and/or a broad outline of the evidence: Waterhouse v Broadcasting Station 2 GB Pty Ltd (Supreme Court of New South Wales, Hunt J, 20 October 1986, unreported); Tedeschi v Franklins Ltd (Supreme Court of New South Wales, Levine J, 23 September 1994, unreported - witness statements required).

[326] Even on the law as it stood at the time of the State of Queensland v JL Holdings Pty Ltd, the defendant's application would be hopeless. In State of Queensland v JL Holdings Pty Ltd, Dawson, Gaudron and McHugh JJ noted the relevant material was only "recently discovered" (at [152]) and cited a passage from Bowen LJ in Cropper v Smith (1884) 26 CHD 700 at 701 that in the absence of error mistake which was fraudulent or "intended to overreach" the court should allow the amendment, and took into account the distance of seven months to the hearing date. The defendant in these proceedings has sought leave to reinstate a defence which was abandoned in mid-trial by reason of his non-compliance with orders, in circumstances where there is no chance to test the evidence, and the explanation offered by Mr Goldsmith in his affidavit is one which I do not accept.

[327] The New South Wales Court of Appeal in Dennis v Australian Broadcasting Corporation [2008] NSWCA 37, dealing with multiple alterations of imputations rather than a change to the defence, warned against late and repeated amendments. These warnings have been applied to defendants: see Michael Wilson & Partners Ltd v Nicholls [2008] NSWSC 501. The Court of Appeal has recently restated the principles in McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 308. Taking all of the circumstances set out in Mr Goldsmith's notice of motion and affidavit in support into account, and taking into account that this case was case-managed to give it an early hearing date by reason of the special relationship between these parties (namely a school principal and a Parents & Citizens Committee), this is a clear case where a court should not grant leave for the defendant to reinstate the defence.

[328] Mr Goldsmith's submission that I should have assisted him by suggesting that his client answer the interrogatories is both unrealistic and unworkable. The degree to which a judge hearing proceedings should step down from the bench to assist the party in difficulties because of non-compliance with orders is not an easy situation. This was a case where the non-compliance with orders actually consisted of a refusal to answer interrogatories on the basis of denial of publication which is the adoption of a position on the facts, not non-compliance. While a judge may, and probably should, assist a party who has omitted to take a step, or has provided insufficient information, or otherwise overlooked some principle of law or factual material in support of his or her case, judges should be cautious about advising parties to change their positions on such a vital issue as admission or denial of publication, intention to convey imputations, belief in their truth, or other matters essential to a defence. In addition, the proposal of the defendant was unworkable, in that it took the defendant weeks, and several attempts, to be able to answer the interrogatories and even then the defendant's legal advisors claimed not to understand or to be required to answer a number of the interrogatories. The trial would have had to adjourned part-heard if this had occurred during the trial, as the matter is listed for five days and due to the limited resources of this court and the commitments of myself and counsel (as well as the requirement that Mr Goldsmith had that the hearing be completed by the end of the week because he was travelling overseas) the hearing would not have been able to proceed.

[329] I refuse the defendant leave to reinstate the defence of qualified privilege at common law. However, in the event that I have erred in that finding, I have set out my findings in relation to the defence as if it had been pleaded. I acknowledge the extreme difficulty in which the plaintiff's legal advisors find themselves in dealing with this defence. The commitments of counsel and the delays caused by this application put the plaintiff at a significant disadvantage in relation to the whole of the submissions process, including submissions on justification, as well as on the issue of qualified privilege at common law.

[330] In Bashford v Information Australia (Newsletters) Pty Ltd, the Gleeson CJ, Hayne and Heydon JJ at [10] noted that whether the occasion is upon which a publication is made is protected by this defence is a question of fact and degree in each case.

[331] Both the plaintiff (at paragraph 21 of the written submissions) and the defendant (at paragraph 182 of the written submissions) referred me to the following passage in Guise v Kouvelis (1947) 74 CLR 102 at 116 per Dixon J: "the very width of the principles governing qualified privilege for defamation makes it more necessary, in deciding how they apply, to make a close scrutiny of the circumstances of the case, of the situation of the parties, of the relations of all concerned and of the events leading up to and surrounding the publication."

[332] This passage was cited with approval by Ipp JA in Bennette v Cohen [2009] NSWCA 60 at [9]. The first step, before scrutinising the circumstances, is to establish what those circumstances were. The first thing to note is the unusual circumstance in qualified privilege defences, namely that the defendant relies upon the defence even though he denies publication. The plaintiff draws to my attention the following statements of the law to the contrary: (a) Lord Diplock in Horrocks v Lowe [1975] AC 135 at 150C:

"In affording to them immunity from suit if they have acted in good faith in compliance with a legal or moral duty or in protection of a legitimate interest the law must take them as it finds them."

(b) In Henwood v Harrison (1872) LR7CP 606 at 622 Willes J said:

"The principle on which these cases are founded is a universal one, that the public convenience is to be preferred to private interests and that communications which the interests of society require to be unfettered may freely be made by persons acting honestly without actual malice notwithstanding that they involve relevant comments condemnatory of individuals."

Mr Rasmussen points out that this statement of principle found approval in Adam v Ward [1917] AC 309 at 349 per Lord Shaw and has been referred to in Australian cases such as Justin v Associated Newspapers [1967] 1 NSWR 61 and Thompson v Australian Consolidated Press [1968] 3 NSWR 642.

(c) In Bowen v Hall (1881) 6 QBD 333 at 343 Lord Coleridge CJ explained:

"It is better for the general good that individuals should occasionally suffer than that freedom of communication between persons in certain relations should be in any way impeded. But the freedom of communication which it is desirous to protect is honest and kindly freedom. It is not expedient that liberty should be made the cloak of maliciousness."

(d) In Bashford v Information Australia (Newsletters) Pty Ltd , McHugh J at [58] noted:

"It accepts that the communication is defamatory, that the defamatory matter may be false and that its publication has caused or may cause harm to the plaintiff. It confesses the publication of defamatory matter, but contends that the publication is immune from liability because the public interest requires that the duty and interest of the publisher and recipient should be preferred to the protection of the plaintiff's reputation. The court cannot determine these issues of duty and interest without characterising the subject matter of the defamation. It cannot judge whether the particular duty and interest are so necessary for the proper functioning of society that the occasion should be privileged - despite the harm that the communication may cause - unless it knows what is the nature of the defamatory communication that allegedly gives rise to the duty and interest. A defendant who claims that the occasion was privileged must show that "both the givers and the receivers of the defamatory information had a special and reciprocal interest in its subject matter" such that public policy requires that the defendant be immune from liability for the publication."

[333] All of the cases in relation to qualified privilege at common law analysing the duty and interest of the publisher and receiver assume that the publisher has confessed to the publication of those statements, and that once the surrounding circumstances of the publisher and recipient and the occasion of publication are ascertained, asks whether the presumed honest but mistaken belief in the defamatory statements should be excused for the welfare and convenience of society. Then, as Mr Rasmussen submits in paragraphs 30-31 of his written submissions, the defendant is given the benefit of a rebuttable presumption of honesty of belief because he had confessed to the publication of the defamatory statements. The defendant may then, having admitted publishing, avail himself of the surrounding facts, whether he gives evidence or not, to show the duty and interest that lay with the defendant to publish the matter established by that evidence. The defendant having denied publication and abandoned the defence, such evidence was not put before me.

[334] Mr Rasmussen submits, and I agree, that without such an admission there can be no presumption of honest of belief. The onus having moved then to the defendant to establish that honest belief, in the absence of any evidence from the defendant as to why he came to publish the matter complained of of and concerning the plaintiff, there can be no evidence of the honest belief in that what was published by him was asserted not to have been published at all, and accordingly, on the defendant's argument, there is no privilege occasion in the first place.

[335] The defendant in these proceedings has, in his answers to interrogatories, denied any intention to convey the pleaded imputations about the plaintiff, or indeed any imputations of any kind about the plaintiff. There is thus no intention to convey any imputations, in addition to the denial of publication, and Mr Rasmussen submits that there can be no duty or interest to convey anything about the plaintiff, nor can there be any honest belief in the truth of these statements.

[336] In Bennette v Cohen [2009] NSWCA 60, Ipp JA at 25(iv) noted: "Ordinarily, a volunteered statement is privileged only where there is a pressing need to protect the interests of the defendant or a third party, or where the defendant has a duty to make the statement."

[337] Examples of these principles being put into practice may be seen in cases where the defendant has volunteered a statement. No occasion of qualified privilege was found to arise in the following cases where the defendant was a volunteer: (a) In Bennette v Cohen , the defendant was a volunteer and the publication made to a meeting of persons who had gathered together for a rally to raise money for a third party who had been sued for defamation. The contents of the defamatory publication, which included criticism of the person who had sued for defamation, were found to be irrelevant to the asserted interest.

(b) In Papaconstuntinos v Holmes à Court [2009] NSWSC 903 the defendant was a volunteer and the publication and recipients had no interest in receiving the information volunteered.

(c) In Ryan v Premachandran [2009] NSWSC 1186 the defendant was a volunteer and the publication was made to persons who could not do anything about the relevant information.

The third problem - If there was a duty or interest, the privilege was exceeded

[338] A privilege must not exceed the limits of the duty or interest created by the occasion. A person making a statement must be careful to go no further than his or her duties or interests require and the communication must be reasonably germane and appropriate to the occasion for if the publisher goes beyond the necessities of the occasion, the communication may not be protected: Skalkos v Assaf [2002] NSWCA 14; Clover Bond Pty Ltd v Carroll [2004] WASC 216 at [31]; Archer v Channel Seven Perth Pty Ltd [2002] WASC 160 at [71].

[339] While this may also be an issue which overlaps with malice (as to which see Mason P in Skalkos v Assaf [2002] NSWCA 14 at [29]: "there is overlap between matters going to the question of malice and matters going to the question whether the publication complained of was within the protection of a claimed occasion of privilege."; Lindholdt v Hyer [2008] NSWCA 264 at [134]) it remains a factor relevant to the occasion of qualified privilege for the reasons explained by Mason P. In particular, the privilege will not extend to defamatory expressions which are wholly unwarranted by the circumstances, or not made in a proper manner, and any publication in excess of the privilege may be considered in support of an inference of malice (Skalkos v Assaf at [28]). Dawson, McHugh and Gummow JJ stated in Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 228: "It is true that, at common law, privilege only attaches to those defamatory imputations that are relevant to the privileged occasion. Where a potentially privileged communication consists partly of matters relevant to the privilege and partly of matters that are not relevant, qualified privilege only attaches to that part which is relevant to the occasion. Moreover, the inclusion of the irrelevant part in the communication affords evidence of malice and can destroy the privilege attaching to the relevant part."

[340] There are many cases where occasions of qualified privilege relating to the conduct of staff in educational institutions has been raised. This includes persons involved in a teacher/parent organisation, who are entitled to exchange information on the conduct and character of teachers or principals where it affects their fitness to teach students: Thompson v Bridges, 209 Ky. 710, 273 S.W. 529 (Ky. App. 1925). The publication to which the privilege attaches must be ones pertinent to the functioning of the educational institution, and the privilege may be defeated if the publication is shown to have occurred outside the normal channels of communication, or is published with actual malice: Greenyard v George Washington University 512 F.2d 556 (DC cir. 1975). The question is whether or not publication in the present circumstances occurred outside the normal channels of communication.

[341] The following may be noted: (a) The P&C Committee operated in accordance with a constitution and a meeting was being held for the discussion of items on the agenda. This matter was not on the agenda, although the agenda clearly must have been drawn up at or shortly after 20 November 2008, which is the date of the email from the department answering the enquiry about the ability of the P&C to dismiss the plaintiff.

(b) Not only was the material relating to the sacking of the plaintiff not placed on the agenda, but copies of the relevant documents were not prepared for circulation to the members of the P&C Committee including, most relevantly, the plaintiff. This meant that the plaintiff was denied the opportunity to gather together information to put his side of the story.

(c) I have accepted the evidence of Mrs Lata that no enquiry was made on her as to whether or not she had authorised this conduct, nor was any enquiry made of Ms Sharma.

(d) As I have indicated elsewhere, the defendant had prior knowledge of authorisation of the teachers profile forms in that the plaintiff had explained to him what had happened (T 77), and I note in this regard I never received any explanation from the defendant as to how he came to have this form in his possession prior to the meeting in the first place.

(e) The manner and extent of publication, including the denial of any opportunity of the plaintiff to put his side of the story, and the peremptory way in which the plaintiff was told to leave the school immediately were in excess of the occasion of privilege, and it is clear from the preparation of the letter of termination prior to the meeting (this being evidence I have accepted from the plaintiff) that the defendant went to the meeting with every intention, not only of having the plaintiff dismissed, but of covering up the true reason for the dismissal. If the defendant had genuinely believed that forgery had occurred, and that the school's grant was at risk, and that the plaintiff's conduct was so dreadful that he deserved immediate termination, in circumstances where other members of the P&C thought it was possible he might be forging his signature to the school's cheque account, these were matters that required a formal and proper investigation, not the raising of a matter not on the agenda almost half an hour into the meeting.

(f) Contrary to the statements which I found to have been made at the meeting, the defendant had never sought any legal advise about any of these steps, including whether or not the conduct of the plaintiff amounted to forgery and warranted referral to the police, and these statements were false and false to the knowledge of the defendant.

(g) Although the matter which should have concerned the school was whether or not false information had been provided to the department, no inquiry was ever made by the defendant, prior to the matter complained of.

[342] In Skalkos v Assaf [2002] NSWCA 14, Giles JA at [130] noted that the grossness of the falsity including intemperately expressed language could mean that even if there was no malice, all that had been published was not within the occasion of privilege. This passage was cited by Tobias JA in Bennette v Cohen [2009] NSWCA 60 at [168]. Tobias JA made a similar statement in Fraser v Holmes [2009] NSWCA 36 at [33]-[40]. In Lindholdt v Hyer [2008] NSWCA 264 at [134] McColl JA noted that "gratuitous" imputations were not appropriate to the occasion of qualified privilege.

[343] The defendant submits that these authorities are not to be understood as standing for the proposition that, by itself, intemperance of expression may lead to a finding of irrelevance, but that such intemperance may assist the court more confidently to draw the conclusion that the portion of the matter complained of containing the intemperate language ought to be regarded as making a distinct and potentially unconnected attack upon the plaintiff. Content that may appear germane to the occasion may nevertheless fail the test of qualified privilege if truly gratuitous expression is employed.

[344] If that submission is not accepted, the defendant submits that these principles of law distilled from the New South Wales Court of Appeal are inconsistent with longstanding authority of the High Court in Bashford v Information Australia (Newsletters) Pty Ltd, namely the test is whether the publication was germane and reasonably appropriate to the occasion of qualified privilege and not "truly unconnected".

[345] On either test, the plaintiff must succeed. The language used by the defendant was not the language of enquiry or even investigation. It was the language of not merely accusation but a final judgment, and not an examination of the evidence, and it was a judgment of the most serious kind, without any form of proper inquiry either of the plaintiff or of the school teachers involved, in circumstances where the defendant claimed he attempted to speak to the plaintiff the night before at the annual school concert is completely implausible.

[346] In Bennette v Cohen [2009] NSWCA 60 at [25] Ipp JA distilled the following principles concerning duty and interest when communicating information: " [25] The following propositions may be extracted from the authorities to which I have referred (that is, without regard to the extended qualified privilege recognised in Lange ):

(a) The test for common law qualified privilege is usually expressed at a very high level of generality and abstraction;

(b) In practice, however, the close scrutiny required of all the circumstances of each case results in common law qualified privilege having a relatively limited or narrow practical application;

(c) The scrutiny required depends on the facts of each case and there is no closed set of criteria that must be applied or considered, and;

(d) Guidelines have been established that assist in the scrutiny that is required. These include:

(i) As a matter of public policy, it must be in the general interest of the whole community that the type of material in question be published, notwithstanding that it is defamatory of a third party;

(ii) The occasion must not be used for some purpose or motive foreign to the interest that protects the making of the statement. Further, there must be a significant connection between the defamatory material and the privileged occasion;

(iii) The interest that gives rise to qualified privilege must be real and direct;

(iv) Ordinarily, a volunteered statement is privileged only where there is a pressing need to protect the interests of the defendant or a third party, or where the defendant has a duty to make the statement;

(v) If a publication is made to a large audience, a claim of qualified privilege at common law will fail unless the members of the audience all have an interest in knowing the truth, and;

(vi) The interest should not give officious and interfering persons a wide licence to defame."

[347] Campbell JA at [207] noted the following: "[207] I would add some explanation concerning the way in which the public interest impacts upon common law qualified privilege. It seems uncontroversial that the notion of the public interest operates as a means of limiting the sorts of reciprocal duty or interest that can give rise to qualified privilege. However one does not enquire whether the particular statement that was defamatory was made in circumstances such that the reciprocal interest of the maker and recipient of the statement was such that the making of that statement itself advanced the welfare of society and the public interest. Rather, the requirement of public interest, for the existence of qualified privilege operates at a higher level of generality, that the duty or interest of both maker and recipient is such that it is in the public interest that a person should be free to make that type of statement in the type of circumstances where the particular statement in question was made."

[348] While the principles set out in Bennette v Cohen, supra, may possibly be the subject of refinement by the New South Wales Court of Appeal (Holmes à Court v Papaconstuntinos [2010] NSWCA 329), the basic requirements for duty and interest, on the facts of this case, cannot be made out. The scrutiny required in each case depends on the facts of each case, as Ipp JA notes in Bennette v Cohen, supra, at 25. The circumstances of making serious accusations of criminal conduct without the appropriate prior notification of all parties concerned, including the plaintiff and the teachers whose signatures he was alleged to have forged, could never satisfy the test for duty and interest in common law qualified privilege, whether that defence has a relatively limited or narrow practical application as stated by Ipp JA at 25, or a wider application.

[349] I am satisfied that the matter complained of was not published on an occasion of qualified privilege at common law. However, in the event that I have erred, I now consider the issue of whether or not any occasion of qualified privilege was lost by reason of the defendant's malice.

[350] The onus of proof of malice lies upon the plaintiff. The plaintiff has set out a schedule of evidence relied upon in order to establish the malice of the defendant in making the publication as follows: " (i) The defendant had prior knowledge of authorisation of the teacher profile forms:

The plaintiff told the defendant about the Teacher Profile Forms on 4 May 2008 (T 77, 40)

The plaintiff told the defendant it is not forgery at the 30 Nov 2008 meeting and reminds him of what he told the defendant on 4 May 2008 (T 84, 25; T 116, 40-45)

Ms Sharma told the defendant during a telephone call sometime between late 2008 and 16 January 2009 that she gave the plaintiff permission to sign (T 46, 35-45; T 52, 40-50)

Mrs Lata told the defendant on 29 November 2008 that she gave permission to the plaintiff (T 61, 20; T 61, 45)

The defendant received statutory declarations on 1 December 2008 from Mr Kumar (via e-mail) stating that the Mrs Lata and Ms Sharma gave the plaintiff permission (T 334).

(ii) The defendant had a motive for desiring the plaintiff's dismissal:

The plaintiff and defendant were rivals (T 110, 25-50)

The defendant was the President of the P&C (T 112, 20-30; T 47, 10)

The plaintiff and defendant disagreed over how the Hindi Language School should be run and the extent of the P&C's role in managing the school (T 110, 25-50; T 111, 45-50; T 112, 20-40; T 143, 35-50; T 144, 15-22; T 145, 1-15; T 146-T 148)

The defendant noticed in November 2008 that the handwriting and the signatures on the profile forms looked the same (T 293)

The defendant had copies of the important Forms because he received them from the plaintiff in April 2008 and he then posted them to the Department (T 295)

The defendant looked through the plaintiff's file after 16 November 2008 but before 29 November 2008 after the plaintiff became critical of the defendant and the P&C and noticed the Forms (T 294,25; T 296)

The defendant knew that it was the principal's role to fill in each teacher profile Form (T 297)

The defendant asked Mrs Lata about her signature on the form on 29 November 2008 (T 297)

The defendant did not ask Mrs Sharma about her signature on the Form (T 298, 299)

(iii) The defendant enquired of the Department of Education prior to the meeting as to powers of the P&C to sack and appoint a principal (T 315; T 323-326)

(iv) The defendant did not raise the allegations with the plaintiff prior to the P&C meeting of 30 November 2008; (T 287, 5-15; T 299; T 300)

(v) The defendant did not seek legal advice as to whether the signing of the teacher Profile Forms were truly forgeries until the plaintiff threatened legal action ;

1. The defendant and the P&C authorised the sending of the letter from Sohan Singh, solicitor, to the Police, 17 January 2009 (T 303; T 328-333)

(vi) The Forms were not shown to contain materially incorrect details and were not required for funding for the school ; (T 73, 30-45; T 75, 22-35; T 130, 15-20; T 130, 35 40; T 131, 20-30; T 286; T 287, 30 (funding already received))

(vii) The defendant summarily terminated the employment of the plaintiff on 30 November 2008 and told him so (Plaintiff - (T 81, 35-45); Mr Kumar - (T 225, 10-20; T 226, 15-20); defendant - (T 302))

(viii) The defendant did not permit the plaintiff to explain what happened at a meeting specially called by a concerned parent to discuss the plaintiff's termination as principal (15 February 2009) ;

1. Kumar petitioned for a meeting of parents of the school to permit the plaintiff to explain allegations of forgery (T 227, 30-35; T 228, 1-5; T 237, 35-40; T 239, 40);

2. The defendant hijacked the parents' meeting and consider his own agenda (T 229, 30-50);

3. The defendant and the P&C committee caused Ex M to be circulated to parents at the meeting (T 231, 5; T 312; T 321-322)"

I also note the particulars of malice as set out on pages 3 - 4 of the Statement of Claim and in the Reply (which relies upon such additional matters as may be raised by the evidence during the hearing).

[351] Evidence of malice must be established to the Briginshaw standard: McKenzie v Mergen Holdings Pty Ltd (1990) 20 NSWLR 42 per Mahoney JA.

[352] I have found that the defendant knew of the falsity of the publication which would be conclusive evidence of malice and would defeat the defence of qualified privilege: Roberts v Bass (2002) 212 CLR 1 at 76 and 109. I accept the matter set out in the defendant's summary as set out above. This is a rare case where the evidence of malice is so strong as to be overwhelming.

[353] The defendant's submission on malice is set out in his written submissions as follows: (a) There is no evidence of malice in this case - it is clear that the defendant believed in the truth of what he was saying when it is alleged he said it.

(b) The word forgery is used earlier (and before the alleged slander) in the meeting by someone: Exhibit 6.

(c) The defendant was clearly satisfied by the time the plaintiff arrived at the meeting that such forgery had occurred.

(d) The heavy onus on the plaintiff to prove an improper motive has therefore not been satisfied.

[354] Neither these submissions, nor the oral submissions made by Ms Chrysanthou, have answered, or are capable of answering, the matters set out by the plaintiff in the schedule of evidence provided by the plaintiff.

[355] The evidence of malice in this case is such that I am comfortably satisfied that malice is made out.

[356] I repeat my findings that the defence of justification under s 25 has failed. No defence of justification at common law was pleaded or referred to at trial, although it is hinted at in submissions. Any such defence would similarly fail. There is no defence of contextual justification pleaded pursuant to s 26 Defamation Act 2005 (NSW).

[357] The statutory defence of qualified privilege was abandoned on day 3 of the trial, as was the defence of qualified privilege at common law. I have rejected the application in submissions to reinstate the defence of qualified privilege at common law. In the event that I have erred in this regard, I would find that the matter complained of was not published on an occasion protected by privilege, and if I have erred in relation to that finding, I would be comfortably satisfied that the evidence of the defendant's malice would defeat any such occasion.

[358] The plaintiff has accordingly succeeded on liability and I now consider the issue of damages.

[359] General damages serve three functions in defamation actions. Firstly, they are a consolation to the plaintiff for the distress he had suffered from the publication of the statement. Secondly, they repair the harm to his reputation. Thirdly, they are a vindication to his reputation in the eyes of the public: Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118 at 150 per Windeyer J; McCarey v Associated Newspapers Ltd (No. 2) [1965] 2 AC 86 at 107 per Diplock LJ and 104-105 per Pearson LJ.

[360] While decisions relating to the award of damages prior to the enactment of the Defamation Act 2005 (NSW) must be viewed with caution, the statements of principle set out by Hayne J in Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 are nevertheless of general relevance to the principles relevant to the award of damages in New South Wales. The facts in Rogers v Nationwide News Pty Ltd are of some relevance to these proceedings because the extent of publication in Rogers v Nationwide News Pty Ltd was limited, in the sense that the plaintiff was not named in the matter complained of, and his identification was known only to those persons who are able to identify him from the facts and matters in the matter complained of which were capable of identifying him. The High Court unanimously set aside the Court of Appeal judgment holding that the appropriate damages were $250,000, not the amount of $75,000 which had been considered appropriate for such a limited publication by the Court of Appeal.

[361] However, any publication involving damages for a newspaper article, particularly one on the front page, would be wholly inappropriate.

[362] Another case which is often referred to in the case of professional persons where the damage to their reputation has occurred in circumstances where their professional standing is affected is Crampton v Nugawela (1996) 41 NSWLR 176 at 193A where Mahoney ACJ said: "In some cases, a person's reputation is, in a relevant sense, his whole life. The reputation of a clerk for financial honesty and of a solicitor for integrity are illustrations of this."

[363] At 195D Mahoney ACJ added that "the law should place a high value upon reputation and in particular upon the reputation of those whose work and life depend upon their honesty, integrity and judgment." As a school teacher, the plaintiff is a professional person whose reputation is a matter of the utmost importance in much the same way as a medical practitioner or a solicitor. Just as a solicitor or a doctor has a special relationship of trust with those who are in his care, so does a school teacher.

[364] The facts in Crampton v Nugawela are very similar in terms of the extent of publication and the circumstances in which there were subsequent publications of a similarly limited kind which were relied upon for republication. The matter complained of was a letter provided to a meeting of 22 doctors making serious criticisms of the plaintiff in terms of imputations which are not dissimilar to the present, although arguably not as severe, in that serious criminal conduct was not imputed.

[365] The plaintiff lost his position as principal of the school that he had founded and built up into a successful and thriving language school. This was a substantial loss. Handley JA in Crampton v Nugawela at 198C: "Men and women pursue careers, and activities associated with their careers, for reasons other than money, such as job satisfaction, prestige, honour, and recognition by one's professional peers, locally, nationally and internationally. Successful Queen's Counsel give up highly paid careers at the Bar to accept judicial appointment. Professional men and women spend time in writing books or learned articles and giving learned papers in their field for little or no financial reward. Doctors who could earn large incomes in private practice teach at hospitals or universities, engage in medical research on substantially lower incomes, or work in Third World countries.

A Queen's Counsel about to be appointed to the High Court of Australia, and passed over because he or she had been seriously defamed, would, in my view, suffer a great injury. He or she was prepared to suffer a substantial loss of income in order to enjoy the non financial rewards associated with such an appointment. That "sacrifice" would indicate the subjective value the lawyer placed on such an appointment, and the job satisfaction that he or she expected to receive. Could it be said merely because there had been no economic loss, and may even have been economic benefits, that such a plaintiff has not suffered a grievous loss?

My researches have not revealed the existence of a defamation case where the plaintiff lost an honourable and prestigious position in his professional field which did not carry or attract substantial economic benefits. However, I do not doubt that substantial damages can properly be awarded for such a loss. The question is covered by statements of general principle in earlier cases. Thus, in McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86 at 104, Pearson LJ said:

"… Compensatory damages [for defamation] … may include … actual pecuniary loss and anticipated pecuniary loss or any social disadvantages which result, or may be thought likely to result, from the wrong which has been done."

"In an action for defamation, the wrongful act is damage to the plaintiff's reputation. The injuries that he sustains may be classified under two heads: (1) the consequences of the attitude adopted towards him by other persons as a result of the diminution of the esteem in which they hold him because of the defamatory statement; and (2) the grief or annoyance caused by the defamatory statement to the plaintiff himself … Under head (1) … it may be possible to prove pecuniary loss, such as loss of practice or employment, or inability to obtain fresh appointments. … But the major consequences under head (1) may be purely social and lie in the attitude adopted towards the plaintiff by persons with whom he comes into social or professional conduct."

On principle professional disadvantages which do not cause actual pecuniary loss must also be recoverable.

Similarly, in Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 70-71, Brennan J said:

"… In order to achieve the purpose of vindicating reputation, damages for defamation are quantified by reference, inter alia , to what is needed to achieve that purpose … Other heads of damage are compensation for the external consequences produced by the publication of the defamation and 'a solatium' for the plaintiff's internal hurt, that is, for the complex of reactions that the plaintiff has experienced as the result of the publication and its external consequences … The consequences of publication include not only the insult publicly inflicted on the plaintiff but also the effect of the defamation on those to whom it is published, any diminution in the regard in which the plaintiff is held by others, any isolation produced (causing the plaintiff to be 'shunned or avoided' is the traditional formula) and any conduct adverse to the plaintiff engaged in by others because of the publication of the defamatory matter."

See also John Fairfax and Sons Ltd v Carson (1991) 24 NSWLR 259 at 298- 299, per Mahoney JA.

In personal injury cases general damages can be awarded for loss of amenities of life and loss of enjoyment of life which may include the loss of the ability to pursue a sporting career as an amateur or modestly remunerated professional, a career which may not be highly remunerated, such as professional ballet dancing (cf Proudnam v Yellow Express Carriers Ltd [1970] 1 NSWR 495), or the loss of the non economic benefits of marriage: cf Jackson v Jackson [1970] 2 NSWR 454 at 461, per Sugerman P and Graham v Fogarty (1970) 92 WN (NSW) 452."

[366] The defendant in written submissions brings an unpleaded claim of mitigation. The defendant submits that any such damages should be minimal because of the circumstances of the publication "including the fact that the plaintiff did falsify the forms" (written submissions, paragraph 282).

[367] The defendant brings a claim for mitigation of damages based on s 38 Defamation Act 2005 (NSW) which provides: " 38 Factors in mitigation of damages

(1) Evidence is admissible on behalf of the defendant, in mitigation of damages for the publication of defamatory matter, that:

(a) the defendant has made an apology to the plaintiff about the publication of the defamatory matter, or

(b) the defendant has published a correction of the defamatory matter, or

(c) the plaintiff has already recovered damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter, or

(d) the plaintiff has brought proceedings for damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter, or

(e) the plaintiff has received or agreed to receive compensation for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter.

(2) Nothing in subsection (1) operates to limit the matters that can be taken into account by a court in mitigation of damages."

[368] The defendant submits that where there are separate and distinct meanings alleged by the plaintiff, the defendant may justify some, but not all, so as to reduce the damages: Howden v Truth & Sportsman Ltd (No 2) (1938) 38 SR (NSW) 287 at 290 - 1; Plato Films Ltd v Speidel [1979] UKHL 4; (1961) AC 1090 at 1141 - 2; Prager v Times Newspapers Ltd (1988) 1 WLR 77 at 95; Whelan v John Fairfax Publications Pty Ltd [2002] NSWSC 1028; (2002) 56 NSWLR 89 at [80].

[369] The defendant further submits that even if none of the imputations is proved to be true, if a defendant proves backgrounds facts set out in the matter complained of, then this will be relevant to the question of mitigation of damages because "it would be illogical and unfair if this were not so": Gatley on Libel and Slander, 11th ed [35.43] - [35.47]; Australian Broadcasting Corporation v McBride [2001] NSWCA 322 at [14]; Burstein v Times Newspapers Ltd [2001] 1 WLR 579 at 600-601; Turner v News Group Newspapers Ltd (CA) [2006] 1 WLR 3469 at 3481.

[370] On the facts as I have found them, the plaintiff has acted properly and with great dignity throughout this whole sorry saga. He has falsified nothing. He has, with the permission of two teachers, filled out, accurately, necessary details to enable the school to obtain funding. He has conducted himself at all times with selflessness and disinterest and concern for the well being of the school at great personal and financial cost to himself. No background fact has been established by the defendant warranting any adjustment of the damages to be awarded. Although it is a minor matter, I note that no plead of mitigation was made in the defence, nor was any case on mitigation put forward at the trial. It was raised for the first time in the defendant's submissions, which I regard as an unacceptable practice.

[371] The defendant raised a number of factual matters relied upon as matters relevant in reducing the damages to a nominal figure. I shall deal with each of these in turn.

Failure to call other P&C members or a larger number of reputation witnesses

[372] The defendant submits that the only persons called by the plaintiff are his wife and son, Mr Uday Narayan who "is clearly preoccupied with his own termination" and Mr Sunil Kumar, who gave evidence that his regard for the plaintiff had not been reduced or diminished at all by the events in question. It is submitted that the absence of other witnesses, including those other members of the Committee who were present on 30 November 2008, "must cast a very dark shadow of doubt on the credibility of the plaintiff's evidence" (written submissions, paragraph 28).

[373] The plaintiff in fact called one member of the P&C and issued a subpoena to another (Mrs Shankar) who wrote to the court, refusing to attend, although she voluntarily gave evidence for the defendant. In fact, significant evidence of the ongoing damage to the plaintiff's reputation came from Mrs Shankar, who told the court that she had told them not to attend the religious ceremony to commemorate her husband's death because persons connected with these proceedings would be there and she did not want "a situation" in her house.

[374] The plaintiff also called two of the teachers. None of these witnesses gave evidence concerning reputation damage, but it was open to the defendant in cross-examination to explore this topic while they were in the witness box.

[375] As to the asserted failure to call more witnesses, courts do not award damages to plaintiffs who call the most witnesses. Damages in defamation concern hurt to feelings, and evidence of damage to reputation in the community is generally given by one or two persons whose evidence is representational of the wider damage.

[376] It is also submitted that the plaintiff adduced no medical evidence as to the adverse physical conditions he suffered, or as to taking time off work (written submissions paragraph 29), and that it was "business as usual" for the plaintiff, an indication that this libel had a trivial effect upon him.

[377] In fact as Gatley on Libel and Slander 10th ed., points out at [32.48], while evidence is commonly given by those who know the claimant well as to his mood and demeanour after the defamatory statement came to his or her attention, "whether this could be extended to evidence of the claimant's physical health is an unsettled question". Gatley on Libel and Slander at note 99 notes that save for one decision at first instance in Hong Kong (Chu Siu Kuk Yuen v Apple Daily Ltd [2002] 1 HKLRD 1 - where the injury to health was exceptionally severe), "there is no reported case of a claimant recovering in defamation for injury to health", a footnote which adds a reference to an unreported decision of Clough v Mirror Newspapers Pty Ltd (28 November 1983), where evidence was admitted that the publication caused an aggravation of the plaintiff's duodenal ulcer. Gatley on Libel and Slander notes that in Marsden v Amalgamated Television Services [2001] NSWCA 510 damages for injury to health would have been awarded had such loss been proved.

[378] These cases demonstrate that calling medical evidence is a comparatively rare occurrence. Failure to call medical evidence is not a matter which can, in my view, reduce damages.

Failure to write to the P&C to ask for a correction of the statements

[379] The defendant submits that: "this is a course that the Court will expect that a person in the position of the plaintiff would have taken - but only if he denied the statements. The fact that he did not write to the members seeking to correct the statements should lead the Court to the conclusion that he did not do so because he knew that the statements were correct and that the words attributed to the plaintiff had in fact been said. Even if the plaintiff did not write pending the special meeting convened for 15 February 2009, there is simply no feasible explanation proffered by the plaintiff as to why he did not write after that date, knowing full well that any intention to have him reinstated at the meeting of 15 February 2009 had been scuttled."

[380] The plaintiff first drew the matter to the attention of the school solicitor (who was promptly sacked by the P&C) and then consulted solicitors of his own, who commenced proceedings concerning his dismissal, something that the P &C considered important enough to put on the notice board to tell the parents and children at the school (Exhibit Q). The plaintiff had commenced legal proceedings against the school, and the parents were planning a school meeting, and in those circumstances it would have been inappropriate for the plaintiff personally to write to the P&C to demand a withdrawal of the allegations of forgery. The plaintiff was entitled to take the view that the matter should be dealt with by the courts and by a democratic decision at a public meeting of the parents.

[381] The defendant submits: "As submitted earlier, the plaintiff's evidence is simply fabricated to suit his own purposes. The plaintiff gave long and convoluted answers to many questions put to him during the course of cross-examination. As the Court knows, long and convoluted answers are inevitably indicative of a person not telling the truth, and able to give short, concise answers. To the contrary, the defendant and his 4 witnesses all gave clear, precise, cohesive and credible answers."

[382] The dangers of determining witness credibility and demeanour, or of the manner of answering questions, has been adverted to by the NSW Court of Appeal on many occasions (The Nominal Defendant v Kostic [2007] NSWCA 14; Whalan v Kogarah Municipal Council [2007] NSWCA 5; The Honourable Justice Ipp, "Problems with Fact-finding" (2 September 2006) Lawlink, Supreme Court of New South Wales ). This is particularly the case where a witness comes from a culturally different background (Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187). There is no right or wrong way to answer a question, and the issue is not the form of the witness's answer but the content. In fact the plaintiff's answers were no more convoluted than the answers of any of the other witnesses, as the extracts from the transcript set out above demonstrate. I suggested to him at T 146 that it would help me if he gave shorter answers, because Mr Goldsmith had objected to their length, but the plaintiff's answers, though occasionally long, were responsive and informative. The school had been the plaintiff's life since he set it up, and he was still distressed at what had happened, and some allowance would have to be made for that.

[383] The real problem for the defendant, however, is not so much the credibility of the plaintiff's evidence, but the credibility of the two teachers, whose evidence on all issues was precise and credible. All that the defendant's submissions say about their evidence is that they gave evidence (at paragraph 153); Mrs Shikha Sharma is referred to by name only twice (and on neither occasion is the substance of her evidence challenged), and on the few occasions when Mrs Lata's evidence is mentioned it is to give the defendant's version of what was said (e.g. paragraph 23).

[384] There are circumstances where issues of a plaintiff's credit as a witness or bad reputation may be taken into account, or where the truth of one or more of the imputations may be relevant to the assessment of damages. The relevant principles are set out in Australian Defamation Law & Practice in the section "Injury to Reputation" at [21,005] and following.

[385] The defendant has not pleaded or particularised any of these matters, making the generalised smear that the plaintiff has fabricated evidence. No specific example of lying or fabrication is given. Nor was any specific issue of dishonesty put to the plaintiff as lying or fabrication during his cross-examination. What was put to the plaintiff in cross-examination was: "Q. And I put to you that the evidence you gave to her Honour yesterday was completely fabricated and was intended to put you in a good light." (T 143)

"Q. And all of your evidence is fabricated to bring this claim and to get revenge on the defendant, isn't it?" (T 145)

[386] The plaintiff had nothing to lie about. He was accused of forgery and sacked on the spot without further investigation. The evidence of the teachers whose signatures he is alleged to have forged corroborates the fact that they authorised him to sign on his behalf. The important information on this form was the teachers' qualifications and personal details, not their signatures, and the claim by the defendant in his evidence that the department would have withdrawn funding if the school principal rather than the teachers filled out (accurately) this form, and signed on their behalf, is without any evidentiary support, as I have indicated above.

[387] I now set out the evidence in these proceedings concerning the plaintiff's hurt to feelings.

[388] A significant factor for the plaintiff's hurt to feelings was that the allegations came as a bolt from the blue: "Q. Until that day when Mr Sharma raised it in front of the committee, had you heard from anyone that there was a problem with Mrs Lata's form? A. No, not from anyone.

Q. So no-one told you that there was a problem with the fact that she hadn't signed it? A. No.

Q. When you heard Mr Sharma say those things in front of the committee, how did it make you feel? A. I was extremely upset by that, because the previous night we had this function which went on to 12 o'clock, including all the cleaning of the hall et cetera, and then I went to my friend's place to pick my wife and child up. I reached home at about 2.30 in the morning. The next day, I was back in school doing all this extra work. That was the first executive committee meeting which I missed that particular year, and normally it is tradition in our culture that people thank the principal of the school for the hard work he has done for the year with the kids. I was expecting thanks from the committee, but instead of thanks, I got this dismissal letter and accusations of forgery. So that made me feel extremely upset. I was very distressed to that, and I was actually sweating. So after talking to the teacher at the place where the kids were having--

[389] The plaintiff, who was visibly upset when he gave this evidence, went on to say that he was so upset he "just lost my sense of direction and I was just moving up and down the quad of that school" (T 83).

[390] He spoke to the teachers, who are upset, and spoke to his wife to say he had been sacked from the school. He rang Mr Narayan and went to his home, where he was so distressed that Mr Narayan had trouble working out what had occurred, as is set out in the summary of his evidence below.

[391] The plaintiff's distress continued. The plaintiff described his distress when he saw, at the meeting held at the school, the solicitor's letter to Mount Druitt Police Station asking to carry out an investigation upon him for forgery, as well as the letter to Mr and Mrs Kumar (T 93-94).

[392] The following are relevant issues concerning the damage to the plaintiff's reputation: (a) The position and standing of the plaintiff :

The plaintiff's position and standing not only as a teacher but as a founding member and the driving force behind the school (T 23-33 and T 69-74) was widely known in the Indian community. His reputation was a matter of very great importance to him (T 95, 96, 98, 97) and this was confirmed by the evidence of his wife (T 176). The circumstances in which he was accused with no prior warning and suffered the crushing humiliation of being sacked and ordered to leave immediately the premises of the school which he had founded are matters of very great weight concerning damages;

(b) The plaintiff's reaction and hurt to feelings :

The plaintiff's evidence of hurt to feelings (T 83-84; 98-99) was confirmed by his wife (T 182) and his son (T 190).

Allegations of forgery are matters of the utmost gravity. While ordinary right thinking members of the community such as Mr Kumar might not have thought less of the plaintiff, nevertheless Mr Kumar was quite insistent that he wanted to get to the bottom of the matter and to hear the plaintiff's explanation. The plaintiff's wife gave evidence of the change in attitude of both before and after the defamation (T 180-181) which is set out in more detail below.

I have not taken into account the evidence of the death threat because, in my view, it is not an indication of a response to the matter complained of, but is something which had been generated by these proceedings.

The plaintiff submits that the defendant has prolonged the litigation and changed tack in the middle of the trial to seek a forensic advantage by first dropping a defence of qualified privilege and then attempting to reinstate it which causes the plaintiff tactical disadvantage and further that the circumstances in which he continues to deny he spoke the words complained of is inconsistent with such a defence.

[393] The issue of conduct of the litigation is a matter which may be taken into account in relation to aggravated damages, although with great caution, because it is essentially relevant to costs. I have been careful not to place too much weight on the manner of conduct of the litigation as "combative litigation" (to use the words of Levine J in Antoniadis v TCN Channel Nine Pty Ltd (Supreme Court of New South Wales, Levine J, 24 April 1997)) is not uncommon in defamation actions.

[394] The plaintiff's wife and son also gave evidence.

[395] The plaintiff's wife gave evidence about the plaintiff's prior reputation and how the publication affected him: "Q. Before this particular day, are you able to tell us anything about what you understood your husband's reputation to be in the wider community? A. Your Honour, in our culture, in Hindi culture, a woman gets introduced by using their husband's name, and in my case it was a lot more, because my husband had a really good name in the community. He was really well known in the community, because of all the community work he was doing, and when I went anywhere people introduced me as Mr Shandil, Ashok Shandil's wife, and my husband, people respected him, people respected his knowledge.

He used to go and do master of ceremonies, he used to get approached by people to do master of ceremonies, and even one of my friends that - she's actually not a - like she's a friend but also a work colleague, she's a Cook Islander, she got inspired by my husband's work, because they used to come to the function, and they loved what he was doing. She got inspired by it, and she even started a community language school for her own culture, Cook Island culture, and when further on information was distributed about Mr Shandil in writing, about committing forgery and being - the whole community kind of knew, found out, and she approached me, and she asked me, and I was in a - like I was put in a position where I have to give them - explain to my work colleagues, like what happened. They'd go, "This is what we have heard."

Q. Before your husband was terminated from this community language school, are you able to tell us what sort of - what he was like in terms of his demeanour towards you? A. Yeah. My husband was a very happy person. He was - I could talk to him. I could come home with my problems and my issues and talk to him. After that issue, my husband's whole demeanour changed. Like he is all - he started becoming reserved, wakes up in the middle of the night, doesn't sleep much, doesn't - like, I start - if I have an issue somewhere, and I want to come and talk to my husband, I can't actually talk to him, because then he starts bringing up - like I said, I've been living with this whole--

Q. What does he bring up? A. He brings up like how his name in the community has been tarnished, he goes to functions and people approach him. I even - when I go to functions, like people approach me and ask, when I get introduced as his wife, and then they go, "Oh, is that the person that's been terminated from the Hindi school because of something about forgery," and it puts me in a position, and when he goes somewhere, now, like we think twice before we go somewhere, because when we go there people approach us and ask us. There's always one or two people that ask us that question, and when sometimes Ashok goes by himself he comes home and he goes, "Oh, my God, like not again." Somebody's - so--

Q. Have you been able to observe your husband and seen whether there's been any effect on him of waiting for this litigation at all? A. Definitely.

Q. What have you seen? A. He talks to himself; he's reserved; he's snappy; he's always upset; he walks up and down. Sometimes I'm talking to him and then he goes, "What?" and I say, "Well, I was just talking to you," but he's thinking - he goes, "Sorry, I was thinking," you know, "I'm still thinking. I'm really," you know, "I'm really stressed." I even bought him stress tablets because he wasn't sleeping so I said to him, "Maybe this will help you to sleep." So when he doesn't sleep, I don't sleep. He's a different man, your Honour. He's a different man. He's not the person that used to be loving and caring and I, as a woman, I don't want to say too much and disclose too much to the court about our relationship but it's definitely had a big impact on our relationship." (T 180-182)

[396] Mrs Shandil, like her husband, gave evidence about the distress caused to the whole family about a death threat received by the plaintiff on his mobile phone while the family was driving to a social function on the weekend before these proceedings commenced. An unknown caller told the plaintiff (and this was heard by his family as the phone was on loudspeaker) that first his son would be killed, then his wife and then himself. It was clearly a matter of great distress to the plaintiff and resulted in him making a report to the police. There is no evidence that the defendant made this threat and he denied that this was the case. It is evidence of the damage to the plaintiff's reputation caused by publication of the matter complained of, as clearly some unknown and anonymous person feels so strongly about the plaintiff's conduct that this person have threatened to kill the plaintiff and his family for seeking to challenge the defendant's publication of these words by bringing this litigation.

[397] The plaintiff's son gave evidence as to the impact of the publication upon his father: "Q. In terms of your father's demeanour before 30 November, what can you say about him generally, if anything? A. About my father?

Q. Yes, about your father. A. A very - he's a very happy person. He's very proud about his school. Very proud of everything, actually. So, yes, very jovial in nature. Joked around most of the time. Was happy.

Q. What about since then? Has there been any change at all? A. Yes, there's been actually quite dramatic changes in his character since then. He's - well, he's started talking to himself a bit, starts pacing around the house sometimes. Just - I'm not sure. It affects his daily life for sure." (T 190)

[398] The plaintiff's son also gave evidence about the distress caused to his father by the anonymous telephone call the weekend before the trial started (T 190).

[399] The evidence of Mr Narayan as to the plaintiff's state of mind on the day of the incident was that he was "almost in tears", unable to express himself and walking around aimlessly (T 192).

[400] Mr Narayan had known the plaintiff for some years and was very taken back by the plaintiff's response, which was very different to his normal behaviour.

Application of these principles to the facts in this case

[401] Section 34 Defamation Act 2005 (NSW) provides as follows: " 34 Damages to bear rational relationship to harm

In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded."

[402] Section 35 Defamation Act 2005 (NSW) provides as follows: " 35 Damages for non-economic loss limited

(1) Unless the court orders otherwise under subsection (2), the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings is $250,000 or any other amount adjusted in accordance with this section from time to time (the "maximum damages amount") that is applicable at the time damages are awarded.

(2) A court may order a defendant in defamation proceedings to pay damages for non-economic loss that exceed the maximum damages amount applicable at the time the order is made if, and only if, the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages.

(3) The Minister is, on or before 1 July 2006 and on or before 1 July in each succeeding year, to declare, by order published in the Gazette, the amount that is to apply, as from the date specified in the order, for the purposes of subsection (1).

For orders under this subsection, see Gazettes No 84 of 30.6.2006, p 5043 (amount declared: $259,500); No 80 of 15.6.2007, p 3793 (amount declared: $267,500); No 72 of 20.6.2008, p 5482 (amount declared $280,500); No 90 of 19.6.2009, p 3137 (amount declared: $294,500) and No 79 of 18.6.2010, p 2452 (amount declared: $311,000).

(4) The amount declared is to be the amount applicable under subsection (1) (or that amount as last adjusted under this section) adjusted by the percentage change in the amount estimated by the Australian Statistician of the average weekly total earnings of full-time adults in Australia over the 4 quarters preceding the date of the declaration for which those estimates are, at that date, available.

(5) An amount declared for the time being under this section applies to the exclusion of the amount of $250,000 or an amount previously adjusted under this section.

(6) If the Australian Statistician fails or ceases to estimate the amount referred to in subsection (4), the amount declared is to be determined in accordance with the regulations.

(7) In adjusting an amount to be declared for the purposes of subsection (1), the amount determined in accordance with subsection (4) is to be rounded to the nearest $500.

(8) A declaration made or published in the Gazette after 1 July in a year and specifying a date that is before the date it is made or published as the date from which the amount declared by the order is to apply has effect as from that specified date."

[403] These are imputations of gravity. An allegation of forgery is an allegation of criminal conduct of a very serious nature.

[404] Comparable cases include Goyan v Motyka [2008] NSWCA 28; Zaia v Chibo [2005] NSWSC 917 and David v Chibo [2006] NSWSC 1257, all of which were publications of a limited nature, with very little evidence called of hurt to feelings, but where serious allegations of financial and moral turpitude were made. In particular, I note the assessment of damages in Ryan v Premachandran at [133]-[140], a case with very similar facts, as follows: "[133] In essence, the plaintiff's claim is for compensatory damages for harm to reputation, for injury to feelings, and for vindication. She claims aggravated compensatory damages for the publication of false imputations, the defendant's refusal to apologise, and by reason of the malice of the defendant before, at the time of, and after publication of the matter complained of, and also in respect of the conduct of the defendant to the present time, or at least, until the end of the trial.

[134] I find that at the time of publication the plaintiff held a settled reputation for competence, honesty, and trustworthiness, and was held in high esteem by her colleagues, and the school community which she served with apparent distinction. The imputations were grave allegations of incompetence, dishonesty, untrustworthiness, and unfitness for office which struck at her established reputation for integrity as a senior public school teacher for many years.

[135] The matter complained of went to 14 recipients who were parents of students in class 5 in 2007 and, it may be inferred, that some had children at the school in 2008. Damage to reputation is presumed. Although none of the recipients gave evidence, I do not doubt that the imputations conveyed by the matter complained of would result in significant injury to the plaintiff's reputation. I am also satisfied that, given the nature of the accusations published, it would be natural and probable that some of the recipients at least would republish them to others. The evidence of Ms Nicol and Ms Wasson support the conclusion that the contents of the matter complained of had been discussed to some extent in their community. Thus some allowance should be made for the "grapevine effect" as explained by Gummow J in Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69 ; (2001) 208 CLR 388 (paras 88-89) in assessing the award.

[136] The plaintiff is entitled to compensation for damages done to her reputation. The award to be made must be sufficient to enable the plaintiff to point to it as a vindication of her reputation and to mark the baselessness of the defamation. ( Broome v Cassell [1972] AC 1027; Ley v Hamilton (1935) 153 LT 384.) The assessment requires an estimate of the likely duration of reputational damage. Not surprisingly, the evidence is of little assistance. Doing the best I can, I find it likely the substantial portion of harm occurred in the weeks immediately following publication and that the impact gradually diminished in the months thereafter.

[137] With respect to the publication I am satisfied that the plaintiff's claim for an award of aggravated damages is made out. I find that the conduct of the defendant in publishing the libel, and subsequently, was unjustifiable, lacking in good faith, and improper in the sense considered in Triggell . I find that the matter complained of caused the plaintiff great distress and emotional upset, and that her sense of hurt continues to the present time. This hurt has been seriously exacerbated by the malice of the defendant, demonstrable by the emails and letters referred to, coupled with the defendant's failure to apologise, and his conduct in adhering to his position that the defamatory statements were true and defensible, although without any objective evidence to support it. The defendant's conduct demonstrated persistence in his attack upon the plaintiff in defiance of the letters from her solicitors of 18 April and 18 June 2008 in which, inter alia, legal proceedings were threatened if no retraction or apology was given, and despite the institution of these proceedings. Each and all of these matters justifies an increase in the amount which would otherwise have been awarded.

[138] I also take into account the falsity of the imputations sued upon and the hurt occasioned to the plaintiff by her awareness of that falsity as further justification for an increase in the award.

[139] In assessing the amount of damages to be awarded to the plaintiff I have been guided by the relevant principles which emphasise its compensatory, not punitive, purpose, and require there be an appropriate and rational relationship between the harm sustained by the plaintiff and the amount awarded.

[405] Particular care needs to be paid to the limited extent to the publication. The persons to whom the matter complained of were published at the P&C meeting were in fact other members of the P&C (as to a similar fact situation, where the recipients of the publication were members of the body corporate and technically joint tortfeasers of the defendant, see Trantum v McDowell [2007] NSWCA 138; see also Zarth v Williamson [2006] NSWCA 246 where there was limited publication to other persons who were fellow plaintiffs). In Zaia v Chibo Nicholas J noted at [44] "paucity of evidence" concerning the extent of publication but nevertheless awarded damages of $140,000.

[406] I have very substantially discounted the damages that would otherwise be awarded, by reason of the extremely limited initial publication to other members of the P&C Committee.

[407] The matters relied upon as republication similarly have an extremely limited publication and only a small allowance for damages for these publications should be permitted.

[408] The defendant has done no more, concerning the claim for aggravated compensatory damages, than list the relevant cases and referred to the rule in Triggell v Pheeney (1951) 82 CLR 497 (written submissions, paragraph 274 and 275). One of the difficulties for me in the preparation of this judgment has been that areas of the law have not been dealt with (or have been added where issues were not pleaded or particularised), and damages is one of these areas.

[409] The statement of claim seeks aggravated compensatory damages on the basis that the plaintiff's hurt and upset was increased by his knowledge that the imputations are false. A false allegation of such a serious crime as forgery made in circumstances where the conduct of the defendant can only be described as improper, unjustifiably and lacking in bona fides, in that he well knew his allegations were utterly false, and went to some trouble to ensure that this fact was kept from his audience by the manner of presentation and use of surprise in springing the matter complained of upon the plaintiff, is a situation where a claim for aggravated compensatory damages is clearly made out.

[410] The defendant's conduct at the time of publication, which is part of the evidence, is evidence capable of being improper, unjustifiable or lacking in bona fides, which I note are grounds conceded by the defendant in written submissions are grounds upon which an awarded of aggravated damages may be made. In addition, I note the circumstances in which a plaintiff may claim aggravated compensatory damages by reasons of the knowledge of the falsity of the imputations as set out in [26.17] of Australian Defamation Law and Practice. Every word that the defendant spoke was false, and the plaintiff's evidence was that he suffered very great hurt to feelings. The sole aim of the publication was to injure the reputation of the plaintiff and to engineer his sacking. I have found that the defendant was aware of the falsity in this regard.

[411] Another issue not touched upon by either party in submissions is the effect of an unsuccessful plea of justification. I accept the warning of McHugh JA in Singleton v Ffrench (1986) 5 NSWLR 425 at 439 that "vigorous persistence in a legitimate defence cannot be used to increase the damages". Nevertheless, an unsuccessful plea of justification may be taken into account as an aggravating factor. This is a case similar to those discussed by Hutley JA in Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 243 in that the publication was "completely indefensible".

[412] I have awarded aggravated compensatory damages on the basis of the claim as particularised in the statement of claim, and I have also had regard to the failed plea of justification.

[413] Taking all of the above into account, and giving particular weight to the very limited nature of the publication, I have awarded damages at the top of the range for such a publication, in the sum of $80,000. Although it is not general practice, I note that $20,000 of this sum relates to each of the three publications where I have found that the defendant was liable for the republication of each of the three publications for which the claim for damages for republication is brought. The most serious of these in my view is the letter sent by the solicitors purporting to act for the P&C to the NSW Police. This false and serious charge of forgery was brought by the defendant to give not only the plaintiff but also the P&C no option other than to sack the plaintiff, in circumstances where the likelihood of the matter being taken further and resulting in a police investigation was almost inevitable. One half of the component of $20,000 for republication relates to this publication, and I have allowed $5,000 each for the other two publications.

[414] The defendant has provided submissions concerning interest but I have not received submissions from the plaintiff. I will grant leave to the parties to restore the matter for any argument concerning interest and costs.

[415] Therefore, I make orders as follows: (1) Judgment for the plaintiff for $80,000. (2) Defendant pay plaintiff's costs. (3) Matter relisted on Friday 10 December 2010 at 2.00pm for applications concerning interest and costs. (4) Exhibits retained for 28 days.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.