Sharma v Shandil

Judgment 1ALLSOP P: This is an application for leave to appeal from orders for judgment in a defamation case in the District Court. The defamation found to have occurred arose from publication of allegations of forgery made by the defendant (applicant) in relation to the plaintiff (respondent) at a parents and citizens (P & C) meeting of a school teaching the Hindi language. The plaintiff and the defendant, were members of the P & C committee and members of the Indian-Australian community in Sydney. The learned primary judge, Gibson DCJ, heard five days of evidence and a number of days of submissions and ordered the entry of judgment in the sum of $80,000 plus costs. 2Three substantive grounds of appeal were put forward as the basis for leave. I will deal with them in the order in which they were presented in argument today. The three grounds reflect ground 1, ground 5 and grounds 2, 3 and 4 in the draft notice of appeal dated 8 March 2011 and filed with the papers. Ground 1 identifies a putative complaint that the primary judge erred in finding that the plaintiff proved that the matter complained of had been published. I am unpersuaded of any likely prospects of success in this respect. The question of publication involved the assessment over a period of days of a number of witnesses in the context of a meeting at which minutes were kept which recorded matters in substance in accordance with the findings of the learned primary judge. Noone called the minute-taker. In those circumstances, and bearing in mind High Court authorities such as State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA3; 160 ALR 588, the prospects of success on appeal do not warrant the grant of leave. 3As to the second ground, it is said that the award of damages of $80,000 was excessive. I have identified the broad context of the found defamation being to a P & C committee of either five or seven people about the plaintiff, the Principal of the school, by the defendant. Stating the matter thus and recognising the gravity of the statement that was found to have been made as to forgery, a crime of dishonesty, I do not think that in those circumstances there is any sufficient ground to warrant the conclusion that $80,000 was out of the reasonable range of damages. 4As to the third ground, this in effect complains about her Honour's refusal to permit the then counsel (being a practising solicitor) to withdraw a concession made on the third day of five days of evidence. The concession was that the defence of qualified privilege was not pressed. The defence was struck out. Her Honour had the view, which may be open to doubt, that because the primary defence of the defendant was that the words were not said, qualified privilege did not run as a defence. This matter was raised by her Honour on a number of occasions. It is now said and was said in the motion to set aside the orders striking out the defence that her Honour was wrong in those assertions to counsel. 5The affidavit of the then counsel, Mr Goldsmith, sworn on 4 May 2010, sets out his reasons for making the concession at paragraphs 20 and 21 as follows: "During the course of the hearing on 21 April 2010, her Honour stated that I had had time to obtain authority to support any proposition that a defence of qualified privilege could be pursued where publication was denied. I refer to lines 2-4 of page 242 of the transcript. It was following that statement that I advised her Honour that the defence of qualified privilege was not pressed. When I advised her Honour that that defence was not pressed: A. As I have deposed to above, I had never previously encountered the proposition put forward by her Honour, and was certainly not aware of the case of Photi v Target . B. For the reasons to which I have deposed, I had not had a reasonable opportunity to consider any other authorities. C. I felt considerably under pressure from her Honour given that she had raised this issue early on the Monday morning, at the end of the day on Monday, on the Tuesday and, on the Wednesday she stated that I had had time, meaning sufficient time to obtain any authority. D. I was also concerned by her Honour's repeated references to the prospect of a defence being struck out where particulars of truth had not been provided, notwithstanding that, in my view, there was no failing on the part of the defendant to provide particulars for which he could properly have been held responsible. Her Honour's repeated references to that prospect made me very concerned that she may strike out the defence and I was particularly concerned that, if I did not provide the authority to her Honour which she had requested, and which I was not able to provide at the time that she requested it, then that could have encouraged her Honour to strike out the defence. Given her Honour's statement to the effect that I had had sufficient time to obtain the authority, it appeared to me that her Honour was not prepared to grant any further extension of time to me and, in all of those circumstances, and with considerable reluctance, I advised her Honour that the defence of qualified privilege was not pressed." 6Mr Smark, who appears with Miss Chrysanthou for the applicant, ultimately recognised that he had to put the matter that counsel had been overborne. It was submitted that her Honour was wrong as a matter of justice and principle in refusing to allow the defence to be run after the close of the evidence. I do not think there was any real prospect of success of this argument on appeal. With the utmost respect to Mr Smark, it is difficult to see how counsel was overborne. A decision was made. If he succumbed to pressure of a judge attempting to resolve or limit the issues in a way that he later regretted, that regret did not manifest itself until after the evidence was closed. 7No-one, including the then counsel, asked the judge to deal with that matter before judgment so that an application could be made for the adducing of evidence in addition to that which had consumed the five days. By the time the matter came before the primary judge by way of a filing of a notice of motion almost two weeks had passed since the close of the evidence. In those circumstances, and in particular where her Honour chose to deal with a matter in her judgment, without objection by the parties, it is hardly surprising that her Honour came to the view that it would be unfair to allow the matter to be re-opened after the course of the hearing had been, at least in part, conducted upon the basis that the issue did not arise because of the expressed concession of counsel. 8In those circumstances, I see no reasonable prospect of success of any of the grounds of appeal. For those reasons I would dismiss the application for leave to appeal with costs. 9SACKVILLE AJA: I agree with the orders proposed by the President and with his Honour's reasons. I would only add this. Mr Smark quite properly took us to the transcript of the proceedings on the first day of the hearing in the District Court on 19 April 2010. On that day her Honour put to Mr Goldsmith the difficulty she had with what she thought was an inconsistency between an attempt to rely upon the defence of qualified privilege and the defence that the words had never been used at the relevant meeting. Her Honour, having raised the matter, then asked at p 12 of the transcript whether Mr Goldsmith could adduce or refer to any authority that would indicate that her Honour's position as articulated on that day was incorrect. 10Mr Goldsmith then had two days in which to follow up her Honour's invitation. Mr Goldsmith explains that he had other matters to deal with in the intervening period, nonetheless the evidence clearly indicates that Mr Goldsmith had a period of two days in which to respond to a matter quite clearly put to him by the District Court judge. The decision he made was to withdraw in effect the defence of qualified privilege. In those circumstances it seems to me that the submission made by Mr Smark which has been outlined by the President does not have any reasonable prospects of success. 11I therefore agree with the orders as proposed by the President. 12ALLSOP P: The orders of the Court are that the application for leave to appeal be dismissed with costs.