Ryan v Premachandran - [2009] NSWSC 1186

No judgment structure available for this case.

CITATION: Ryan v Premachandran [2009] NSWSC 1186

HEARING DATE(S): 20.07.09, 21.07.09, 22.07.09, 23.07.09

JUDGMENT DATE :
6 November 2009

JUDGMENT OF: Nicholas J

DECISION: par 143

CATCHWORDS: DEFAMATION – trial by judge alone on all issues – email sent to plaintiff and 14 recipients – defences – justification – whether imputations that the plaintiff was incompetent, dishonest, untrustworthy, and responsible for the school’s low education standard were true – common law qualified privilege – information volunteered – whether reciprocity of interest established – whether occasion of qualified privilege – malice – whether publication actuated by improper motive – fair comment and honest opinion – whether the words were comment or statements of fact – whether aggravated damages – assessment of damages

LEGISLATION CITED: Defamation Act 2005
Uniform Civil Procedure Rules 2005

CATEGORY: Principal judgment

CASES CITED: Ali v Nationwide News Pty Ltd [2008] NSWCA 183
Broome v Cassell [1972] AC 1027
Crampton v Nugawela (1996) 41 NSWLR 176
Fraser v Holmes [2009] NSWCA 36
Ley v Hamilton (1935) 153 LT 384
Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69; (2001) 208 CLR 388
Papaconstuntinos v Holmes á Court [2009] NSWSC 903
Readers Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500
Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327
Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497

PARTIES: Jennie Ryan - plaintiff
Rajaratnam Premachandran - defendant

FILE NUMBER(S): SC 20263/08

COUNSEL: S T Chrysanthou/P Maddigan - plaintiff
Self represented - defendant

SOLICITORS: Kalantzis Lawyers - plaintiff
Self represented - defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

Nicholas J

6 November 2009

20263/08 Ryan v Premachandran

JUDGMENT

1 His Honour: By statement of claim filed 2 July 2008, the plaintiff, Jennie Ryan, claims damages in defamation against the defendant, Dr Rajaratnam Premachandran, arising out of the publication of an email on 10 April 2008. The claim is under the Defamation Act 2005 (the Act). As there was no election under s 21 of the Act for the proceedings to be tried by jury, the matter proceeded as a trial by judge alone on all issues. At the hearing the plaintiff was represented by counsel. The defendant was self-represented.

2 The plaintiff is, and since her appointment in 2004, has been the principal of Beecroft Primary School (the school). At the time of publication the defendant was a parent of two daughters who were students at the school.

3 The matter complained of was sent by the defendant by email on 10 April 2008 to 14 parents of students at the school, and to the plaintiff. It is in the following terms:

“Subject: Call for Mrs Ryan to quit

Dear Parents of Beecrof [sic] Primary School,

Mrs. Ryan is an incompetent, dishonest and untrustworthy person to remain in the principal position of the school. Hereby, I request her to give way to another person for the sake of the future of 600 children in Beecroft Primary.

On 13th march selective school test day, about 85 Beecroft primary school children were left out of the test center for more than half an hour under hot sun while 15 private school children were earlier left inside to sit. I called Mrs Ryan in the morning and take action and she waited until next day morning. After I realized she would not take immediate action, I had to make calls to the selective test unit in the education department to prevent repeat of similar incident in the test centre. Though she made a complaint next day morning on my request, she has not yet followed up to find out what happened. It was a major incident, which Mrs Ryan should have put in the newsletter and the action she took. Instead she had chosen to cover up the whole incident.

Last four years the standard of education in the school has gone down dramatically. Numbers of students have started going to private coaching colleges in Homebush, Epping and Pennant Hills to learn basic numeracy and literacy.

Dishonest

I have asked access to the education material taught in the opportunity classes. The students from the opportunity classes and normal classes sit for the same selective school test. By sharing the education material with other students the standard of education in opportunity class is not going to suffer. Mrs Ryan first responded that the teachers download the material from number of websites and she has published few in the newsletter because she could not put all of them in the newsletter. On further grilling to reveal which newsletter, she admitted that she only published the department websites where few sample test papers are available. Following that cheating incident, I made another request for access to the material and I was told in writing that it was not for public use. Though I have got two children studying in the school, I am treated as a public rather than a parent. More than that, can Mrs Ryan understand that sharing the education material create a better soceity?

Betrayed the trust we had on her

In a meeting I had with her in January this year at school premises, she admitted that she and other teachers have fiddled with the test score sent to the department of education as part of the selective school marking by the schools. Such a fiddling process is a subjective and should not be allowed. A view of a single teacher on a child can be discriminative and fiddling with the test marks on her recommendation can destroy the future of the child.

Low education standard in the school

The education standard in the school has gone down during last four years. Under Mrs Ryan leadership, less academic work in the school and homework for the children. I have started sending sample education material and guidance to organize weekly school and home work which the school can use from Grade 2 to 6. Mrs Ryan can skillfully [sic] spin on the standard and achievement of the school. But the reason behind those achievements is private coaching colleges and parents tutoring the kids.

Remember the kids are in the school for 30 hours a week. If the kids get good education in the school they can do very well without private education and parents help. Children go to private coaching colleges for only 3 hours a week compared to 30 hours in the school. The coaching colleges produce better results because of dedication, well organized teaching and can do attitude. A teacher of the school said that only five children from each class goes to selective school and it is waste of their time to prepare for selective test. After working few weeks with Mrs Ryan, I do not believe she is the right person for the position. We need an energetic person who can challenge the private coaching colleges and produce better outcome.

Can we call Mrs Ryan to give way to another person for the sake of the future of 600 children in Beecroft Primary?

4 The plaintiff claims that, in its natural and ordinary meaning, the matter complained of contained the following imputations:

(a) The plaintiff was incompetent in her role as principal of Beecroft Primary School.

(b) The plaintiff was so incompetent in her role as principal of Beecroft Primary School, she should be dismissed.

(c) The plaintiff was so dishonest that she should be dismissed from her role as principal of Beecroft Primary School.

(d) The plaintiff was incompetent in her role as principal of Beecroft Primary School in that she failed to follow up complaints from a parent.

(e) The plaintiff was incompetent in her role as principal of Beecroft Primary School in that she failed to report in the school newsletter a major incident concerning the school.

(f) The plaintiff was incompetent in her role as principal of Beecroft Primary School in that she was responsible for the decrease in the standard of education at Beecroft Primary School.

(g) The plaintiff was incompetent in her role as principal of Beecroft Primary School in that she failed to ensure that students of the school learnt basic numeracy and literacy.

(h) The plaintiff was dishonest in that she lied to the defendant about where she published certain education material.

(i) The plaintiff was dishonest in that she covered up an incident involving 79 school students of Beecroft Primary School.

(j) The plaintiff was untrustworthy in her role as principal of Beecroft Primary School in that she improperly changed the test marks of students.

5 The defendant admitted publication to the parents as alleged, and that the imputations claimed were conveyed. He denied that any is capable of being defamatory of the plaintiff. At the hearing he adhered to the following defences:

6 A defence of qualified privilege under s 30 of the Act was not discernible from the defence. No suggestion of reliance upon this defence was made by the defendant in either oral or written submissions. No particulars of facts and matters relied upon to establish the defence was pleaded as required by Uniform Civil Procedure Rules Pt 15, r 15.21(1)(b) and r 15.27. Accordingly, I have proceeded on the basis that no such defence was raised or intended.

7 By her reply, the plaintiff joined issue with the defences as pleaded. She alleged that the publication was actuated by malice, and by the defendant’s improper purposes which included his intention to harm her, and to cause her to lose her job as principal of the school. It was also alleged that the publication was made in the knowledge that the imputations were false, or with reckless indifference to truth or falsity.

8 At the outset it is convenient to deal with the question whether the imputations are defamatory of the plaintiff. In my opinion it is self-evident that, by ordinary community standards, each was likely to be damaging to her reputation. Accordingly, I hold that the imputations were defamatory of the plaintiff.

Background

9 The issues require close scrutiny of all the circumstances in which the publication was made. The evidence establishes the following.

10 The plaintiff has been teaching for over 40 years in various public schools in New South Wales. Prior to her appointment in 2004 as principal at the school, she had served as the principal of Galston Public School (appointed 1990), and as the principal of Wahroonga Public School (appointed 1996). She has received a number of high awards for teaching including the Certificate of Meritorious service for her outstanding contribution to the Primary Principals’ Association, awarded in 2006. In February 2008 there were 725 students enrolled at the school from a range of cultural backgrounds, about 50% of whom were from backgrounds of which English was not the first language. The school conducted 28 classes, and had a reputation for high academic achievement.

11 The defendant was awarded a doctorate in Engineering by the University of Tokyo in 1992, and graduated with a master’s degree in Business Administration from Macquarie University in 2004. Since then he has been involved in the finance industry. In 2008 both his daughters were students at the school. The younger, to whom I will refer as A, was in year 3. The elder, to whom I will refer to as B, was in the straight year 6 class, class JM, and not in an opportunity class. She left for high school at the end of 2008, whilst A continues as a student at the school.

12 The first personal contact between the parties was in about December 2007 when the defendant telephoned the plaintiff and expressed concern about homework for B. He was directed to the class teacher.

13 On the afternoon of 19 February 2008 a meeting, at the defendant’s request, took place at the school. It was attended by the plaintiff, the defendant, class teachers Mrs J Justic and Ms C Marinovic, and the assistant principal, Mr J Whittaker. Its purpose was to discuss the defendant’s dissatisfaction with the school, and B’s selective school application. The defendant stated his opinion that the school discouraged selective school application. The plaintiff, Ms Marinovic and Mr Whittaker each responded to the effect that all eligible students were encouraged to sit for selective school entry. The minutes of the meeting (Ex C) included the following:

Mr Premachandran proceeded to denigrate the NSW education system compared to the education system in Europe. He stated that if his daughter was not successful with her selective school application and he was forced to attend her local high school – Cheltenham Girls, he felt he would be condemning her to a life of tutoring and she would only succeed in gaining TAFE entry for her tertiary education. Mr Premachandran claimed that BPS teachers were not up to norm as evidenced by poor student handwriting and vocabulary standards. Mrs Ryan continued that in 2008 Mr Premachandran’s daughter had two fine teachers in Miss Marinovic and Mrs Justic. Mrs Ryan requested Mr Premachandran withdraw his claim of discrimination against his daughter and that BPS had lowered its standards.

14 I find the minutes to be an accurate record of the meeting. The plaintiff’s evidence that they were prepared by Mr Whittaker a few days later, were accurate, and signed by the teachers present was not challenged, and I accept it. During his evidence the defendant referred to his suspicion that the minutes were not signed until November 2008 but provided nothing to support it, or to cast doubt on their accuracy.

15 In his email to the plaintiff of 21 February 2008, the defendant expressed his thanks for arranging the meeting. It included:

“Thanks for explaining the process of getting the school score sent to the selective school exam unit. I am not impressed by fiddling through the results after it was obtained through a set process. If the teacher is not happy with the results then you could fiddle with the process to improve it for the next year testing.”

“I was disappointed that you did not want to share the work done in the opportunity classes with outsiders. You should make it available to students in the other classes when an explicit request is made.

On the end I did not have the feeling that it was an open and honest meeting. Someone tried to hide a pumpkin into a plate of rice …”

16 By email of 28 February 2008, in response to his request, the plaintiff sent the defendant a copy of the school’s procedures for placement of students in opportunity classes and selective high schools. It stated the procedure for allocation of marks for English and mathematics and the determination of rank order in terms of the school cohort.

17 The email of 6 March 2008 from the defendant to the plaintiff included:

“I appreciate your 18 calendar years of service at the helm. The question I would ask is what you have achieved? Offered worthless education to the kids who can’t challenge the kids educated by private coaching colleges and then dumped in the local colleges? … My humble advice is that if you are not ready for change you should retire …

Sometimes I get a feeling that I am talking to bunch of stupids who is not ready to accept there is a problem in the education system. Not sure how many children future [sic] are going to be destroyed before you all wake up …

… I am talking openly to other parents and getting their opinions. I want change. If I could make a marginal change on you, if one child can get better education next year and get into a better secondary school, that is my wish.”

18 On the morning of 13 March 2008, 79 students from the school, including B, attended Normanhurst Boys’ High School to take the selective high school test. They were left waiting outside in the sun for about 30 minutes before taking the test. The defendant’s wife was with them. Shortly after 9am she telephoned the defendant and informed him of their plight.

“I received a complain from [B’s] mother that around 80 Beecroft primary school children were left out side the testing under the sun in alphabetical order from 8:50 to 9:20 while 15 private school students were allowed to sit inside the testing centre.

I talked to the education department (Magda Pollak) around 10 am and asked them to not repeat a similar procedure after the break. I have also made a written complaint.

Can you please investigate on behalf of the school what has actually happened to the children sent from your school and let me know before Monday? You may also talk to other parents who were there.

I will be following this with the department again on Tuesday.”

19 The plaintiff was not at school on 13 March 2008, and did not receive the email until her return next day.

20 On 14 March 2008 at 9.43am the plaintiff sent an email to Ms Magda Pollak, the manager of the selective high school and opportunity class placement unit, in which she complained against the person in charge of the selective high school tests who left the school students outside in the sun. She stated that the situation was totally unacceptable and that she had received 5 complaints about it. At 9.45am she sent an email to Ms Janet Wasson, School Education Director, in which she stated that the complaint appeared justified, and with it a copy of the defendant’s email.

21 In his email of 3 April 2008 to the plaintiff, the defendant said:

“Previously you told me that you have put some of the web addresses where you get the extra work given to opportunity classes in the school newsletter. Can you please send me a copy of that letter through [B] (6JM) urgently?

22 During 8 April 2008 there was the following email correspondence between the parties:

“… I can remember well that you told me in front of the others in the meeting that you have put only few web addresses in the newsletter because you can’t put all the hundreds of web addresses in the newsletter.

You are now telling completely different storey [sic]. If it is slightly different I can’t blame my memory but in this case I can confidently tell you are not telling the truth.”

The defendant also stated his concern at the standard of teaching of basic numeracy and literacy in class 6JM.

“I can recollect the situation where you told me that you have put web address in the newsletter.

I have specifically requested access for the material taught in the opportunity classes. You said to me that they were downloaded from the various web addresses and you have put some web addresses in the newsletter because you can't put hundreds of websites on the newsletter.

Now you are telling that you only mentioned the sample selective school test papers, Why do try to cheat other people and make a living out of it? You will suffer for rest of your life for such an nasty dirty behaviour.

Now I am asking the question again. Can I have access to the material taught in the opportunity classes before Friday?”

“I have stated before that I cannot (and will not) publicise websites in the school Newsletter. The only ones I publish are the ones linked to the SSU for practice tests for Selective high school and the website for the NAPLAN tests (due in May this year for all students in Australia in Years 3, 5, 7, and 9).

As I said to you this morning, you may have misunderstood me at our meeting. I will not be providing you with the programme or any associated websites that are part of the curriculum for the OC class. 6JM follow the same curriculum as the OC class. As I stated at our meeting the OC class completes the curriculum at a faster rate and then enriches it.

“Can I have access to the material used in the opportunity classes?”

“No. The teacher’s program is not for public use.”

“Why you did not tell me this before?

For the same question I have asked you couple of months before you said that the teaching material were downloaded from number of websites and you have put few of them in the newsletter because you can’t put all of them in the newsletter …

Either you improve the standard of education before May 31 or prepare to quit the principal job and give the chance to another person to make it. You can still do the teaching job, not necessary to be unemployed.”

“You are a cheat and got caught. So the best strategy for you is to not answer my questions any more …

You have deleberately [sic] lied to me and cheated me. I have requested the school some addition education material which the school has in possesion [sic] before the selective test to help my child. You have cheated me and behaved cheaply. You and your generation will suffer for this sin.

You should give access to other students to the material used in the opportunity classes. There is no way you can play hide and seek for too long.

Before you teach the children leadership, teach them to bevave [sic] honestly. Of course you can’t do that when you are not used to it.”

23 On 9 April 2008 the defendant requested an appointment with his daughters’ teachers. He was informed that they were not available before the end of the term, but that interviews would be arranged for early the next term. At 2pm he sent an email to the plaintiff in which he requested a meeting with the teachers before the end of term.

“By stopping the teachers on reporting the child performance at the end of the term, you have shown your true colors [sic] that you are a racist and discriminate some people …”

24 At 12.56am on 10 April 2008 the defendant sent the matter complained of to the plaintiff and 14 other parents.

25 Relevant to the issues, including malice and aggravated damages, is the history of events which took place after publication of the matter complained of. The following is a summary.

26 By letter of 18 April 2008 the plaintiff’s solicitors informed the defendant of the defamatory imputations claimed to have been conveyed by the matter complained of. Demand was made for an apology, costs, and the payment of a reasonable sum for compensation for the harm to the plaintiff’s reputation and hurt to her feelings caused by the publication, failing which proceedings would be commenced.

27 By email of 24 April 2008 to the plaintiff and to her solicitors, the defendant asserted that he stood by the claim that the plaintiff had lied to him about the provision of material taught in opportunity classes, and that she had blocked him talking to his daughters’ teachers for no reason. He asserted the allegations in the matter complained of were true. He said:

“… I did not ask her to quit because I hate her. I want another person can take over and improve the situation. We need to do something and urgently. The school has destroyed me eldest child future for which Mrs Ryan as principal has to take responsibility. My child will be defamed for another 70 years in her life working as a slave without proper education …

I don’t need to apologise for Mrs Ryan, in fact she has to apologise for number of things (refusing to access to education material that could have been helpful to prepare for my child test, blocked me to discuss my child performance with the teacher etc) …”

28 Subsequently the defendant continued to criticise the plaintiff in emails sent to her and to others. The following are examples.

29 On 30 April 2008 he sent emails to Ms Wasson in which he alleged the plaintiff had been dishonest and lied in saying she obtained his postal address from the telephone directory, and about arrangements for interviews with his daughters’ teachers.

30 On 2 May 2008 in his email to the plaintiff, Ms Wasson, and Ms Deonne Smith, the regional director of education, he repeated the allegations that the plaintiff was incompetent, a liar, and untrustworthy. It included:

31 In an email sent on 9 May 2008 to Ms Wasson and Ms Smith the defendant said:

“Mrs Ryan is the principal of the beecroft [sic] public school. She has access to my children record and other children records who were abused in the school chidren [sic] in the past four years. As far as she is sitting there as a principal, though she is incompetent for that position, I have my rights to discuss my children perormance [sic]. The time I barred correspondence with her, she become an enemy to my family and children, and Mrs Ryan should be barred to touch my children records…”

32 In an email sent on 16 May 2008 to Ms Smith and the Hon. Julia Gillard MP the defendant repeated the allegations of the plaintiff’s incompetence and dishonesty. He asserted that the school’s performance had dropped whilst she had been the principal, and referred to serious incidents such as mouth taping children, teachers tearing and throwing textbooks at children, and making sexually abusive comments, and children making racial comments about other children, and that the plaintiff had tried to cover up such incidents.

33 In the letter of 18 June 2008 to the defendant, prior to commencing these proceedings, the plaintiff’s solicitors requested a retraction, an apology, and the payment to the plaintiff of the sum of $25,000, and of her legal costs in the sum of $5,500. The proposal was not accepted. The defendant’s letter in reply of 25 June 2008 illustrates his adherence to the allegations in the matter complained of.

34 On 26 June 2008 the defendant wrote to the Minister for Education. The letter said:

“URGENT: SAFETY OF MY CHILDREN AT SCHOOL

1. Can you please appoint another staff in the school as a care taker for my two children to whom I can call and discuss the situation at emergency situation?

2. Request Mrs Ryan to not contact my children for any reason no go closer to my children?”

35 By email of the same day to Ms Wasson and Ms Smith, the defendant asked that the plaintiff be prevented from approaching his children. He said: “… any record handled by that woman is unreliable and should be destroyed”.

36 By his email sent on 29 June 2008 to the plaintiff and to Ms Smith, he accused the plaintiff of ordering the interrogation of his daughters which resulted in them feeling threatened, accused her of a conflict of interest and using dirty tactics, and threatened to report her to the Attorney General, DOCS, and The Law Council in order to protect his children from her.

37 By letter of 9 July 2008 to the Attorney General, the defendant referred to these proceedings and complained that, on the advice of her lawyer, the plaintiff was harassing his children at the school.

38 By letter of 24 July 2008 to Ms Smith, the defendant asserted that the plaintiff could not “… be a faithful and trusted guardian to [his] children”. He suggested she would physically threaten them, and sought preventative measures.

39 In an email sent 8 September 2008 to Ms Jane Simmons, Regional Director, Northern Sydney, the defendant expressed concern for his children’s safety and his fear that the plaintiff would harm them. In an email to her of 23 September 2008, he requested departmental action against the plaintiff for her incompetence.

40 In a letter of 2 June 2009, to the Indian High Commissioner, copied to the Director General, Department of Education, the defendant claimed that his daughters had been racially abused at the school. He also said:

“… The school principal has also made racial remarks and then discriminated on accessing school resources …

I sent an Email to the 14 parents in a class that the principal is incompetent & dishonest and she should quit and give way to another person for the sake of 600 children future in the school. I sent the email after my child was subjected to discrimination in a test centre with some other children. Despite there are many other parents also made complaint against her, the principal has started legal proceedings for defamation in the Supreme Court. Her lawyers have threatened to confiscate my property as compensation …

In November 2008, I wrote to the regional education director that the legal action taken by the principal against me was racially motivated because I was singled out of many protesting parents in the school. The regional director has failed to neither respond to my complaint nor take any action.”

Defences

41 As all of the imputations were established and found to be defamatory, it is necessary to deal with the defences.

Justification

42 The defendant contended that all the imputations were substantially true and hence defensible under s 25 of the Act. Having regard to the matters relied upon by the defendant in support of his case on truth it is convenient to consider separately under the headings in the matter complained of the evidence relevant to each of the allegations that the plaintiff was incompetent, dishonest and trustworthy, and responsible for the school’s low education standard.

Incompetence

43 This category includes the following imputations:

(a) The plaintiff was incompetent in her role as principal of Beecroft Primary School.

(b) The plaintiff was so incompetent in her role as principal of Beecroft Primary School, she should be dismissed.

(d) The plaintiff was incompetent in her role as principal of Beecroft Primary School in that she failed to follow up complaints from a parent.

(e) The plaintiff was incompetent in her role as principal of Beecroft Primary School in that she failed to report in the school newsletter a major incident concerning the school.

44 The defendant’s case on incompetence and on imputation (i) arose from the incident on 13 March 2008 at Normanhurst Boys High School when 79 students from the school, including his daughter B, were left waiting in the sun before taking the selective high school test. His wife was with them. Based on information from a conversation with his wife that morning, the defendant, by email, advised the plaintiff of the incident and asked her to investigate it. The plaintiff was not at school that day, and did not receive the email until her return next day.

45 On the morning of 14 March 2008 the plaintiff requested Ms Pollak to investigate the incident, which she described as totally unacceptable. She also passed on the defendant’s complaint to Ms Wasson, and said it was justified. She then informed the defendant that she had lodged an official complaint with the selective schools unit.

46 The plaintiff’s evidence was that, in accordance with applicable guidelines, she conveyed the complaint to the selective schools unit for investigation. She said it was not appropriate for her to conduct any part of the investigation herself. Later on 14 March 2008 Ms Pollak requested her to advise parents of the procedure for lodging complaints. The plaintiff then informed the teacher to whom two children had complained of the procedure. She said that in about September 2008 she was informed that the investigation found no case to answer. Her evidence was uncontradicted and unchallenged, and I accept it.

47 The defendant led no evidence to justify the assertions in the matter complained of that the plaintiff delayed acting until the next day, or had failed in her duty in not following up the matter, or in failing to publish details of the incident and her action in the newsletter. Unsurprisingly, no attempt was made to justify the allegation that the plaintiff had chosen to cover up the incident which founds imputation (i), an allegation which was contradicted by the emails of 14 March 2008. I find it to be false.

48 At this point it is convenient to refer to a summary of the evidence given in support of the plaintiff’s case that all of the imputations were false. By reason of their teaching experience and association with the plaintiff, the witnesses were well qualified to express their opinion about the plaintiff’s conduct as principal of the school. Their evidence was left unchallenged, and I accept it.

49 Ms Karen Blackwell has known the plaintiff since 1979, and as a fellow teacher as her assistant principal at Galston, and as deputy principal at Wahroonga, and as a fellow principal. Her evidence was to the effect that the allegations of incompetence, dishonesty and trustworthiness, and unfitness to serve as principal were false. Mr Stephen Bloomfield has known the plaintiff since 1996, and was her deputy principal at Wahroonga. His evidence was to similar effect. Ms Samantha Nicol first met the plaintiff when both started teaching at the school in 2004. She acts as the relieving assistant principal, and a classroom teacher, at the school. Her evidence was to similar effect. In her opinion the plaintiff was the best principal she had worked with in over 20 years of teaching.

50 Mr Wade Bridgewood is the deputy principal of the school, and has worked with the plaintiff since 2004. His evidence was that the allegations in the matter complained of were false. His view was that there had been a general increase in the number of students offered placements at selective high schools. Ms Wasson is the plaintiff’s direct supervisor and has known her since 2005. Her evidence was that the allegations of incompetence, dishonesty and untrustworthiness were false. She also said that since 2005 the school was consistently in the top three of the 27 primary schools for which she is responsible.

51 In my assessment there was simply no evidence capable of establishing the substantial truth of any of these imputations. I hold that the defence of justification fails in each case.

Dishonest

52 This category includes the following imputations:

(c) The plaintiff was so dishonest that she should be dismissed from her role as principal of Beecroft Primary School.

53 The defendant’s case was that, at the meeting on 19 February 2008, he asked the plaintiff to provide him with material given to the opportunity class for preparation for the selective high school tests. She replied in words to the effect that she could provide only Department of Education websites, some of which she had already published in the school newsletter. The defendant did not challenge the plaintiff’s evidence that she had published these websites. It is consistent with the minutes. He did not ask her, or anybody else, to identify the newsletter(s) which contained details of them. My impression was that the defendant accepted her evidence as truthful, which I find it to be.

54 Nevertheless, the defendant subsequently maintained his contention that her statement that she had published these websites in a newsletter was a lie. The only evidence in support of this proposition was that, on returning home after the meeting, he read newsletter(s) and could find no reference in it/them to a website (T p 256). He did not identify the newsletter(s) to which he was referring, and none was in evidence.

55 Proof of dishonest conduct as alleged in imputations (c) and (h) requires cogent evidence. The defendant’s evidence that he found no reference to the websites upon reading some unidentified newsletter(s) does not meet this requirement. The likelihood that the information was contained in a newsletter which he had overlooked or had not read was not eliminated. As the finding that he failed to discharge the onus of proof that these imputations were substantially true is inevitable, the defence is rejected.

Untrustworthy

56 This category includes imputation (j):

“The plaintiff was untrustworthy in her role as principal of Beecroft Primary School in that she improperly changed the test marks of students.”

57 To succeed it was for the defendant to prove that the plaintiff improperly changed the test marks of students.

58 The defendant’s evidence was that at the meeting on 19 February 2008 the plaintiff told him that she and other teachers had fiddled test scores sent to the Department of Education as part of the selective school marking process. He said that she told him, in effect, that after obtaining their averages, the students were ranked and if it was thought that a rank was incorrect the teachers might change it. He said that the plaintiff described what the teachers did as “fiddling” with the ranking.

59 In submissions the defendant referred to his email to the plaintiff of 21 February 2008 in which he said:

“Thanks for explaining the process of getting the school score sent to the selective school exam unit. I am not impressed by fiddling through the results after it was obtained through a set process. If the teacher is not happy with the results then you could fiddle with the process to improve it for the next year testing.”

60 In evidence, the plaintiff denied using the words “fiddling” at the meeting. She adhered to the explanation given to the defendant as recorded in the following passage in the minutes:

“Mrs Ryan again explained the BPS selective school process through Y5 testing and the student ranking process. With the large number of BPS applicants it was an imperative of the BPS ranking process to ensure that no two students had the same mark. BPS had to separate similarly ranked students and this was based on all the same assessments done in Year 5 by the Year 5 teachers. The applicants were then sent to the Selective Schools Unit where all the marks from all the schools were ‘moderated’. Absolute support was provided for the BPS process by the Selective Schools Unit, with whom BPS staff had had meetings on this aspect.”

61 Ms Nicol said that, as a grade coordinator, she was responsible for collating the selective school marks. She described the operation of the weighting system employed by the school, and said (T p 67):

“Once we have done all the grading, when we have done the weighting, then we – the computers puts – gives the child a percentage out of a hundred and then each class teacher writes that onto the selective schools paper, the selective schools form then the grade teachers give – that teacher gives that to me to check and to make sure everything has been filled in correctly and then when all that is done I give that to Jennie and Jennie signs the bottom …”

“… Yes. The top child is normally not far off 100. They might be two or three marks off 100. What we do is add three to everybody’s mark so everybody gets shifted up by the same amount but it is not actually the number, the mark on the paper the important thing. It is where the child is placed relative to their peers.

Q: So after that you don’t change the marks any more after that?

A: No, we check them.

Q: Yes?

A: But we don’t change them.”

62 Ms Nicol said that the plaintiff had no role in the process, and has never changed a student’s marks. Her evidence was unchallenged and uncontradicted, and I accept it.

63 Also in evidence was the plaintiff’s email to the defendant of 28 February 2008 with which she sent a copy of the school’s procedures for placement of students in opportunity classes and selective high schools. The procedures stated that marks would be allocated for English and mathematics indicating the students strengths in these areas, and their rank order in terms of the school cohort; that the mark and rank order for English and mathematics would be determined after consideration of the students performance in grade assessments; and that where no data was available to assist in determining the mark and rank for a student the classroom performance would be compared with a “like student” and a mark and rank determined by this comparison.

64 No attempt was made to prove any occasion of departure from the school procedures to indicate test marks of students were improperly changed, or to establish the involvement of the plaintiff in any aspect of the ranking process other than to the limited extent described by Ms Nicol. I find it improbable that the term “fiddle” was uttered at the meeting as the defendant suggests. Even if it was, the information given to the defendant then and on 25 February 2008 demonstrated no impropriety.

65 In my opinion the defendant has utterly failed to demonstrate the existence of conduct of the plaintiff, including her statement at the meeting, capable of establishing the substantial truth of the imputation. Indeed, Ms Nicol’s evidence is sufficient to prove its falsity. The defence of justification to this imputation fails.

Low education standard

66 This category includes the following imputations:

(f) The plaintiff was incompetent in her role as principal of Beecroft Primary School in that she was responsible for the decrease in the standard of eduction at Beecroft Primary School.

67 Justification of imputation (f) required objective proof of the decrease in the standard of education at the school for which the plaintiff was responsible. Justification of imputation (g) required objective proof that the plaintiff had failed in her duty to ensure that students learnt basic numeracy and literacy.

68 The defendant’s case on both imputations rose no higher than the assertion of his belief that in the period 2004 – 2008 the school’s education standard had declined. He said his belief was based principally on the contents of certain graphs contained in the school’s 2007 annual report, and observations as to the quality and standard of his daughters’ homework from time to time. (He later accepted that, in fact, he relied upon the 2006 annual report.)

69 In my opinion, analysis of the material contained in the annual report provides no proof of a trend of declining standards as alleged. There was no evidence of the homework to which the defendant referred, or of any standard by which its quality could be assessed. The defendant adduced no evidence relevant to imputation (g) that the plaintiff failed to ensure the students learnt basic numeracy and literacy.

70 Nevertheless, it is relevant to refer to briefly to evidence from several witnesses relevant to the issues raised under this defence.

71 The plaintiff’s opinion was that, compared to other state schools and like school groups, the school’s performance was outstanding. Her opinion was based on the results in the national assessment programme in literacy and numeracy for years 3, 5, 7 and 9 set out in the school’s 2008 annual report.

72 Mr Bridgewood’s opinion was that there had been no general decrease in standards, and that the information in the school’s 2007 annual report to which the defendant referred established no trend. He said that offers for places in selective high schools were well above the state average. Ms Wasson said that the school was constantly in the top three of the 27 primary schools for which she is responsible. Ms Nicol rejected the proposition that the school’s 2007 annual report evidenced a lowering of standards, and said that the general standard of straight and opportunity classes was very high. Mrs Caroline McKenzie, a parent of two students at the school, said she was happy with what they were taught, and with the standard of education.

73 In my assessment, the court was left with no rational basis upon which these imputations could be found to be substantially true. On the other hand, the evidence of the plaintiff and of the witnesses referred to above is sufficient for the findings, which I make, that imputations (f) and (g) are false. Accordingly the defence of justification to these imputations fails.

Generally

74 Imputation (k) is:

75 The defendant’s failure to establish the truth of the other imputations results in the rejection of the defence of justification for this imputation. There was ample evidence for the finding, which I make, that it is false.

76 In finding that the defence under s 25 of the Act to each imputation has failed, it was noteworthy that the defendant made no attempt through any of the witnesses with teaching qualifications to establish the truth of any imputation with reference to the matters attributed to the plaintiff in the matter complained of, or at all. There was simply no evidence before the court which was capable of establishing the substantial truth of any of the imputations.

Qualified privilege at common law

77 A recent analysis of the principles by which a court is guided in determining whether a libel was published on an occasion of qualified privilege was undertaken by McCallum J in Papaconstuntinos v Holmes á Court [2009] NSWSC 903. I respectfully agree with, and gratefully adopt, the following passage from her judgment:

Bashford v Information Australia (Newsletters) Pty Ltd

“At common law, a defamatory statement receives qualified protection when it is made in discharge of a duty or the furtherance or protection of an interest of the maker of the statement or some person with whom the publisher has a direct, business or social connection, and the recipient of the statement has a corresponding duty to receive or interest in receiving it” (citations omitted).

this

42 The notion of the “common convenience and welfare of society” is accordingly to be understood as the result of conferring the protection of the defence but not the determinant of whether the occasion is privileged.

Bashford

Bennette v Cohen

Bennette

Bashford

“Different considerations apply when the defendant volunteers defamatory information. Ordinarily the occasion for making a volunteered statement will be 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 to the recipient. The common law has generally perceived no advantage to society in giving qualified privilege to volunteered statements in the absence of a pre-existing reciprocity of interest between the defendant and the recipient. It has taken the view that the reputation of the defamed should be preferred over the freedom to publish volunteered but defamatory statements that may or may not be true.”

45 His Honour discussed the distinction with cases where the defendant is responding to a request and continued, at [77]:

“But where neither life is in immediate danger nor harm to the person or injury to property imminent, the fact that the defendant has volunteered defamatory matter is likely to be decisive against a finding of qualified privilege.”

Bashford

Goyan v Motyka

Lindholdt v Hyer

Bennette

78 The initial task, therefore, is to closely scrutinise all the circumstances of the case in order to determine whether the defendant had a duty to publish or an interest in publishing the matter complained of to the 14 recipients, and whether they had an interest in receiving it.

79 The principal subject of the matter complained of was the conduct of the plaintiff. It was addressed both to the plaintiff and to the recipients. It reads as the defendant’s personal call to the plaintiff to resign, and also as an invitation to the recipients to support his call for her resignation. The information it contained under the headings “Incompetent”, “Dishonest”, “Betray the trust we had on her”, and “Low education standard in the school” relates to the grounds for his dissatisfaction with the plaintiff as the school principal, the reasons for his call for her resignation, and the fact that he did not believe she was the right person for the position. The matters described were his private dealings with, and grievances against, the plaintiff.

80 The recipients were identified by the defendant from the list of parents of students in class 5C in the 2007 school phone book. There was no evidence of any relationship between the defendant and the recipients, or that, at the time of publication, any recipient was a parent of a student at the school. There was no evidence that the specific incidents described involved either the recipients or their children. The defendant said, in effect, that he selected the recipients on the assumption that their children had moved to class 6 in 2008, but he did not attempt to prove that they did. The only finding about them open on the evidence is that in 2007 they were parents of children in class 5C.

81 On the issue of reciprocity of interest, I understood the defendant’s case to have been as pleaded in the defence (p 10). It was that he and the recipients had children in class 6 in 2008 who were sitting for the selective schools test. As each of the issues raised in the matter complained of related to that test, there was established a common concern or interest in those issues.

82 The plaintiff disputed that the defendant had an interest which justified publication of the matter complained of, and that the recipients had an interest in receiving it.

83 In my opinion the plaintiff’s submission must be accepted. The basis for the contention that the interests in sending and receiving the defamatory assertions corresponded, namely, that all were parents of children in class 6, was not proved. Even assuming that it had been, I am unable to accept that the publication was made on an occasion where there was any need for the defendant to protect his interest by volunteering the defamatory information contained in it.

84 The recipients were not persons with authority over, or responsible for, the plaintiff’s performance as the principal. Thus they were not persons to whom a complaint about her conduct might properly be directed as having the relevant interest in knowing of its existence, or were persons capable of acting so as to further or protect the defendant’s interest. In other words, in my opinion, it cannot be said that the defendant was under a social or moral duty to make the publication to the recipients or had an interest to protect in doing so, or that they had a relevant interest in knowing of defamatory statements relating to his personal concerns in support of his call for the plaintiff’s resignation.

85 Furthermore, in my opinion, the defendant did not show the existence of any occasion or exigency which warranted publication of his grievances against the plaintiff (Bashford par 54).

86 Accordingly, I hold that the defendant has failed to prove that he had a legitimate interest to protect in making the defamatory comments and that the recipients had a reciprocal interest in receiving them. It follows that the defence of qualified privilege at common law fails.

Comment

87 Although unclear from the defence and his final submissions, it was accepted that the defendant relied upon the defences of fair comment at common law and of honest opinion under s 31(1) of the Act.

88 The elements of these defences were explained in Fraser v Holmes [2009] NSWCA 36 by Tobias JA as follows:

“(1) It is a defence to the publication of defamatory matter if the defendant proves that:
(a) the matter was an expression of opinion of the defendant, rather than a statement of fact, and
(b) the opinion related to a matter of public interest, and
(c) the opinion is based on proper material.”

John Fairfax Publications Pty Ltd v O’Shane

Gatley on Libel and Slander

Clarke v Norton

“something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation etc.”

77 Giles JA further explained the difference between fact and opinion in the following terms:

the matter

O’Shane

“requiring [in order for the defence to be established] that the defendant prove that the words complained of are comment as distinct from a statement of fact.”

Matter

including, amongst other things, a letter, note or other writing

Channel 7 Adelaide Pty Ltd v Manock

“An initial question will be whether the ordinary reasonable viewer would have understood that the meaning found to be conveyed was conveyed as comment. Another question would be whether that meaning was objectively fair. Another would be whether it was based on true facts. Each of the questions must be answered by treating the comment as being the twenty-eight words in the meaning which the court found …”

89 Relevantly subs 31(5) and (6) of the Act provides:

proper material

90 Under the common law defence and the statutory defence the initial question is whether the words of the matter complained of would be regarded by the ordinary reasonable reader as comment or a statement of fact. The defendant must prove that the defamatory assertions, taken in the context of the whole of the matter complained of, would be regarded as comment.

91 In my opinion, close analysis of the matter complained of in this case demonstrates that it consists, almost in its entirety, of clear statements of fact, whether true or false. The ordinary reasonable reader would understand from the structure of the email, which is stated to be on the subject “Call for Mrs Ryan to quit” that it contains statements of facts in support of the opening assertion that “… Mrs Ryan is an incompetent, dishonest and untrustworthy person to remain in the principal position of the school’ and the request that she “… give way to another person for the sake of the future of 600 children in Beecroft Primary”.

92 I find that the ordinary reasonable reader would regard the words of the matter complained of as statements of fact as distinct from comment or expressions of opinion. In my view such a reader would be incapable of gaining any other impression. It follows that I find that the ordinary reasonable reader would have understood each of the imputations conveyed by the matter complained of was conveyed as fact and not as comment or an expression of opinion.

93 Accordingly, as to the defences of fair comment at common law, and of honest opinion under s 31(1) of the Act, the defendant has failed to meet the first requirement, with the result that these defences fail.

94 However, should an appellate court disagree, I should state my finding that the defendant has also failed to establish that the opinion was based on facts truly stated or on “proper material” being material which is substantially true or was published on an occasion of qualified privilege (s 31(1)(c), (5)(a), (b)). This conclusion is based upon the reasons given for rejecting the defences of justification and qualified privilege at common law. (No issue arises under s 31(5)(c).)

Malice

95 The defence of qualified privilege is lost if the plaintiff can prove that the publication of the matter complained of was actuated by malice or improper motive. Should my conclusion that the defence of qualified privilege was not established be wrong, I should state my findings relevant to the issue of malice.

96 In her reply, the plaintiff alleged that the defendant was motivated by the following improper purposes:

(a) his intention to harm the plaintiff;

(b) his intention to cause the plaintiff to lose her job as principal of the school; and/or

97 The particulars of malice included the following facts and matters:

(a) the matter complained of was published by the defendant in the knowledge of the falsity of, or with reckless indifference to the truth or falsity of assertions that the plaintiff was incompetent, dishonest, untrustworthy, responsible for the decline in the standard of education in the last four years, that the defendant had lied to him, and that she had fiddled with test scores;

98 The plaintiff also relied upon other matters including the form and content of the matter complained of itself, the defendant’s failure to apologise, and emails and letters sent by the defendant after publication of the matter complained of.

99 The principles were recently reviewed in Fraser v Holmes [2009] NSWCA 36 by Tobias JA (McColl, Basten JJA agreeing) in the following passage from his judgment:

Roberts v Bass

If one of these matters is proved, it usually provides a premise for inferring that the defendant was actuated by an improper motive in making the publication

But, leaving aside the special case of knowledge of falsity, mere proof of the defendant's ill-will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice. The evidence or the publication must also show some ground for concluding that the ill-will, lack of belief in the truth of the publication, recklessness, bias, prejudice or other motive existed on the privileged occasion and actuated the publication

Conversely, even if the defendant believes that the defamatory statement is true, malice will be established by proof that the publication was actuated by a motive foreign to the privileged occasion. That is because qualified privilege is, and can only be, destroyed by the existence of an improper motive that actuates the publication

Gross v Weston

Roberts

when present with other evidence

with other evidence

Recklessness/wilful blindness

“42 Recklessness, short of a wilful blindness, is not enough to destroy the defence of qualified privilege: [87](3). In exceptional circumstances, the sheer recklessness of the defendant in making the defamatory statement may justify a finding of malice [improper motive]: [84](1), [98](1). The defendant's conduct may be so gross as to constitute wilful blindness, which the law will treated as equivalent to knowledge: [84](3).

43 In less extreme cases, recklessness — when present with other factors — may be cogent evidence that the defendant used the occasion for some improper motive: [84](2), [84](4). This is particularly so when the recklessness is associated with unreasoning prejudice on the part of the defendant: [84](5).” (emphasis added)

Roberts v Bass

Roberts

Royal Aquarium

Clark

Lindholt

Roberts v Bass

Horrocks

100 The plaintiff submitted that the dominant motive of the defendant in publishing the matter complained of was to harm the plaintiff and cause her to suffer, and to lose her position as principal. It was put that this motive stemmed from the defendant’s perception that the plaintiff was responsible for what he claimed to be the inadequate teaching of his daughter, B.

101 A substantial part of the evidence relied upon by the plaintiff consisted of the defendant’s emails sent between 28 February 2008 and 9 April 2008 and between 24 April 2008 and 2 June 2009, the relevant contents of which are set out above. For the purpose of deciding this issue it is sufficient to refer only to the following.

102 The defendant’s email to the plaintiff of 21 February 2008 expresses disappointment that she declined his request for material given to opportunity classes. His email of 28 February 2008 asserts that her negligence in the provision of education is injurious to students in her care. His email of 6 March 2008 accuses the plaintiff of offering worthless education, states his feeling that the teachers are stupid for not accepting his claims about the system, and demands change or her retirement. His email of 11 March 2008 claims that he has been betrayed by the school in its failure to provide adequate coaching for his daughter.

103 By email of 3 April 2008 the defendant requested a copy of the school newsletter in which the web addresses were published. He accuses the plaintiff of responsibility for the school’s low standard of education, and raises the question of her resignation, adding: “… I am sure you do not want to be pushed out”.

104 The embers of dissatisfaction burst into a blaze of ill-will towards the plaintiff as shown by the emails of 8 April 2008, which were prompted by her refusal to provide him with the materials taught in the opportunity classes. At 9.32am he accused her of lying to him about that material. He branded her as a cheat, and asserted she would suffer for the rest of her life for “… such an [sic] nasty dirty behaviour.” He sent a number of other emails in similar venomous vein. His email of 5.06pm included:

“You have deleberately [sic] lied to me and cheated me. I have requested the school some addition education material which the school has in possession before the selective test to help my child. You have cheated me and behaved cheaply. You and your generation will suffer for this sin.”

105 The defendant explained that these allegations were based on his failure to find a reference to website addresses in a newsletter after the plaintiff had told him on 19 February 2008 that she had published them. It demonstrates the depth of his anger towards her at this time, and his readiness to make assertions against her based on unreasoning prejudice.

106 On 9 April 2008 the defendant sought interviews with his daughters’ teachers before the term ended two days later. As the interviews could not be arranged in time, they were fixed to take place early the next term. His reaction to this situation was to then send an email to the plaintiff and to Ms Wasson asserting that “… By stopping the teachers on reporting the child performance at the end of the term, you have shown your true colours that you are a racist and discriminate some people”.

107 The defendant is well educated, and has no difficulty with the English language. I have no doubt that he well knew the ordinary meaning conveyed by the terms of his emails, and of the likely impact of them. By this time, the ill-will harboured towards the plaintiff was manifest. It is with regard to it that the defendant’s motive in publishing the matter complained of is to be evaluated.

108 The publication was made at 12.56am on 10 April 2008. The defendant said (T p 255) he was angry with the plaintiff because she lied to him, and did not listen to a number of suggestions he made to improve education in the school. He wanted her to suffer (T p 258). He said his purpose or intention in sending the email was to have her resign as principal. He accepted that the allegations of incompetence, dishonesty, and untrustworthiness, made to the recipients were likely to be very damaging. He acknowledged that, prior to publication, he had not checked the emails of 13th and 14th March 2008 concerning the plaintiff’s response to his complaint about the selective schools test incidents. With regard to the statements as to declining standards during the last four years, his information was confined to his experience with his children over the past two and a half years, and to statistics to the 2006 school annual report. As to care, the following passage is relevant (T p 274 l 20-27):

“Q: You didn’t care, did you, whether or not what you said in this email was accurate or not accurate?

A: It is accurate. It was accurate as what I was thinking at that time, and yes.

Q: That’s not the question I asked you, Mr Pemachandran. You didn’t care whether it was accurate or not accurate when you wrote?

A: You got to define how much accuracy you would look for. If you look for hundred percent accuracy then maybe you are right.”

109 Furthermore, analysis of statements made in the matter complained of shows that the defendant knowingly falsified information to denigrate the plaintiff. For example, as to the incident on 13 March 2008, the defendant knew or ought to have known that it was wrong to suggest the plaintiff had been guilty of inaction, or that she had chosen to cover up “… the whole incident”. As to the accusation of dishonesty, I am satisfied that he knew it was false to suggest that she had cheated or deceived him at the meeting on 19 February 2008. As to the accusation of untrustworthy, he knew it was false, by use of terms such as “fiddled” and “fiddling process” to suggest that the plaintiff herself, improperly and/or arbitrarily adjusted scores or condoned such conduct. The ranking process had been explained to him at the meeting on 19 February 2008, and he was sent the school’s procedures by the plaintiff on 28 February 2008 which made the nature and purpose of the exercise clear.

110 The pre-publication emails, the very language of the matter complained of, and the defendant’s evidence referred to, provide ample support for the finding that the motive and intention which actuated the publication was to force the plaintiff to resign by discrediting and denigrating her before the recipients. Put another way, I am satisfied that his dominant motive, by reason of his dislike and anger towards her, was to so injure the plaintiff that she would resign.

111 It is unnecessary to repeat details of the accusations about the plaintiff conveyed in the emails and letters post publication which I have set out earlier (pars 25 to 40). They reinforce the conclusion that the publication of the matter complained of was malicious, and demonstrate the continuation of his ill-will until recent times.

112 Before concluding, it is appropriate to record that in evidence the defendant asserted his belief in the truth of the defamatory assertions and imputations complained of by the plaintiff. When cross-examined as to the grounds for his belief in each case, the defendant was unable to provide answers sufficiently rational to support the conclusion that it was based on true facts. During the hearing, he asserted his present belief that the defamatory matter was true, doing so in the teeth of the uncontradicted evidence of its falsity. I am satisfied that his allegations were groundless, and were the product of fantasy fuelled by enduring ill-will towards the plaintiff, and his desire to discredit her and bring her down.

113 For these reasons, I hold that the publication of the matter complained of was malicious in that it was made for the improper purpose of injuring the plaintiff, being a motive foreign to the privileged occasion claimed by the defendant. The defence of qualified privilege fails.

Damages

Principles

114 By s 34 of the Act, the court, in determining the amount of damages to be awarded, is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.

115 By s 35(1) the maximum amount for non-economic loss which may be awarded is $294,500.

116 By s 36 the court is to disregard the malice of the defendant at the time of the publication or at any other time except to the extent that the malice affects the harm sustained by the plaintiff.

117 By s 37 an award of exemplary or punitive damages is precluded.

118 The relevant principles were stated in Ali v Nationwide News Pty Ltd [2008] NSWCA 183 (pars 70-84) by Tobias JA and McColl JA. They referred to the following observations of Hayne J in Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327 (par 60):

Carson v John Fairfax & Sons Ltd

Carson

119 Hayne J, went on to point out (par 67) that assigning a money sum as sufficient to remedy personal distress, hurt and harm to reputation and to vindicate a plaintiff’s reputation translates losses which have no market value into amounts of money. He said:

“… But in neither defamation nor in other cases of non-pecuniary loss can any standard of evaluation be employed except one that is described in qualitative and therefore necessarily imprecise terms. The damages that may be awarded “are such as the jury may give when the judge cannot point out any measure by which they are to be assessed, except the opinion and judgment of a reasonable man”.”

120 In the assessment of compensatory damages for harm to reputation in a case such as this it is important to take into account the observations of Mahoney, ACJ in Crampton v Nugawela (1996) 41 NSWLR 176, p 193 that “… 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 … the trustworthiness, actual or reputed of a professional colleague is a matter of a legitimate and ongoing interest”, and p 195 “In my opinion, 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”. In Readers Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500, Brennan J held (p 507) that account may be taken of an especially adverse impact of the defamatory imputation upon the plaintiff’s reputation in the eyes of some group or class in the community.

121 With respect to aggravated damages it is important to keep in mind that any award of aggravated damages must be confined to what is truly compensation for the relevant harm to the plaintiff caused by the defendant’s conduct and must not include any element of punitive damages. Such conduct must be in some way unjustifiable, improper, or lacking in bona fides (Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497).

122 In Ali (pars 79-85) courts are reminded that in awarding aggravated damages, the conduct of the defendant which will increase the harm caused by the publication of the libel, a failure to apologise, and the conduct of the defendant right up to the amount of verdict are all matters which may be taken into account.

The plaintiff

123 The plaintiff has been married for over 40 years, has two adult children, and has been teaching for over 40 years.

124 On merit, she has been appointed to senior teaching positions including that of principal at Galston Public School (1990), and of Wahroonga Public School (1996), and her present position as principal of the school (2004). As already mentioned, she has received a number of awards attesting to her professional competence and service including the Premier of NSW Community Award in recognition of outstanding services to the community (2003), and the Certificate of Meritorious Service (2006).

Impact of matter complained of

125 The plaintiff spoke of her feelings about the matter complained and the conduct of the defendant towards her. I accept her evidence of which the following is a summary.

126 The plaintiff first read the matter complained of upon arrival at school on 10 April 2008. She had no forewarning. Recognising that it was a call for her to quit which had been sent to 14 people, she felt hurt and humiliated. She was angry that the defendant could publish an email which basically bullied her, and accused her of things that the defendant knew to be false.

127 Recollection of the publication has affected her health. She becomes distressed and loses sleep. Upon hearing from staff that the publication was circulating in the community she became concerned not only for her reputation, but for that of the school. She said that although she knew that the accusations were false, she was not able to answer them. She was upset when some parents avoided her at the school, and when some questioned her about the publication and the legal action she has taken.

128 The plaintiff’s evidence concerning the defendant’s correspondence after her solicitors’ letter to him of 18 April 2008 and, in particular, to the defendant’s emails of 24 April 2008 in which the allegations of fiddling with test scores were repeated, was the following (T p 33):

“Q. … he repeats the allegation that you fiddled with the test scores and you then lied about it?

A. Yes.

Q. How did you feel that he was repeating that accusation?

A. I started - to be honest, I started to wonder what his agenda was. I was very upset. I was concerned. I was not concerned for my position. I knew I would maintain my position because none of these allegations had ever surfaced from people who had the authority to have me dismissed; they had only come from one parent and I couldn't understand why. They became increasingly personal, increasingly untrue and increasingly hurtful. This was a man who seemed to be hell-bent on having me dismissed from my job that I had done so successfully for twenty years, with no basis of truth.

Q. And on that second page he says, "I don't need to apologise to Mrs Ryan". How did you feel about his refusal to, in fact, apologise then?

A. Again, I think this goes to my period of bewilderment of why, why would he persist in this nasty vendetta against me. I had received a barrage of e-mails until, finally, the Legal Services Department had said to not answer any more.“

129 With reference to the newspaper articles published in July 2008, the plaintiff said they caused her to become upset, and concerned at the impression given to the community by the matter attributed to the defendant. The continuation of the accusations in the defendant’s emails caused the plaintiff to believe that he was waging a vendetta against her, and would not accept anything which she, Ms Wasson, or Ms Smith could say to refute them. Allegations of violence, abuse and harassment towards his, or any, children she regarded as extremely hurtful and alleging conduct to a lifetime of caring for children.

130 The plaintiff’s reaction to the letters of 9 July 2008 to the Attorney General, and Ms Smith, as regional director, was that the defendant was on a “… very vexatious mission to have me dismissed from my position” (T p 45), based on false allegations which put in question the reputations of both herself and the school.

131 In his email of 2 June 2009 to the Indian High Commissioner, copied to the Director General, Department of Education of New South Wales, the defendant accused the plaintiff, inter alia, of racism and discrimination. The relevant evidence was as follows:

“Q. How do you feel about the fact that Mr Premachandran was making these allegations about you to Mr Trotter and to the Indian High Commissioner?

A. Again, all I can say is that his attacks were based on lies and Dr Premachandran is an educated man. He knew where to find a primary source that would answer his questions. He would not accept answers from anyone. He continued, he continued chipping away, trying to get me dismissed. I don't know why he sent it to the Indian High Commissioner. Only he could answer that, but it is very hurtful, very hurtful to be written about in this way to the Indian High Commissioner. This could have an effect on Beecroft School and the effect it could have is that anyone who comes from India who might ring the Consulate and ask for a good school in the area to send their children, they could be told, "Go anywhere but Beecroft".

Q. Are there other children of Indian descent in the school?

A. Oh yes, yes, many …”

“Q. Mrs Ryan, this morning a number of emails and other letters from the defendant to various persons have been tendered in this Court, some before the publication of the matter complained of on 10 April, but most of them afterwards. How do you feel about the totality of that conduct on the part of the defendant against you?

A. Well, first of all I came to the conclusion that he was after me in as far as wanting me to be dismissed from my position as principal. But secondly, I did come to think that the barrage of emails which I looked on towards the end as being a vendetta was perhaps a threat to have me stop the litigation of, if he kept going and kept sending emails through these to me to irrelevant parties, maybe his thoughts were that I would stop the legal action. I have no way of knowing but that's how I felt.”

132 The evidence of Ms Blackwell, Mr Bloomfield, Ms Nicol, Mr Bridgewood and Ms Wasson establishes that the plaintiff held a high reputation among the teaching profession. Ms Nicol, Mr Bridgewood and Ms Wasson also spoke of their observations of the plaintiff’s reaction to the publication to the effect that it caused a loss of confidence, and concern that the reputation of herself, and of the school, had been questioned in the community.

Assessment

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 (pars 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.

140 I assess damages in the amount of $80,000.

141 The plaintiff claims interest from the date of publication, 10 April 2008, at the rate of 4 per cent per annum.

142 Taking an overall view of the evidence as to damage, I find that the greater part of compensable harm referable to damage to reputation would have been suffered early in the period between publication and judgment. However, I find that the significant component of harm resulting from the publication was the hurt to the plaintiff’s feelings which the defendant continued to exacerbate throughout this period. There has been no delay by the plaintiff in commencing and prosecuting these proceedings. In this case, the award compensates for loss and harm spread throughout the period from the date of publication to trial. In my opinion it is appropriate to calculate interest on the amount of the award at the rate of 2 per cent per annum from 10 April 2008 to the date of judgment. That calculation, rounded off, produces the sum of $2,543.

143 Accordingly there will be a verdict and judgment for the plaintiff against the defendant in the sum of $82,543.

144 The question of costs remains outstanding. Failing agreement, arrangements should be made with my associate by 4pm 13 November 2009 to list the matter for argument.

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Citations

Ryan v Premachandran [2009] NSWSC 1186

Most Recent Citation

Barrow v Bolt [2013] VSC 226

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CITATION:	Ryan v Premachandran [2009] NSWSC 1186
HEARING DATE(S):	20.07.09, 21.07.09, 22.07.09, 23.07.09
JUDGMENT DATE :	6 November 2009
JUDGMENT OF:	Nicholas J
DECISION:	par 143
CATCHWORDS:	DEFAMATION – trial by judge alone on all issues – email sent to plaintiff and 14 recipients – defences – justification – whether imputations that the plaintiff was incompetent, dishonest, untrustworthy, and responsible for the school’s low education standard were true – common law qualified privilege – information volunteered – whether reciprocity of interest established – whether occasion of qualified privilege – malice – whether publication actuated by improper motive – fair comment and honest opinion – whether the words were comment or statements of fact – whether aggravated damages – assessment of damages
LEGISLATION CITED:	Defamation Act 2005 Uniform Civil Procedure Rules 2005
CATEGORY:	Principal judgment
CASES CITED:	Ali v Nationwide News Pty Ltd [2008] NSWCA 183 Broome v Cassell [1972] AC 1027 Crampton v Nugawela (1996) 41 NSWLR 176 Fraser v Holmes [2009] NSWCA 36 Ley v Hamilton (1935) 153 LT 384 Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69; (2001) 208 CLR 388 Papaconstuntinos v Holmes á Court [2009] NSWSC 903 Readers Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500 Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327 Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497
PARTIES:	Jennie Ryan - plaintiff Rajaratnam Premachandran - defendant
FILE NUMBER(S):	SC 20263/08
COUNSEL:	S T Chrysanthou/P Maddigan - plaintiff Self represented - defendant
SOLICITORS:	Kalantzis Lawyers - plaintiff Self represented - defendant